Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 17
PETITIONER:
JOGINDER NATH AND ORS.
Vs.
RESPONDENT:
UNION OF INDIA AND ORS.
DATE OF JUDGMENT31/10/1974
BENCH:
UNTWALIA, N.L.
BENCH:
UNTWALIA, N.L.
MATHEW, KUTTYIL KURIEN
CITATION:
1975 AIR 511 1975 SCR (2) 553
1975 SCC (3) 459
CITATOR INFO :
F 1977 SC1673 (10)
RF 1977 SC2338 (13,14)
D 1984 SC1595 (38,68,90)
RF 1990 SC 722 (32)
ACT:
Constitution of India-Art. 14-Treating unequals as equals-
Length of service-Art. 309-Laches-Whether rule of law or
rule of practice-civil Service -Delhi Higher Judicial
Service Rules, 1970-Delhi Judicial Service Rules 1970
Seniority and confirmation-Substantive-Officiating-Probation
appointments. Interpretation of Statutes-Whether
Constitutionality of a rule can be saved by interpreting it
in a reasonable sensible and just manner.
HEADNOTE:
The petitioners originally belonged to the Punjab Civil
Service (Judicial) in the time scale of Rs. 400-1250. They
had been put in the scale of Rs. 1300-1500.. On the other
hand, respondents 3 to 5 were judicial officers in the U.P.
in the lower scale of Rs. 300-900. The next higher scale on
being appointed to the post of Additional District
Magistrate was Rs. 400-1000. Prior to 1966, the Union
Territory of Delhi for the purposes. of administration of
justice was included within the territorial jurisdiction of
the erstwhile Punjab High Court and the Presiding Officers
of the courts at Delhi were posted by transfer from the
State of Punjab. There was no separation of executive and
judiciary.
In1970, Delhi Higher Judicial Service Rules, 1970 and
Delhi Judicial Service Rules1970 were framed under Art.
309 of the Constitution. A selection Committee was
constituted in accordance with rule 7 of the Delhi Judicial
Service Rules. On the basis of the recommendation of
the Selection Committee, appointments of officers by way of
initial recruitment to the Delhi Judicial Service were made.
Petitioners 1 and 2 were working as Assistant Sessions
Judges at the time of initial constitution of the Delhi
Judicial Service while none of the respondents 3 to 5 was
appointed as Assistant Sessions Judge in spite of their
longer service in the cadre of U.P. Judicial Officers
Service. The petitioners were promoted to the post of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 17
Additional District Judges in January and March, 1972.
Respondents 3 to 5 were not considered to have qualified for
being promoted as Additional District Judges. Respondents 3
to 5 were promoted as Additional District Judges in June,
1972 and respondent No. 6 was promoted in June, 1973. Thus
respondents 3 to 6 were promoted to the higher judicial
service later on, yet they were made to rank senior to
petitioners under rule 8 of the Delhi Higher Judicial Ser-
vice Rules. Rule 9 of Delhi Judicial Service Rules provides
that initial recruitment to the service would be made from
amongst the subordinate Judges and Law Graduate Judicial
Magistrates working in the Union Territory of Delhi on de-
putation from other States as well as members of Civil
Judicial Cadres of States whose names might be recommended
by their respective State Governments for appointment and
members of Delhi, Himachal Pradesh and Andaman & Nicobar
islands who were law graduates. Rule 11 of Delhi Judicial
Service Rules provides that the Selection Committee should
arrange the seniority of the candidates recommended by it in
accordance with the length of service rendered by them in,
the cadre to which they belonged at the time of their
initial recruitment the service provided that the interse
seniority as already fixed in such cadre shall not be al-
tered. Rule 7 of Delhi Higher Judicial Service Rules
provides that recruitment after the initial recruitment
shall be made by promotion from the Delhi Judicial Service
and by direct recruitment from the Bar. It further provides
that not more than one third of the substantive posts in the
service should be held by direct recruits. Rules 8 further
provides that the interse seniority of members of Delhi
Higher Judicial Service promoted to the service shall be the
same as in Delhi Judicial Service and that the seniority of
Direct Recruits vis-a-vis Promotees shall be determined on
the basis of roaster following the quota system.
The petitioner’s contention was that they should be treated
as senior to respondents 3 to 6. The petitioners contended
that rule 9 of the Delhi Judicial Service Rules was bad as
it was not framed in accordance with Article 234 of them
554.
Constitution and also because it permitted the initial
appointment to the Delhi Judicial Service of persons who
were not in any judicial service from before. The
petitioners further contended that rule 11 of the Delhi
Judicial Service Rules is bad as it infringes Article 14 of
the Constitution inasmuch as it equates length of judicial
service with the length of non-judicial service for the
purpose of fixing seniority and thus treats unequals as
equals. Rule 8 of the Delhi Higher Judicial Service Rules
is bad because it fixes the seniority in higher service
according to the seniority in the lower one.
The respondents controverted the contention of the
petitioners. In addition the respondent contended that the
Writ Petition was not maintainable on the ground of delay.
It was also contended that after the impugned seniority list
a further seniority list was published which has not been
challenged and that, therefore, the petition ought to be
dismissed.
HELD : (i) The relative position of the petitioners and
respondents 3 to 6 remains the same in the new seniority
list as it was in the impugned seniority list. The
contention of the respondent therefore cannot succeed.
(ii)The question of laches is one of discretion. There is
no lower limit and there is no upper limit. The rule which
says that the court may not enquire into the belated and
stale claims is not a rule of law but a rule of practice
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 17
based on sound and proper exercise of discretion and there
is no inviolable rule that when-ever there is delay the
court must necessarily refuse to entertain the Petition.
