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PETITIONER: S.B. MATHUR AND OTHERS

       Vs.

RESPONDENT: HON’BLE THE CHIEF JUSTICE OF DELHI HIGH COURT,AND OTHERS

DATE OF JUDGMENT31/08/1988

BENCH: KANIA, M.H. BENCH: KANIA, M.H. SINGH, K.N. (J)

CITATION:  1988 AIR 2073            1988 SCR  Supl. (2) 772  1989 SCC  Supl.  (1)  34 JT 1988 (3)   507  1988 SCALE  (2)615

ACT:     Delhi   High   Court  Establishment   (Appointment   and conditions  of service) Rules, 1972-Delhi High  Court  Staff {SEniority)  Rules 1971-Superintendents of Delhi High  Court challenging the treatment of posts of Superintendents, Court Masters  or  Readers and Private Secretaries  to  Judges  as equal  status  posts, being violative of Article 14  of  the Constitution,  and  challenging  joint  seniority  list   of Superintendents,  Court Masters and Private Secretaries  for purposes  of promotion to the post of  Assistant  Registrars and claiming better rights of promotion.

HEADNOTE:     The  Superintendents  of the Delhi High  Court  by  writ petition  claimed  better rights of promotion,  objected  to their  being treated as on par with the Private  Secretaries to  Judges and Court Masters, and being included in a  joint seniority  list alongwith them, particularly as far  as  the promotion to the next higher post of Assistant Registrar was concerned.     The  petitioners contended inter-alia that there  was  a violation of Article 14 of the Constitution in treating  the posts  of  Superintendents,  Court Masters  or  readers  and Private  Secretaries to Judges as equal  status posts;  that the sources of recruitment to these posts were not identical and so also the qualifications required for appointments  to these  posts;  that the duties of the  incumbents  of  these posts were different; that in treating these posts as  equal status posts, unequals had been treated equally and the rule of equality had been violated.     Dismissing the petition, the Court,     HELD: Where an employer has a large number of employees, performing diverse duties, he must enjoy some discretion  in treating  different categories of his employees  as  holding equal  status  posts  or  equated  posts,  as  questions  of promotion or transfer of employees inter se will necessarily arise  for the purpose of maintaining the efficiency of  the organisation. [781C-D)                                                    PG NO 772                                                    PG NO 773     There  is  nothing  inherently  wrong  in  an   employer

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treating certain posts as equal posts or equal status posts, provided  that  in  doing so  he  exercises  his  discretion reasonably  and does not violate the principles of  equality enshrined in Articles 14 and 16 of the Constitution.  [781D- E]     For  treating  certain posts as equated posts  or  equal status posts, it is not necessary that the holders of  these posts  must  perform  the identical functions  or  that  the sources of recruitment to the posts must be the same, nor is it essential that the qualifications for appointments to the posts  must  be  identical.  But, there  must  not  be  such difference  in  the  pay-scales  or  qualifications  of  the incumbents   of   the   posts  or   in   their   duties   or responsibilities or regarding any other relevant factor that it would be unjust to treat the posts alike and posts having substantially  higher  pay-scales or status  in  service  or carrying  substantially heavier responsibilities and  duties or otherwise distinctly superior, cannot be equated with the posts carrying much lower pay-scales or substantially  lower responsibilities and duties or enjoying much lower status in service. [781E-G]     The petitioners could not challenge the aforesaid  posts being treated as equal status posts as that had been done in accordance  with  the Seniority Rules of 1971 the  vires  of which had not been challenged. [782B]     Neither the combined seniority list nor the treating  of the  said  posts as equal status posts could be said  to  be arbitrary  in the absence of any material,  particularly  in view  of the fact that the Chief justice and the  Judges  of the  High Court had taken the view that it was necessary  in order  to provide adequate promotional opportunities to  the various sections of the employees. [784D]     The  challenge to the said posts being treated as  equal status posts had come too late in 1970 to be entertained  in a  writ petition, after the seniority Rules of  1971  became effective.  This challenge could be negatived on the  ground of delay or latches apart from other considerations. [784E-G]     There  was nothing unreasonable in the restriction  that out  of  the total number of candidates  who  satisfied  the eligibility requirement, the zone of consideration would  be limited  to  a  multiple  of 3 to  5  times  the  number  of vacancies or in determining the persons to be considered  on the basis of their seniority in the combined seniority list. It  was  open  to the High Court to  restrict  the  zone  of consideration  in any reasonable  manner, and limiting   the                                                    PG NO 774 zone  of  consideration  to  a multiple  of  the  number  of vacancies  and  basing  it on  seniority  according  to  the combined  seniority list cannot be regarded as arbitrary  or capricious  or  mala fide, nor can it be-said  that  such  a restriction violates the, principle of selection on  because even  experience in service is a relevant  consideration  in assessing merit. [791C-E]     It is not as if either Rule 7 of the Establishment Rules of  1972  or  Rule 5 of the seniority Rules  of  1971  which provides for a combined seniority list negatives the  chance of  promotion  to the posts of  Assistant  Registrars  being granted to the Superintendents. [794A-B]     So  far as the zone of consideration is Limited  by  the competent  authority in a manner not inconsistent  with  the Rules  or  in a manner not arbitrary or capricious  or  mala fide,  the  validity of the decision to limit  the  zone  of consideration  cannot  be called in question on  the  ground that  the  manner  in which the zone  was  limited  was  not uniform. [795D-E]

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   V.  T.  Khanzode and Ors. v. Reserve Bank of  India  and Anr.,  [1932]  3  S.  C.R. 411 ; Guman  Singh  v.  State  of Rajasthan  und  Ors.,  [1971] Suppl. S.C.R.  900;  Sant  Ram Sharma v. State of Rajasthan and Anr., [19688] 1 S.C.R. III; Reserve  Bank  of India v. N.C. Paliwal and Ors.,  [1977]  1 S.C.R.  377;  Ashok Kumur Yadav and Ors., etc. v.  State  of Haryana  and Ors., etc., [1985] Suppl. 1 .S.C.R.  657;  V.J. Thomas  and Ors. v. Union of India and Ors.,  l1985]  Suppl. S.C.C.  7; Madan Mohan Saran and Anr. v. Hon’ble  the  Chief Justice  and Ors., [1975] 2 S. C. R. 899 and  Mahesh  Prasad Srivastava v. Abdul Khair, [1971] 1 S.C.R. 157, referred to.

