REPORTABLE

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

J U D G M E N T

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

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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

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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-à-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

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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

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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

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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

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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)

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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

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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

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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.

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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

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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.

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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-à-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.  

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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

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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

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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

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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

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“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

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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.   

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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

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cannot be faulted with and all the writ petitions are

liable to be dismissed.

8) We  have  carefully  perused  the  pleadings  of  both  the

parties, Committee reports, deliberation of the Full Court and

considered the rival contentions.  The Lieutenant Governor of

Delhi  in  consultation  with  the  High  Court  of  Delhi  by

exercising the power conferred by the proviso to Article 309 of

the Constitution read with the Government of India, Ministry

of Home Affair’s Notification dated 29.05.1970 and 25.07.1970

made  the  Rules  called  Delhi  Higher  Judicial  Service  Rules,

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

useful  to  refer  the  relevant  Rules/provisions  from  DHJS

Rules, 1979 as amended by Notification issued on 17.3.1987:

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

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

(e) “Service” means the Delhi High Judicial Service.

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

21

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

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

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

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

(b) by direct recruitment from the Bar.

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

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

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

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

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

22

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

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

17. Notwithstanding anything contained in these rules, the Administrator may, in consultation with the high Court, fill substantive vacancies in the service  by making temporary appointments  thereto  from  persons  appointed  under  rule 16.”

27.  Residuary matters

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

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

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

the resolution dated 22.05.2007 of the Full Court approving

the majority report determining the seniority of the members

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

seniority of member of DHJS should be determined strictly in

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

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

We  have  already  referred  to  the  relevant  provisions  of  the

23

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

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

from amongst the officers of Delhi Judicial Service and also by

direct recruitment from amongst the eligible members of the

Bar.   Rule  7  provides  that  after  initial  recruitment  regular

recruitment would be made on the basis of selection from the

members  of  Delhi  Judicial  Service  who have  completed  not

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

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

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

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

the direct recruits vis-à-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

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

making temporary appointments from amongst the members

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

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

substantive appointees to the service from the Bar as also the

appointees  by  promotion  were  being  given  seniority  under

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

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

the  Rules  which  provide  rota-quota.  The  promotee  officers

claimed  that  even  appointment  to  the  temporary

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

similar to the substantive appointment to the service and the

incumbents  under  those  Rules  are  also  entitled  to  get

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

case (supra) this Court held that appointments made under

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

those  of  the  substantive  appointments.   With  the  said

equation by legal fiction, distinction between the two types of

appointments  i.e.  temporary  and  substantive,  having  been

extinguished, this Court reached to the conclusion that since

25

no appointments of direct recruits under Rule 16 or 17 were

possible  in  accordance with  the  rule  as  then  existed,  the

inevitable  conclusion  is  that  rota/quota  had  broken  down.

However, this Court upheld the Constitutional validity of Rule

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

direct  recruits  in  the  service.   The  Court  also  upheld

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

rotation of vacancies under Rule 7.   

It  is  relevant  to  point  out  that  though this  Court  had

equated temporary post with permanent post it also noticed

that this judgment will upset the balance between the direct

recruits  and  the  promotees  in  the  DHJS.   In  those

circumstances,  it  directed  to  frame  appropriate  rules  to

remove the imbalances for future application.  

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

1985, the High Court undertook the exercise of amendment of

the  Rules  to  provide  for  filling  up  of  temporary

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

recruitment  as  per  the  quota  prescribed  under  Rule  7.

Simultaneously, the High Court also decided that in order to

26

restore the balance between the number of the direct recruit

appointees  and  the  promotee  appointees  in  the  service,  14

existing  vacancies  be  filled  up  by  direct  recruitment.   The

promotee officers again filed a writ petition before this Court

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

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

time-frame for finalization and publication of the amendment

to DHJS Rules and directed that thereafter all the vacancies

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

Rules  were amended and disparity  in the matter  of  regular

appointments  as  well  as  appointments  against  temporary

posts and temporary vacancies under Rules 16 and 17 of the

Rules were removed.  It was provided that even under these

Rules,  appointments  of  the  direct  recruits  could  be  made.

While  implementing  the  judgment  of  this  Court  in  O.P.

