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PETITIONER: O.P. SINGLA & ANR. ETC

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT14/08/1984

BENCH: CHANDRACHUD, Y.V. ((CJ) BENCH: CHANDRACHUD, Y.V. ((CJ) PATHAK, R.S. MUKHARJI, SABYASACHI (J)

CITATION:  1984 AIR 1595            1985 SCR  (1) 351  1984 SCC  (4) 450        1984 SCALE  (2)144  CITATOR INFO :  F          1985 SC1019  (20,21)  R          1985 SC1558  (14,24)  F          1985 SC1605  (15,16)  F          1986 SC 424  (24)  R          1986 SC 638  (12,15,20)  RF         1986 SC1455  (19)  R          1987 SC 716  (13)  RF         1987 SC2359  (17)  D          1988 SC 260  (13)  RF         1988 SC 968  (13)  R          1990 SC1256  (18)

ACT:      Service  jurisprudence-Seniority-Fixation  of  inter-se seniority of  promoted officers  and direct  recruits to the Delhi Higher  Judicial Service,  under  the  Delhi  Judicial Service Rules,  1970-Whether the  direct  recruits  who  are appointed later  than the  promoted officers  under rule 16, termed  temporary  appointments,  rank  senior-Whether  such promoted officers  can  be  treated  as  members  of  Higher Judicial Service  as defined  in rule 2 (b), 2 (d), 6, 7, 16 and 17  applicability quota  and rota rule explained-Binding nature of previous judgments of the Court explained, whether the rules justify the ranking in seniority list-Constitution of India, Articles 14 and 16.

HEADNOTE:      Regular recruitment  after the  initial recruitment  to the Delhi  Higher Judicial Service under Rule 7 of the Delhi Judicial Service  Rules, 1970  is made  by promotion  on the basis of  selection  from  members  of  the  Delhi  Judicial Service who have completed not less than 10 years of service and by  direct recruitment  from  the  Bar  subject  to  the provision that  not more  than one  third of the substantive posts in  the service  shall be  held by direct recruits. In the case  of  promoted  officers,  the  appointment  to  the service shall  be made  by the Administrator in consultation with the High Court while the appointment of direct recruits shall be made on the recommendations of the High Court.      Rule 2(b)  provides that  cadre  post  means  any  post specified in  the Schedule  and includes  a  temporary  post

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carrying the  same designation  as that  of any  of the post specified in  the Schedule  and  any  other  temporary  post declared as  cadre post  by the Administrator. Under rule 16 the Administrator  is empowered  to create temporary post in the service  and such  temporary post  shall  be  filled  in consultation with the High Court from amongst the members of the Delhi  Judicial Service. Under rule 17 the Administrator may in  consultation with  the High  Court fill  substantive vacancies in  the service  by making  temporary appointments thereto from  amongst members of the Delhi Judicial Service. Rule 8  speaks of  seniority while the inter-se seniority of members of  the  Delhi  Judicial  Service  promoted  to  the service shall  be the same as in the Delhi Judicial Service, the seniority  of direct  recruits vis-a-vis promotees shall be determined  in the order or rotation of vacancies between the direct  recruits and  promotees based  on the  quotas of vacancies reserved  for both  categories by  rule 7 provided that the  first available vacancy will be filled by a direct recruit and the next two vacancies by promotees and so on. 352      The Administrator  have appointed  the writ petitioners and also  the  defendants by resorting to Rule 16 and Rule 7 respectively. But  when the seniority list was prepared some of the defendants who are direct recruits were ranked higher than the  promoted officers  who have been appointed several years earlier under Rule 16. Hence the two writ petitions by the promoted  officers  contending  that  seniority  between promotees  and   direct  recruits   must  be  determined  in accordance with  the respective  dates of  their  continuous officiation as  Additional District  and Sessions Judges and that  direct   recruits  who  are  appointed  as  Additional District and  Sessions Judges  after the  promotees  are  so appointed cannot rank higher in seniority over the promotees and that  promotees discharge  identical functions  and bear the same  responsibilities as direct recruits and upon their appointments they  constitute only common class and hence to give seniority  to the  direct recruits  who  are  appointed later in point of time is violative of articles 14 and 16 of the Constitution.      Allowing the petitions in part, the Court ^      HELD : (Per majority)      Per Chandrachud, C. J.      1:1. The  impugned seniority  list, which is challenged by the promoted officers has been prepared on the basis that the  rule   of  quota   and  rota  will  continue  to  apply notwithstanding the  fact that  appointments are made to the service under  rules 16 and 17 of the Delhi Judicial Service Rules and  is  violative  of  articles  14  and  16  of  the Constitution since  the rule of quota and rota prescribed by the proviso to rule 7 would cease to apply when appointments are made to service under rules 16 and 17. [378B-C]      1:2. But  the provisions contained in proviso to rule 7 and rule  8(2) of  the Delhi  Judicial Service Rules 1970 do not by  themselves suffer  from any  infirmity and therefore constitutionally valid. [380A]      2:1. When  a rule  or a  section is part of an integral scheme  it   should  not   be  considered  or  construed  in isolation. One  must  have  regard  to  the  scheme  of  the fasciculus of  the relevant  rules or  sections in  order to determine the  true meaning  of any  one or more of them. An isolated consideration of the provision leads to the risk of some  other  inter-related  provisions  becoming  otiose  or devoid of meaning [365H: 366A]      2:2. The  negative language  of the  proviso to  rule 7

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makes it clear that it merely prescribes, by way of imposing a ceiling  that the direct recruits shall not hold more than one-third of  the substantive  posts. The  language  of  the proviso to  rule  7  is  certainly  not  felicitous  and  is unconventional if its intention was to prescribe a quota for direct recruits.  But the  proviso must  be read  along with rule 8(2)  since the two provisions are inter-related. Their combined reading  yields but  one result,  that the  proviso prescribes  a  quota  of  one  third  for  direct  recruits. Otherwise there  would  neither  be  any  occasion  nor  any justification for rotating vacancies between direct recruits and promotees [366C-E]      2:3. In  the process of reading the rules as parts of a connected whole,  rules 16  and 17 are equally relevant. The position which  emerges from  the  provisions  contained  in rules 16 and 17 is that it is permissible to create 353 temporary  posts   in  the  service  and,  even  substantive vacancies in  the service  can be filled by making temporary appointments. The  two-fold restriction  on  this dual power is  that   the  High   Court  must  be  consulted  and  such appointments must  be made  from amongst the promotees only. If temporary appointments to the service either in temporary posts or  in substantive  vacancies can  be made  within the framework of  the rules  and have to be made, if at all from amongst the  promotees and  promotees only,  the quota  rule contained in the proviso to rule 7 must inevitably breakdown when such  appointments are  made, the  simple reason  being that direct recruits cannot be appointed either to temporary post in  the service to substantive vacancies in the service which are  filled in  by making temporary appointments. Thus even though  the proviso to rule 7 prescribes a quota of one third for  direct recruits,  rules 16 and 17 permit the non- observance of  the quota rule in the circumstances stated in those rules. [366F; 367A-D]      3 :  1. Normally, an ex-cadre post means a post outside the cadre  of posts  comprised in  a service.  Therefore all posts in  the service  whether permanent  or temporary,  are generally regarded  as cadre  posts. But,  regardless of the normal pattern  of service  rule rule  2 (b) has the limited effect of  making every  post in  the service  a cadre post, whether the  post is  permanent or  temporary. The inclusive clause contained  in the second part of rule 2 (b) has to be read in  the context of the first part of that rule and must take its  meaning from  what precedes  it. This provision is consequential to and in consonance with Rule 16. Since it is permissible under  Rule 16  to create temporary posts in the service, such  posts are  also regarded  as cadre  posts. It would have  been anomalous to treat a post in the service as an ex-cadre  post merely  for the  reason that  the post  is temporary. [367H; 368A-B; 367G]      Therefore, every  promotee who  holds the  post  of  an Additional District and Sessions Judge in the service is the holder of  a cadre  post, whether  the post  is permanent or temporary direct  recruits hold  cadre post  in  all  events because, they  can only  be appointed to substantive post in the service  on a  permanent basis.  Rules 16  and 17 forbid their appointments  to temporary  post in  the service or to substantive vacancies  in the  service on a temporary basis. [368C-D]      3 :  2. Rule  2 (d) which provides that a member of the service means  a person appointed in substantive capacity to the service under the provisions of the rules shows that two conditions must co-exist in order that a person can become a member of the service. Firstly, his appointment has to be in

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a substantive  capacity and secondly, the appointment has to be to the service, that is to a post in the service. Persons who hold  appointments bearing  designations similar  to the designations of  the posts  comprised in the service cannot, for that  reason alone  become members of the service. It is only when  they are appointed in a substantive capacity to a post in  the  service,  that  they  become  members  of  the service. [368E-G]      3 :  3. By  the definition contained in rule 2 (d), the membership of  the service  is limited  to persons  who  are appointed in  a substantive  capacity to the service. By the second part  of rule  2 (b),  if read  in an  extended sense every temporary  post which  carries the same designation as that of any of the post 354 specified in  the schedule is a cadre post whether such post is comprised in the service or not. Such posts and the posts specified in the Schedule will together constitute the cadre under rule 2 (b). [369B-C]      4 :  1. Whenever the rules provide for recruitment to a service  from   different  sources,  there  is  no  inherent infirmity in  prescribing a quota for appointment of persons drawn from  those sources  and in  working out  the rule  of quota by  rotating the vacancies as between them in a stated proportion. Therefore  rule 8  (2)  cannot  be  held  to  be unconstitutional merely because it reserves one third of the vacancies in  the service  for direct  recruits and provides that the  first available  vacancy in  the service  will  be filled in by a direct recruit, the next two by promotees and so on. [369G; 370B]      Mervyan  Coutinho  v.  Collector  of  Customs,  Bombay, [1966] 3 SCR 600; S.C. Jaisinghani v. Union of India, [1967] 2 SCR  703, Bishan  Sarup Gupta  v. Union of India, [1975] 1 SCR 104;  A.K. Subraman  v. Union of India, [1975] 2 SCR 979 V.B. Badami  v. State  of  Mysore,  [1976]  2  SCC  901  and Paramjit Singh  Sandhu v.  Ram  Rakha,  [1979]  3  SCR  584; referred to.      4 :  2. However,  there being  instances wherein though the provision  of rule  or a  section is  not  invalid,  the manner in  which that  provision is  implemented in practice leads to  the creation  of disparities  between persons who, being  similarly   circumstanced  are   entitled  to   equal treatment. The  provisions of  rule 8  (2) must therefore be applied carefully and in such a manner as not to lead to the violation of the guarantee of equality and equal opportunity contained in  articles 14  and 16  of  the  Constitution  by ascertaining as to which of the promotees can be regarded as belonging to the same class as the direct recruits. [370C-D]      4 : 3. The pre-requisite of the right to inclusion in a common list  of seniority  is that  all those who claim that right must, broadly, bear the same characteristics. The mere circumstance that  they hold  posts  which  carry  the  same designation will not justify the conclusion that they belong to the  same class. Persons who are appointed or promoted on an ad  hoc basis  or for  fortuitous reasons  or by way of a stop gap  arrangement cannot  rank for purposes of seniority with those  who are  appointed  to  their  posts  in  strict conformity with the rules of recruitment, whether such later class posts  are permanent  or temporary.  The rules  in the instant case do not require that persons belonging to former category have  to satisfy  any particular  prescription like consultation with the High Court. [370E-F]      5 :  1. There  is  no  provision  in  the  Rules  which requires that  ad hoc  appointments must  also  be  made  in accordance with  any set  formula. The courtesy shown by the

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authorities to  the High Court when certain appointments are made is one thing and the obligation imposed by the rules on the authorities  that the High Court shall be consulted when certain appointments are made is another. Indeed, there is a distinction between  the process  of consultation  with  the High Court  and the  screening of  the promotees done by the High Court,  may be at the instance of the authorities, when their names  are considered  for appointment  as  Additional District and Sessions Judge on an ad hoc, fortuitous 355 or stop-gap  basis. Thus,  persons belonging  to  the  Delhi Judicial Service  who are  appointed to  temporary posts  of Additional District and Sessions Judge on an ad hoc basis or for fortuitous  reasons or  by way of a stop-gap arrangement constitute a class which is separate and distinct from those who  are  appointed  to  posts  in  the  service  in  strict conformity with  the rules  of recruitment. In view of this, the former class of promotees cannot be included in the list of seniority  of officers  belonging to  the service. [370H; 371A-D]      5:2. However, in the matter of seniority no distinction can be  made between  direct recruits  who are  appointed to substantive vacancies  in the  service on the recommendation of the High Court under rule 5 (2) and the promotees who are appointed in  consultation with  the High  Court to posts in the service  under  rules  16  and  17.  Promotees  who  are appointed to  the service  under either  of these  two rules must be  considered as belonging to the same class as direct recruits appointed  under rule  5 (2).  They perform similar functions, discharge  identical duties  and  bear  the  same responsibilities as direct recruits. They are appointed on a regular basis  to posts in the service in the same manner as direct recruit  are appointed,  the only  distinction  being that whereas  the latter are appointed on the recommendation of the  High Court,  promotees are appointed in consultation with the  High Court  Exclusion from  the seniority  list of those promotees  who are  appointed to posts in the service, whether  such  appointment  is  to  temporary  posts  or  to substantive vacancies in a temporary capacity will amount to a violation of the equality rule since, thereby, persons who are situated  similarly shall have been treated dissimilarly in a  matter which  constitutes an  important facet of their career. [371E-H; 372A]      5:3. In  situations resulting  in the suspension of the rule of  ’quota and  rota’, it  is difficult  to  evolve  an equitable rule  for  determining  seniority  between  direct recruits on  the one  hand and  promotees who  are appointed under rules  16 and  17 on  the other  which will  cause  no hardship  of   any  kind  to  any  member  of  the  service. Therefore, the attempt has to be made to minimise, as far as possible, the  inequities and disparities which are inherent in a  system which  provides for  recruitment to the service from more  than one  source by  keeping in  mind one guiding principle, namely  that the  classification is  gloss on the right to  equality and to ensure that classification is made on a  broad, though rational, basis so as not to produce the self-defeating result  of denying  equality to those, who in substance, are situated similarly.[374C-E]      6 Since the rule of quota and rota ceases to apply when appointments are  made under  rules 16 and 17, the seniority of direct recruits and promotees appointed under those rules must be  determined according  to the  dates on which direct recruits are  appointed to  their respective  posts and  the dates  from   which  the  promotees  have  been  officiating continuously either  in a  temporary  post  created  in  the