JUDGMENT:     ORIGINAL JURISDICTION: Writ Petition (Civil) No. 263  of 1979.     (Under Article 32 of the Constitution of lndia. )     D.D.  Thakur,  A.  Minocha, Mrs. Veena  Minocha,  G.  S. Vashisht, T.R. Arti and B.S. Bali for the Petitioners.     Kuldeep Singh, Additional Solicitor General, C. M. Nayar and C.V. Subba Rao for Respondent Nos. 1 and 2.     Kuldeep  Singh,  Additional  Solicitor  General,   Ashok Srivastava and Ms. A. Subhashini for Respondent No. 3.                                                    PG NO 775     Ms. A. Subhashini Advocate for the Respondent No. 11.     A. k. Ganguli, A. Mariarputha and Mrs. Aruna Mathur  for the Respondents Nos. 6, 7, 4 and 10.     The Judgment of the Court was delivered by     KANIA,  J.  This  Writ Petition owes  its  origin  to  a dispute  between different groups of employees of the  Delhi High   Court,  claiming  better  rights  of  promotion   for themselves,  a type of dispute too common in services  these days.  The  present  Writ Petition has been  filed  by  some Superintendents  in the Delhi High Court objecting to  their being  treated  on  a par with the  Private  Secretaries  to learned  judges  and Court Masters and being included  in  a joint seniority List along with them, particularly as far as the promotion to the next higher post of Assistant Registrar is concerned. In order to appreciate the controversy  before us, it is necessary to keep in mind the background in  which the dispute has originated.     Prior  to  the Constitution of the Delhi High  Court  in 1966,  there  was a Circuit Bench of the Punjab  High  Court sitting at Delhi. By Act 26 of 1966, Parliament  established an independent High Court for the Union Territory of  Delhi. By  an order dated October 31, 1966, effective from  October 31,  1966, the Government of lndia created a staff  for  the said  High  Court. The letter of the  Government  of  india, which  is  Annexure-A  to  the  Petition,  shows  that   the President of India sanctioned the creation of certain  posts for  the Delhi High Court with effect from October 31,  1966 or from the date of setting up of the High Court,  whichever was  later,  upto February 28, 1967.  Amongst  these  posts, there  was  a post of an Assistant Registrar having  a  pay- scale  of  Rs.500-30-800 plus (scales of  pay  and  dearness allowance  as admissible in Punjab). Among the  other  posts created  were  six posts of Private Secretaries  to  Hon’ble Judges of the High Court in the pay-scale of Rs. 500-20-450- 25-475,   six   posts  of  Readers  and  seven    posts   of Superintendents.  The pay-scale of all these posts  was  the same,  namely,  Rs.350-20-450-25-475. The Delhi  High  Court started  functioning with effect from October 31, 1966.  The staff of the Punjab and Haryana High Court working in  Delhi was,  for  the time being, treated as on deputation  to  the

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Delhi High Court till they were permanently absorbed in  the Delhi High Court. From the time of its formation till  1971, the  Delhi  High  Court had no rules of  its  own  regarding conditions  of service or regarding the salary or  seniority in  respect of its staff. Section 7 of the Delhi High  Court Act,  1966  (Act  26 of 1966),  in   brief,  provided  that,                                                    PG NO 776 subject  to  the provisions of the said   Act,  the  law  in force   immediately before the  Appointed  Day  (31.10.1966) with respect to practice and procedure in the High Court  of Punjab  shall,  with the necessary modifications,  apply  in relation to the Delhi High Court and conferred powers on the High Court of Delhi to make rules and orders with respect to its  practice and procedure, such powers being the  same  as exerciseable by the High Court of Punjab immediately  before the  Appointed  Day. There was a proviso which  was  to  the effect  that  any  rules  or  orders  which  were  in  force immediately  before  the  Appointed  Day  with  respect   to practice  and procedure in the High Court of  Punjab  shall, until varied or revoked by rules or orders made by the  High Court  of Delhi, apply with the necessary  modifications  in relation  to  practice and procedure in the  High  Court  of Delhi  as if made by that High Court. The Delhi  High  Court started in 1966 with four Hon’ble Judges including the Chief Justice   and   among  its  staff  inter  alia   were   four Superintendents, four Readers and three Private  Secretaries against the sanctioned strength. Under the powers  conferred by Article 229 of the Constitution, the Chief Justice of the Delhi  High Court framed the Delhi High Court  Officers  and Servants  (Salaries , leave, Allowances and Pension)  Rules, 1970 (hereinafter referred to as "the Salary Rules of 1970") and  the  Delhi  High Court Staff  (Seniority)  Rules,  1971 (hereinafter referred to as "the Seniority Rules of  1971"). Under  the  Salary  Rules  of 1970, the  scale  of  Pay  for Superintendents,  Readers  and Private Secretaries  was  the same, namely,  Rs.350-20-475. With the increase of work  and the  extension of the territorial jurisdiction of the  Delhi High Court, there was an increase in the number of Judges as well as staff of the Court. According to the Petitioners, by March  1979, there were 21 Private Secretaries,  21  Readers and  13 Superintendents in the Delhi High Court. It  appears that  because of the increase in the number of  Judges,  the increase in the post of Private Secretaries and Readers  was at  a  somewhat  higher  rate than  that  in  the  posts  of Superintendents.  We  are informed that in March  1988,  the position  was  that there were 27  Private  Secretaries,  30 Readers and 24 Superintendents in the same pay scale. We may mention that Readers are now called Court Masters.     We may at this stage consider the Seniority   Rules   of 1971,  Rule  3  of the said Rules  provides  that  inter  se seniority of confirmed employees in any category of the High Court staff shall be determined on the basis of the date  of confirmation. Rule 5 of the said rules runs as follows :     "Joint  inter  se seniority of  confirmed  employees  in categories  of  equal  status  posts  shall  be   determined                                                    PG NO 777 according  to  their dates of confirmation in any  of  those categories." Rule  9, with which we are not directly concerned,  provides that  certain   credit for purposes of  seniority  shall  be given to an employee who before his appointment as Assistant in the High Court was working on any of the posts  mentioned in  Clause   IV  of Schedule II. Rule  2  contains  certain definitions for purposes of the said Rules. Rule 2(ii)  runs as follows:

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   "‘Equated post’ means any of the posts shown as  equated posts, from time to time, in Schedule I to these rules".  Clause (iii) of the said Rule runs as follows :     "  ’Equal status posts’ means the posts shown to  be  of equal  status,  from time to time, in Schedule II  to  these rules". Item (ii) of Schedule I under Rule 2 runs as follows:     "Equated Posts:     (i) x       x    x       x       x       x     (ii)  Judgment writers/Personal Assistant to  Judges  of Punjab  & Haryana High Court (from 7.11. 1964]  and  Private Secretaries to Judges."     The  relevant portion of Schedule II (See Rule  2)  runs thus:     "Equal Status Posts:     (i)   x             x             x                 x     (ii) Superintendents, Court Masters, Private Secretaries to Jugdes . . . . .".     (iii)  x             x             x                 x     (iv)   x             x             x                 x     (v)    x             x             x                 x     In exercise of the powers vested in the Chief Justice of the  Delhi  High Court, he framed certain rules  which  were notified  on 15th September, 1972, called Delhi  High  Court Establishment (Appointment and conditions of Service) Rules, 1972  (hereinafter referred to  as "Establishment  Rules  of                                                    PG NO 778 1972"). Rule 7 of the said Rules runs as follows:     "7. Mode of Appointment.     Except  for appointment on officiating, temporary or  ad hoc basis, the mode of and qualifications for appointment to the  posts specified in Schedule II to these rules shall  be as stated therein."     The material portion of Schedule II runs as follows:                   Schedule-II (See Rule 7) ----------------------------------------------------------- S.No.  Category            Minimum  qualifi-   Mode of        of post             cations prescribed  appointment                            for appointment to                            the posts ----------------------------------------------------------- "1         x                     x                  x 1a         x                     x                  x 2          x                     x                  x 3        Assistant Registrar     -   By selection on merit          (Selection post)            from confirmed offi-                                      cers of categories 5                                      6 & 7 of Class IT                                      mentioned in                                      Schedule 1. x          x        x        x        x         x        x" -----------------------------------------------------------     We  may  mention  that Schedule I  framed  under  Rule-4 mentions  the  various  categories  of  posts.  Category  of comprises  Assistant  Registrars, Categories 5, 6 and  7  of Class  II  are Superintendents, Court  Masters  and  Private Secretaries to Judges. respectively.     The  above provisions make it clear that  certain  posts were  treated as equated posts under Schedule I and  certain posts  were treated as equal status posts under Schedule  I1 to the said Seniority Rules of 1971. It is clear that  these provisions were made with a view to provide  transferability among  persons  holding  these  posts  and  to  provide  for channels of promotion to certain categories of employees who did not enjoy a chance for promotion earlier with the result

