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CASE NO.: Writ Petition (civil) 1023  of  1987

PETITIONER: DELHI JUDICIAL SERVICES ASSN. & ORS.

       Vs.

RESPONDENT: DELHI HIGH COURT & ORS.

DATE OF JUDGMENT:       01/05/2001

BENCH: G.B. Pattanaik, S.N. Phukan & B.N. Agrawal

JUDGMENT:

With Writ Petition(civil) No. 1643/1987.

JUDGMENT

PATTANAIK,J.

L...I...T.......T.......T.......T.......T.......T.......T..J

   The  unending  dispute between the promotees and  direct recruits  in Delhi Superior Judicial Service has reached the third  round  in  these two writ petitions and we  hope  and trust  that this will be the final round, at least for quite sometime  to  come.   After the judgment of  this  Court  in Singlas  case,  way  back in 1984, disputes  arose  in  the matter of its implementation and the writ petitions filed in this  Court  under  Article  32  on  being  referred  to   a Constitution  Bench,  on  a  misconceived  notion  that  the validity  of  the  judgment  in  Singlas  case  is  pending consideration  before a Constitution Bench, remained pending for  long  16  years  and was finally  disposed  of  by  the Constitution  Bench since reported in 2000(8) SCC 25,  Rudra Kumar  Sain  and  Ors.  vs.  Union of India  and  Ors.   The dispute  was the manner in which the inter se seniority  has to  be computed between the direct recruits and promotees in Delhi  Higher  Judicial  Service.    The  present  two  writ petitions  were initially also there before the Constitution Bench,  but  in view of the fact that the subject matter  of dispute  was different, an order had been passed to  de-link these  two matters.  Be it be stated that the writ petitions which   had  been  filed  and   were  disposed  of  by   the Constitution  Bench  on 22.8.2000 was at the behest  of  the promotee  officers.   The second round of litigation was  at the  behest of some direct recruits, claiming seniority over some  of  the  promotees  and  that  stood  disposed  of  on 31.1.2001.   These  two writ petitions are at the behest  of promotee  officers, one by the Association and another by an individual.   While  the  Association of  promotee  officers claimed  the  relief that the vacancies available  prior  to 1987,  when  Delhi  Higher   Judicial  Service  Rules  stood amended,  will  have to be filled up under  the  pre-amended rules  and, therefore, the advertisement that was issued  on