Each case must depend upon its own facts. In the present
case, nothing special has happened creating any right in
favour of the respondent or no such position has been
created the disturbance of which would unsettle the long
standing settled matters. The writ application, therefore,
cannot be thrown out on the ground of delay in regard to any
of the reliefs, asked for by the petitioners. [559C; G & A-
D]
(iii)It is difficult to find any trace of invalidity in rule
9 of the Delhi Judicial Service Rules. For the purpose of
initial recruitment to the Service officers of the Judicial
cadre all the officers although not belonging to the
judicial cadre but by and large performing the judicial
functions could be put together. There was no infraction of
Arts. 14 and 16. Rule 11 of Delhi Judicial Service which
provides that the seniority should be determined in
accordance with the length of service does not put unequals
as equals. The rule is neither arbitrary nor
discriminatory. Once the Selection Committee found persons
belonging to Clause (a) rule 9 suitable for appointment to
the service it was under a duty and obligation to arrange
the list of suitable persons by placing them in proper Place
in the matter of seniority. Arranging the seniority in
accordance with the length of service rendered in judicial
cadre to which they belonged at the time of their initial
recruitment to the service was perfectly good. Petitioners
cannot have any grievance in that regard. It was not
possible to have a different yardstick. Taking the length
of service for the purpose of fixation of seniority was
justified, legal and valid. For the purpose of fixation of
seniority it would have been highly against, and un-
reasonable to take the date of their initial recruitment to
the service as their first appointment. Nor was it possible
to take any other date in between the period of their
service in their parent cadre. It would have been wholly
arbitrary. There was no escape from the POsition that the
entire length of service of the two classes of officers had
got to be counted for the purpose of determination of their
seniority on their initial recruitment to the Delhi Judicial
Service. It was not possible or practical to measure the
respective merits for the purpose of seniority with
mathematical precision by Barometer but some formula doing
largest good to the largest number had to be evolved. The
only reasonable and workable formula which could be evolved
was the one engrafted in rule 11. [561F; 562C-H]
Kunniathat Thatthuni Moopil Nair v. The State of Kerala and
another, [1961] 3 S.C.R. 77, distinguished.
Jalan Trading Co. (Private Ltd.) v. Mill Mazdoor Union,
[1961] 1 S.C.R. 15, distinguished.
(iv)In the instant case, treating the two classes as one
for the purpose of initial recruitment and fixation of
seniority was reasonable as the classification was one which
included all persons who were similarly situated with
respect to the purpose of the law. [563G-H]
555
(v)The interse seniority of the members of the Delhi
Judicial Service promoted to the higher service would be the
same provided the promotion from the lower to the higher
service is at the same time. If a member of Delhi Judicial
Service is superseded at the time of recruitment under rule
7 by his junior but gets a chance of promotion later it is
obvious that he cannot retain his seniority in the lower
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 17
rank. All candidates on appointment to higher service have
jot to be on. probation for a period of 2 years ordinarily
and generally they would be confirmed it the end of the said
period of 2 years. Strictly speaking, the Question of
determination of interse seniority under rule 8 will crop up
at the time of confirmation of the appointee. The question
of seniority therefore has to be determined when the persons
appointed either temporarily or on officiating basis are-
given substantive appointments ’ So far as the petitioners
and three respondents. are concerned that time is yet to
come. Two members of the Delhi Judicial Service confirmed
in the higher service at the same time will retain their
interse seniority as in the lower service but if they are
not confirmed at the same time then one who is confirmed
earlier will be senior to the one who is confirmed later-
though they might have been appointed on probation at the
same time. There are no rules prescribing the mode of
determination of interse seniority of temporary appointees
or permitting them to count their officiation in the
temporary appointments for the purpose of their seniority on
their being appointed substantively. The attack on the
constitutionality of rule 8 is obliterated in view of the-
construction placed by this Court. In the absence of such
an interpretation rule 8 would be discriminatory and
violative of Art. 14 of the Constitution. With the aid of
well established connons of interpretation. we see no
difficulty in saving the constitutionality of the rule by
interpreting it in a reasonable sensible and just manner.
[566BC; FH]
(vi)The appointment of a Government servant to a permanent
post may be. substantive or on probation or on officiating
basis. An appointment to officiatein a permanent post is
usually made when the incumbent substantively holding, that
post is on leave or when the permanent post is vacant and no
substantive appointment has yet been made to that post.
Such an officiating appointment comes to an end on the
return of the incumbent substantively holding post from
leavein the former case or on the substantive appointment.
In the instant case due to justifiable reasons the
appointment of respondents 3 and 4 substantively to 14th and
15th vacancies was deferred and the petitioner No. 1 was
made to officiation in a temporary capacity against the
substantive vacancy. Such an officiation came to an end on
the substantive apppointment of either of respondent No. 3
or 4. [569A-C]
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition No. 1854 of 1973.
Petition under Article 32 of the Constitution of India.
V.M. Tarkunde, Shyania Pappu, D. D. Sharma and Ashok Kunnar
Srivastava, for the petitioners.
L.N. Sinha, Solicitor General of India and R. N. Sachthey
for respondents nos. 1-2.
B. P. Maheshwari for respondent no. 3.
R.K. Garg, S. C. Agarwal, S. C. Bhatnagar, V. J. Francis and
S. K. Mehta, for respondents nos. 4-6.
The Judgment of the Court was delivered by
UNTWALIA, J.-The four petitioners in this petition under
Article 32 of the Constitution of India are working as
Additional District &
556
’Sessions Judges in the Delhi Higher Judicial Service at
Delhi. Their ,prayers in ,his writ petition are to strike
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 17
down Rules 9(a) and 11 of the Delhi Judicial Service Rules,
1970 as being ultra vires and violative of Articles 14 and
16 of the Constitution and to declare Rule 8 of Delhi Higher
Judicial Service Rules, 1970 as void and unconstitutional.
Their further prayer is to quash the fixation of the
seniority of the petitioners and respondents 3 to 6 and to
place petitioners 1 to 4 above respondents 3 to 5 and
petitioners 2 to 4 above respondent 6 in the ,,gradation of
seniority in Delhi Judicial Service and Delhi Higher
Judicial Service.
All the four petitioners originally belonged to the Punjab
Civil service (Judicial). Shri Joginder Nath, petitioner
no. 1 joined ,he said service on 2.7.1956, Shri D. C.