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that there was stagnation and frustration in the  categories concerned. It may be noticed here that the posts of Judgment                                                    PG NO 779 Writers,   Personal   Assistants  to  Judges   and   Private Secretaries to Judges have been treated as equated posts and the  posts  of Superintendents, Court  Masters  and  Private Secretaries  to  Judges have been treated  as  equal  status posts. Rule  5 of the Seniority Rules of 1971 set out by  us earlier  provides  for a joint seniority list  of  confirmed employees  in  categories of equal status  posts  presumably with the same object as aforestated.     It  may  be noticed that prior to October 31,  1966  the position relating to pay-scales was as follows: 1.  Superintendent          50-20-500-30-650    Gazetted                                                 Post 2. Reader                    250-20-450         Non-Gazetted                                                 Post 3. P.S. (Private Secretary)  150-10-300         Non-Gazetted                                                 Post. Later  on,  there was a revision of scales of pay  of  these posts. It is not necessary to consider all these  revisions, but  it  may  be  noticed that  at  the  relevant  time  and thereafter under the Salary Rules of 1970 the Scales of  Pay of the said three posts are the same, namely, Rs.350-25-575. The  said  Rules have been framed as early as 1970  and  the same  have not been challenged before us. It was  under  the Seniority Rules of 1971 that the said posts were treated  as equal  status posts and Mr. Thakur, learned Counsel for  the Petitioners  made it clear that he was not challenging  this portion  of  the Rules. ln fact, in his opening he  made  it clear that he would not challenge any of the aforesaid Rules set  out  earlier.  However, we must  mention  that  in  the rejoinder  an  attempt  was  made  to  challenge  the  joint seniority  list which would imply a challenge to Rule  5  of the said Seniority Rules of 1971.     A  joint seniority list of Superintendents. Readers  and Private  Secretaries  was framed on May 8, 1972 but  it  was quashed  on February 24th, 1975 when the seniority  list  of Readers  was challenged. The seniority list of  Readers  was quashed  on October 10, 1975. A direction was given in  both the  cases  when the said joint seniority list  was  quashed that a fresh list should be prepared in accordance with  the observations made in the judgment whereby the said list  was quashed.  Accordingly, fresh lists were made  after  hearing objections  thereto  and were finalized in  December,  1976. Occasions then arose for temporary appointments to the posts of  Assistant Registrars. That the appointments to  be  made were  temporary  is  not or much consequence  as  later  the confirmations were made in that very order. Under Rule 7  of the Establishment Rules of 1972 appointments to the post of                                                    PG NO 780 Assistant  Registrar  are to be made by selection  on  merit from  the  three categories,  Superintendents,  Readers  and Private  Secretaries.  It appears that it was felt  that  it would not be feasible to consider all the incumbents of  the posts  in  the  said  three  categories  because  a   proper selection  among such a large group would  be  impracticable and  extremely  difficult.  This appears  to  be  the  basis underlying  the  decision of the  Administrative  Judges  at Annexure  XVI  to the Petition. For delimiting the  zone  of consideration or field of choice in making the  appointments which  had  to  be  made  by  selection  on  merits,   after considering  various  modes  for  delimiting  the  zones  of consideration,  it  was  decided  at  the  meeting  of   the Administrative  Committee  of the Judges of the  Delhi  High

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Court   held   on  February  3,  1977  that  the   zone   of consideration  or field of choice should be limited  to  the first  five names in the finalized joint seniority  list  of Superintendents,  Readers and Private Secretaries, that  is, for  each  post of Assistant Registrar to be  filled  in  by selection  on merits, five persons from the finalized  joint seniority  list had to be considered in order of  seniority, and  the  selection between them made on  merits.  In  other words,  if  appointments  were to be made to  two  posts  of Assistant  Registrars, the first ten employees in the  joint seniority   list   would  be  included  in   the   zone   of consideration.  It was further decided that no written  test or  interview was to be held for the purposes of  selection. We  are not referring here to any individual promotion  made on  this  basis because the grievance made is  against  this mode  of  selection itself and not  against  any  particular promotion.  We  may mention here that, as set  out  earlier, when   the  Delhi  High  Court  started   functioning,   the authorised  strength  in  the relevant  categories  was  six Private  Secretaries  to the Judges, six  Readers  (same  as Court  Masters) and seven Superintendents. With the  passage of  time the number of posts in three categories  has  risen fairly  sharply. As aforestated by March 1979, according  to the  Petitioners,  there were 21   Private  Secretaries,  21 Readers and 13 Superintendents and by March 1988 there  were 37  Private  Secretaries  to Judges,  30  Readers  or  Court Masters and 33  Superintendents. Although there is a  little controversy  regarding  these  figures, it  is  not  of  any consequence in the case before us. All that need be  noticed is  that the increase in the number of Readers  and  Private Secretaries has been higher percentagewise than that in  the case  of  Superintendents because with increasing  work  and increase  in  the number of Judges, the  number  of  Private Secretaries   and  Readers  had  necessarily  to   rise   in proportion  whereas  the number of Superintendents  had  not gone  up quite in the same proportion. lt may  be  mentioned that there was some grievance made regarding differences  in the method of selection employed on different occasions when vacancies arose of requiring                                                   PG NO 781 temporary appointments to the posts of Assistant Registrars. There  is, however, not much substance in that grievance  as we shall point out later.     The first submission of Mr. Thakur, learned Counsel  for the  petitioners is that there is a violation of Article  14 of    the   Constitution   in   treating   the   posts    of Superintendents,  Court  Masters  or  Readers  and   Private Secretaries  to  the Judges as equal status  posts.  It  was urged by him that the sources of recruitment to these  posts were  not identical and so also the qualifications  required for  appointments to these posts. He also pointed  out  that the duties of the incumbents of these posts were  different. It  was  submitted by him that in treating  these  posts  as equal  status posts unequals were treated equally and  hence the  rule  of equality was violated.  In  appreciating  this submission, it must be borne in mind that it is an  accepted principle  that where there is an employer who has  a  large number  of  employees  in  his  service  performing  diverse duties,  he  must enjoy a certain measure of  discretion  in treating  different categories of his employees  as  holding equal  status  posts  or  equated  posts,  as  questions  of promotion or transfer of employees inter so will necessarily arise  for the purpose of maintaining the efficiency of  the organisation. There is, therefore, nothing inherently  wrong in  an employer treating certain posts as equated  posts  or