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

officers.   However,  the  said  final  seniority  list  was  again

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

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

Constitution  Bench  of  this  Court  in  Rudra  Kumar  Sain

27

(supra).  The Constitution Bench, in its judgment, upheld the

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

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

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

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

their selection in the year 1997 vacancies were available; yet

despite  of  the  availability  of  new  vacancies  for  the  direct

recruits  as also  for  the  promotees,  the  recruitment  process

was commenced only for the promotees and the direct recruits

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

held on 20.07.2002, considered the issues concerning inter-se

seniority  of  the  direct  recruits  and  the  promotees  of  DHJS

appointed after amendment of DHJS Rules.  It approved the

tentative seniority list for circulation to the officers.  The Full

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

seniority  list  of  the  officers  is  to  be  circulated  amongst  the

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

by letter dated 12.08.2002, the tentative seniority list of 130

officers of DHJS appointed up to the year 2000 was circulated

amongst  the  concerned  officers  for  inviting their  objections.

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After receipt of objections, the matter regarding finalization of

seniority  list  of  officers of DHJS was considered in the Full

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

the High Court was constituted to go through the objections

and  submit  a  report  for  consideration  of  the  Full  Court.

Accordingly,  the  Committee  considered  the  objections  and

submitted  reports.  The  Full  Court  accepted  the

recommendations  of  the  Committee  dated  13.10.2004  in

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

accepted the majority view in respect of seniority of three more

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

circulated  amongst  the  concerned  officers  and objections  of

the remaining officers directed to be considered in the next

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

20.05.2006,  reconstituted  a  Committee.   Pursuant  to  the

communication of the High Court dated 02.06.2006, 24 direct

recruit officers and 15 promotee officers of DHJS submitted

their written statement.  The reconstituted Committee heard

the officers on several occasions.  Apart from the Committee,

two  Hon’ble  Judges  gave  their  views  which  were  also

29

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

dated 18.05.2007, considered two different reports and views

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

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

officers  of  DHJS.   By  letter  dated  18.08.2007,  the  final

seniority list of officers of DHJS as on 01.01.2007 supplied by

the High Court was forwarded to District and Session Judges,

Delhi for circulation among the concerned officers.  

13) The  Committee  constituted  by  the  High  Court  had

received  objections  both from the  direct  recruits  as  well  as

from the promotee officers.  All the direct recruits who have

filed their objections against the tentative seniority list have

claimed determination of their  inter  se seniority by applying

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

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

promotee  officers  were divided in their  stand.   Some of  the

promotee  officers  want  their  seniority  to  be  decided  by

applying the principle of Rota Quota as claimed by the direct

recruits.   Some promotee  officers  want their  seniority to be

decided on the principle of continuous length of service as laid

30

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

handful of the promotee officers have stated in their objections

that the High Court should apply the principle contained in

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

seniority.

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

seniority list, three options available before us for deciding the

inter se seniority dispute amongst the officers of DHJS are as

follows:

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

with Rule 7 of DHJS Rules.

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

3.7.1986.

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

appointment.

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

Delhi Higher Judicial Service for ascertaining as to which of

these  norms  would  be  most  equitable,  reasonable  and

justiciable for determining the inter se seniority of the officers

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

31

determining the inter se seniority would be one that satisfy the

competing claims of both the groups.

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

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

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

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

The  details  of  recruitment  by  promotion  and  direct

recruitment  made  to  the  service  from 1992  to  2006  are as

under:-

Appointments under Promotion quota

Year No.  of promotees

Date  of 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

Track  promotion on ad-hoc basis)

04.01.2006

Appointments under direct recruitment quota

32

Year No.  of  Direct Recruitees  

Date of promotion

1992 1 09.12.1992 1995 9 7/9.03.1995 1997 8 21.04.1997 2000 7 26.05.2000 2002-03 12 26.11.2002

17) Rule  5  of  DHJS  Rules  provides  recruitment  from two

sources, namely, by direct recruitment from amongst eligible

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

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

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

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

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

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

amendment of the Rules, direct recruits could not have been

appointed against the temporary posts created in the service

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

became  entitled  to  get  their  quota  for  appointment  even

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

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

the  inter  se seniority  between  the  direct  recruits  and  the

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

33

was no quota for direct recruits against the temporary posts,

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

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

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

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

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

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

directed  the  High  Court  to  fix  their  inter  se seniority  by

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

service.   This  principle  was  reiterated  by  this  Court  in  its

constitution  Bench judgment  in  Rudra  Kumar  Sain’s  case

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

the officers of DHJS.  Since the requisite balance between the

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

could  not  be  achieved  till  date,  the  High  Court  has

consistently  applied  the  principle  of  continuous  length  of

service for determining the  inter se seniority of the officers of

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

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

promotee officers.