Aggarwal, petitioner no. 2 on 2.7.1957, Shri S. R. Goel,
petitioner no. 3 on 8.7.1957 and Shri P. L. Singla,
petitioner no. 4 on 10.10.1958. Prior to 1966, the
Union .Territory of Delhi for the purposes of administration
of Justice was included within the territorial Jurisdiction
of the erstwhile Punjab High ,Court and Presiding Officers
of the Courts at Delhi were posted by transfer from the
State of Punjab. There was no separation of Executive and
Judiciary. The Magistrates were selected on ad hoc basis
from the States of U.P. and Punjab and were posted to work
as such ::at Delhi. Later on creation of the States of
Punjab and Haryana the officers of Punjab and Haryana Civil
Service (Judicial) cadre used to be posted in Delhi against
all judicial posts. A separate High Court for Delhi was
constituted on the 31st October, 1966. The arrangement in
regard to Judicial officers in the lower Courts however
continued as before. In 1969 under the Union Territories
(separation of Judicial and Executive functions) Act, the
magistracy in Delhi was split up into two parts with effect
from 2.10.1969. Some magistrates ,.of the State Civil
Service, Executive Branch, were transferred to work under
the superintendence and control of the High Court of Delhi
while others were assigned Executive duties and remained
under the ,control of the Delhi Administration as before.
In pursuance of the ’Scheme of separation aforesaid,
respondents 3 to 5 who were working as Judicial Magistrates
from before were appointed as Chief or Additional Chief
Judicial Magistrates under the aforesaid Union Territories
Act of 1969. They were formerly Officers of the U.P.
Judicial ’Officers Service. Respondent no. 6 was a member
of the Haryana Civil Service (Judicial). Respondents 3 to 5
were performing the functions of Revenue Officers and
Judicial Magistrates in U.P. and .thereafter in Delhi.
The petitioners case is that on 27-8-1970 the Lt., Governor
of Delhi, respondent no. 2 as Administrator of the Union
Territory framed Delhi Higher Judicial Service Rules, 1970
and Delhi Judicial Service Rules, 1970 under Article 309 of
the Constitution read with certain notifications of the
Government of India, Ministry of Home Affairs. A Selection
Committee was constituted in accordance with Rule 7 of the
Delhi Judical Service Rules. On the basis of the
recommendations of the Selection Committee, respondent no. 2
made ’appointment of officers by way of initial recruitment
to the Delhi
557
Judicial Service under Rule 8. 61 officers were selected. It
may however, be stated here that as per the statement in the
counter-affidavit filed on behalf of respondent no. 2 only
49 officers joined. The petitioners 1 to 4 were placed in
the seniority list of the Delhi Judicial Service at serial
nos. 6, 9, 12 and 13 respectively while the respective
serial nos. assigned to respondents 3 to 6 were 1, 2, 4 and
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 17
7. It would thus be seen that respondent no. 6 was junior to
petitioner no. 1 but senior to petitioners 2 to 4 and
respondents 3 to 5 were shown us senior to all the
petitioners.
The petitioners claim that they were formerly permanent
members of the Punjab Civil Service Judicial Branch in the
time scale of Rs. 4001250. They had been put in the
selection grade also in the scale of Rs. 1300-1500. On the
other hand, respondents 3 to 5 were euphemistically called
Judicial Officers in U.P.-the State of their parent service.
They were in a lower scale of Rs. 300-900. The next higher
scale on being appointed to the post of Additional District
Magistrates was Rs. 400-1000/-.
The petitioners’ grievance is that Rule 11 of the Delhi
Judicial Service Rules permitting the fixation of the
seniority of the selected officers under Rule 9(a) on the
basis of length of service was bad. It was fixed by a
notification dated 2.8.1971 and was subject to revision on
good cause shown. Respondents 3 to 5 had joined service in
the year 1947 as Judicial Officers which was not a cadre
service. It was only on 1.4.1955 that a regular cadre of
Judicial officers was created in U.P. but it was different
and distinct from the U.P. Civil Service Judicial Branch.
Petitioners 1 and 2 were working as Assistant Sessions
Judges at the time of initial constitution of the Delhi
Judicial Service while none of the respondents 3 to 5 was
appointed as Assistant Sessions Judge, in spite of their
longer service in the cadre of U.P. Judicial Officers
Service.
The petitioners case further runs thus : Petitioner no. 1
was promoted to the post of Additional District Judge with
effect from 24.1.1972and the petitioners 2 to 4 were so
promoted with effect from 25.3.1972.Respondents 3 to 5 were
not considered to have qualified themselves for being
promoted as Addl. District Judges. One, of the reasons for
not promoting them to the higher judicial service was that
they had not received requisite training in I the Civil Law.
Accordingly they were by-passed and in the meantime they
were given powers of the Subordinate Judges to enable them
to get requisite training in Civil Law. Respondent no. 6
was posted as Sub-Judge, First Class and demoted from the
post of a Senior Sub-Judge on account of inefficiency. He
was not enjoying the selection grade of Haryana Civil
Service (Judicial Branch) at the time of his appointment to
Delhi Judicial Service while the petitioners were in such
grade in their parent service. Respondents 3 to 5 were
later promoted as Additional District Judges on 2.6.1972 and
respondent no. 6 was promoted in June, 1973. Thus all of
them were promoted to the higher Judicial Service after the
Petitioners. Yet they were made to ranks senior to
petitioners 1 to 4 under Rule 8 of the Delhi Higher Judicial
Service Rules. Respondent no. 6 in spite of his appointment
558
as an Additional District Judge later than petitioners 2 to
4 was allowed to rank senior to them on the basis of Rule 8
aforesaid.
Mr. Tarkunde, learned counsel for the petitioners submitted
support of the Writ Petition the. following points :
1. Rule 9(a) of the Delhi Judicial Service
Rules was bad as it was not framed in
accordance with Article 234 of the
Constitution and because it permitted the
initial appointment to the Delhi Judicial
Service of persons who were not in any
Judicial service from before. In any event
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 17
respondents 3 to 5 could not be _appointed to
the Delhi Judicial Service under Rule 9(a).
2. Rule 1 1 of the Delhi Judicial Service
Rules is bad as it infringes Article 14 of the
Constitution in as much as it equates length
of Judicial service with the length of non-
judicial service for the purpose of fixation
of seniority and thus it makes unequals as
equals.