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service or  in substantive  vacancies  to  which  they  were appointed in a temporary capacity. [375F-G]      S.B. Patwardhan  v. State  of Maharashtra, [1977] 3 SCR 775; applied;  Baleshwar Dass v. State of U.P., [1981] 1 SCR 449 distinguished; A. Janardhana v. Union of India, [1983] 3 SCC 601;  followed Joginder Nath v. Union of India, [1975] 2 SCR 553; held inapplicable. 356 Per Sabyasachi Mukharji, J.      1:1. The proviso to rule 7 merely provides that in case in an year there is vacancy for recruitments from the Bar as well as  by promotion  more than  one third  of  substantive posts should  not be  filled in  by direct  recruitment, and nothing more  and therefore  it cannot be said that there is any quota  of Bar  recruits of  one third. The rule does not say that  one third of direct recruits must for each year be one third  of the  recruitments made.  It puts  a ceiling on number of  Bar recruits  in an  year where  Bar recruits are available and willing to be appointed.[384C-E]      1:2. Sub-rule (2) or the makers of Sub-rule (2) of Rule 8 presumed  and assumed  a factual  position that  quotas of vacancies have  been reserved  for both categories by Rule 7 which is really not a fact Rule 7 does not reserve any quota for either  of the  categories  Rule  7,  0.4  provides  for ceiling of  direct recruits  by providing that in case there were recruitments  from the  Bar as well as by promotions in such a case Bar recruits would not be more than one third of the substantive posts in the service. [384H: 385A-B]      2:1. It  is well-settled that breft of anything where a service consists  of recruitments  made from  two  different sources and  the rules  and regulations  provide  for  their recruitment  and   their  rights,  inter-se,  primarily  and essentially those  rights have  to be  adjusted  within  the scheme of  the rules  though it  might in some cases lead to certain amount of imbalances or injustices because a service is built  on  various  considerations  and  various  factors induce the  legislature  or  the  rule-making  authority  to induce different  and diverse  knowledge, diverse  aptitudes and requirements  needed for  running of  the  service.  The legislature  or  the  rule-making  authorities  have  better knowledge   and    better   capacities   to   adjust   those factors.[385D-F]      2:2. Rule  8 (2)  proceeds on  the  misconception  that there is  quota fixed for direct recruits, which rule 7 does not. Rule  8 (2)  cannot on  plain literal  meaning also  be construed or  interpreted to  mean that it was deemed by the legislature and  the rule-making  body to engraft any quota. There is no deemed quota, if that was the intention then the rule would  have said so. The rule is silent and proceeds on wrong assumption  Therefore, the rule should be given effect to in  so far as it can be without reading any quota for the subsequent years.[384E-F]      Mervyn Coutinho & Ors. v. Collector of Customs Bombay & Ors [1966]  3 SCR  600; S.C. Jaisinghani v. Union of India & Ors., [1967]  2 SCR  p. 703,  Chandra mouleshwar  Prasad  v. Patna High Court & Ors., [1970] 2 SCR 666; V.B. Badamai Etc. v. State  of Mysore  & Ors., [1976] 1 SCR 815=2 SCC 901; and Bishab Sarup  Gupta v.  Union of India & Ors., [1975] Suppl. SCR 491; held inapplicable. 357 Joginder Nath and Ors. v. Union of India & Ors.,[1975] 2 SCR 553 referred to.      3.1. Service  jurisprudence in India has developed in a peculiar way.  It has  sought to infuse both fresh blood and old experience  but somehow our administrators did not for a

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see the  need for  expanding administration and the personal necessary  for   this  expansion,  as  a  result  in  making appointments and  even granting promotions, there has been a good deal  of ad-hoc  arrangements  crating  in  practically every branch  of administration  feeling of  discontent  and misunderstanding between  promotees and direct recruits, and damaging the  friendly atmosphere which should prevail among the members  of the administration, if administration has to remain a vehicle of social progress and transformation which the Indian  administration must,  in view  of the very great possibility and  the transitory  nature through  which it is passing  in  spite  of  the  severe  personal  and  economic hardships that  the member of the administration go through. [388H; 389A-C]      3:2. In  Baleshwar Dass  & Ors. Etc. v. State of U.P. & Ors. Etc.  [1981]1. SCR. 449, the Supreme Court noted that a person is said to hold a post in a substantive capacity when he holds  it for  an indefinite  period, especially  of long duration in contradistinction to a person who holds it for a definite or  a temporary  period or  holds that on probation and subject  to confirmation. If the appointment was to post and the capacity in which the appointment was to be made was of indefinite  duration, if  the proper  authority had  been consulted and  had approved,  if the  tests prescribed  have been taken and passed, if probation has been prescribed, and has been  approved it  can be said that the post was held by the incumbent  in a  substantive  capacity.  Applying  these tests to  the facts  and circumstances  of this case dealing with the  officers holding the post for a long time there is no  doubt  that  the  petitioners  officers  have  held  the positions in substantive capacities [392G-H; 393A-B]      Further by  reason of  rule 2  (b) and  rule 2  (d) the petitioners being  holders of  temporary post in substantive capacities are holding ’cadre posts’ and are also members of the  Service.  Appointment  in  a  substantive  capacity  is certainly different  from appointment to a substantive post. Therefore the holders of substantive posts i.e. the 12 posts originally at  the inception  of service  and 22  posts now, alone are not members of the service. All incumbents holding either substantive  posts or  temporary post  in substantive capacities are  members of the service in the context of the present rule. [393C-E]      S.B. Patwardhan  & Ors.  Etc. v. State of Maharashtra & Ors., [1977]  3 SCR  p. 775; Rajendra Narain Singh & Ors. v. State of  Bihar &  Ors,.[1980] 3  SCR 450;  A. Janardhana v. Union of  India &  Ors.,  [1983]  3  SCC  601  at  627;  and Baleshawr Dass  & Ors.  Etc. v.  State of  U.P. &  Ors. Etc. [1981] 1 SCR 449; referred to.      3:3. The  principles of harmonious construction must be accepted so  that all  the rules  are rendered operative and one does not make the other rule nuga- 358 tory. In the context of the present circumstances rule 7 can have only  application to  recruitments to  the  substantive posts in  the service. Rule 7 provides two different sources of recruitment  and without  fixing any  actual quota. but a ceiling that  not more  than one  third of  the  substantive posts be  held by direct recruitments. Rule 7 and 8 does not exist  in   isolation  and  must  be  read  with  the  other particularly rule  16. Rule 16 is a rule of relaxation or an additional rule of recruitment providing for temporary posts being filled  up in  addition to  the substantive posts. The effect of  the creation  of temporary posts is to expand the area of  membership of  the service.  As the  filling of the temporary posts  under rule  16 is  confined to  recruitment

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from the  members of Delhi Judicial Service Rule 7 cannot be made applicable  for the  recruitment  to  temporary  posts. Therefore, there  is no quota rule applicable with regard to temporary posts. [393F-H]      4:1. Assuming that proviso to rule 7 (b) provides for a quota of  one third  for direct  recruits, rule 16 (1) which empowers the  administrator to create temporary posts in the service read  with rule 16 (2) which provides that temporary posts shall  be filled  in, in  consultation with  the  High Court from amongst the members of the Delhi Judicial Service either constitutes  an exception to the quota rule or in the alternative  proceeds   on  the   basis  of  realization  or abrogation of  quota rule.  By Rule  16 (2) a direct recruit cannot be  appointed to  a temporary  post. In  other words, only promotees  can be  appointed to  temporary post. If the source of recruitment to temporary posts is one and one only namely, the  members  of  the  Delhi  Judicial  Service,  no question of  applying the quota rule can possibly arise. The quota rule  can have  application only if there is more than one source of recruitment as envisaged by rule 16 (1) and if such posts  have been  filled in  as it appears to have been done here  in consultation  with the High Court from amongst members of  Delhi Judicial Service as required under rule 16 (2) of  the rules,  quota rule  assuming that  there is any, cannot apply  to such  appointments. The  validity  of  such appointments is not open to the exception that these violate the quota rule, if any. [394F-H; 395A-B]      4:2. As between direct recruits on the one hand and the members of  the Delhi Judicial Service who were appointed in substantive  capacity   to  temporary  posts  of  Additional District and Sessions Judge on the other hand, the seniority must be  governed by  the rules of continuous officiation in the cadre  post i.e.  a direct recruit who is appointed in a substantive capacity  to  a  temporary  post  of  Additional District and  Sessions Judge  cannot  and  should  not  rank higher than the latter in the list of seniority, if a direct recruit is  appointed after  a member  of the Delhi Judicial Service thus  promoted he would rank lower in seniority than the latter. [395D-E]      4:3.   An   appointment   on   probation   is   not   a jurisprudential  sine   qua  non  for  absorption  into  the services, though  normally and  generally various  rules  of different services make such provisions as rule 12 (2) here. During the  pendency of  the  Writ  Petitions  some  of  the promotees  were   placed  on  probation  retrospectively  by different   orders.    Such   probations   are   meaningless formalities. In the 359 instant case,  the placement  of promotees  on probation has not been  very strictly  followed for  which  the  promotees cannot suffer. [396G-H]      4:4. It  cannot be  said that  the petitioners were not appointed regularly  in accordance  with the  qualifications laid down under rule 7 (a). In fact the selections were made by the  full court  of the  High Court and appointments were made on merit-cum-seniority-basis. [397B-C]      M. Verraian  Chowdhary &  42 Ors.  v. The Government of A.P. &  87 Ors.  C. A.  No. 2030 of 1981; S.P. Gupta etc. v. Union  of   India  &   Ors.,  [1981]   Supp.  SCC  87,  held inapplicable.                         OBSERVATION      [One should  insist that  Government must  abolish this system of  making appointments from two different sources in ad hoc  manner. If  appointments have  to be  made from  two different sources  then the  authorities should so plan that

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recruits  come  from  two  different  sources  in  time  and officers from  one  source  are  not  required  to  function substantively and effectively in the jobs which are intended to be  performed by  recruits of  other source  and face the prospect of  being either pushed back or thrown out.] [398G- H]

JUDGMENT:      ORIGINAL JURISDICTION:  Writ Petition Nos. 5669 of 1980 and 1345 of 1981       (Under Article 32 of the Constitution of India)      G. L. Sanghi, S. K. Dholakia, S. C. Gupta, D. S. Gupta, P. Narashiman  and R.  C. Bhatia  for the Petitioners in WP. No. 1345 of 1981.      A. K. Sen, Anil Kumer Gupta, Brij Bhushan and Mrs. Renu Gupta for the Petitioners in WP. No. 5669 of 1980.      V. C.  Mahajan, N. C. Talukdar, V. B. Saharya and R. N. Poddar for Respondents Nos. 1 & 2.      P. P.  Rao, Girish  Chandra, A.  Mariarputham, Miss  A. Subhashini and Miss Aruna Mathur for Respondent. (Delhi High Court)      K. K.  Venugopal, Mrs.  Urmila Kapoor  and  K.  Lakshmi Venugopal for Respondent No. 4. (G.S. Dakha)      Dr. L.  M. Singhvi, A. M. Singhvi, K. Lakshmi Venugopal and Mrs. Shobha Dikshit for Respondents 5 & 6. 360      M. C.  Bhandare and S. S. Srivastava for Respondent No. 7.      M. C. Bhandare for the Intervener (Delhi High Court Bar Association)      A. K.  Ganguli for  the intervener  (Delhi High Court & Delhi Bar Associations)      B.P. Maheshwari (Delhi Bar Council)      The following Judgments were delivered      CHANDRCHUD, C.  J. Once  again,  we  are  back  to  the irksome question of inter se seniority between promotees and direct recruits.  The contestants,  this time,  are judicial officers of  Delhi. Our  familiarity,  generally,  with  the difficulties  in  the  way  of  judicial  officers  and  our awareness of  their just aspirations make our task difficult and sensitive.      The conclusion  to which  we have come in this judgment is not different from the one reached by our learned Brother Sabyasachi Mukharji.  In this Judgment, Brother Mukharji has discused, more  fully, the various aspects of this matter as also the  decisions which  were cited before us. Our reasons for  writing   this  separate   opinion  are,   the  general importance of  this case.  the fact  that  it  concerns  the higher  judiciary   and  our  respectful  disagreement  with Brother Mukharji  on  the  interpretation  of  some  of  the provisions  with  which  we  are  concerned  in  these  Writ Petitions.      There are  many decisions  bearing  upon  the  familiar controversy between  promotees and  direct recruits and this will be one more. Perhaps, just another. Since those various decisions have  not  succeeded  in  finding  a  satisfactory solution to  the controversy,  we would do well by confining our attention  to the language and scheme of the rules which are under  scrutiny herein,  instead of  seeking to derive a principle of  universal application  to the cases like those before us.  Previous judgments of this Court are, of course, binding to the extent that they are relevant and they cannot be ignored.  But, if  they turn  upon their  own facts,  the