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6.4.1987,  inviting applications for filling up 10 posts  by direct   recruitment   must  be   struck  down,  the   other application  by  an individual promotee officer assails  the validity  of  Rules  7, 8, 16 and 17 of the  amended  rules, which  were brought on 17th of March, 1987.  The brief facts necessary  for  disposal of these two writ petitions may  be stated  hereunder.   In exercise of powers conferred by  the proviso  to Article 309 of the Constitution, the  Lieutenant Governor  of  Delhi in consultation with the High  Court  of Delhi  made  a  set  of rules governing  the  conditions  of service  of  the  Members  belonging  to  the  Delhi  Higher Judicial  Service  called the Delhi Higher Judicial  Service Rules,  1970 (hereinafter referred to as the Rules).   The Rules  came into force on being published in the Gazette  in 1971.   The said rules define Initial recruitment in  Rule 2(g)  to mean the first recruitment and appointment made  to the  service after the commencement of the rules and Rule  5 provides the method of recruitment to the service subsequent to  the  initial recruitment and Rule 6 provides the  method for having the initial recruitment.  Rule 16 conferred power on  the  Administrator  to  create temporary  posts  in  the service  and  also to fill up the same in consultation  with the  High  Court by persons from amongst the members of  the Delhi  Judicial Service.  Thus, the temporary posts  created by  the  Administrator  were  intended to be  filled  up  by promotion  from  the Delhi Judicial Service.  Rule  17  also enables  the  Administrator  to   fill  up  the  substantive vacancies  in  the service by making  temporary  appointment thereto  from  amongst  the members of  the  Delhi  Judicial Service  in  consultation  with  the  High  Court.   Rule  7 provided  that  recruitment  to the  Delhi  Higher  Judicial Service  could  be  from the Bar by direct  recruitment  but under  the  proviso, not more than 1/3rd of the  substantive posts  in the service could be held by the direct  recruits. When  writ  petitions were filed by some of  the  promotees, O.P.   Singla  and  Ors.,  making a grievance  as  to  their continuance  on ad hoc or temporary basis for years together and  as to the discriminatory treatment that is meted out to them,  this  Court in 1984(4) SCC 450, (O.P.Singla and  Anr. vs.   Union  of  India  and  Ors.) came  to  hold  that  the so-called  quota  provided  in Rule 7 has been  broken  and, therefore,  the seniority has to be counted on the basis  of continuous length of service only, excluding the stop-gap or fortuitous  appointment.   Following  the judgment  of  this Court in S.B.  Patwardhan vs.  State of Maharashtra, 1977(3) SCC  399,  the Court was of the opinion that in a  situation wheres quota and rota rule has inevitably broken down, the seniority  between the direct recruits and promotees  should be  determined  according  to the dates on which  they  were appointed  to  their  respective  posts, so  far  as  direct recruits  are  concerned  and  the   dates  from  which  the promotees  have been officiating continuously either in  any temporary  posts  created in the service or  in  substantive vacancies  to  which  they  were appointed  in  a  temporary capacity.   The  seniority list was struck down and a  fresh seniority  list was directed to be prepared on the basis  of continuous  length  of service.  Pursuant to  the  aforesaid decision  of this Court, the High Court examined the  matter afresh.   But as there was no enunciation of the  expression stop-gap,  ad hoc and fortuitous, the High Court adopted a peculiar  procedure  and determined the inter  se  seniority Aggrieved by the same, when writ petitions were filed, those writ  petitions  having  been referred to  the  Constitution Bench,  stood disposed of on 22.8.2000, indicating the error committed  by the High Court and directing the High Court to

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re-draw the seniority list on the basis of observations made in  the  aforesaid  Constitution Bench,  since  reported  in 2000(8) S.C.C.  25.  It may be stated at this stage that the Govt.   of India, Ministry of Law and Justice,  communicated the   decision   to  the   Judicial  Department   of   Delhi Administration  in June, 1986, conveying the sanction of the President  of  India  in  respect  of  the  creation  of  14 temporary  posts of Additional District and Sessions Judges. Since  at  that  point  of time under the  rules  in  force, appointment  to the temporary posts in the service could  be made  only  by  promotion from Delhi Judicial  Service,  the Association  of  Promotee officers made a representation  to the  Chief Justice of the High Court that the newly  created temporary  posts be filled up by promotion from amongst  the members   of   the   Delhi   Judicial  Service,   but   that representation  having failed to evoke any response from the High  Court,  a writ petition had been filed in  this  Court which  was  registered  as  Writ  Petition  No.   1540/1986, praying therein that mandamus be issued to the Lt.  Governor of the Delhi Administration as well as the Union of India to fill  up  the  posts of 14 temporary Additional  District  & Sessions Judges in accordance with the Delhi Higher Judicial Service  Rules, 1970.  That writ petition was disposed of by an  order  of this Court dated 18.12.1986, which  is  quoted herein-below in extenso:

   We are indeed happy that the petitioners out of respect for  the High Court and having full trust in the High  Court have  expressed  their desire to withdraw the writ  petition for  the  sake  of congenial atmosphere between  the  senior members  of  the  judicial  family and  the  junior  members thereof.   In the light of consensus emerging at the hearing of  the matter we deem it necessary to evolve the formula as outlined  hereinafter  in order to resolve the problem  with expedition  and  to  the   satisfaction  of  all  concerned. Counsel  appearing  for all the parties are agreed that  the formula  evolved as under is fair and reasonable and all  of them  are agreeable to the same being embodied in our order, accordingly do so as under:-                                                                 I

   1.   We  request  the High Court to be  good  enough  to finalise  the  draft rules latest by January 15,  1987.   We request  the High Court to strain itself if necessary and to ensure  that  the draft rules are finalised before the  said date  and are forwarded to the Delhi Administration and  the Union  of  India  for  sanction   by  a  special   messanger forthwith.