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equal status posts provided that, in doing so, he  exercises his   reasonably  and  does not violate  the  principles  of equality   enshrined   in  Articles  14  and   16   of   the Constitution.  it  is also clear that for  treating  certain posts  as  equated posts or equal status posted, it  is  not necessary  that  the  holders of these  posts  must  perform completely  the  same  functions  or  that  the  sources  of recruitment  to  the  posts  must be  the  same  nor  is  it essential that qualifications for appointments to the  posts must  be identical. All that is reasonable required is  that there  must  not  be such difference in  the  pay-scales  or qualifications  of the incumbents of the posts concerned  or in  their duties or responsibilities or regarding any  other relevant factor that it would but unjust to treat the  posts alike  or, in other words, that posts  having  substantially higher   pay-scales  or  status  in  service   or   carrying substantially   higher   responsibilities  and   duties   or otherwise  distinctly  superior are not equated  with  posts carrying  much  lower  pay--scales  or  substantially  lower responsibilities and duties or enjoying much lower status in service.     As far as the case before us is concerned, although  Mr. Thakur,  learned Counsel for the Petitioners has urged  that aforesaid    posts,   namely,    Superintendents,    Private Secretaries  and  Readers could not be  treated  as  equated                                                   PG NO 782 posts or equal status posts, he was  unable to point out  to us  specifically  any  such difference  in  respect  of  the requisite   qualifications  of  the  holders  of   different categories  of  these  posts or  regarding  the  duties  and responsibilities carried by these posts as were so marked or significant that it would be unfair or violative of the rule of  equality to treat these posts as equal status posts.  In fact, it may be mentioned that at one stage in his  opening, Mr. Thakur specifically stated that he did not challenge the vires of any of the said Seniority Rules of 1971.If that  is so, we fail to see how he can challenge the aforesaid  posts being  treated as equal status posts as that has  been  done under  the  said  Seniority Rules of 1971  which  have  been framed  by  the  Chief Justice in  exercise  of  the  powers conferred upon him under Article 224 of the Constitution  of India.  Even if one is to examine the contention on  merits, we  are afraid, it must fail. A perusal of items 5, 6 and  7 of  Schedule I to the said Salary Rules of 1970 shows   that under the said Rules which were framed as early as 1970, the salary scale of Superintendents, Court Masters (Readers) and Private Secretaries is the same, viz., Rs.350-25-575.  There is, therefore, no difference in the scales of salary. As far as  the qualifications for appointment are concerned,  under rule  7  it  is provided that these  qualifications  are  as specified  in  Schedule  11. items 4, 5 and 6  of  the  said Schedule  inter  alia  provide for  the  qualifications  for appointments  to the said posts and it is  undoubtedly  true that  the qualifications required for appointment  to  these posts are not identical. In the case of Superintendents,  it appears,  very briefly stated, that appointments to  25  per cent  of  these  posts  are  to be  made  on  the  basis  of seniority-cum-suitability  from the joint seniority list  of categories 9, 10,11, 13, 14 and 15 of Class 111 mentioned in Schedule 1 and 75 per cent of the posts are to be filled  by selection on merit from the same categories. The  categories of posts from  which promotions of selections can be made to the  posts of Court Masters are substantially the  same.  As far  as the Private Secretaries are concerned, the  mode  of appointment   is   by  selection  and   the   qualifications

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prescribed  are  that  a graduate  degree  is  required  for appointment of the said post and a further requirement is  a speed of not less than 120 words per minute in shorthand and 45  words per minute in type writing. A perusal of the  said provisions  shows  that  the  qualifications  required   for appointment to the post of a Private Secretary are certainly higher  than the qualifications required for appointment  to the post of a Superintendent or a Court Master although from the  latter two categories, probably, more experience  would be required. Thus, one fails to see how any grievance can be made  by  the Superintendents on this score. As far  as  the duties these posts carry are concerned, undoubtedly they are not  the Same. But Rule 8(c) of the Establishment  Rules  of                                                   PG NO 783 1972  provides that any person appointed to the post in  one category may be transferred to other category. The  validity of  this Rule has not been challenged before us. This  would show tat even if the duties and responsibilities attached to these  posts are not the same, they were not  so  materially different  as  to  render it inequitable  that  these  posts should  be treated on the same footing for the  purposes  of promotion  and  transfer.  It may be  that  because  of  the requirement  that  a  Court Master must be  a  graduate  and having a certain typing speed, Superintendents could not  be generally  transferred to the posts of Private  Secretaries. But  one fails to see how any grievance can be made on  that score by the Superintendents.     The view which we ave taken, as set out earlier,   finds support  from the decision of this Court in V.T. Khanzode  & ors.  v. Reserve Bank of India & Anr., [1982] 3 S.C.R.  4111 rendered by a Bench comprising three learned Judges of  this Court. In that case, by Administrative Circular No. 8  dated Administrative  Circular  No.  8 dated  January  7,1978  the Reserve Bank of India stated that it had decided to  combine the  seniority  list of all officers on the basis  of  their total length of service (including officiating service )  in Group  I (Section A), Group II and Group 111. The  seniority of  all  officers  in each of the three  Groups  was  to  be combined with effect from May 22, 1974 on the basis of their total  length of service, including officiating service,  in the  grade  in  which they were then  posted  on  a  regular basis.  The  Circular  introduced  combined  seniority  with retrospective  effect  from  May 22, 1974 (the  date  of  an earlier Administrative Circular No. 15) as it was "fair  and equitable  to the officers as a class". The effect  of  this decision  was that the group wise system of  seniority which was  in existence in the bank for more than 27  years  stood substituted  by  a combined seniority for  officers  in  the aforesaid  grades with retrospective effect. This  adversely affected   the   existing  seniority   of   many   officers, particularly  those  in  Group  I.  The  validity  of   this Administrative Circular was challenged. This Court held that the  said  Administrative  Circular  No.  8  and  the  draft combined  seniority  list prepared pursuant to  it  did  not violate the rights of the petitioners under Articles 14  and 16  of the Constitution whether there should be  a  combined seniority  in  different  cadres or groups is  a  matter  of policy which does not attract the applicability of groups is am   pointed  out that the past events showed  the  equality clause.  The  Court pointed out that the past  events  sowed that  the various Departments of the Reserve  Bank of  India were   grouped  and  regrouped  from  time  to  time.   Such adjustments in the administrative affairs of the Bank were a necessary sequel to the growings of new situations which are bound to arise in any developing economy. The Court  pointed