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general set-up  of the  particular service,  its  historical development and  the words  of the  impugned provisions,  no useful purpose  will be  served by discussing those cases at length, merely  to justify  an observation  at the  end that they have no application and are distinguishable. 361      We have  two writ  Petitions before  us which are filed under Article  32 of the Constitution by promotee Additional District and  Sessions judges of Delhi. We will not describe them as  ‘Members of  the  Delhi  Higher  Judicial  Service’ because, that  precisely is  the question  to be decided. If they are  members of  that service they shall have won their point. They  were working  at the relevant time in temporary posts which  were created by the Delhi Administration in the cadre of  Additional District  and Sessions  Judges. In that capacity, some  of them are working on deputation as members of one  or the  other of  the Tribunals  in Delhi,  like the Industrial Tribunal  or the Sales Tax Tribunal. The Union of India, the Delhi Administration, the High Court of Delhi and direct recruits  to the  Delhi Higher  Judicial Service  are impleaded as respondents to the petitions.      The Delhi  Higher Judicial  Service was  constituted on May 15, 1971 with a complement of 12 posts. The Delhi Higher Judicial Service  Rules,  1970  which  were  framed  by  the Lieutenant-Governor of  Delhi in consultation with the Delhi High Court,  were published  in the  Delhi Gazette on August 27, 1970.  Those Rules  were framed under Article 309 of the Constitution.      Rule 2(b)  provides that  ‘Cadre Post’  means any  post specified in  the Schedule  and includes  a  temporary  post carrying the  same designation  as that  of any of the posts specified in  the Schedule any other temporary post declared as cadre  post by  Administrator. Rule  2(d) provides that a ‘Member  of   the  Service’  means  a  person  appointed  in substantive capacity  to the Service under the provisions of the Rules. ‘Service’ is defined by the Rule 2(e) to mean the Delhi Higher  Judicial Service. A person who is appointed to the Delhi  Higher Judicial  Service by  promotion  from  the Delhi Judicial  Service is  called the  ‘Promoted  Officer’, while a person who is appointed to that Service from the Bar is called  the ‘Direct  recruit’. By  Rule 4, the authorised permanent strength  of the  Service and  the posts  included therein shall be as specified in the Schedule.      Part III  of the  aforesaid Rules deals with the method of recruitment  to the  Service. Recruitment of promotees is dealt with  by Rule 5(1), according to which, recruitment of persons to the service from the Delhi Judicial Service shall be made  by the  administrator in consultation with the High Court. ‘Administrator’ means the 362 Administrator   appointed   under   Article   239   of   the Constitution for  the Union  Territory of Delhi. Appointment of direct  recruits is dealt with by Rule 5(2), according to which, in  regard to  the persons  not already  in the Delhi Judicial Service,  appointment to  service shall  be made by the Administrator  on the  recommendation of the High Court. In other  words, promotees  are appointed  to the Service in consultation with  the High  Court while direct recruits are appointed to  the service  on the recommendation of the High Court.      Rules 7  and 8  which are  crucial to  the  controversy between the promotees and direct recruits read thus :      "Rule 7-REGULAR RECRUITMENT :-           Recruitment after the initial recruitment shall be           made :

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    (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      substantive posts  in the  Service  shall  be  held  by      direct recruits."      "Rule 8-(1)  The inter-se  seniority of  members of the      Delhi Judicial Service promoted to the Service shall be      the same as in the Delhi Judicial Service.           (2) The  seniority of  direct  recruits  vis-a-vis      promotees shall  be determined in the order of rotation      of vacancies  between the direct recruits and promotees      based on  the quotas  of vacancies  reserved  for  both      categories by  Rule 7 provided that the first available      vacancy will be filled by a direct recruit and the next      two vacancies by promotees and so on."      Rule 9 lays down the qualifications for direct recruits by providing  that they  should be  citizens of  India, that they must  have practised  as advocates  for not less than 7 years and  that they  must have attained the age of 35 years but not  attained the  age of  45 years  on January 1 of the year in which they are appointed. 363      The initial  recruitment to the Service was made by the Administrator  in   consultation  with  the  High  Court  in accordance with Rule 6, from amongst the District Judges and Additional District Judges who were functioning in the Union Territory of Delhi on deputation from other States and those whose names  were recommended  by the  respective States for such appointment.  Those persons  who were  appointed to the Service as  part of  the initial recruitment stood confirmed with effect from the very date of their appointment. That is provided by  Rule 12(1).  Sub-rule (2)  of Rule  12 provides that all  other candidates  who are appointed to the service shall be  on probation  for a  period of  two years. Rule 13 requires that  all  persons  appointed  to  the  Service  on probation shall  be confirmed  at the end of the said period of two  years: provided  that the  Administrator may, on the recommendation of  the  High  Court  extend  the  period  of probation but  not so as to exceed three years on the whole. After the successful completion of probation, the officer is confirmed  in   the  service   by   the   Administrator   in consultation with the High Court as provided in Rule 15.      Rules 16  and 17,  which occur  in part  V of the Rules called ‘Temporary  Appointments’, are also important for our purpose though they fall in a category distinct and separate from the one in which Rules 7 and 8 fall. They read thus:           "Rule 16(1) The Administrator may create temporary      posts in the service.           (2) Such  posts shall  be filled,  in consultation      with the  High Court,  from amongst  the members of the      Delhi Judicial Service."           "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      amongst members of the Delhi Judicial Service."      The Schedule  to  the  Rules  shows  that  the  initial authorised permanent  strength of  the Delhi Higher Judicial Service was  16, out  of which  one was to be a District and Sessions Judge  and 12  were to  be Additional  District and Sessions Judges.  The remaining  3 were  appointed in Leave- Deputation reserve vacancies. Out of these 16

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364 posts, one was a super-time scale post, three were selection grade posts and twelve were time-scale posts.      The contention  of the  petitioners is  that  seniority between promotees  and direct recruits must be determined in accordance with  the respective  dates of  their  continuous officiation as  Additional District  and Sessions Judges and that,  direct  recruits  who  are  appointed  as  Additional District and  Sessions Judges  after the  promotees  are  so appointed,  cannot   rank  higher   in  seniority  over  the promotees. It  is urged  that promotees  discharge identical functions and  bear  the  same  responsibilities  as  direct recruits and  upon their  appointments, they  constitute one common class.  Therefore, to  give seniority  to the  direct recruits who  are  appointed  later  in  point  of  time  is violative of Articles 14 and 15 of the Constitution.      In support  of these  contentions, the  promotees  have filed charts showing what, according to them, is a grave and glaring act  of injustice  done to  them in  the  matter  of seniority. These  charts show,  indisputably, that promotees who have  been functioning  as temporary Additional District and Sessions  Judges for  an  unbroken  period  of  anything between 8  to 12 years are regarded as juniors to the direct recruits who  have been appointed as Additional District and Sessions Judges  much later.  A few  illustrations will help appreciate the  grievance of the promotees. Shri G.S. Dakha, who is  one of  the respondents to these writ petitions, was appointed directly  to the  Service on  September 27,  1978. However,  he  ranks  higher  in  seniority  over  Shri  C.D. Vasishta  and   Shri  O.P.  Singla  who  were  appointed  as temporary Additional District and Sessions Judges on June 7, 1977 and  April 1,  1978 respectively.  Miss Usha Mehra, who was  appointed   directly  as  an  Additional  District  and Sessions Judge  on April  22, 1980, is regarded as senior to several promotees who were appointed as temporary Additional District and  Sessions Judges  long before  her.  Shri  D.C. Aggarwal, Shri  B.K, Agnihotri,  Shri Mahesh  Chandra,  Shri S.R. Goel  and  Shri  P.L.  Singla  were  all  appointed  as temporary Additional  District and  Sessions Judges on March 24, 1972,  which was  8 years  before Miss  Usha  Mehra  was appointed as  a direct  recruit from  the  Bar.  Twenty-five other members  of the  Delhi Judicial Service were appointed as temporary  Additional District  and  Sessions  Judges  on various dates between August 31, 1973 and December 11, 1979. All these have been shown as junior to Miss Usha Mehra. 365      The answer  to the question as regards the infringement of the  constitutional  protection  of  equality  and  equal opportunity  will   depend  upon   the  meaning   which  can reasonably be  given to the rules which we have cited above. Therefore, in  the first  place, we  shall  have  to  decide whether the  rules justify  the rankings  in  the  seniority list. It  is only  if the  language of  the rules  justifies those rankings  that the  question will  arise  whether  the rules violate the provisions of Articles 14 and 16.      Logically, we must begin this inquiry with the question as to the interpretation of the proviso to Rule 7. Does that proviso prescribe  a quota  or does  it merely provide for a ceiling ?  In other words, does the proviso require that, at any given  point of  time, 1/3rd of the substantive posts in the Service shall be reserved for direct recruits or does it only stipulate  that the posts held by direct recruits shall not be  more than  1/3rd of  the total number of substantive posts in the Service ? The proviso reads thus:      "Provided that  not more  than 1/3rd of the substantive

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    posts in the Service shall be held by direct recruits."      This language is more consistent with the contention of the promotees  that the proviso merely prescribes, by way of imposing a  ceiling, that the direct recruits shall not hold more than  1/3rd of  the substantive posts. Experience shows that any  provision which  is intended to prescribe a quota, generally  provides   that,  for   example,  "1/3rd  of  the substantive posts shall be filled in by direct recruitment." A quota provision does not use the negative language, as the proviso in  the instant case does, that "not more than" one- third of  the substantive posts in the Service shall be held by direct recruits.      If the  matter were  to  rest  with  the  proviso,  its interpretation would have to be that it does not prescribe a quota for  direct recruits : it only enables the appointment of direct  recruits to substantive posts so that, they shall not hold  more than 1/3rd of the total number of substantive posts in  the Service.  However, it is well recognised that, when a rule or a section is a part of an integral scheme, it should not be considered or construed in isolation. One must have regard  to the scheme of the fasciculus of the relevant rules or  sections in order to determine the true meaning of any one  or more  of them.  An isolated  consideration of  a provision leads to 366 the risk  of some  other  inter-related  provision  becoming otiose or devoid of meaning. That makes it necessary to call attention to the very next rule, namely, rule 8. It provides by clause 2 that :           "The  seniority   of  direct   recruits  vis-a-vis      promotees shall  be determined in the order of rotation      of vacancies  between the direct recruits and promotees      based on  the quotas  of vacancies  reserved  for  both      categories by  Rule 7 provided that the first available      vacancy will be filled by a direct recruit and the next      two  vacancies  by  promotees  and  so  on."  (emphasis      supplied)      This provision  leaves no doubt that the overall scheme of the  rules and the true intendment of the proviso to Rule 7 is that 1/3rd of the substantive posts in the Service must be reserved  for direct  recruits.  Otherwise,  there  would neither be  any occasion  nor any justification for rotating vacancies between direct recruits and promotees. Rule 8 (2), which deals  with fixation  of seniority amongst the members of  the  Service,  provides,  as  it  were,  a  key  to  the interpretation of  the proviso  to Rule 7 by saying that the proviso prescribes  "quotas" and reserves vacancies for both categories. The  language  of  the  proviso  to  Rule  7  is certainly  not  felicitous  and  is  unconventional  if  its intention was  to prescribe a quota for direct recruits. But the proviso,  as I  have stated  earlier, must be read along with Rule  8 (2) since the two provisions are inter-related. Their combined  reading yields  but  one  result,  that  the proviso prescribes a quota of 1/3rd for direct recruits.      The  process  of  reading  the  Rules  as  parts  of  a connected whole  does not  end with  Rules 7 and 8. Rules 16 and 17  are also  relevant for the present purpose and have, indeed, an  important bearing on the question of reservation of vacancies  for direct recruits to the extent of one-third of the  substantive posts in the Service. Clause (1) of Rule 16 confers  power upon the Administrator to create temporary posts in  the Service.  By clause (2) of Rule 16, such posts are required  to be  filled, in  consultation with  the High Court, from  amongst  the  members  of  the  Delhi  Judicial Service, that is to say, the promotees. Rule 17, which is in