3. Rule 8 of the Delhi Higher Judicial
Service Rules is bad because it fixes the
seniority in higher service according to the
seniority in the lower one.
A counter-affidavit has been filed on behalf of respondent
no. 2 and learned Solicitor General appeared to oppose the
rule on his behalf. various counter-affidavits were filed on
behalf of respondents 3 to 6 and Mr. Garg who appeared on
their behalf informed us that respondent no. 3 has since
retired and the petitioners could not be ,/granted any
relief against him. He, however, raised a preliminary
objection to the maintainability of the Writ petition on the
ground of delay. He submitted that the seniority fixed on
2.8.1971 by list Annexure E/1 to one of the rejoinders could
not be challenged by filing a writ application in September,
1973. He further pointed out that the said seniority list
has been revised and substituted by a new list dated
2.6.1973, a copy of which is Annexure R-4/1. The peti-
tioners have not challenged the correctness of that list in
which had merged the first list dated 2.8.1971.
In our opinion on the facts and in the circumstance of this
case the preliminary objection raised on behalf of the
respondents cannot succeed. The first list fixing the
seniority of the Judicial officers initially recruited to
the Delhi Judicial Service was issued on 2.8.1971 This was
subject to revision on good cause being shown. Petitioners
also, as we shall show hereinafter in this Judgment on one
ground or the other, wanted their position to be revised in
the seniority list. They, however, did not succeed. A
revised seniority list was issued on 2,6,1973. The filing of
the writ petition was not designedly delayed thereafter.
’Since the petitioners’ position in the seniority list
vis-a-vis respondents 3 to 6 had not been disturbed in the
new list dated 2.6.1973 it was sufficient for the
petitioners to challenge the list dated 2.8.1971. We shall
point out in this judgment that except the promotion to the
posts of Additional District Judges, the seniority in
relation to which
559
also is under challenge in this writ application, nothing
special had happened creating any right in favour of the
respondents or no such position had been created the
disturbance of which would unsettle the long standing
settled matters. The writ application, therefore, cannot be
thrown out on the ground of delay in regard to any of the
reliefs asked for by the petitioners.
It has been pointed out by Hidayatullah, C.J. in the case of
Tilokchand Motichand & Ors. v. H. B. Munshi & Anr.(1) at
page 831 "The action of courts cannot harm innocent parties
if their rights emerge by reason of delay on the part of the
person moving the Court." The learned Chief Justice had said
at page 832. "Therefore, the question is one of discretion
for this Court to follow from case to case. There is no
lower limit and there is no upper limit. A case may be
brought within Limitation Act by reason of some Article but
this Court need not necessarily give the total time to the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 17
litigant to move this Court under Art. 32. Similarly in a
suitable case this Court may entertain such a petition even
after a lapse of time. It will all depend on what the
breach of the Fundamental Right and the remedy claimed are
and how the delay arose. In the case of Rabindra Nath Bose
& Ors. v. Union of India & OrS.(2) Sikri J, as he then was,
delivering the judgment on behalf of the Court has said at
page 712 : "The highest Court in this land has been given
Original Jurisdiction to entertain petitions under Art. 32
of the Constitution. It could not have been the intention
that this Court would go into stale demands after a lapse of
years." But under what circumstances a petition under Art.
32 of the Constitution should be thrown out on the ground of
delay, has been pointed out in the last paragraph on that
page by observing. "it would be unjust to deprive the
respondents of the rights which have accrued to them. Each
person ought to be entitled to sit back. and consider that
his appointment and promotion effected a long time ago would
not be set aside after the lapse of a number of years." On
the facts of this case the petition was held to have been
filed after inordinate delay.
In a recent decision of this Court, Bhagwati, J. delivering
the judgment on behalf of the bench of five Judges in
Ramchandra Shankar Deodhar and others. v. The State of
Maharashtra and others(3) it age 265 has said "In the first
place, it must be remembered that the rule which says that
the Court may not inquire into belated and stale claims is
not a rule of law, but a rule of practice based on sound and
proper exercise of discretion, and there is no inviolable
rule that whenever there is delay, the court must
necessarily refuse to entertain the petition. Each case
must depend on its own facts." on the facts and in the
circumstances of this case we do not feel persuaded to throw
out the petition on the ground of delay as there is none to
disentitle the petitioners to claim relief.
The two impugned rules in this case were made by the Lt.
Governor of Delhi in consultation with the High Court of
Delhi in exercise of his powers conferred by the proviso to
Art. 309 of the Constitution
(1) [1969] 2 S.C.R. 824.
(2) [1972] 2 S.C.R. 697.
(3) A.I. R. 1974 S.C. 259,
L 319 Sup CI/75
560
r/W certain notifications of the Government of India,
Ministry of Rome Affairs. The Delhi Higher Judicial Service
Rules regulating the recruitment and condition of higher
service could indisputably be made under the proviso to Art.
309 Art. 234 says : "Appointments of persons other than
district judges to the judicial service of a State shall be
made by the Governor of the State in accordance with rules
made by him in that behalf after consultation with State
Public Service Commission and with the High Court exercising
Jurisdiction in relation to such State." It was not disputed
on either side that the word "State" in the said Article
would include a Union Territory also. But the learned
Solicitor General pointed out that there was no judicial
service in the Union Territory of Delhi before its creation
by initial recruitment to the service under the Delhi
Judicial Service Rules. The initial recruitment to the
service could be made only under la valid rule framed under
Art. 309 Framing of a rule under Art. 234 was not necessary.
We may, however, point out that part IV of Delhi Judicial
Service Rules refers to recruitment to the service after the
initial recruitment. In our opinion, however, the rules
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 17
framed by the Lt. Governor for appointment to the Delhi
Judicial Service either at the initial stage or thereafter
cannot be held to be invalid merely because they were not
framed in accordance with Art. 234. Rules framed under Art.
309 in consultation with the Delhi High Court were good and
valid and cannot be assailed. When it was pointed out to
the learned counsel of the petitioners that on the argument
advanced with reference to Art. 234 even the initial
recruitment of the petitioners to the Delhi Judicial Service
was in jeopardy, the point was ultimately given up and not
pressed.