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19) Perusal  of  the  Seniority  List  drawn  by  application  of

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

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

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

the  promotee  officers  inasmuch as,  the  direct  recruits  who

have  not  yet  entered  the  service  would  rank  senior  to  the

promotee  officers  promoted  in  their  quota  way  back  on

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

unreasonable  but create  a great heart-burning amongst the

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

the principle of Rota Quota contained in the statutory Rule 8

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

the problem of resolving inter se seniority dispute between the

direct recruits and the promotee officers.

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

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

3.7.1986,  adopted  by the  majority  view for  determining  the

inter se seniority  of  the  officers  of  the  two  groups   reveals

certain important facts having a bearing on the determination

35

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

are as under:

a) Promotions  of  the promotee  officers  from the cadre  of

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

months  as  and  when  vacancies  became  available  to

them, either through increase in the cadre strength or

creation of temporary post.

b) The  process  for  direct  recruitment  was  started  many

months before the promotions of the promotee officers in

the cadre of DHJS.  The delay that occasioned in the

appointment was only in the case of direct recruits and

not of the promotee officers.

c) The  vacancies  against  which  direct  recruits  were

appointed  became  available  to  them  many  months

before the promotions of the promotee officers against

subsequent addition of vacancies.

d) The direct recruits were working as Additional District

Judges  against  the  substantive  post  whereas  the

promotee officers who were proposed to be made senior

36

to such direct recruits were at the same time working as

subordinate Judges in the cadre of DJS.

There are other reasons in law why the principle contained in

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

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

reasons,  it  would  be  necessary  to  discuss  the  adverse

consequences that would flow by application of the principle

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

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

majority report, are reproduced hereunder:    

“GOVERNMENT OF INDIA DEPARTMENT OF PERSONNEL AND TRAINING

OFFICE MEMORANDUM No. 22011/7/86-Estt.(D)

      Dated 3rd July, 1986

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

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

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

37

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

Now let us consider the applicability of this provision in the

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

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

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

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

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

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

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

read with Rule 7 of DHJS Rules, principle as contained in the 38

O.M. referred above or the principle of continuous length of

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

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

is  adversely  affected  to  their  detriment,  if  the  seniority  is

decided  on  the  basis  of  principle  contained  in  the  above

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

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

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

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

and  Mr.  Lal  Singh  who  all  were  appointed  against  the

substantive  vacancies  in  their  quota  on  7/9.3.1995  would

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

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

Prem  Kumar  who  were  promoted  from  DJS  to  DHJS  on

24.8.1995  against  vacancies  that  became  available  to  them

after the appointment of the above named six direct recruits.

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

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

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

Rajan appointed against substantive vacancies in the quota of

39

direct  recruits  on  21.4.1997  would  become  junior  to  the

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

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

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

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

Sangita  Dhingra  Sehgal,  who  were  promoted  from  DJS  to

DHJS after them on 20.11.1997.  Similarly, the three direct

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

Rakesh Siddartha and Mr. Amar Nath appointed in the direct

recruit  quota  against  substantive  vacancies  on  26.5.2000

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

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

Narender Kr. Sharma promoted to DHJS on 16.8.2000.

None of the abovenamed promotee officers was even promoted

to the cadre of DHJS when the above named direct recruits

over  whom  they  are  proposed  to  be  made  senior  were

appointed in the cadre of DHJS against substantive vacancies.

Those  promotee  officers  were  working  as  sub-

Judges/Metropolitan  Magistrates  in  the  cadre  of  Delhi

Judicial Service at the time the above named direct recruits

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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

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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

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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

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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

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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

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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.

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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

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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

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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)                                  

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...…………………………………J.   (J.M. PANCHAL)                    

NEW DELHI; October 15, 2008.     

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