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the nature  of a  non-obstante provision,  provides that not withstanding  anything   contained  in   the   Rules,   the, Administrator may, in consultation with the High Court, fill substantive vacancies  in the  Service by  making  temporary appointments thereto from amongst the members of the Delhi 367 Judicial  Service.  The  position  which  emerges  from  the provisions contained  in Rules  16 and  17  is  that  it  is permissible to  create temporary  posts in  the Service and, even substantive  vacancies in  the Service can be filled by making temporary  appointments. The  twofold restriction  on this dual power is that the High Court must be consulted and such appointments  must be  made from  amongst the promotees only. If  temporary appointment  to the  Service, either  in temporary posts  or in  substantive vacancies,  can be  made within the framework of the Rules and have to be made, if at all, from  amongst the  promotees and  promotees  only,  the quota  rule   contained  in  the  proviso  to  Rule  7  must inevitably break  down when  such appointments are made. The simple reason  leading to  that consequence  is that  direct recruits cannot  be appointed  either to  temporary posts in the Service or to substantive vacancies in the Service which are filled  in by  making temporary appointments. Thus, even though the proviso to Rule 7 prescribes a quota of one-third for direct  recruits,  Rules  16  and  17  permit  the  non- observance of  the quota rule in the circumstances stated in those rules.      At this stage, it is necessary to call attention to the definition of  ‘Cadre Post’  in Rule  2 (b) and to clear the misunderstanding which is likely to arise on account of that definition. Rule  2 (b) provides that ‘Cadre Post’ means any post specified in the Schedule and includes a temporary post carrying the  same designation  as that  of any of the posts specified in  the Schedule.  This definition  may, at  first sight, create  an impression that every temporary post of an Additional District  and Sessions  Judge is  a  Cadre  Post, whether or not that post is included in the Service. That is not so.  The first  part of  the definition says that ‘Cadre Post’ means  a post  specified in  the Schedule. Posts which are specified  in the  Schedule are  posts in  the  Service. Therefore, by  reason of  the first  part of the definition, posts in  the Service are Cadre Posts. It is the second part of  the   definition   which   is   likely   to   create   a misunderstanding of  the true  position. That  part  of  the definition says  that Cadre  Post includes  a temporary post carrying the  same designation  as that  of any of the posts specified in  the Schedule.  This provision is consequential to and  in consonance  with Rule 16. Since it is permissible under that  rule to  create temporary  posts in the Service, such posts  are also  regarded as Cadre Posts. It would have been anomalous to treat a post in the Service as an ex-cadre post merely  for the  reason that  the  post  is  temporary. Normally, an ex-cadre post means a post outside the cadre of posts comprised in a Service. 368 Therefore all  posts in  the   Service, whether permanent or temporary, are  generally  regarded  as  Cadre  Posts,  But, regardless of  the normal  pattern of service rules, what is necessary to  appreciate is  that Rule 2 (b) has the limited effect of  making every  post in  the Service  a Cadre Post, whether the  post is  permanent or  temporary. The inclusive clause contained  in the second part of Rule 2 (b) has to be read in  the context of the first part of that Rule and must take its  meaning from  what precedes  it. Therefore,  every promotee who  holds the  post of  an Additional District and

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Sessions Judge in the Service is the holder of a Cadre Post, whether the  post is permanent or temporary. Direct recruits hold cadre  posts in  all events  because, they  can only be appointed to substantive posts in the Service on a permanent basis.  Rules   16  and  17  forbid  their  appointments  to temporary posts  in the  Service or to substantive vacancies in the Service on a temporary basis.      Though this  is the  true scope  and meaning  of Rule 2 (b), it  is unnecessary  to be  dogmatic about  it. As  will appear presently,  even if it is assumed for the purposes of argument that  temporary posts  not included  in the Service are also  Cadre Posts,  that will not make any difference to the principle  on the  basis of  which the Seniority List of the Service will have to be drawn.      But, before  adverting to  that principle,  it would be useful to draw attention to Rule 2 (d) which provides that a Member  of   the  Service’   means  a  person  appointed  in substantive capacity  to the Service under the provisions of the Rules. This Rule shows that two conditions must co-exist in order  that a  person can  become a  ‘Member of Service’. Firstly, his appointment has to be in a substantive capacity and secondly, the appointment has to be to the Service, that is, to a post in the Service. Persons who hold posts bearing designations similar  to the designations of posts comprised in the Service cannot, for that reason alone, become members of the  Service. It  is only  when they  are appointed  in a substantive capacity  to a  post in  the Service,  that they became members of the Service.      The acceptance  of  the  alternative  hypothesis,  that temporary posts  bearing the same designation as that of the posts specified in the Schedule are Cadre posts whether such posts are  comprised in  the Service  or not,  will, at  any rate, justify the proposition that, accor- 369 ding to  the scheme of the rules in this case, ‘Service’. is a  narrower   body  than  the  ‘Cadre’.  By  the  definition contained in  Rule 2  (d),  membership  of  the  Service  is limited to  persons  who  are  appointed  in  a  substantive capacity to  the Service.  By the second part of Rule 2 (b), if read  in an extended sense, which is what the alternative hypothesis requires,  every temporary post which carries the same designation  as that  of any  of the posts specified in the Schedule is a Cadre Post, whether such post is comprised in the Service or not. Such posts and the posts specified in the Schedule will together constitute the Cadre under Rule 2 (b), if  an extended  meaning is given to the second part of that rule.      In this  background and  with this understanding of the interpretation and  effect of Rules 2(b), 2(d), 7, 8, 16 and 17, it will be easier to deal with the question of seniority between direct recruits and promotees. The contention of the petitioners which  we have  to examine  is that  the rule of seniority provided in Rule 8 is constitutionally invalid. We are not  concerned in this case with the provision contained in Rule  8 (1)  which governs  the  inter  se  seniority  of members of  the Delhi  Judicial Service  who are promoted to the  Delhi   Higher  Judicial   Service.  Members   of   the subordinate judicial  service promoted  to the  Delhi Higher Judicial Service  retain  their  former  seniority.  We  are concerned with  clause (2)  of Rule 8, which provides, in so far as  relevant, that the seniority of direct recruits vis- a-vis the  promotees shall  be determined  in the  order  of rotation  of  vacancies  between  the  direct  recruits  and promotees based  on the quota of vacancies reserved for both the categories  by Rule 7, provided that the first available

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vacancy will  be filled  by a  direct recruit,  the next two vacancies by promotees and so on.      This Court  has taken  the  view  in  many  cases  that whenever the  rules provide  for   recruitment to  a Service from different  sources, there  is no  inherent infirmity in prescribing a  quota for  appointment of  persons drawn from those sources  and in  working out  the  rule  of  quota  by rotating  the   vacancies  as   between  them  in  a  stated proportion. (See,  for example, Mervyn Coutinho v. Collector of  Customs,  Bombay,(1)  S.  C.  Jaisinghani  v.  Union  of Indiu,(2) Bishan Sarup 370 Gupta v.  Union of  India, (1)  A.K. Subraman  v.  Union  of India,(2) V.  B. Badami  v. State  of Mysore(3) and Paramjit Singh Sandhu  v. Ram  Rakha.(4) Therefore, Rule 8 (2) cannot be held  to be  unconstitutional merely because, it reserves one-third  of  the  vacancies  in  the  Service  for  direct recruits and  provides that  the first  available vacancy in the Service  will be filled in by a direct recruit, the next two by promotees and so on.      However, instances  are not unknown wherein, though the provision of  a rule or a section is not invalid, the manner in which  that provision is implemented in practice leads to the creation  of  disparities  between  persons  who,  being similarly circumstanced,  are entitled  to equal  treatment. Care has  therefore to  be taken  to apply the provisions of Rule 8(2)  in such  a manner as not to lead to the violation of the guarantee of equality and equal opportunity contained in Articles 14 and 16 of the Constitution. For that purpose. it is  necessary to  ascertain as  to which of the promotees can be regarded as belonging to the same class as the direct recruits.      The pre-requisite of the right to inclusion in a common list of  seniority is  that all  those who  claim that right must, broadly.  bear  the  same  characteristics.  The  mere circumstance that  they hold  posts  which  carry  the  same designation will not justify the conclusion that they belong to the  same class. Persons who are appointed or promoted on an ad  hoc basis  or for  fortuitous reasons  or by way of a stop-gap arrangement  cannot rank  for purposes of seniority with those  who are  appointed  to  their  posts  in  strict conformity with  the  rules  of  recruitment,  whether  such latter class  or posts are permanent or temporary. The rules in the  instant case do not require that person belonging to the  former   category  have   to  satisfy   any  particular prescription like  consultation with  the High Court. We are informed that  in practice,  persons who are promoted to the Delhi Higher  Judicial Service  on an  ad hoc  basis or  for fortuitous reasons  or by  way of a stop-gap arrangement are appointed only  after their names are cleared or approved by the High  Court. That may or may not be so. The point of the matter is  that there  is no  provision in  the Rules  which requires that such appointments must also be made in accor- 371 dance with  any set  formula.  The  courtesy  shown  by  the authorities to  the High Court when certain appointments are made, is  one thing;  The obligation imposed by the Rules on the authorities  that the High Court shall be consulted when certain  other  appointments  are  made  is  quite  another. Indeed, there  is  a  distinction  between  the  process  of consultation with  the High  Court and  the screening of the promotees done  by the High Court, may be at the instance of the  authorities,   when  their  names  are  considered  for appointment as Additional District and Sessions Judges on an ad hoc, fortuitous or stop-gap basis.

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    Thus, persons  belonging to  the Delhi Judicial Service who are  appointed to temporary posts of Additional District and Sessions  Judges on  an ad  hoc basis  or for fortuitous reasons or  by way  of a  stop-gap arrangement. constitute a class which  is separate  and distinct  from those  who  are appointed to  posts in the Service in strict conformity with the rules  of recruitment. In view of this, the former class of promotees  cannot be included in the list of seniority of officers belonging to the Service.      It is  however difficult  to  appreciate  how,  in  the matter of  seniority, any  distinction can  be made  between direct recruits  who are  appointed to substantive vacancies in the Service on the recommendation of the High Court under Rule  5(2)   and  the   promotees  who   are  appointed   in consultation with  the High  Court to  posts in  the Service under Rules  16 and 17. Rule 16 provides for the appointment of promotees  to temporary  posts in the Service, while Rule 17 provides  for appointment  of  promotees  to  substantive vacancies in the Service on a temporary basis. Promotees who are appointed to the Service under either of these two rules must be  considered as belonging to the same class as direct recruits appointed  under Rule  5(2). They  perform  similar functions, discharge  identical duties  and  bear  the  same responsibilities as direct recruits. They are appointed on a regular basis  to posts in the Service in the same manner as direct recruits  are appointed,  the only  distinction being that whereas  the latter are appointed on the recommendation of the  High Court  promotees are  appointed in consultation with the  High Court. There fore, no distinction can be made between direct  recruits on one hand and promotees appointed to the  Service  on  the  other,  in  the  matter  of  their placement  in   the  seniority   list.  Exclusion  from  the seniority list of those promotees who are appointed to posts in the Service, 372 whether  such  appointment  is  to  temporary  posts  or  to substantive vacancies  in a  temporary capacity, will amount to a  violation of the equality rule since, thereby, persons who  are   situated  similarly   shall  have   been  treated dissimilarly in  a matter  which  constitutes  an  important facet of their career.      A representative  order of  appointment under  Rule 16, which is  annexed to  one of  the writ  petitions, shows why promotees  appointed   under  that  rule  (and  for  similar reasons,  those   appointed  under   Rule  17)   cannot   be discriminated  against   in  the   matter  of  seniority  in comparision with direct recruits. That order reads thus:                 "DELHI ADMINISTRATION DELHI                         NOTIFICATION      Dated the  22 March  1972 No.  F.  1(76)/70-Judl.(i)-In      pursuance to  the provisions of sub-rule (2) of rule 16      of  the   Delhi  Higher  Judicial  Service  Rules,  the      Administrator  of  Delhi,  is  pleased  to  appoint  in      consultation with the High Court, the following members      of the  Delhi Judicial  Services,  temporarily  to  the      Delhi Higher  Judicial Service,  till  further  orders,      with effect  from the  date they  take over  charge  of      their offices,  against the  four posts  of  Additional      District  and   Sessions  Judges,   created  vide   his      notification No.F1(13)/  72-Judl. dated the 13th March,      1972.      1. Shri Dalip Chand Aggarwal      2. Shri Bishma Kumar Agnihotri      3. Shri Sadhu Ram Goel      4. Shri Pyare Lal Singla.

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                                                 By Order.                                               (Desh Deepak)                                  Secretary (Law & Judicial)                               Delhi Administration, Delhi."      This order shows that, firstly, by a notification dated March 13, 1972, the Administrator created temporary posts in the Service  under Rule 16(1); secondly, four promotees were appointed to  those  posts  in  the  Delhi  Higher  Judicial Service; and thirdly, that they were appointed ‘till further orders’. The appointments were neither ad- 373 hoc,  nor   fortuitous,  nor   in  the  nature  of  stop-gap arrangement. Indeed, no further orders have ever been passed recalling the four promotees and, others similarly situated, to their  original posts  in the  subordinate Delhi Judicial Service. Promotees  who were  appointed under  Rule 16  have been  officiating   continuously,  without   a   break,   as Additional District and Sessions Judges for a long number of years. It  is both  unrealistic and  unjust to treat them as aliens to the Service merely because the authorities did not take up  to the  necessity of converting the temporary posts into permanent  ones, even  after some  of the promotees had worked in those posts from five to twelve years. Considering the history  of the  Delhi Higher  Judicial Service,  it  is clear that  the phrase  ‘till  further  orders,  is  only  a familiar official  device to create and perpetuate temporary posts in the Service when the creation of permanent posts is a crying necessity. The fact that temporary posts created in the Service  under Rule  16(1) had to be continued for years on end  shows that the work assigned to the holders of those posts was,  at least  at some  later stage,  no longer  of a temporary  nature.   And  yet,  instead  of  converting  the temporary posts into permanent ones, the authorities slurred over the  matter and  imperilled,  though  unwittingly,  the reasonable  expectations   of  the  promotees.  Unwittingly’ because,  no   one  appears   to  have  been  interested  in belittling  the  contribution  of  the  promotees  who  held temporary  posts   in  the   Service   or   in   consciously jeopardising their  prospectus. The  tragedy is  that no one was interested  in anything  at all. Or else, why was direct recruitment  not   made  from   time  to  time,  at  regular intervals? If  that were  done,  the  undesirable  situation which confronts  us to-day  could have  been easily avoided. The proviso to Rule 7 prescribes a system of quota and rota. why was  that rule put in cold storage by creating temporary posts in  the Service  when  permanent  posts  were  clearly called for?  Permanent posts  could have  been allocated  to direct recruits and promotees in the ratio of one to two. In these circumstances,  it will  be wholly  unjust to penalise the promotees for the dilatory and unmindful attitude of the authorities. It  is not fair to tell the promotees that they will rank  as juniors  to direct recruits who were appointed five to ten years after they have officiated continuously in the posts  created in  the Service  and held by them, though such posts may be temporary. This Court, at least, must fail them not.      From an  earlier part  of this judgment it would appear how, though the proviso to Rule 7 prescribes a quota of one- third for 374 direct recruits  and  provides  for  rotation  of  vacancies between them  and the  promotees who  are appointed  to  the Service,  that   rule  must   inevitably  break   down  when appointments to  promotees are  made to  the  Service  under Rules 16  and 17. Appointments under these two Rules have to