The constitution and strength of the Delhi Judicial Service
as provided in rule 3 of the Delhi Judicial Service Rules
will be of the service consisting of two grades-namely Grade
I (Selection Grade) and Grade 2. The posts in Grade I shall
be civil posts, class I Gazetted, and those-in Grade 11
shall be civil posts, class 11 Gazetted. Clause (d) of Rule
3 provides A "person appointed to the service shall be
designated as Subordinate Judge or Judicial Magistrate or as
Subordinate Judge or Judicial Magistrate or as Subordinate
Judge-cum-Judical Magistrate in accordance with the duties
being discharged by him for the time being." The posts borne
on the permanent strength of the service and the posts
included therein have been specified in the Schedule
appended to the rules. 10% of the permanent strength of the
service will be the posts in the selection grade. A
Selection Committee was constituted consisting of 3 Hon’ble
Judges of the Delhi High Court, the Chief Secretary and a
Secretary of the Delhi Administration. The initial
recruitment was made by the Lt. Governor in accordance,
with Rule 9 which reads, as follows :
"9. For initial recruitment to the service, the Selection
Committee shall recommend to the Administrator suitable
persons for appointment to the service from amongst the
following :
(a) Subordinate Judges and Law Graduate
Judicial Magistrates working in the Union
territory of Delhi on deputation from other
States;
561
(b) members of Civil Judicial cadres of
States whose names may be recommended by their
respective State Governments for appointment,
and
(c) members of the Delhi Himachal Pradesh
and Andaman and Nicobar Islands Civil Service,
who are Law Graduates.
The consent of the officer to be recommended and the consent
of his parent Government shall be necessary before his
appointment to the service.",
It would thus be noticed that the Selection Committee was to
recommend only "suitable persons" for appointment to the
service. It is stated in paragraph 12 of the writ
application that clause (c) of Rule 9 was struck down by the
High Court of Delhi in Writ Petition No.1322/70-D. K.
Paddar v. Lt. Governor at Delhi. We are not concerned in
this case with clause (c). The source of the initial
recruitment to the service under clause (a) was Subordinate
Judges who necessarily belong to the Judicial cadre of a
State and Law Graduate Judicial Magistrates (not merely
Judicial Magistrates) working in the Union territory of
Delhi. The creation of the service being only in two
grades, grade 2 and grade I (selection grade) and there
being no provision for appointment in the selection grade at
the stage of the initial recruitment of the service it is
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 17
plain that all those who fulfilled the qualifications laid
down in clause (a) of Rule 9 and who were found "suitable"
by the Selection Committee could be initially recruited to
the Delhi Judicial Service. Even Judicial Magistrates have
been put on a par with the Subordinate Judges. None of the
respondents 3 to 5 either in their parent service in U.P. or
in the Union Territory of Delhi was a Magistrate on the
Executive side. All of them were doing the work of Judicial
Magistrates and of Revenue officers which also included
performance of judicial duties. It is difficult to find any
trace of invalidity in rule 9(a) of the Delhi Judicial
Service Rules. For the purpose of initial recruitment to
the service, officers of the judicial cadre of a State and
officers although not belonging to the judicial cadre but by
and large performing the judicial functions could be put
together. There was no infraction of Arts. 14 and 16. In
the counter-affidavit filed on behalf of respondent 2 it is
mentioned that respondents 3 to 5 were in the regular cadre
of U.P. Judicial Officers w.e.f. 1.4.1955. It has been
pointed out by this Court in the case of Chandra Mohan v.
State of Uttar Pradesh & Ors. (1) at page 80 "that the
expression "judicial officers" is a euphemism for the
members of the Executive department who discharge some
revenue and magisterial duties." Strictly speaking the
expression "Judicial duties" was held to be a misleading one
for the purpose of recruitment to the higher judicial
service in accordance with Art. 233 of the Constitution. In
the context and set up of the Article it was pointed out
that the source of service for appointment as a District
Judge must be the Judicial service and not any service. It
is plain that the same principle cannot apply to the
recruitment of persons to the lower judicial service
obviously not covered by Art. 233.
(1) [1971] 1 S.C.R. 77.
562
Rule 11 of the Delhi Judicial Service Rules reads as follows
"11. The Selection Committee shall arrange the seniority of
the candidates recommended by it in accordance with the
length of service rendered by them in the cadre, to which
they belong at the time of their initial recruitment to the
service.
Provided that the inter-se seniority as already fixed in
such cadre shall not be altered."
The question for determination is was there any infirmity in
rule 1 1 ? Did it-put unequals with equals and violated Art.
14 of the Constitution? Was the rule arbitrary and
discriminatory? Once the Selection Committee found persons
belonging to clause (a) of Rule 9 suitable for appointment
to the service it was under a duty and obligation to arrange
the list of suitable persons by placing them in proper
places in the matter of seniority. They were all being
initially appointed to the Delhi Judicial Service wherein
there was no separate gradation of posts. The assignment of
duties was to follow on the basis of seniority list.
Arranging the seniority of the candidates recommended by the
Selection Committee in accordance with the length of service
rendered by them in the judicial cadre to which they
belonged at the time of their initial recruitment to the
service was perfectly good. The petitioners could not have
any grievance in that regard. On their initial recruitment
to the Delhi Judicial Service they retained their original
seniority inter-se as was assigned to them in their parent
cadre. Was it possible to have a different yardstick, some
other date or shorter period for fixation of the seniority
of the law graduates judicial magistrates on their initial
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 17
recruitment to the service ? from which date their seniority
ought to have been reckoned ? Was it possible to treat them
as the first and the new recruits to the Delhi Judicial
Service. Even so what would have been the basis of
determining their seniority inter-se ? The questions posed
are suggestive of the answers. Taking the length of service
rendered by the candidates in their respective cadres for
the purpose of fixation of seniority under rule 1 1 of the
Delhi Judicial Service Rules was justified, legal and valid.
Had it been otherwise-it Would have been discriminatory. It
was not equating unequals with equals. It was merely
placing two classes at par for the purpose of seniority when
it became a single class in the integrated judicial service
of Delhi. For the purpose of fixation of seniority it would
have been highly unjust and unreasonable to take the date of
their initial recruitment to the service as their first
appointment. Nor was it possible to take any other date in
between the period of their service in their parent cadre.