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                                                 PG NO 784 out further that no scheme governing service matters can  be fool-proof  and  some section or the other of  employees  is bound  to feel  aggrieved on the score of  its  expectations being falsified or remaining to be fulfilled. Arbitrariness, irrationality,  perversity  and mala fides  will  of  course render  any  scheme unconstitutional but the fact  that  the scheme does not satisfy the expectations of every  employees is  not evidence of these. This decision clearly leads to  a conclusion   that  grouping  and  regrouping  of   different categories   of   employees  is  inevitable   in   a   large organisation with a view of meeting changing situations  and needs of a live organisation. Merely because the chances  of promotion  of some employees are adversely affected by  such grouping  or regrouping, that does not lead to a  conclusion that  it  is against the law. We may point out that  in  the case before us, there is no contention urged before us  that the  equating  of posts or the combined seniority  list  was promoted by any mala fides. We fail to see how the  combined seniority  list or the treating of the said posts  as  equal status  posts can be said to be arbitrary in the absence  of any material and, particularly, in view of the fact that the learned  Chief Justice and the learned Judges of  the  Delhi High  Court considered the facts and took the view  that  it was  necessary  in order to provide for transfers  from  one department  to another and to provide adeq uate  promotional opportunities  to various sections of the employees  of  the Delhi High Court.     Apart from this, it must be observed that the  challenge to the said posts being treated as equal status posts  comes much too late to the entertained in the writ petition. These posts  were treated as equal status posts under Rule 2  read with  the Schedules to the said Seniority Rules of 1971  and certain promotions have also been made under the said Rules. These  Rules became effective in 1971 at is much to late  to seek  to challenge them in 1979, long after Rule  have  been given effect to. It may be mentioned that, although they did make representations, the petitioners chose to file the Writ Petition only as late as in 1979. In our view, the challenge to the Rules providing for the said posts being posts  being treated  as  equated  posts or equal  status  posts  can  be negatived on the ground of delay or latches apart from other considerations.     The  next  submission of learned  Counsel,  Mr.  Thakur, which  he stated was his main submission, is that under  the relevant  Rules  an  appointment to the  post  of  Assistant Registrar has to be made by selection from  Superintendents. Private  Secretaries and Readers or Court Masters and  hence all  employees holding these posts in a  permanent  capacity                                                   PG NO 785 must  be  considered to be eligible and within the  zone  of consideration for selection to these posts. It was not  open to  the learned Chief Justice, Respondent no. 1  herein,  to limit that zone of consideration in any manner. He drew  our attention  to the Establishment (Appointment and  Conditions of  Service) Rules of 1972 and in particular Item No.  3  of Schedule  II thereof framed under Rule 7 of the said  Rules. He pointed out that under the said item, the appointment  to the  post of Assistant Registrar, which is a selection  post is  to  be  made by selection on merit  from  categories  of officers  of  categories 5, 6 & 7 of Class II  mentioned  in Schedule,  namely, Superintendents. Court Masters  (Readers) and  Private Secretaries. It was submitted by him that  this Rule excluded any reference to seniority and even if it  was open  to the appointing authority to limit or  restrict  the

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zone of consideration it could not be limited with reference to seniority.     It  was  urged  by Mr. Thakur that  the  rule  that  the promotion was to be made on the basis of selection on  merit prescribed by the Chief Justice in conscious exercise of his powers  conferred under Article 229 of the Constitution  the decision  to restrict the zone of consideration to  four  or five  times  the number of posts available on the  basis  of seniority  under  the  combined seniority list  was  a  mere administrative instruction or decision.  It was submitted by him  that  the said instruction or decision is  in  conflict with that rules prescribing the method of selection by merit and  hence  it is bad in law. We propose to proceed  on  the assumption  that Mr. Thakur may be right in  his  contention that mere administrative instructions cannot override  rules framed in exercise of the powers conferred under Article 229 of   the  Constitution  although  the  person  issuing   the administrative  instruction  may  be that  same  person  who prescribed the rules as in the case before us. Even then, It has  to  be  considered  whether  the  said   administrative instructions  or  decision  in any way  conflicts  with  the rules.  In this connection Mr. Thakur drew our attention  to that  decision of this Court in the case of Guman  Singh  v. State  of Rajasthan and Ors., [1471] Suppl. S.C.R. 900.  The few  facts which need to be noticed in connection with  this case  are  that in 1965 the State of  Rajasthan  decided  to introduce the system of making promotions to the service  on the basis of merit alone in addition to the existing  system of making promotions on the basis of seniority-cum-merit. On December 14, 1965, Rule 28B was incorporated into  Rajasthan Administrative   Service   Rules,   1954,   providing    for appointment  by  promotion to posts In the  service  on  the basis  of merit and on the basis of’ seniority-cum-merit  in the  proportion of 50:50 and prescribing that the number  of eligible candidates to be considered for promotion was to be 10  times the total number of vacancies to be filled  up  on                                                   PG NO 786 the basis of merit as well as seniority-cum-merit. Prior  to August  26,  1966,  Rule  28B was amended  but  we  are  not concerned with such amendments. On that date, Rule       28B was  further  amended by providing that  the  proportion  of promotion to be made by selection on the basis of merit  and seniority-cum-merit  was to be 1:2 instead of 50:50. On  the same date, a proviso was also added to sub-rule (2) of  Rule 28B  providing that only officers who have been  in  service for  not less than 6 years in the lower grade of  the  cadre will  be  eligible  for  being  considered  for  the   first promotion  in  the  cadre. There was,  however,  a  circular issued  subsequently,  that  is after the  said  Rules  were framed which provided that 50 marks were to be given for the record  of 5 years prior to the period of 5 years  preceding the  selection;  and  for  the  five  years  preceding   the selection the marking of 25 was to be given on the basis  of confidential  rolls.  The  validity  of  this  Circular  was challenged on various grounds. This Court took the view that from  the  Circular  it was clear that an  officer  who  has rendered  less  than  five  years of  service  will  not  be eligible  to get a single mark out of 50 which  is  provided for  the record for the period preceding five years far  the simple  reason that he will have no such record. An  officer who  has  put in less than five years of  service  has  been straightway  denied 50 marks out of 75 marks and he  has  to establish  his worth within the small range of 25  marks  on the basis of his confidential rolls which will be  available for a period of less than five years. It was held that  this