   2.   We  request  the Delhi Administration  to  be  good enough to take a decision in regard to the matter pertaining to  sanctioning  of  the draft rules latest by  February  9, 1987.   We  also request the Delhi Administration  to  treat this  as  a special case, to cut the delay which  ordinarily takes  place  on account of procedural problems, and take  a decision  whether or not to grant the sanction on or  before the  said  date.  In case sanction is granted the papers  be forwarded  to  the  Union of India by  a  Special  Messanger forthwith.

   3.   We request the Union of India to be good enough  to treat  this as a special case and to take a decision one way or the other within three weeks of the receipt of the papers from  the Delhi Administration.  We request that  procedural delays  may  be avoided and a special effort may be made  to

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ensure that the appropriate decision is taken and is gazette within the aforesaid time span.

   4.   During the interregnum awaiting the decision of the Delhi  Administration and the Union of India we request  and authorise  the  High  Court to go ahead with  the  selection process  from  amongst  the members of  the  Delhi  Judicial Service  in the light of the draft rules in anticipation  of sanction,  so that the selection process is completed to the extent possible by the time the sanction is received.

   5.   We also request and authorise the Delhi High  Court to invite applications from the members of the Bar by way of a  public  advertisement  for making direct  recruitment  in anticipation  of the sanction of the draft rules.  When  the draft  rules  are  sanctioned  the  applications  which  are received will be treated as having been made in pursuance of and  under  the  rules as sanctioned and  published  by  the Competent  Authority.  After the draft rules are  sanctioned and  published a further advertisement inviting applications from  the  members of the bar for direct recruits  shall  be published  within  a  week of the publication of  the  rules giving  a short notice of 15 days to enable those members of the   bar  who  might  not   have  responded  to  the  first advertisement  issued in anticipation of the sanction of the rules  as  indicated hereinbefore to make application.   The selection  process  in respect of direct recruits by way  of interviews  etc.  will begin after all the applications  are received pursuant to both the advertisements.  The screening of  the  applications  received  in response  to  the  first advertisement  issued in anticipation of the sanction of the draft rules may be undertaken meanwhile to save time.

   6.   We  further  request  the High Court  to  make  the selection  and  forward its recommendations for filling  the posts  to the Central Government as early as possible and in any case by April 15, 1987.

   7.   We  also request the Central Government to be  good enough  to  expedite the process of making  appointments  in accordance  with law upon the receipt of the  recommendation at the earliest.

II

   8.   Before  we  part with this matter  we  consider  it appropriate   to   make  a   recommendation  to  the   Delhi Administration  and the Union of India in regard to a matter of  significance which came to force.  Most of the  judicial officers  of the Delhi Judicial Service have been stagnating for  very many years for lack of promotional avenue which is inherent in the very nature of the service and limitation of other  openings due thereto.  This situation results in  the judicial  officers being less than contented in the  absence of  incentive or hope for a better future.  Such a situation is  not  conducive  to bring out the best in  them.   It  is desirable  from  every point of view to maintain the  morale and  efficiency  of  the judicial officers  at  the  highest throughout  their  tenure.  It strikes us that it  would  be desirable  to  adopt the anti- stagnation formula  which  is applied  in  many  public Corporations by  way  of  creating Special  grades carrying a better scale than the  existing grade for those who have invested 12 years of service.  (We think that 12 years would be appropriate because a selection grade  would  be available to the judicial officers  on  the

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completion  of eight years under the present rules the  some upgrading  occurs four years later).  We strongly  recommend that  a decision on this issue be taken as early as possible by  the  Delhi Administration and the Union of India in  the larger interest of all concerned.