It would have been wholly arbitrary. In our judgment,
therefore, there was no escape from the position that the
entire length of service of the two classes of officers had
got to be counted for. the purpose of determination of their
seniority on their initial recruitment to the Delhi Judicial
service. It was not possible or practical measure their
respective merits for the purpose of seniority with
mathematical precision by a barometer. Some formula doing
largest good to the largest number had to be evolved. The
only reason-able and workable formula which could be evolved
was the one engrafted in rule 11 of the Delhi Judicial
Service Rules.
563
The decision of this Court in Kunnathat Thathunni Moopil
Nair v. The State of Kerala and another(1) relied on by the
petitioners is clearly distinguishable. Sinha, C.J.’in his
judgment at page 92 pointed out the nature of equal burden
of tax placed upon unequals and said "It is clear,
therefore, that inequality is writ large on the Act and is
inherent in the very provisions of the taxing section. It
is also clear that there is no attempt at classification in
the provisions of the Act. Hence, no more need be said as
to what could have been the basis for a valid
classification. It is one of those cases where the lack of
classification creates inequality." In the instant case for
the purpose of fixing the seniority at the stage of the
initial recruitment to the Delhi Judicial Service, no other
classification, no different yardstick was possible. The
inequality was avoided to a large extent by rule 1 1.
The case of Jalan Trading Co. (Private Ltd.) v. Mill Mazdoor
Union (2) is also of no help to the petitioners.
Distinguishing Moopil Nair’s case-[1961(3) S.C.R. 77] Shah,
J. as he then was pointed out at page 36 : "If the
classification is not patently arbitrary, the Court will not
rule it discriminatory merely because it involves hardship
or inequality of burden...... Equal treatment of unequal
objects, transactions or persons is not liable to be struck
down as discriminatory unless there is simultaneously
absence of a rational relation to the object intended to be
achieved by the law." The principles enunciated when applied
correctly to the facts of the instant case rather go against
the petitioners. "Equal treatment of unequal objects" even
if we prefer to call them different classes, is not
discriminatory in this case ,as there is a rational relation
to the object intended to be achieved by the law. The
object of the Delhi Judicial Service Rules was to create, a
service by integration of different classes of persons
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 17
already working as Judicial officers. The fixation of
seniority on the basis of length of service in their
respective parent cadres bad a rational nexus to the object
intended to be achieved. One of us in the case of The State
of Gujarat and another etc. v. Shri Ambica Mills Ltd.
Ahmedabad etc(3) delivering the judgment on behalf of the
Court hag pointed out at page 1313 : "A reasonable
classification is one which includes all who are similarly
situated and non who are not. The question then is : what
does the phrase ’similarly situated’ mean? The answer to
the question is that we must look beyond the classification
to the purpose of the law. A reasonable classification is
one which includes all persons who are similarly situated
with respect to the purpose of the law. The purpose of a
law may be either the elimination of a public mischief or
the achievement of some positive public good." In the
instant case treat in- the two classes as one for the
purpose of initial recruitment and fixation of seniority was
reasonable as the classification was one which included all
persons who were similarly situated with respect to the
purpose of the law. We have therefore no difficulty in
rejecting the argument put forward on behalf of the
petitioners that rule 11 of Delhi Judicial Service Rules is
bad as being violative of Arts. 14 and 16 of
(1) [1961] 3 S.C.R. 77
(2) [1967] 1 S.C.R. 15
(3) A.I.R. 1974, S.C. 1300.
564
of the Constitution. It was not suggested on behalf of the
petitioners and rightly so that fixation of their seniority
vis-a-vis respondents 3 to 6 in the Delhi Judicial Service
was not in accordance with rule 11.
Two more facts need be noted here in connection with the
question of seniority and they are these : A notification
dated September 30, 1967 was issued by the Governor of U.P.,
a copy of which is Annexure ’H’ to the rejoinder on behalf
of the petitioners to the counter-affidavit filed by
respondent 2 under Art. 237 of the Constitution directing
that the remaining provisions of Chapter VI of Part VI of
the Constitution shall, With effect from October 2, 1967,
apply in relation to such magistrates including additional
District Magistrates (Judicial), in the State as belong to
the Uttar Pradesh Judicial officers Service as they apply in
relation to persons appointed to the Judicial Service of the
State subject to the certain exceptions and modifications
mentioned in the said notification. It is no doubt true
that respondents 3 to 5 were already on deputation to the
Union territory of Delhi. Yet they could not be denied the
advantage of this notification in principle. They were
doing the judicial work in Delhi and on initial recruitment
to the Delhi Judicial Service became its fulfledged members.
The letter dated September 29, 1967, a copy of which is
Annexure R-4/5 to the supplementary affidavit of the
respondent no. 4 written by the Chief Secretary to the Govt.
of U.P. to the Registrar, High Court of Allahabad also
supports the above position. It is admitted that on or from
2.10.1969 there was no separation of Executive and Judiciary
in Delhi also and all officers working on the judicial side
were placed under the control of the Delhi High Court.
Annexure "A" to the counter-affidavit of respondent no. 2 is
a copy of the order dated 18th December, 72 passed by
Hon’ble Mr. Justice V. S. Deshpande and Hon’ble Mr.
Justice S. Rangarajan of the Delhi High Court. The
representations of the petitioners were rejected. The order
indicates that the initial recruits were given seniority ac-
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 17
cording to the length of service in their cadres. The
representationists accepted this position and the matter was
close. Their new stand that since they belonged to the
selection grade of Subordinate Judges in the Punjab and
Haryana Judicial Service cadre they ought to have been
appointed to such a grade in Delhi Judical Service even at
the time of initial recruitment was not accepted to be
correct. It is, therefore, plain that on initial
recruitment to the Delhi Judicial Service all those who are
recruited including the petitioners and respondents 3 to 6
were at par and the fixation of their seniority in
accordance with rule 11 of the Delhi Judicial Service Rules
was legal and valid.