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be  made   from  amongst   the  promotees   only.   Whenever appointments are  made to  the Service under either of these Rules, neither  the quota  reserved for  direct recruits nor the rule  of rotation  of vacancies  between  them  and  the promotees can have any application. The question then is, in situations resulting in the suspension of the rule of ‘quota and rota’,  which its  the equitable  rule  for  determining seniority between  direct  recruits  on  the  one  hand  and promotees who  are appointed  under Rules  16 and  17 on the other ? It is difficult to evolve a rule which will cause no hardship  of   any  kind  to  any  member  of  the  Service. Therefore, the  attempt has  to be  to minimise,  as far  as possible, the  inequities and disparities which are inherent in a  system which  provides for  recruitment to the Service from more than one source. While doing this, the one guiding principle which  must be kept in mind is that classification is a gloss on the right to equality. It is but a step in the process of  working out the equities between persons who are entitled to  equal treatment.  It is  therefore necessary to ensure that  classification  is  made  on  a  broad,  though rational, basis  so as  not to  produce  the  self-defeating result of  denying equality  to those  who in substance, are situated similarly.      That is why, it would be hyper-technical to make a sub- classification between promotess appointed under rule 16 and those appointed under Rule 17, with the object of denying to the latter  the equality  of status and opportunity with the former and  with direct recruits. It is true that under Rule 16, promotees  are  appointed  to  temporary  posts  in  the Service while,  under  Rule  17  they  are  appointed  in  a temporary capacity  to substantive vacancies in the Service. But this  kind of service jargon clouds the real issue as to whether persons  appointed under different rules necessarily belong  to   different  classes   and   tends   to   produce inequalities by  an artful  resort,  dictated  by  budgetary expediency, to  the familiar  device  of  fixing  dissimilar labels  on   posts  which   carry  the   same   duties   and responsibilities and  are subject to similar pre-appointment tests. It  may even  be that in the process of consultation, the High  Court exercises  greater vigilance  in  regard  to appointments proposed  under  Rule  16  than  in  regard  to appointments which are proposed under Rule 17. 375 But, the  fact that  the High Court chooses to adopt, of its own volition  any  particular  approach  in  the  matter  of appointments made  under different rules, cannot justify the proposition that  persons appointed  under  different  rules necessarily belong to different classes. The requirement for appointments under  both the  Rules is,  equally, that  they must be  made in  consultation with the High Court. The High Court is, therefore, expected to apply the same standard and adopt the same approach whether appointments are proposed to be made  under Rule 16 or Rule 17. Any attempt to sub divide the promotees  according as  to whether  they are  appointed under Rule  16 or  Rule 17  will result in the creation of a distinction  where  no  difference  exists.  The  object  of classification is  to find  a remedy to such situations, not to create or perpetuate them.      It may  bear emphasis  that promotees  appointed  under Rules 16  and 17 to the Higher Judicial Service can rank for seniority along  with  direct  recruits  only  if  they  are appointed in consultation with the High Court as required by those Rules and if they satisfy the requirement laid down in Rule 7(a)  that they  must have  completed not less than ten years of service in the Delhi Judicial Service.

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    The best  solution to  the situation which confronts us is to apply the rule which was adopted in S.B. Patwardhan v. State of  Maharashtra.(1) It  was held by this Court in that case  that   all  other   factors  being  equal,  continuous officiation in a non-fortuitous vacancy ought to receive due recognition in  fixing seniority  between  persons  who  are recruited from  different sources, so long as they belong to the same  cadre, discharge  similar functions  and bear  the same responsibilities.  Since the  rule of  ‘quota and rota’ ceases to  apply when  appointments are  made under Rules 16 and 17,  the seniority  of  direct  recruits  and  promotees appointed under  those Rules must be determined according to the dates  on which  direct recruits were appointed to their respective posts and the dates from which the promotees have been officiating  continuously  either  in  temporary  posts created in  the Service or in substantive vacancies to which were appointed in a temporary capacity.      Our attention  was drawn  to several decisions but most of them  turn of their own facts. For example, the promotees placed great  reliance on  the decision in Baleshwar Dass v. State of U.P.(2) In that 376 case, there  was only  one rule  of recruitment  to both the permanent and  temporary posts  in the  cadre.  Besides,  no rotation of  vacancies was  prescribed for  the  purpose  of fixing seniority.  The position  which arises  in  the  case before us did not therefore arise in that case. However, the observations made  by Krishna  Iyer, J. in that case are not without relevance for the present purpose. The learned judge observed :           "We  must   emphasis  that   while  temporary  and      permanent posts  have great  relevancy in regard to the      career of  government servants, keeping posts temporary      for long,  sometimes by  annual  renewals  for  several      years, and  denying the claims of the incumbents on the      score that their posts are temporary makes no sense and      strikes us as arbitrary, especially when both temporary      and permanent  appointees are  functionally identified.      If, in  the normal  course, a  post is temporary in the      real sense  and the  appointee knows  that  his  tenure      cannot exceed  the post  in longevity,  there cannot be      anything unfair  or capricious  in clothing him with no      rights.  Not   so,  if   the  post   is,  for   certain      departmental or  like purposes, declared temporary, but      it is  within the  ken of  both the  government and the      appointee that  the temporary posts are virtually long-      lives. It  is irrational  to reject  the claim  of  the      ‘temporary’  appointee   on  nominal   score   of   the      terminology  of   the  post.   We  must   also  express      emphatically that  the principle which has received the      sanction  of   this  Court’s   pronouncements  is  that      officiating service  in a  post is  for  all  practical      purposes of  seniority as  good as service on a regular      basis.  It  may  be  permissible,  within  limits,  for      government to ignore officiating service and count only      regular service when claims of seniority come before it      provided  the  rules  in  that  regard  are  clear  and      categorical and  do not  admit  of  any  ambiguity  and      cruelly arbitrary cut-off of long years of service does      not  take   place  or   there   is   functionally   and      qualitatively, substantial  difference in  the  service      rendered  in  the  two  types  of  posts.  While  rules      regulating  conditions   of  service   are  within  the      executive power  of the  State or its legislative power      under proviso  to Article 309, even so, such rules have

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    to be  reasonable, fair  and not grossly unjust if they      are to survive the test of Articles 14 and 16." 377      In A. Janardhana v. Union of India,(1) the Court had to consider the  validity of  rules  of  seniority  which  were applicable  to   the  Military   Engineering  Service.   The recruitment to  the  Service  was  made  from  two  sources, directly and  by promotion.  The appellant was a promotee of 1962 who,  it was argued in that case, could find a place in the seniority list in 1989, when it would be time for him to retire. D.A. Desai, J. observed in that case :           "... In other words, after having rendered service      in a  post included  in  the  service,  he  is  hanging      outside the service without finding a berth in service,      whereas direct  recruits of 1976 have found their place      and berth  in the  service. This  is the situation that      stares into  one’s face  while interpreting  the quota-      rota  rule   and  its  impact  on  the  service  of  an      individual. But  avoiding any  humanitarian approach to      the problem, we shall strictly go by the relevant Rules      and precedents  and the  impact of  the  Rules  on  the      members  of  the  service  and  determine  whether  the      impugned seniority  list is  valid or  not. But, having      done that  we de  propose  to  examine  and  expose  an      extremely undesirable, unjust and inequitable situation      emerging in  service jurisprudence  from the precedents      namely, that  a person  already rendering  service as a      promotee has  to go  down below a person who comes into      service decades  after the  promotee enters the service      and who  may be a schoolian, if not in embryo, when the      promotee on being promoted on account of the exigencies      of  service  as  required  by  the  Government  started      rendering service.  A time  has come  to recast service      jurisprudence on  more just and equitable foundation by      examining all  precedents on  the subject  to  retrieve      this situation."      No two  cases are  alike and.  therefore an attempt has been made  in this  judgment to  consider the  language  and implication of  the Rules  which govern  appointments to the Delhi Higher  Judicial Service.  But, the observations which we have  extracted above  are not  without relevance  to the decision of  the case  before  us.  They  lend  considerable support to  the conclusion  which has  been recorded in this judgment. 378      The decision of this Court in Joginder Nath v. Union of India(1), does  not afford  any assistance  on the  question which is  in issue  before us.  That case  arose  out  of  a controversy between  the promotees  inter se and not between promotees and direct recruits.      The seniority  list which  is impugned in this case has been prepared on the basis that the rule of ‘quota and rota’ will  continue   to  apply  notwithstanding  the  fact  that appointments are  made to  the Service under Rule 16 and 17. As pointed  out earlier,  the rule of ‘quota and rota’ which is prescribed  by the proviso to Rule 7 would cease to apply when appointments are made to the Service under Rules 16 and 17. The seniority list has therefore to be quashed.      A new  seniority list  shall have to be prepared by the authorities on the basis of the view taken in this judgment. The new  seniority list will include (i) direct recruits and (ii) promotees  appointed under  Rules 16  and 17. They will rank for seniority as explained above.      The question  of the  seniority of  respondent 4,  Shri G.S. Dakha has to be dealt with on a different basis. He was

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appointed as  an Additional District and Sessions Judge in a vacancy reserved  for members  of the  scheduled castes.  He will retain  his position  in the  seniority list since that position is due to him as a member of a scheduled caste.      The case of Miss Usha Mehra has caused us some anguish. She was appointed as a direct recruit on April 22, 1980. The rule  of  ‘quota  and  rota’  was  in  operation  since  the inception of  the Delhi Higher Judicial Service and she must have joined  the Service  on the basis of certain reasonable expectations  flowing  out  of  a  senior  position.  Though comparatively young,  she had a fairly large practice at the Bar when  she was  appointed as  an Additional  District and Sessions Judge.  A strong  plea has  been made on her behalf that her  place in  the seniority list should not disturbed. We wish that were possible. It would be incongruous to do so because, if  the rule  of ‘quota  and rota’  ceased to apply when appointments  were made  to the  Service under Rules 16 and 17, her present position in the seniority list which has been accorded  to her  on the  basis of  that rule cannot be maintained. For this 379 consequence the  promotees are  not to blame, and certainly, not any  of the  direct recruits.  The promotees  had made a representation to the High Court as long back as in the year 1977 but,  for a  reason not  easy to  understand, the  High Court did  not dispose of that representation for over three years, Indeed,  one of  the contentions  of the  High  Court before us is that those writ petitions are premature because the representation  of the promotees is still pending before it. Miss Mehra was appointed three years after the promotees had made  their representation  to the High Court, which was the most  appropriate authority  for  them  to  approach.  A timely disposal  of the  representation by  the  High  Court would have saved the predicament in which some of the direct recruits like  Miss Mehra  will now  find themselves. It was urged that  the promotees  ought not  to grudge  one  little exception in  favour of  Miss Mehra  since they have derived quite some  benefits from  the operation of Rules 16 and 17. It is  true that  the promotees  have derived  a substantial benefit  by   the  operation   of  Rules  16  and  17.  They monopolised all  the appointments to temporary posts as also temporary  appointments  to  substantive  vacancies  in  the Service. Simultaneously,  they also derived benefit from the rule of  ‘quota and  rota’. For  example, though N.L. Kakkar and Shri  R.K. Sinha  were promoted  to the Service in 1972, they were  placed in  the seniority  list  above  Shri  N.C. Kochar who  was recruited directly in 1971. That was done in conformity with  the quota  and rota  rule of  1 : 2. If, at least some  of the  temporary posts  had been converted into permanent ones  as they ought to have been, one out of every three posts  would have  gone to  a direct  recruit. But  as pointed out  by us, the difficulty in the way of maintaining Miss Mehra’s  present position in the seniority list is that doing so  would be  inconsistent with the view which we have taken in  this  judgment.  We  cannot,  therefore,  make  an exception in the case of any particular direct recruit.      It is  patent that this judgment will upset the balance between direct  recruits and  promotees in  the Delhi Higher Judicial Service.  If the authorities desire to restore that balance, appropriate  rules shall  have  to  be  framed  for future application. But, more than merely framing the rules, care shall  have to  be taken to implement the rules both in letter and in spirit. That will call for greater concern and understanding on  the part of the authorities for the future of a system, which one believes, has stood the people well.