   9.   We  also recommend to the Delhi Administration  and the  Union of India to give anxious and early  consideration to  the  request  of  the Delhi High  Court  for  converting existing  temporary posts into permanent posts having regard to the increase in the volume of work and the unliklihood of decrease in workload in the near future.

   In  view  of the aforesaid formula which has  been  well received  by all the parties who have reacted in a  positive manner  in the right spirit, the petitioners are withdrawing the writ petition.  Liberty to revive the matter in case the situation  so  demands but not before April 15,  1987.   The Writ Petition is disposed of as withdrawn accordingly.

   The rules stood amended by a notification issued on 17th of  March,  1987  and  by  the  amendment  in  question  the expression  in substantive capacity occurring in Rule 2(d) stood  deleted.  The word substantive in the first proviso to  Rule  7  was  omitted.   Sub-rule   2  of  Rule  16  was substituted and the substituted rule provided that the posts created  under sub-rule (1) of Rule 16 could be filled up in consultation with the High Court from amongst the members of the  Delhi  Judicial Service and by direct recruitment  from the Bar.  By way of explanation, Rules 5, 7, 8, 9, 10 and 11 were  made  applicable to appointments made under  Rule  16. Rule  17  was  also substituted by the  amended  rule  which provided  for  filling  up of substantive vacancies  in  the service  by  making  temporary   appointments  thereto  from persons appointed under Rule 16.  In nutshell, the impact of the  amended rules was that appointments could be made  even to  the  posts temporarily created under Rule 16, both  from the  Bar  as  well  as from the  promotion  from  the  Delhi Judicial Service, which was hitherto being filled up only by promotion.   After  the  amended rules came into  force,  an advertisement  was  issued  on  6th  April,  1987,  inviting applications from the practicing advocates for filling up of 10  temporary  posts of Additional District Judges in  Delhi Higher  Judicial  Service.   The   Association  of  promotee officers  made representation to the High Court on 30.4.1987 against the aforesaid advertisement and the same having been rejected and the order of rejection having been communicated by  letter dated 1st June, 1987, the two writ petitions were filed  in this Court, one by the association and other by an individual member of the association.

   Mr.   P.N.  Misra, the learned senior counsel, appearing for  the  Association contended that the posts  having  been created  prior to the amended rules having come into  force, those  posts could be filled up only in accordance with  the un-  amended  rules  and necessarily,  therefore,  could  be filled  up  by  promotion  from the  Members  of  the  Delhi Judicial  Service, in terms of Rule 16, as it stood prior to the   amendment  and  in  this   view  of  the  matter,  the advertisement  that was issued to fill up 10 posts by way of direct  recruitment  is contrary to law and is liable to  be struck  down.   Mr.   Misra  further  contended  that  on  a

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construction of Rule 7(b), even if it is held that the posts were required to be filled up in accordance with the amended rules,  14  posts having been created, only 1/3rd  of  those posts  could  be  filled  up   by  direct  recruitment  and, therefore,  the advertisement is contrary to the  provisions of Rule 7(b) proviso.

   Mr.   G.P.  Thareja, appearing in-person, in addition to the contentions raised by Mr.  Misra, further contended that Rules  7,  16 and 17 violate Article 233 as well as  Article 16(1)  of  the  Constitution and as such the  same  must  be struck  down.   He also further contended that even  on  the basis  of  calculations made by the High Court  itself,  the number of posts available for direct recruits could be 9 and not 10.