The facts in relation to the 6th respondent are these. This
respondent also formerly belonged to the combined Punjab
Civil Service (Judicial) P.C.S. cadre. This respondent and
petitioner no. 1 were selected in the open competition
together and later joined the Judicial Service in the year
1956. Both were confirmed in the year 1958. Petitioner no.
1 was senior to respondent no. 6 Petitioners 2 to 4 joined
the same service later and were junior to respondent no. 6.
When the State of Punjab was bifurcated into two States of
Punjab and Haryana of 1.11.1966 the petitioners were
allotted the cadre of
565
Punjab and respondent no. 6 came to the cadre of Haryana.
On Constitution of the Delhi Judicial Service, respondent
no. 6 was recommended by the Haryana St-ate and was
initially recruited to the Delhi Service which he joined on
1.9.1971. Eventually respondent no. 6 was placed in the
selection grade w.e.f. 25.3.1972 and he was promoted as
Additional District & Sessions Judge w.e.f. 1.6.1973. It
would thus be seen that allocation of a place of seniority
in the Delhi Judicial Service to respondent no. 6 below
petitioner no. 1 and above petitioners 2 to 4 was valid and
justified.
Coming to the Delhi Higher Judicial Service Rules, 1970 we
find that under rule 6 the initial recruitment to the higher
service was made.. None of the petitioners or the
respondents was initially recruited.. The regular
recruitment to the higher service after the initial recruit-
ment has been provided in rule 7 in-these terms
"7. Regular recruitment-Recruitment after the initial
recruitment shall be made :
(a) by promotion from the Delhi Judicial Service;
(b) by direct recruitment from the Bar.
Provided that not more than 1/3rd of the substantive posts
in the service shall be held by direct recruits."
Rule 8 prescribes the mode of determination of inter-se
seniority of the promotees and the seniority of the direct
recruits vis-a-vis promotees. It runs as follows :
"8. (1) The inter-se seniority of members of the Delhi
Judicial Servicepromoted to the service shall be the
same as in the Delhi Judicial Service.
(2) The seniority of direct recruits vis-a-vis Promotees
shall be determined in the order of rotation of vacancies
between the direct recruits and promotees based on the
quotas of 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." We may notice here two rules viz. Rules 16 and 17
relating to temporary appointments forming part V of the
Delhi Higher Judicial Service Rules. They read as follows :
"16 (1) The Administrator may create temporary posts in the
service.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 17
(2)Such posts shall be filled, in consultation with the
High Court, from amongst members of the Delhi Judicial
Service."
"17. Notwithstanding anything contained in these rule the
Administrator may, in consultation with the High Court, fill
substantive vacancies in the service by making temporary
appointments thereto from amongst members of the Delhi
Judicial Service."
It would thus be seen that there are two types of
appointments to Delhi Higher Judicial Service-one by regular
recruitment, the source of which is by promotion from the
Delhi Judicial Service and by direct
566
recruitment from the Bar. Rule 8 prescribes the mode of
determination of seniority of such regular recruits. The
inter-se seniority of the members of the Delhi Judicial
Service promoted to the higher service has got to be the
same as in the lower rank. As a matter of construction it
necessarily follows that it would be the same provided the
promotion from the lower to the higher service is at the
same time. Learned Solicitor General appearing for
respondent no. 2 in his usual fairness conceded to this
interpretation and added that it cannot but be so. If a
member of the Delhi Judicial Service is superseded at the
time of recruitment under rule 7 by his junior but gets a
chance of promotion later, it is obvious that he cannot
retain his seniority in the lower rank. All candidates on
appointment to the higher service have got to be on
probation for a period of two years under rule 12(2) and
ordinarily and generally they would be confirmed at the end
of the said period of two years in accordance with rule 13.
Strictly speaking the question of determination of inter-se
seniority under rule 8 will crop up at the time of the
confirmation of the appointee. In Chandramouleshwar Prasad
’v. Patna High Court I & Ors. (1) referring to the relevant
rules of the Bihar Superior Judicial Service Rules, Mitter,
J delivering the judgment on behalf of this Court said at
page 671 : "It may be noted at this stage that the gradation
of the officers by the High Court or maintaining any list
showing such gradation is not sanctioned by any service
rules. The Bihar Superior Judicial Service Rules to which
our attention %,as drawn do not contain any provision which
would entitle the High Court to make such a gradation or act
thereon. Rule 5 of the said Rules prescribes that
ordinarily appointments to the post of Additional District
and Sessions Judges shall be made by the Government in
consultation with the High Court and under R. 8 a person
appointed either on substantive or officiating basis to the
post of Additional District and Sessions Judge shall draw
pay on the lower time basis. Rule 16(b) provides that
seniority inter-se of promoted officers shall be determined
in accordance with the dates of their substantive
appointments to the service and R. 16(d) lays down that more
than one appointment is made by promotion at one time, the
seniority inter-se of the officers promoted shall be in
accordance with the respective seniority in the Bihar Civil
Service (Judicial Branch). The question of seniority
therefore has to be determined when the persons appointed
either temporarily or on an officiating basis are given
substantive appointments. So far as the petitioner and the
three respondents are concerned that time is yet to come."
On a parity of reasoning it follows that question of
determination of seniority comes in at the time of
confirmation of the appointees. Two members of the Delhi
Judicial Service confirmed in the higher service at the same
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 17
time will retain their inter-se seniority as in the lower
service. But if they are not confirmed at the same time
then one who is confirmed earlier will be senior to the one
who is confirmed later, even though they might have been
appointed on probation under rule 7 at the same time. We
may, however, add that for practical purposes and for the
facility of administration the High Court for the
(1) [1970] 2 S.C.R. 666.
567
time being may consider the promoted probationers as
retaining their inter-se seniority of the lower service if
they are appointed- at the same time until they are
confirmed.
In our judgment members of the Delhi Judicial Service coming
to the higher service on temporary appointments either under
rule 16 or rule 17 of the Delhi Higher Judicial Service
Rules cannot claim the benefit of the inter-se seniority
under rule 8. There are no rules prescribing the mode of
determination of inter-se seniority of such temporary
appointees or permitting them to count their officiation in
the temporary appointments for the purpose of their
seniority on their being appointed substantively. The
question of determination of interse seniority of the
promotees under rule 8(1) as already stated would crop up
only after the promotees have been substantively appointed.