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380      In the result, the proviso to Rule 7 and Rule 8(2) bear the meaning  and interpretation  which is  given to  them in this judgment,  those provisions do not by themselves suffer from any  constitutional infirmity.  But, the seniority list which is challenged by the promotees in these Writ Petitions is violative  of the provisions of Articles 14 and 16 of the Constitution. That  list is  quashed and  the Writ Petitions are allowed  to the extent indicated above. There will be no order as to costs.      SABYASACHI MUKHARJI,  J.  With  great  respect  I  find myself unable  to agree  with the  learned Chief  Justice on certain aspects of the relevant rules in this case. I would, therefore, like to state my reasons with such relevant rules as are necessary.      These two  Writ  petitions  under  article  32  of  the Constitution question  the validity  of Rule  8(2) of  Delhi Higher Judicial  Service Rules, 1970 hereinafter referred to as the  said rules and the fixation of inter-se seniority of the promotees  and direct  recruits of Delhi Higher Judicial Service.      In the  first one,  namely Writ  Petition No.  5669  of 1980, the  petitioners are, one Shri O.P. Singla, who was at the relevant  time  working  as  an  Additional  District  & Sessions Judge  and at  the time  of the  institution of the petition  working   as  the  Presiding  Officer,  Industrial Tribunal in  Tis Hazari  Court, Delhi  alongwith  Shri  D.C. Aggarwal, Additional District and Sessions Judge, Delhi. The respondents to  this application  are the  Union  of  India, Delhi Administration,  Delhi High  Court, respondent  No. 4, Shri G.S. Dakha, Additional District and Sessions Judge, Tis Hazari,  Delhi   and  respondent  No.  5  Miss  Usha  Mehra, Additional District and Sessions Judge, Tis Hazari, Delhi.      In the second petition there are 32 petitioners who are Additional District  and Sessions Judges in the Delhi Higher Judicial   Service    alongwith   Delhi   Judicial   Service Association. The  respondents to the said petition are apart from the  Union of  India, Delhi  Administration, Delhi High Court, Shri  G.S, Dakha,  who is  a respondent  to the other petition also,  Miss Usha Mehra (who is also a respondent in other petition) and two other respondents, namely, Shri C.D. Vashist, Additional District and Sessions Judge, Tis Hazari, Delhi and one Shri S.P. Singh Chowdhary, Additional District and Sessions Judge, Tis Hazari, Delhi. 381      The immediate  cause which  prompted the  filing of the second petition,  according  to  the  petitioners,  was  the advertisement published  in the  ’Indian Express’ dated 30th January, 1981  which invited  applications for filling three permanent posts  in  the  cadre  of  Delhi  Higher  Judicial Service. The  case of the petitioners is that petitioners in both these  petitions are  promotee Additional  District and Sessions Judges  in the  Delhi Higher  Judicial Service  and they had  joined the service long time back. The petitioners in the first petition namely, Writ Petition No. 5669 of 1980 had  joined   the  Delhi  Higher  Judicial  Service  in  the beginning of  1972 and  have been  serving since  then  with ability.      The other  relevant  facts  have  been  stated  in  the judgment of  my brother,  the learned  Chief Justice. It is, therefore, not necessary for me to state these again.      The controversy in these two writ petitions is inter-se seniority between  the promotees and the direct recruits and for this,  one must  refer to some other relevant provisions of the  said rules  and mainly  to rules  7 and  8 alongwith

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Rules 16  and 17  of  the  said  rules.  The  rules  are  as follows:-                "Rule 7. REGULAR RECRUITMENT:-           Recruitment after the initial recruitment shall be      made:-      (b)  by  promotion  on  the  basis  of  selection  from           members  of   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      substantive posts  in the  service  shall  be  held  by      direct recruits."      There is a further proviso which is not really relevant for the  present controversy and which provides 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 requirements as to the minimum of 10 years service. There is an 382 Explanation for  calculation of  period of  10  years  which again is not relevant for the present purpose.      Rule 8 is as follows:-      "8. (1)  The inter-se  seniority of  members  of  Delhi      Judicial Service  promoted to  the service shall be the      same as in the Delhi Judicial Service.           (2) The  seniority of  direct  recruits  vis-a-vis      promotees shall  be determined in the order of rotation      vacancies between  the direct  recruits  and  promotees      based on  the quotas  of vacancies  reserved  for  both      categories by  rule 7 provided that the first available      vacancy will  be filled  by direct  recruitment and the      next two vacancies by promotees so on."      Rule  9   deals  with  the  qualifications  for  direct recruits and  provides that  they (1)  should be  citizen of India, (2)  must have  practised as an advocate for not less than seven years, (3) must have attained the age of 35 years and not  attained the  age of 45 years on 1st January of the year in which his appointment is made.      The submission  of the petitioners is that the officers intended  to  hold  the  posts  of  District  Judges  cannot artificially  be   prevented   from   holding   such   posts substantively, either  because  of  delay  in  making  posts permanent or  by being discriminated against in the fixation of seniority  in the  cadre vis-a-vis direct recruits to the service, who  have lesser  years of  practice at  the Bar as compared  to   the  period  of  promotee-officers’  judicial service period  and period  of practice  at the Bar, if any, put together.  The petitioners  have given  instances of the incongruities, according  to them,  that will  result if the present system  is  allowed  to  continue.  The  petitioners themselves and  through their  association had  made several representations in  January, 1978,  July, 1978 and December, 1978 and also sought remedy against what they call injustice and they also submitted that direct recruitment from the Bar might not  be made  by the  High Court  to the  Delhi Higher Judicial  Service  until  the  question  was  resolved.  The petitioners contend  that the present interpretation and the present seniority list create anomalous positions. 383      After the  petitions were filed, rules nisi were issued and certain  interim orders were passed. It is not necessary to set out the details of the said orders made by this Court from time to time.

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    It  may   be  mentioned,  however,  that  on  the  29th September, 1981  this Court  issued rules nisi in both these matters and further ordered that there would be no reversion either from  the category  of promotees  who were working as District and  Sessions Judges or from the category of direct recruits who were also working in the same capacity. Several intervention applications  were allowed. On 27th April, 1982 this Court further directed that if any officer who was then working on  deputation returns to the parent cadre, it might become necessary to revert the junior-most officer who is at present holding the post of Additional District and Sessions Judge, but  this Court noted that even then such a reversion should as far as possible, be avoided.      In these  petitions, charts  of the gradation list have been annexed.  According to the list, Shri Dakha, respondent No. 4  has been  shown as  number 6  and  Miss  Usha  Mehra, respondent  No.5   as  number  9.  This  is  so  because  of artificial reading  of Rule  7 and Rule 8 of the said rules, according to  the petitioners  By the  same process,  it  is indicated that  Miss Usha  Mehr who had joined as Additional District and  Sessions Judge on probation on 24th April 1980 supersedes by  the working  of Rule 7 and Rule 8 in improper and illegal way, 22 officers, including Shri Mahesh Chandra, whose date of birth was 12th October, 1928 and whose date of appointment as  Additional District and Sessions Judge was 8 years before  Miss Mehra. She also supersedes Shri S.R. Goel who was  born on  12th October,  1929 and who had joined the service on  24th March,  1972-8 years  before Miss Mehra had joined as  Additional District  and Sessions  Judge; more or less similar  is the  position in  case of  Shir Y.B. Gupta, Shri P.K.  Bahri, Shri  H.P. Bagchi  and Mrs. Santosh Duggal who was  born on 21st March, 1931 and had joined the service as Additional District and Sessions Judge on 29th September, 1975 and  numerous other officers last of whom had joined on 23rd August,  1979 and  most of  whom were at least 10 years older than  respondent No.  5, Miss  Mehra.  Similarly  Shri Dakha  supersedes  16  officers  by  joining  as  Additional District and  Sessions Judge  in  1978  and  is  superseding officers who  had joined  in 1972, 1973, 1974, 1975 and some of whom were much 384 older  than  him  in  age.  Shri  J.B.  Goel  will  also  be superseding some  of the officers who have been indicated in the chart.      This anomaly  has been  caused by the operation of Rule 7(b) of  the said  rules read  with sub-rule  (2) of Rule 8. Rule 7  which deals  with regular  recruitment provides  two modes of  recruitment, namely  (1) by promotion on the basis of selection  and (2) by direct recruitment from the Bar. So far as  direct recruitment  from the  Bar is  concerned,  it clearly states  that "not more than 1/3rd of the substantive ports in  the Service  shall be  held by  direct  recruits". Reading it  simply without  anything  else  and  unaided  or uninfluenced by service parlance and without being inhibited by any  a interpretation of other statutes in the context of some other Rules, it appears that it merely provides that in case a  year there  is vacancy for recruitments from the Bar as well  as by  promotion, more  than 1/3rd  of  substantive posts should not be filled in by direct recruitment. It says this and  no more.  It is difficult to contend that there is any quota  of Bar  recruits of  1/3rd The  Rule does not say that 1/3rd of direct recruits must for each year be 1/3rd of the recruitments  made. It  puts a  ceiling on number of Bar recruits in  a year  where Bar  recruits are  available  and willing to be appointed. It does not fix any quota far them.

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As the  working of  the rule  would, indicate,  it  was  for unnecessary and  hypothetical situation which never arose in years subsequent to the framing of the rules. The framers of the Rules perhaps thought and assumed that many Bar recruits would be willing to join the service and selections would be made from  Bar regularly  and timely eliminating thereby the chances of the promotees whose knowledge and experience were also necessary  to be retained for the better administration of the  judicial service. Many factors have worked otherwise and the  assumption upon which this rule had been framed has not proved to be correct.      If Rule  7 was  standing itself simpliciter, no problem would have arisen. The problem, however, arises by virtue of sub-rule (2)  of Rule  8. Sub-rule  (1) of Rule 8 stipulates that inter-se  seniority of  the members  of Delhi  Judicial Service promoted  to the service shall be the same as in the Delhi Judicial  Service. This  creates no  problem  for  the present  controversy.  Sub-rule  (2)  of  Rule  8,  however, stipulates  that  seniority  of  direct  recruits  vis-a-vis promotees shall  be determined  in the  order of rotation of vacancies between  direct recruits  and promotees  based  on quotas of  vacancies reserved  for both categories by Rule 7 provided that  first available  vacancy shall  be by  direct recruitment and the next two vacancies by promotees. 385 and so  on. Sub-rule  (2) or  the makers  of sub-rule (2) of Rule 8  presumed and  assumed a factual position that quotas of vacancies  have been reserved for both categories by Rule 7 which  is really  not a  fact. Rule 7 does not reserve any quota for either of the categories. Rule 7 only provides for ceiling of  direct recruits  by providing that in case there were recruitment  from Bar as well as by promotions, in such a case  Bar recruits  would not  be more  than 1/3rd  of the substantive posts in the Service. This brings the problem of so interpreting the rules as to avoid any possible injustice to any section, if possible.      In this task in the instant case there is one advantage that though  there  are  numerous  decisions,  dealing  with rights  and   privileges  of   promotees  vis-a-vis   direct recruits, there is no case, at least none to which attention was drawn in this case, where the rule dealing with position between direct  recruits and promotees in a service composed of two  different types of recruits, is worded in the manner as provided  in the  rules in  the instant case. It is well- settled that  bereft of anything where a service consists of recruitments made  from two  different sources and the rules and regulations      provide for their recruitment and their rights inter-se, primarily and essentially those rights have to be  adjusted within  the scheme  of the  rules though  it might in  some cases lead to certain amount of imbalances or injustices  because   a  service   is   built   on   various considerations and various factors induce the legislature or the rule  making authority  to induce  different and diverse knowledge, diverse  aptitudes and  requirements  needed  for running of  the service.  The legislature or the rule-making authorities have  better knowledge  and better capacities to adjust  those   factors.  It   is  common   knowledge   that administration of  justice in  this vast land of ours, where there are  growing expectations  with the explosion of ideas with new  problems, call  for fusion  of different calibres, talents and  aptitudes. Administration  of justice calls for independence of  mind, freshness  of outlook, uninhibited by normal  service   life  and   routine.  It  also  calls  for experience in  writing judgments  and knowledge  gathered in conducting cases  from lower  rank  and  gaining  experience

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thereby and  any  ideal  system  would  be  where  there  is complete fusion  between these  two sources  and streams  of knowledge to  enrich the  machinery of the administration of justice. But  the machinery of the administration of justice fused in  that manner  must work  with a  sense  of  justice within itself  but if,  as very  often is  the case  in this country, where there are recruitments from different sources instead of  creating harmony  and that harmony utilised with dedication for  the  purpose  of  the  institution,  creates disharmony and  discontent amongst  the various  segments of that 386 institution generating  amongst many  a  brooding  sense  of injustice, real  or imaginary.  Justice should be the end of all law.  But then  what is  justice? Is  it merely creating situations for  the realisations  of one’s just expectations or is  it adjustment  of the rights and expectations of many in the  administration with  sense  of  justice  within  the machinery administering justice in accordance with the rules designed to  attract talents?  Independence, experience  and knowledge must  be  the  aim  and  purpose  of  these  rules intended to regulate their conditions and if these rules are not clear,  these should be so interpreted, where the courts are not  fettered or  bound by  precedents, to  ensure  that justice flows,  such justice  is essential  for  society  to survive. It  is important because it enables the individuals in the  administration of  justice to  serve justice  and to identify themselves  with the  process.  But  by  rules,  we cannot make justice certain in this uncertain age but all we can ensure  is, attempt  to prevent  injustice. Most  of the problems as  are apparent  in working  out  these  types  of schemes and  rules have  been due  to the failure to see the reality and the desire to proceed on adhocism.      The rules  in question  have been  noted in the instant case in  detail. There  is  no  quota  as  such.  Rule  8(2) proceeds on  the misconception that there is quota fixed for direct recruits,  which rule 7 does not. Rule 8(2) cannot on plain literal  meaning also  be construed  or interpreted to mean that  it was  deemed by  the legislature  and the  rule making body  to engraft any quota. There is no deemed quota, if that  was the intention then the rule would have said so. It  has   not.  Rule  8(2)  proceeds  on  wrong  assumption. Therefore, it  should be given effect to in so far as it can be without  reading any  quota for the subsequent years. How it should  be so read would be presently indicated. There is another  aspect  of  the  matter.  Rule  16  permits  making additional appointments.  Before the actual situation, where Rule 7 and Rule 8(2) can be adjusted is dealt with, it would be relevant  to note  some of the decisions cited at the Bar though, most  of these  are not  relevant. On the wording of rule 7  read in  conjunction with rule 8(2) one is on virgin ground      In the  case of  Mervyn Coutinho  & Ors v. Collector of Customs Bombay  & Ors.,  this Court  noted that there was no inherent vice in the principle of f  fixing seniority by the rotation in  a case  where a  service is  composed of  fixed proportion  of  direct  recruits  and  promotions  (emphasis supplied). There  as indicated by the emphasis supplied that the rule  proceeded on different basis than the present one. In 387 the instant  case in view of the specific and clear language of proviso to rule 7 read with rule 8 it cannot be said that recruitment to  the service  was "in  fixed proportion".  In that view  of the  matter, the observations of this Court in