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formula which was prescribed in the circular was opposed  to Rule  28B  and Rule 32 which ensured that  merit  and  merit alone  was  to form the basis of promotion  as  against  the quota  fixed for merit. in contradistinction  to  seniority- cum-merit.  It  may  be pointed out that in  that  case  the circular  question  stated that the  instructions  contained therein  should be strictly  kept in view when  persons  are being considered for promotion. In view of this the Circular was held to be invalid. In our view. this. decision does not lend  support  to  the submission of  learned  Counsel.  Mr. Thakur.  This  Court  pointed  out  that  Rule  28B  of  the Rajasthan  Administrative  Service Rules,  1954,  in  brief, provided  for two methods of section one based on merit  and the  other based on seniority-cum-merit. In other words  the rule  provides  that the promotion based  on  seniority-cum- merit for 50 per cent the posts in contradistinction to that based on seniority-cum-merit prescribed for the other 50 per cent of the posts. and that the selection on merit shall  be strictly  on  the basis of merit. Rule 32 was  similar  Rule 28B. It was pointed out that by this Court he word merit  is not  capable of easy definition. but it can be  safely  said that  merit  is  the  sum total  of  various  qualities  and attributes   of   an   employee   such   as   his   academic qualifications,  his  distinction  in  the  University,  his                                                   PG NO 787 character,  integrity,  devotion to duty and the  manner  in which he discharges his duties. Allied to this may be  other matters  or  factors such as his punctuality  in  work,  the quality  and out-turn of work done by him and the manner  of his dealing with his superiors and subordinate officers  and the  general public and his rank in the service. Rule 32  in essence adopts what is stated in Rule 28B. It was held  that the restriction contained in the proviso to sub-rule (2)  of Rule  28B  providing that before an officer  in  the  junior scale  could be considered fit for promotion to  the  senior scale, he should have worked on post in the service at least for   some  period  of  time,  was  quite  reasonable.   The provisions contained in sub-rule (2) confining the selection to senior most officers not exceeding 10 times the number of total  vacancies  was  also held to be  reasonable.  Such  a provision  would  encourage  the  members  of  the   service aspiring  for  promotion  to  make  themselves  eligible  by increasing  their  efficiency  in  the  discharge  of  their duties. However, the impugned Circular was bad in law as  it left  no discretion to the Selection or Promotion  Committee to  adopt  any  method  other than  that  indicated  in  the Circular  in making selections for promotion and the  method prescribed  was  so  rigid and so worded as  to  impede  the selection being made on merit. It was held that the Circular was violative of the rule prescribing selection on merit. We may point out that this decision does not take the view that where selection is to be on merit, seniority cannot be taken as a relevant factor for limiting the zone of  consideration provided  of course, that this is not done so rigidly as  to exclude a proper selection on merit being made. In fact,  it runs  to  the  contrary  effect.  We  may  refer.  In   this connection,  to  the  case of Sant Ram Sharma  v.  State  of Rajasthan  und Anr., [1968] 1 S.C.R. 111 where it was  inter alia  contended  on behalf of the petitioners  that  in  the absence  of  any  statutory rules  governing  promotions  to selection   grade   posts,  the  Government   cannot   issue administrative  instructions  and such  instructions  cannot impose  any  restriction  not found  in  the  rules  already framed. A Bench comprising five learned Judges of this Court dealt with the contention as follows (p. 119):