We may add here also that as between the temporary
appointees for practical purposes and for the facility of
the administration it will be open to the High Court to
permit the promotees to retain their seniority in the lower
judicial service after they are temporarily appointed at the
same time till they continue in the temporary appointments.
The vires of rule 8(1) of the Delhi Higher Judicial Service
Rules was challenged by Mr. Tarkunde, learned counsel for
the petitioners on the ground that rule 8(1) equates all who
are promoted to the higher service and permits them to
retain their seniority in the lower service irrespective of
the time of their appointment. Counsel submitted that those
who came earlier to the higher service whether under rule 7
or under rule 16 or 17 should have been allowed to rank
senior to those who came to be appointed either
substantively or temporarily to the higher service later.
The attack on the constitutionality of rule 8(1) is
obliterated if by construction it is held, as it has been
done above, that the question of retention of seniority in
the lower service arises only when the promotion is at the
same time and not otherwise. In absence of such an
interpretation it would be a truism to say that rule 8(1)
would be discriminatory and violative of Art. 14 of the
Constitution. But with the aid of well-established cannons
of interpretation we see no difficulty in saving the
constitutionality of the rule by interpreting it in a
reasonable, sensible and just manner as we have done in this
case. The second part of the argument of Mr. Tarkunde to
rope in the temporary appointees for the purpose of
determination of inter-se seniority of the promotees under
rule 8(1) is obviously wrong and cannot be accepted as
sound. It may also be added that sub-rule (2) of rule 8
will militate against the acceptance of the submission
aforesaid.
Judging the facts of the instant case in the light of the
interpretation which we have put to the relevant rules of
the Delhi Higher Judicial Service it will be noticed that
the grievance of the petitioners in relation to the
seniority of respondents 3 to 6 is either unjustified or
premature. Even though respondent no. 3 has already retired
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 17
and determination of such a question vis-a-vis him would be
futile, while referring to the relevant facts of the case we
may point out that the grievance of the petitioners as
against respondents 3 and 4 is wholly unjustified.
568
Annexure ’J’ is a copy of the notification dated 20th
January, 1972 whereby the Administrator of Delhi was pleased
to appoint in consultation with the High Court Shri Joginder
Nath, petitioner no. 1 and one Om Prakash Singla, members
of the Delhi Judicial Service, to the Delhi Higher Judicial
Service, temporarily till further orders. The appointment
was under rule 17 of the Delhi Higher Judicial Service Rules
against the 14th and. 15th vacancies. In paragraph 15 of
the counter-affidavit filed on behalf of respondent no. 2
reason has been given as to why petitioner no. 1 was
temporarily appointed and the appointments of respondents 3
to 5 was deferred. It was not because they were found unfit
that they were not appointed but to enable them to have more
experience of the civil work they were made Subordinate
Judges. After sometime respondents 3 and 4 were appointed
on probation for 2 years under rule 7 against the 14th and
15th vacancies. By another notification of the same date
issued under rule 17, petitioner no. 1 and respondent no. 5
were temporarily appointed in officiating capacity till
further orders. Four temporary posts were created by a
notification dated 13th March, 1974. Petitioners 2, 3 and 4
were temporarily appointed to three of these posts by
notification dt. 22nd March, 72 by the Administrator of
Delhi in exercise of his powers under rule 16(2) of the
Delhi Higher Judicial Service Rules. Copies of these
notifications issued under Rules 7, 17 and 16 of the Delhi
Higher Judicial Service Rules are collectively Annexure ’B’
to the counter-affidavit of respondent no. 2. Respondents 3
and 4 have been confirmed during the pendency of this Writ
petition in the higher service by notification dated
13,6,1974-Annexure R-4/4 w.e.f. 2nd June, 1974. The,
petitioners have not challenged the notifications appointing
them temporarily to the higher service under rule 16 or rule
17 and appointing respondents 3 and 4 substantively under
rule 7. The confirmation of the latter therefore is
perfectly in order and it goes without saying that they will
be senior to such members of the Delhi Judicial Service who
would be substantively appointed and confirmed later. A
copy of the notification appointing respondent no. 6 to the
higher judicial service from 1.6.1973 does not seem to be in
the records of this case. We were however informed at the
Bar that he was also temporarily appointed either under rule
16 or rule 17. That being so it was not clear to us whether
the grievance of the petitioners in paragraph 19 of the writ
petition that respondent no. 6 inspite of his appointment as
Additional District Judge later than petitioners 2 to 4 was
allowed to rank senior to them on the basis of rule 8 of the
Delhi Higher Judicial Service Rules, is correct or
justified. The question of the 6th respondent’s ranking
senior to any of the petitioners will not arise until they
are substantively appointed to the higher judicial service.
We may, however, reiterate our observation that from a
practical point of view and for the facility of
administration, in the temporary appointments, respondent
no. 6 who came later than the petitioners cannot rank senior
to any of them.
In the well-known case of Parshotam Lal Dhingra v. Union of
India(1) Das C.J. delivering the judgment on behalf of
majority of
(1) [1958] S.C.R. 828.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 17
569
this Court pointed out at pages 841 and 842 thus : "The
appointment of a Government servant to a permanent post may
be substantive or on probati on or on an officiating
basis........ An appointment to officiate in a permanent
post is usually made when the incumbent substantively
holding that post is on leave or when the permanent post is
vacant and no substantive appointment has yet been made to
that post. Such an officiating ’appointment comes to an end
on the return of the incumbent substantively holding the
post from leave in the former case or on substantive
appointment being to that permanent post in the later
case............. In the instant case it is clear that due
to justifiable reasons, the appointment of respondents 3 and
4 substantively to the 14th and the 15th vacancies was
deferred and petitioner no. 1 was made to officiate in a
temporary capacity against the substantive vacancy. But
such an officiation came to an end on the substantive
appointment of either of respondents 3 or 4.
For the reasons aforesaid we hold that the petitioners have
made out no case entitling them to any relief asked for by
them in this writ, petition. It accordingly fails and is
dismissed without costs.
P.H.P.
Petition dismissed
670