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the said  decision would  dot throw  much light in resolving the present controversy.      In the  case of  S.G. Jaisinghani  v. Union of India &. Ors., this  Court was  concerned with the Seniority Rules of the  Income-tax   Service.  There   the  context   in  which controversy arose  must be  considered in the context of the rules. This Court noted that in order to improve the Income- tax administration,  the Government  of India  on  29.9.1944 reconstituted  and   classified  the  prevailing  Income-tax Service as Class I and Class II. The reorganisational system provided for  recruitment of  Income-tax  officer  Class  I, Grade II  service partly  by promotion  and partly by direct recruitment. The  reorganisational system  was  set  out  in certain Government communication. Reading of the rules would indicate that  there was  a fixed proportion, in the instant case there  is none.  In  the  light  of  this,  it  is  not necessary to  deal with  the observations made by this Court in the context of the said rules,      In the  case of  Chandramouleshwar Prasad v. Patna High Court &  Ors. this  Court was concerned with a situation and rules entirely  different from the terminology of proviso to rule 7  of the  present rules.  It, is  therefore, also  not necessary to persue the said decision any further.      Some reliance  was placed on the decision of this Court in the  case of  V.B. Badami  Etc. v. State of Mysore & Ors. The Court  observed in  the context of the rules before this Court in  that case  that as long as the quota rule remained neither promotees  could be  allotted any of the substantive vacancies of  the quota  of direct recruits nor could direct recruits  be   allotted  promotional   vacancies.  Two  more principles were  settled; one  was that  quotas  which  were fixed were  unalterable. Quotas  which were fixed could only be altered  by  fresh  determination  of  quotas  under  the relevant rule.  The other was that one group could not claim the quota  fixed for  the other  group either  on the ground that the  quotas were  not filled  up or  on the ground that because there  had been a number in excess of quota the same should be absorbed depriving the other group of quota. 388      The observations  made in that decision would have been very apposite  and might have helped the present respondents if it  was possible  to find  that there  was any  fixed  or unalterable quota so far as direct recruits are concerned in this  case   as  in   that  case  and  further  that  ad-hoc arrangements or  promotions meeting  the exigencies  of  the service had  not been  made in accordance with the procedure envisaged by the rules itself, namely rule 16 in the instant case.      The case of Bishan Sarup Gupta v. Union of India & Ors. also deals  with quota  rule in  connection with  Income-tax officers. In  view of the present rules in the instant case, it is also not necessary to deal with the said decision.      The facts  of this  case and  the rule  under which the problem has  to be  adjusted have been set out hereinbefore. Some of  the general principles enunciated in some decisions of this  Court might  be noted  in resolving the unfortunate controversy that has arisen in this case.      In the case of Joginder Nath and Ors. v. Union of India & Ors  this Court had to construe the Delhi Judicial Service Rules, 1970  in the  context of  seniority and confirmation. But this  was not  in  the  context  of  inter-se  seniority between promotees  and direct recruits. The question was the seniority amongst  the members  of the  promotees  who  were members of  the Delhi  Judicial  Service  Rules  who  became absorbed in  Delhi Higher  Judicial Service.  In view of the

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main controversy  in this  case that  is only  an incidental point but  so far  as that  controversy i.e. the question of seniority amongst  the promotee officers of the Delhi Higher Judicial Service,  it would suffice to say that in so far as that controversy affects any position whereas in the instant case, the  same will  be guided by the ratio of the decision in Joginder  Nath &  ors. case  (supra). But  so far  as the controversy regarding  the fixation  of the  seniority  list between promotees  and direct  recruits which  is  the  main point here, the same will be dealt with separately.      In approaching the present controversy. it is necessary to keep  certain basic  fundamental principles in mind which are  of   importance  in   service  jurisprudence.   Service Jurisprudence in  this country  has developed  in a peculiar way. It  has sought  to infuse  both  fresh  blood  and  old experience but somehow our administrators did 389 not foresee  the need  for expanding  administration and the personnel necessary  for this  expansion,  as  a  result  in making appointments  and even  in granting promotions, there has been  a good deal of ad-hoc arrangements with the result that it  has created  in practically  every  branch  of  our administration feeling  of discontent  and  misunderstanding between promotees  and direct  recruits. This has, to a very large extent,  damaged the  friendly atmosphere which should prevail among  the members  of the  administration,  if  the administration has  to remain  a vehicle  of social progress and transformation  which the Indian administration must, in view of the very great possibility and the transitory nature through which  it is passing in spite of the severe personal and   economic   hardships   that   the   members   of   the administration go through.      The decision in the case of S.B. Patwardhan & Ors. Etc. Etc. v.  State of  Maharashtra   & Others  may be  noted, in resolving the  present controversy  though the  decision  in that case  was rendered in the context of the controversy of the Engineering Service. Rule 8 (1) of the relevant rules in that  case   before  this   Court  dealt  with  the  various categories which  manned the  Class II  sub-divisional posts which were compiled in two lists, one list of Bombay Service of Engineers,  Class II  cadre of permanent Deputy Engineers and the  other list  of officiating  Deputy Engineers. It is not necessary  for the  present controversy  to set  out the details of  the same. The controversial provision was rule 8 (iii) which was as follows:           "The probationers recruited directly to the Bombay      Service of Engineers, Class II cadre in any year shall,      in a  bunch, be  placed senior  to promotees  confirmed      during that year."      Learned Chief  Justice  observed  that  this  rule  was highly  discriminatory   against  the   promotees  and  gave preferential  treatment   to  direct   recruits.  Its   main justification was  said to be that persons who were promoted as officiating  Deputy Engineers  did not belong to cadre so long as  they were not confirmed as Deputy Engineers whereas direct recruits  appointed on  probation as Deputy Engineers either from  that class  or cadre  on the very date of their appointment  since   after  a   satisfactory  completion  of probation, confirmation  was  guaranteed  to  them.  Learned Chief Justice  felt that  this needed  careful  examination. More or  less similar  submissions were  made in the present writ petitions.  This Court  further noted that there was no universal rule, either that a cadre consisted of both per- 390 manent or  temporary employees  or that  it must  consist of

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both. That  is primarily  a matter  of rules and regulations governing the  particular service  in relation  to which the question regarding  the composition of the cadre arises. The Court noted  several decisions on this point. At page 800 of the report, learned Chief Justice observed as follows:           "We  are   not  unmindful  of  the  administrative      difficulties in evolving a code of seniority which will      satisfy all  conflicting claims.  But care  ought to be      taken to  avoid a  clear transgression  of the equality      clauses of  the Constitution.  The rules  framed by the      State Governments  were constitutionally  so vulnerable      that  the   administration  was   compelled  to   adopt      inconsistent postures  from time  to time  leaving  the      employees no  option  save  to  resort  to  courts  for      vindication of  their rights.  In this process, courts,      high and low, had to discharge functions which are best      left to the expertise of the appropriate departments of      the Government. Having struck down certain rules, we do      not want  to take  upon ourselves  the task  of framing      rules of  seniority. That  is not  the function of this      Court and  frankly it  lacks the expertise and the data      to do so. We however hope that the Government will bear      in mind  the basic  principles that if a cadre consists      of both permanent and temporary employees, the accident      of confirmation cannot be an intelligible criterion for      determining seniority  as between  direct recruits  and      promotees. All  other Sectors  being  equal  continuous      officiation  in   a  non-fortuitous  vacancy  ought  to      receive  due   recognition  in   determining  rules  of      seniority as  between persons  recruited from different      sources so  long as  they  belong  to  the  same  cadre      dissimilar functions and bear similar responsibilities.      Saying anything  beyond this  will be  trespassing on a      field which  does not  belong to the courts." (Emphasis      supplied)      The aforesaid  observations have to be borne in mind in deciding the present controversy.      In the  case of  Rajendra Narain  Singh and  others  v. State of  Bihar  and  Others  the  question  was  about  the interpretation of  the Bihar  Police  Service  (Recruitment) Rules 1953.  In that  case Rule  3 of the relevant rules was thus: 391      "The Governor  shall decide  in each  year to number of vacancies to be filled in that year.      Provided that  the number  of vacancies to be filled by promotion in  the service  in any one year shall not, unless the Governor  is satisfied  that there  is not  a sufficient number of  officers fit for promotion, be less than half the total number of vacancies to be filed in any such year."      The Court  further observed that Rule 3 of Bihar Police Service (Recruitment)  Rules was not really a quota rule and it did not lay down any proportion, all it did was to insist that the  number of  vacancies to  be filled in by promotion should not  be  less  than  half  of  the  total  number  of vacancies to  be filled in any year. Adding to the number of vacancies and  filling them  by promotion  did not certainly violate the  rule requiring,  that no  less than half of the vacancies must be filled by promotees.      The observations  of this  Court  in  the  case  of  A. Janardhana v.  Union of India and Others may be referred to. This Court said thus after pointing out anomalies similar to the facts of the instant case           "It is  therefore, time  to  clearly.  initiate  a      proposition  that  a  direct  recruit  who  comes  into

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    service after  the promotee was already unconditionally      and without reservation promoted and whose promotion is      not  shown  to  be  invalid  or  illegal  according  to      relevant statutory or non-statutory rules should not be      permitted by  any principle  of seniority  to  score  a      march  over   a  promotee  because  that  itself  being      arbitrary would be violative of Articles 14 and 16. Mr.      Ramamurthi, learned  counsel for  some  of  the  direct      recruits, in  this connection urged that if at the time      when  the  promotee  was  recruited  by  promotion  his      appointment/promotion  was  irregular  or  illegal  and      which is  required to  be regularised,  any  subsequent      direct recruit  coming in  at a  later  date  can  seek      relief and score a march over such irregular or illegal      entrant. We  find it  difficult to  subscribe  to  this      view. Though  we have  dwelt at  some  length  on  this      aspect any  enunciation of  general  principle  on  the      lines indicated  by us  would require a reconsideration      of some  of the decisions of this court. We say no more      save that  we have  solved the  riddle in  this case in      accordance 392      with the  decisions of this court and interpretation of      relevant rules."      The decision  in the  case of Baleshwar Dass & Ors. Etc v. State of U. P. & Ors. Etc. was also referred to. There in the context  of  different  rules  namely  U.P.  Service  of Engineers  (Junior  and  Senior  Scales)  Irrigation  Branch Rules, this  Court observed  that officiating  service in  a post is  for all  practical purposes of seniority as good as service on  a regular  basis. It  may be  permissible within limits, for  government to  ignore officiating  service  and count only  regular service  when claims  of seniority arise before it,  provided the  rules in that regard are clear and categoric and do not admit of any ambiguity and an arbitrary cut of  long years  of service  does not  take place.  While rules  regulating  conditions  of  service  are  within  the executive power  of the State or its legislative power under proviso to  Article 309,  such rules  have to be reasonable, fair and  not grossly unjust if they are to survive the test of articles  14 and  16  of  the  Constitution.  This  Court further noted  that for purposes of seniority, one has to go normally by  the order  of appointment  to the  Service in a substantive capacity.  But  no  fixed  connotations  can  be attributed  to   expressions  like  ‘substantive  capacity’, ‘service’, ‘cadre’  and the  like because probation even for temporary appointments is provided for in the rules may mean that even  temporary appointments  can be  substantive   For there cannot  be probation for government servant who is not be absorbed  substantively  in  the  service  on  completion thereof. Permanency  carries with  it other rights than mere seniority and promotion. Permanent posts and temporary posts are in  official terminology  sharply different, but in that case the Court further noted that from this alone, there was no difference,  in the historical context of U.P. Service of Engineers.  The  Court  noted  in  that  even  the  case  of temporary engineers  required consultation  with the  Public Service Commission.  In the  context Rule 16 of the Rules in the instant  case requiring consultation with the High Court may be noted.      In the  aforesaid decision  this  Court  noted  that  a person is said to hold a post in a substantive capacity when he holds  it for  an indefinite  period, especially  of long duration in contradistinction to a person who holds it for a definite or  a temporary  period or  holds it  on  probation