   Mr.   A.  Mariarputham, appearing for the High Court  of Delhi,  on  the other hand contended that earlier  order  of this  Court  dated  18.12.1986 having been  passed  in  Writ Petition  No.  1540/86, which petition had been filed by the promotees,  urging  that the newly created  temporary  posts could  be  filled  up  only by promotion  from  amongst  the members  of the Delhi Judicial Service, having unequivocally indicated  to  go  ahead by inviting applications  from  the members of the Bar by way of public advertisement for making direct  recruitment  in anticipation of the sanction of  the draft rules, the contention that the temporary posts created could be filled up only by promotion from the members of the Delhi Judicial Service is wholly unsustainable.  The learned counsel  further contended that on a proper construction  of Rule  7(b), it would be apparent that though recruitment  to the post of Delhi Higher Judicial Service could be made both by  promotion as well as by direct recruitment from the Bar, but  under the proviso, not more than 1/3rd of the posts  in the  service  could be held by direct recruits.  This  being the  position  and taking into account the total  number  of posts  in the Delhi Higher Judicial Service, the High  Court was  fully justified in issuing advertisement for filling up of  10  posts by direct recruitment and as such there is  no infirmity in the same, requiring interference by this Court. He  further  contended  that   so-called  challenge  to  the validity  of  the  Rules on the ground that  it  contravenes Article  233  or  Article  16  is of  no  substance  as  the amendment  in question have been brought about in the  light of  observations made by this Court and at any rate there is no contravention of either Article 16 or Article 233, and as such the writ petitions are liable to be dismissed.

   In  view  of the submissions made at the Bar, the  first question   that  requires  consideration   is  whether   the temporary  posts having been created prior to the  amendment of the Rules, is it the law that those posts could be filled up  only  in  accordance with the un-amended rules  and  not otherwise?   There is no dispute that 14 temporary posts  of Additional  District & Sessions Judge were created in  June, 1986  and  it  is  also not disputed that as  the  posts  in question  were  not filled up, which could be filled  up  at that  point  of time only by giving promotion to  the  Delhi Judicial  Service, the association had approached this Court in  Writ  Petition No.  1540/86.  Mr.  P.N.  Misra,  relying upon  the  decision  of  this  Court in  the  case  of  Y.V. Rangaiah and Ors.  vs.  J.  Sreenivasa Rao and Ors., 1983(3)

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S.C.C.   284, and the decision of this Court in B.L.   Gupta and  Anr.   vs.   M.C.D., 1998(9)  S.C.C.   223,  vehemently contended  that  the  posts  being available  prior  to  the amendment  coming  into  force, it was  obligatory  for  the authority  to  fill  up those posts in accordance  with  the rules,  then  in  force and even after the  amendment  those posts  could  be  filled  up only  in  accordance  with  the un-amended  rules.   Mr.  Misra contends that the rights  of the  members of the Delhi Judicial Service to get  promotion to  the  Delhi Higher Judicial Service in respect  of  posts created prior to the amendment of the rules, cannot be taken away  by inaction on the part of the concerned authority  in not filling up the same and issuing advertisement only after the  rules  having  coming into force.  In  Rangaiahs  case [1983  ( 3) S.C.C.  284] this Court on consideration of  the relevant  rules  as well as the instructions issued  by  the Government,  came to hold that a list of approved candidates was  required  to  be  prepared as on  1.9.1976  for  making appointments  to  the  grade of Sub-Registrar  Grade  II  by transfer, but no such list having been prepared and instead, the  same  having been drawn up in 1977, by which  time  the amended  rules  have come into force, it was held  that  the legitimate  right  and  expectations  of  those,  who   were entitled to be included in the list which ought to have been prepared  in September, 1976 cannot be frustrated on account of  the fact that the panel had not been prepared and it was so  prepared  only  in  the  year   1977.   It  is  on  this conclusion,  the Court had held that the vacancies available prior  to 1.9.76 ought to be filled up under the  un-amended rules.   The aforesaid decision will have no application  to the  case  in  hand  inasmuch as in  Delhi  Higher  Judicial Service  there is no requirement of preparation of any panel or  list  of  candidates  eligible   for  promotion  by  any particular  date.   Then  again, merely because  posts  were created  under  Rule  16,  it was  not  obligatory  for  the appointing  authority  to fill up those  posts  immediately. That  apart,  the  most  important feature  is  the  earlier order/direction  by  this  Court   dated  18.12.1986,  which unequivocally indicated that the High Court should start the process  of  selection by direct recruitment  in  accordance with  the draft rules which the Court had seen at that point of  time.  In other words, this Court on being aware of  the fact  that temporary posts have been created and a grievance has  been made by the members of the Delhi Judicial  Service that  those posts were required to be filled up only by  way of  promotion  from them in accordance with the rules as  it stood then, a direction had been given that the posts should be  filled up both by promotion and by direct recruitment in accordance with the draft rules, in the event the said draft rules  ultimately come into force.  This being the position, it  is  difficult  for us to accept the  contention  of  Mr. Misra,  appearing  for the association that the  posts  were required  to be filled up only by way of promotion under the pre-amended   rules  notwithstanding  the   fact  that   the advertisement  itself  was  issued subsequent to  the  rules being  amended and notwithstanding the fact that this  Court earlier  had indicated that the process of selection even by direct  recruitment should take effect, without waiting  for the  rules  being finally enforced.  The other  decision  in Guptas  case  [1998(9)  S.C.C.  223], what  the  Court  was considering  is that the rules of 1995 being prospective  in nature,  the vacancies arisen earlier to that, whether could be  filled  up  under the pre-amended rules or  the  amended rules.   Relying upon three earlier decisions of this  Court referred to in paragraph (9) of the judgment, the Court held