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subject to  confirmation. If  the appointment  was to a post and capacity  in which the appointment was to be made was of indefinite  duration,  if  the  proper  authority  had  been consul- 393 ted and  had approved,  if the  tests prescribed  have  been taken and  passed, if  probation has been prescribed and has been approved,  one may  well say  that the post was held by the incumbent  in a  substantive  capacity.  applying  these tests to  the facts  and circumstances  of this case dealing with the officers holding the post for a long time, there is no  doubt  that  the  petitioners  officers  have  held  the positions in substantive capacities.      This can  be looked at from another point of view. Most of  the  petitioners  are  holders  of  temporary  posts  in substantive capacities. These posts have been created by the Administrator under  rule 16.  See also rule 17 which begins with the  non-obstante clause.  By reason  of rule  2(b) and rule 2(d),  the petitioners being holders of temporary posts in substantive  capacities are holding ‘cadre posts’ and are also a  members of the service. Appointment in a substantive capacity is  different from  appointment  to  a  substantive post. This  has been  held in  the case  of  Baleshwar  Dass (supra) (pages  449,  467-469)=  A.I.R.  1983  S.C.  769  at paragraph 23,  page 779,  though, as was contended on behalf of the  High Court  the context  of the  relevant  rule  was somewhat different  from the present one but that difference is not  of much significant distinction in principle. It is, therefore,  erroneous   to  contend   that  the  holders  of substantive posts,  i.e. the  12  posts  originally  at  the inception of  the service,  and  22  posts  now,  alone  are members  of  the  service.  All  incumbents  holding  either substantive  posts   or  temporary   posts  in   substantive capacities are members of the service, in the context of the present rule.      That actual  terms of  rule 7  have been  noted but  is manifest that  in the  context of the present circumstances, Rule 7  can have  only application  to recruitments  to  the substantive posts  in the service. It provides two different sources of recruitment. and without fixing any actual quota, but a  ceiling of not more than 1/3 of the substantive posts to be  held by  direct recruitments.  Rules 7  and 8  do not exist in  isolation. These  have to  be read  with the other rules, particularly  Rule 16.  The principles  of harmonious construction must  be accepted  so that  all the  rules  are rendered operative and one does not make the other nugatory. Rule 16  is a  rule of  relaxation or  an additional rule of recruitment providing for temporary posts being filled up in addition  to  the  substantive  posts.  The  effect  of  the creation of  temporary  posts  is  to  expand  the  area  of membership of  the  service’.  As  the  filling  up  of  the temporary posts  under Rule  16 is  confined to  recruitment from the members of Delhi Judicial Service, Rule 7 cannot be made applicable for the 394 recruitment to temporary posts. Therefore, there is no quota rule applicable with regard to temporary posts.      In the aforesaid view of the matter, it appears that by definition, temporary  posts of District and Sessions Judges are ‘cadre  posts’. See  in this connection Rule 2(b) of the said rules.  Holders of  such temporary posts become members of the  Delhi Higher  Judicial Service if they are appointed to such  posts in  substantive capacity  under rule 2(d) and rule 2(e)  of the said rules. A person can be said to hold a post, permanent or temporary, in a substantive capacity only

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if his  appointment to that post is not fortuitous or adhoc. A person  appointed to  a post  as a  stop  gap  arrangement cannot be said to hold that post in substantive capacity. In addition to  the requirement that the appointment should not be fortuitous stop-gap or ad hoc nature, no appointment to a temporary post  can be  regarded as substantive unless it is made in compliance with the rules and regulations which have to be  complied with  while making appointments to permanent posts. In  the instant  case for  example, an appointee to a temporary post of Additional District and Sessions Judge can only hold  that post  in a  substantive capacity  if he  has completed not  less than  ten years  of service in the Delhi Judicial Service  as required  by Rule  7(a) and  if he  was appointed on the basis of selection from amongst the members of the  Delhi Judicial Service in consultation with the High Court as enjoined by Rule 5(1) of the said rules.      The proviso  to Rule  7(b) does not prescribe any quota of 1/3rd  for direct  recruits. As has been noted, it merely indicates a  ceiling i.e.  that not  more than  1/3rd of the substantive  posts  of  service  shall  be  held  by  direct recruits.      Even if  one assumes that proviso to rule 7(b) provides for a  quota of  1/3rd for direct recruits, rule 16(1) which empower the  Administrator to  create temporary posts in the service, read  with rule 16(2) which provides that temporary posts shall  be filled  in, in  consultation with  the  High Court from amongst the members of the Delhi Judicial Service either constitutes  an exception to the quota rule or in the alternative  proceeds   on  the   basis  of   relaxation  or abrogation of  quota rule.  By rule  16(2) a  direct recruit cannot be  appointed to  a temporary  posts. In other words, only promotees  can be  appointed posts.  If the  source  of recruitment to  temporary posts  is one and one only namely, the members  of the  Delhi Judicial  Service, no question of applying the  quota rule  can possibly arise. The quota rule can have  application only if there is more than one. source of recruitment. If temporary posts in the service 395 are  created   as  has   been  done  in  this  case  by  the Administrator as  envisaged by  rule 16(1) and if such posts have been  filled in as it appears to have been done here in consultation with  the High  Court from  amongst members  of Delhi Judicial  Service as  required under Rule 16(2) of the Rules, quota  rule assuming  that there is any, cannot apply to such  appointments. The  validity of such appointments is not open to the exception that these violate the quota rule, if any.  As has been mentioned hereinbefore it is impossible to find  in Rule  7 any  quota rule  simply because  Rule  8 assumes, that  quota rule  is there  in  Rule  7,  and  then proceeds to make a rotational system. It would not be proper to  accept  the  position  that  there  is  any  quota  rule specially in view of the fact that working of the said rules over all  these years indicate that the rule was not adhered to and  the fulfilment  of the  rule cannot be adhered to if the appointments  under Rule  16 is given effect to and also in view  of the fact that if the quota rule is adhered to in conjunction with  rule 8(2),  it  will  result  in  manifest injustice. As  between direct recruits, on the one hand, and the members of the Delhi Judicial Service who were appointed in substantive  capacity to  temporary posts  of  Additional District &  Sessions Judges on the other hand, the seniority must be  governed by  the rules of continuous officiation in the cadre  post i.e. a direct recruit who is appointed after a member  of the  Delhi Judicial  Service is  appointed in a substantive capacity  to  a  temporary  post  of  Additional

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District & Sessions Judge, cannot and should not rank higher than the  latter in  the list  of  seniority;  if  a  direct recruit is  appointed after  a member  of the Delhi Judicial Service thus promoted, he would rank lower in seniority than the latter. The following conclusions follow:      (1)  Rule 7(b) is not in the nature of a quota rule;      (2)   The temporary  posts can  be held  in substantive           capacity;      (3)  The holders of such temporary posts are members of           the Delhi Higher Judicial Service.      (4)   Rule  8(2)  which  provides  for  a  rotation  of           vacancies between  direct recruits  and  promotees           "based on the quota of vacancies reserved for both           categories by  Rule 7",  must be  read  so  as  to           restrict   its    application   to    simultaneous           appointments of  direct recruits  and promotees or           in the  case of first and initial appointment. Any           other construction  will make the rule incongruous           as well as invalid offending articles 14 and 16 of           the Constitution. 396      The  history  of  Delhi  Judicial  Service  shows  that placement of  the promotees on probation is a matter of idle curiosity.    Promotees    were    placed    on    probation retrospectively as  is shown  by the  recent instances which occurred during  the pendency of these writ petitions. By an order dated  6th September,  1983, the  Secretary  (Law  and Judicial),  Delhi   Administration,   notified   that   five promotees were  placed on probation with effect from various dates ranging  from 1.10.1981  to 10.5.83.  The promotee  at Serial No.  1, Smt.  Santosh Duggal  was placed on probation retrospectively from  1st  October,  1981,  that  means  her probationary period  of 2  years would  be over within three weeks of  the letter  dated 6th  September, 1983, it is also interesting to note that Shrimati Duggal had been working as a Judicial  member of  the Customs  and Excise  Gold Control Appellate Board  since October,  1982. Such  probations  are meaningless  formalities.   Therefore,  promotees  who  were appointed in  substantive capacities  in the sense indicated above can  be placed  on probation  now if that has not been done so far.      As has  been noted  in the decision of A. Janardhana v. Union of  India and ors. at 608 of the Report, if proviso to rule 7(b) is read with rule 8(2) and in the manner contended by the  respondents, it  might so  happen that a candidate’s position may  be placed in such a way that by legal fiction, he will  be placed  as senior  to a person as a District and Sessions Judge  by national  placement at a time when he did not even  reach the age at which he or she would have become eligible for  appointment. That  would  be  unfortunate  and would produce  incongruous result.  Indeed such a result had happened in A. Janardhana’s case (supra).      An argument  was advanced  on behalf of the respondents that  there   is  no   provision  for   probation  for   the appointments under rules 16 & 17 of the said rules, but sub- rule (2) of rule 12 required that all candidates shall be on probation for  a period  of two  years.  An  appointment  on probation  is   not  a  jurisprudential  sine  qua  non  for absorption into  the services, though normally and generally various rules  of different services make such provisions as rule 12(2)  here. But  as has  been noted in the working out the  practice   of  Delhi   Judicial  Service  placement  of promotees on  probation has not been very strictly followed. The promotees  cannot suffer  for this.  It was, then, urged that there  was no process of selection. It may be mentioned

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that Rule  7(a) provides for recruitment to the Delhi Higher Judicial Service alia inter by promotion on the basis 397 of selection from the members of Delhi Judicial Service, who have completed  not less  than ten  years of  Service in the Judicial  Service.  It  may  be  mentioned  that  in  actual practice all appointments have been made by selecting people from Delhi Judicial Service and sometimes officers have been passed over  on  the  basis  of  assessment  of  comparative merits.      It may  be appropriate  here to  note on  the  question whether the  petitioners were  appointed regularly  that all the  promotees   were  appointed   to  temporary   posts  in accordance with  qualifications laid  down under  Rule 7(a), namely, by  selection and  after completion  of a minimum of ten years  judicial service, The selections were made by the Full Court  of the  High Court and appointments were made on merit-cum-seniority basis  so much so that persons found not fit for  promotions were ignored as in the case of Shri C.D. Vashist and Shri S.P. Singh Chowdhary.      On behalf of the respondents attention was drawn to the decisions of this Court in the case of M. Veeraian Chowdhary & 42  ors v.  The Government of A.P. & 87 Ors. (Civil Appeal No. 2030  of 1981)  as well as the decision of this court in this case  of S.P.  Gupta etc.  v. Union  of India  and Ors. Inasmuch as  the context of the provisions involved in those two decisions are entirely different from the context of the rules in  the instant  case, the respondents cannot have any support from the aforesaid two decisions.      Another argument  canvassed was  that Bar  recruits had joined the  services and  some of  them  with  a  very  good practice about which we have no doubt that they had and they had joined  the service  at great sacrifice, would suffer if any alteration  of the  gradation list  was now made. It was submitted that  if necessary  at all the same should be done prospectively, if  the seniority  list is revised, it should be done  prospectively without  affecting the  positions  of these Bar  recruits where  seniority on the old basis in the light  of   the  High  Court’s  understanding  before  these petitions were filed had been existing.      One should  give anxious  considerations to this aspect of the matter. One should be hesitant and loath to upset the just expec- 398 tations of  the members  of the  legal profession  who  have joined the  service and  one would be very sorry to do that. Judicial appointments  are  no  longer  attractive  for  any lawyer of  any kind of success. One would be hesitant to put further disincentives for those with professional experience to join  Judicial service,  and therefore  be  reluctant  to interfere  with   the  just   expectations  of  professional entrants who  had entered  Judicial service  at sacrifice of considerable money  and position.  But the provisions of the rule as well as of the Constitution must be given effect to. In the  instant case  members of  the Judicial  service, the petitioners had  made representations  to the  High Court in 1977. The  two entrants  who would  a be vitally affected by the re-adjustment  of the  list would be Shri G.S. Dakha who joined the  service on 27th of September, 1973 and Miss Usha Mehra who  joined the service on probation on 24th of April, 1980. At  that time  challenge in the form of representation to existing  seniority before the High Court was there. Shri J.B. Goel  had joined the service on 10th November, 1980 and Shri B.S. Chaudhary had joined the service on 10th November, 1982. So  far as  Shri Dakha  as a member of Scheduled Caste

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and Tribe,  his  position  may  not  be  affected  on  other grounds. We say no more on this aspect. So far as Miss Mehra is concerned,  she was appointed on probation in April, 1980 and got  her confirmation during the pendency of the present petitions. Miss  Mehra is still young and has a long tenure. It  is  hoped  that  she  will  overcome  any  temporary  or momentary loss of seniority and would continue to render her valuable  service  to  the  administration  of  justice.  In judicial  careers   many  just  expectations  get  upset  as experiences of recent times would indicate.      The interpretation  indicated above  and the principles mentioned herein-before  in adjusting the rights between the promotees and direct recruits in the background of the rules prevailing in the instant case are appropriate and rational. One should  insist that  government must abolish this system of making  appointments from two different sources in ad-hoc manner. If  appointments have  to be made from two different sources, then  the  authorities  should  so  plan  that  the recruits  come  from  two  different  sources  in  time  and officers from  one  source  are  not  required  to  function substantively and effectively in the jobs which are intended to be  performed by  recruits of  other source  and face the prospect of  being either pushed back or thrown out. Nothing more need to be said. 399      The rules  nisi are  made absolute.  Current  gradation list of  the Judicial Department of the Delhi Administration specially with  reference to  respondents Nos.  4 and  5  is quashed with  a direction  to the  respondents Nos.  1 to  3 prepare the  gradation list  of the  Delhi  Higher  Judicial Service on  the basis  of the  principles indicated  in this judgment. This,  however, will  not in any way prejudice the claim of  seniority of  respondent No. 4, Shri G.S. Dakha on the ground  of  his  being  member  of  Scheduled  Caste  or Scheduled Tribe.  This direction  will also  not in  any way affect the  seniority of  the promotee officers of the Delhi Higher Judicial  Service amongst  themselves. That  position would be guided by the principles laid down by this Court in Joginder   Nath    and   Ors.’   case   (supra)   (indicated hereinbefore).      In the fact and circumstances of the case, parties will bear their own costs. S.K.                                Petitions partly allowed 400