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that  the vacancies which had occurred prior to the  amended rules  were required to be filled up under the old rules and not  by the amended rules.  This decision undoubtedly  could have  supported  Mr.  Misras contention to a great  extent, had  not there been the order of this Court dated 18.12.1986 in  Writ  Petition  No.  1540/86.  The very  dispute  namely whether   a  mandamus  could  be   issued  to  fill  up  the temporarily  created  posts  by   giving  promotion  to  the officers of the Delhi Judicial Service was before this Court and  the  Court then evolved a formula which was held to  be fair  and  reasonable  and, therefore on  the  agreement  of parties,  the  said formula was embodied in the  order.   In other  words, the Delhi Judicial Service Association,  which was  petitioner in this Court, agreed to the formula evolved by  this Court to be embodied.  While embodying the formula, this Court had indicated that the High Court of Delhi should invite  applications  from the members of the Bar by way  of public  advertisement  for  making   direct  recruitment  in anticipation  of the sanction of the draft rules and further stated  that  after  the  draft  rules  are  sanctioned  and published,  a  further advertisement, inviting  applications from  the members of the Bar for direct recruitment shall be published  to enable those members of the Bar, who might not have   responded  to  the   first  advertisement  issued  in anticipation  of the sanction of the rules.  In the teeth of the  aforesaid order, the conclusion is irresistible that 14 temporary  posts created even prior to the amendment of  the rules  could not have been filled up only by promotion  from the  Delhi Judicial Service as contended by Mr.  Misra,  the learned  senior  counsel appearing for the Association.   On the   other   hand,  the  earlier   order  of   this   Court unequivocally  stipulates that those posts should be  filled up in accordance with the rules to be amended, which at that stage  was only in a draft form.  That apart, the process of selection not having been started and even the advertisement itself  not having been issued and such advertisement having been  issued only subsequent to the amendment of the  Rules, it  is  futile to contend that the posts could be filled  up under  the  pre-amended rules, merely because the posts  had been  created  while  the amended rules have not  come  into force.   We,  therefore,  do not find any substance  in  the first  submission of Mr.  Misra, the learned senior  counsel appearing for the Association.

   So  far  as  the  second contention  of  Mr.   Misra  is concerned, it depends upon an interpretation of Rule 7(b) as amended.   Rule  7(b)  provides that recruitment  after  the initial recruitment shall be made by direct recruitment from the  Bar  provided that not more than 1/3rd of the posts  in the  service  shall  be  held   by  direct  recruits.    The expression  Service has been defined in Rule 2(e) to  mean the  Delhi Higher Judicial Service.  The expression  direct recruitment  has been defined in Rule 2(i) to mean a person who  is  appointed to service from the Bar.  The  expression Initial  Recruitment has been defined in Rule 2(g) to mean the  first  recruitment and appointment made to the  service after  the commencement of these rules.  On a plain  reading of  the  proviso,  it conveys the only  meaning  that  while making  direct recruitment from the Bar to fill up the posts in  Delhi  Higher Judicial Service, care should be taken  so that  not more than 1/3rd of the posts in the service  could be   held  by  direct  recruits  at  any  point   of   time. Necessarily,  therefore, the rules provide a maximum  number of  posts which could be filled up by direct recruits and it

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does  not  say  that 1/3rd of the number of vacancies  at  a given  point  of time is required to be filled up by  direct recruits.   The  embargo under the proviso is that the  High Court,  while  is  entitled to fill up the  posts  in  Delhi Higher  Judicial  Service  both by promotion and  by  direct recruitment from the Bar, but cannot make direct recruitment so  as  to exceed 1/3rd of the total number of posts in  the service.    At  the  relevant  point   of  time   when   the advertisement  was issued, the total number of posts in  the service  being  53,  39 permanent and 14 temporary  and  the number  of  direct recruits at that point of time  in  Delhi Higher Judicial Service being 8, the advertisement issued by the  High Court being for recruitment by direct recruits for 10  posts, would not constitute an infraction of the proviso to   Rule   7(b),  as  contended  by  Mr.   Misra   on   the interpretation  of the aforesaid provision.  We,  therefore, are  unable  to persuade ourselves to agree with the  second submission of Mr.  Misra, appearing for the Association.

   Coming  to the question as to whether the amended rules, particularly  Rules 7, 16 and 17 can be held to be violative of Article 233 or Article 16 of the Constitution, we fail to understand  how Article 233 can at all be held to have  come into  play.   The  contention  of Mr.  Thareja  is  that  by providing  in  Rule 7 that not more than 1/3rd of the  posts could  be filled up by direct recruitment, there has been  a decline  in  the standard of appointees in the lowest  level and  the  talented  people  are not  willing  to  enter  the judicial  service, which in turn affects the efficiency  and intelligence  of the officers in the cadre and this in  turn must  be  held to be violative of Article 233.  The  learned counsel  also further contended that providing 1/3rd of  the posts  in  the  cadre, both temporary and  permanent  to  be filled  up  by  direct  recruits results in  the  denial  of equality  of opportunity and violates Article 16(1) as  well as  it is discriminatory and violates Article 14.  We see no substance  in the aforesaid contention.  Article 233  itself provides for appointment of District Judges and while Clause (1)  lays  down  that the appointment could be made  by  the Governor  in  consultation with the High  Court,  exercising jurisdiction  in relation to the State by promotion from the Subordinate  Judicial  Service,  Clause   (2)  provides  for appointment  by a person not already in service of the Union or the State as District Judge, provided he has

   been  an  Advocate  for not less than seven  years.   In other  words, Clause (2) itself provides for appointment  by direct  recruitment from the members of the Bar.  The  Delhi Higher  Judicial Service having been framed in  consultation with  and on recommendations of the High Court and the rules having  provided  for filling up the posts in  Delhi  Higher Judicial  Service  by  promotion  as   well  as  by   direct recruitment  with the rider that the direct recruits  cannot be  more  than  1/3rd  of the total  number  of  posts,  the contention  that such rule violates Articles 14, 16 and  233 is  wholly  misconceived.   In fact the question  no  longer remains  res  integra,  the  same, having  been  raised  and answered  by  this  Court  in the case  of  Orissa  Judicial Services Association, Cuttack and anr.  vs.  State of Orissa and  Ors.   , AIR 1991 Supreme Court 382.  In the  aforesaid premises,   the  contention  of   Mr.   Thareja  cannot   be sustained.   In  the  premises as aforesaid, both  the  writ petitions fail and are dismissed.

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