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   "We proceed to consider the next contention of Mr.  N.C. Chatterjee  that  in  the absence  of  any  statutory  rules governing promotions to selection grade posts the Government cannot   issue   administrative   instructions   and    such administrative  instructions cannot impose any  restrictions not  found  in the Rules already framed. We  are  unable  to accept this argument as correct. It is true that there is no specific provision in the Rules laying down the principle of promotion of junior or senior grade officers to selection                                                   PG NO 788 grade posts. But that does not mean that the statutory rules are  framed  in  this behalf  the  Government  cannot  issue administrative  instructions regarding the principle  to  be followed  in  promotions of the officers  concerned  to  the selection  grade  posts. It is true that  Government  cannot amend   or  supersede  statutory  rules  by   administrative instructions, but if the rules are silent on any  particular point  Government  can fill up the gaps and  supplement  the rules and issue instructions not inconsistent with the rules already framed."     We may also refer, in this connection to the decision of this Court in Reserve Bank of India v. N.C. Paliwal &  Ors., 1977]  1 S.C.R. 377 which was cited before us  although  the decision is not directly relevant to the case before us.  In that  case  a challenge was made to the  combined  seniority scheme adopted by the Reserve Bank of India. The High  Court had  taken the view that the scheme adopted by  the  Reserve Bank was violative of Articles 14 and 16 of the Constitution inter  alia on the ground that the said  combined  seniority list  framed  persuant  to  the scheme  had  the  effect  of prejudicing  the  promotional opportunities assured  to  the petitioners under the Optee Scheme which had previously been adopted  by  the  Bank  and  it  discriminated  against  the petitioners in relation to the clerical staff in the General Department who either did not exercise the option under  the Optee  Scheme  or  having  exercised  the  option  were  not selected. It was observed by this Court (p. 393) that  there can be no doubt that it is open to the State to lay down any rule  which it thinks appropriate for determining  seniority in  the  service  and it is not competent to  the  Court  to strike  down  such rule on the ground that  in  its  opinion another rule would have been better or more appropriate. The only  enquiry which the Court can make is whether’ the  rule laid  down by the State is arbitrary and irrational so  that it  results in inequality of opportunity  amongst  employees belonging  to the same class. the Court pointed out that  in the  case  before it, the employees  from  the  non-clerical cadres  merit  being  absorbed in  the  clerical  cadre  and therefore, a rule for determining their seniority  vis-a-vis those  already in the clerical cadre had to be  devised.  If the non-clerical service rendered by the employees from non- clerical cadres were  wholly ignored, it would be unjust  to them.  Equally,  it would have been unjust to  employees  in that  clerical cadre, if the entire non-clerical service  of those coming from non-clerical cadres was taken into account for  non-clerical  service cannot be equated  with  clerical service  and the two cannot be treated on the same  footing. The  Reserve Bank, therefore, decided that one-third of  the                                                   PG NO 789 non-clerical service rendered by employees coming from  non- clerical cadres should be taken into account for the purpose of  determining  seniority.  It  was  held  that  this  rule attempted  to strike a Just balance between the  conflicting claims  of non-clerical and clerical staff and it cannot  be condemned as arbitrary or discriminatory.

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   We  may  also  refer here to the  decision  of  a  Bench comprising four learned Judges of this Court in Ashok  Kumar Yadav & Ors. etc. etc. v. State of Haryana & Ors. etc. etc., [1985] Suppl. I.S.C.R. 657. Rule B clause (1) of the  Punjab Civil  Service (Executive Branch), Rules, 1930 prescribes  a competitive examination for recruitment to posts in  Haryana Civil  Service  (Executive) and other allied  services.  The relevant  regulation  (Regulation  5)  lays  down  that  the compulsory  subjects  carry in the aggregate 400  marks  and there is also viva-voce examination which is compulsory  and which  carries 200 marks and each optional  subject  carries 100   marks.  Thus,  the  written  examination  carries   an aggregate of 700 marks for candidates in general and for ex- servicemen it carries an aggregate of 400 marks as they were exempted from appearing in optional papers and the viva-voce test  carries  200  marks. Regulation  3  provides  that  no candidate shall be eligible to appear in the viva-voce  test unless he obtains 45 per cent marks in the aggregate of  all subjects. In the written examination held by Haryana  Public Service Commission for recruitment to 61 post in the Haryana Civil  Service  (Executive) and other allied  Services  over 1300  candidates  obtained more than 45 per cent  marks  and thus qualified for being called for interview for  viva-voce examination.  The Haryana Public Service Commission  invited all that said candidates for the viva-voce examination  with the  result the interviews lasted for about half a year.  In the  meantime, further vacancies arose as 191  posts  became available far being filled and, on the basis of total  marks obtained  in  the written examination as well  as  viva-voce test,  119 candidates were selected and recommended  by  the Haryana  Public Service Commission to the State  Government. The petitioners before the High Court failed to get selected on  account of poor marks obtained by them in the  vive-voce test,  although they had obtained high marks in the  written examination.  They  made several allegations  regarding  the competence  of the members of the Public Service  Commission as  well as regarding favoritism and sc on.  The  contention with  which we are concerned is the contention urged by  the petitioners  that  the number of candidates called  for  the interview  was almost 20 times the number of  vacancies  and this  widened  the scope: for arbitrainess in  selection  by making it possible for the Haryana Public Service Commission                                                   PG NO 790 to  boost  up  or deflate the total  marks  which  might  be obtained  by candidates and this invalidated  the  selection made.  The  Punjab  and Haryana High  Court  held  that  the selection made by the Haryana Public Service Commission  was bad  in law and decided in favour of the petitioners. On  an appeal by special leave to Supreme Court, the Division Bench of the Supreme Court observed as follows (p. 690) :     "We   must  admit  that  the  Haryana   Public   Service Commission  was not right in calling for interview  all  the 1300  and  odd candidates who secured 45 per  cent  or  more marks in the written examination. The respondents sought  to justify the action of the Haryana Public Service  Commission by  relying on regulation 3 of the Regulations contained  in Appendix  1 of the Punjab Civil Service  (Executive  Branch) Rule, 1930 which were applicable in the State of Haryana and contended that on a true interpretation of that  Regulation, the Haryana Public Service Commission was bound to call  for interview all the candidates who secured a minimum of 45 per cent  marks in the aggregate at the written examination.  We do  not  think  this contention is  well  founded.  A  plain reading  of  Regulation  3  will  show  that  it  is  wholly unjustified. We have already referred to Regulation 3 in a˜n

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earlier  part of the judgment and we need not  reproduce  it again.  It  is  clear on a  plain  natural  construction  of Regulation  3  that what is prescribed is merely  a  minimum qualification  for eligibility  for appearing at  the  vive- voce  test  must obtain at least 45 per cent marks  in   the aggregate  in  the written  examination.  But  obtaining  of minimum  45  percent  marks does not  by  itself  entitle  a candidate  to insist that he should be called for the  viva- voce  test.  There is no obligation on  the  Haryana  Public Service  Commission  to  call  of  the  viva-voce  test  all candidates who satisfy the minimum eligibility  requirement. It  is open to the Haryana Public Service Commission to  say that  out  of  the candidates  who  satisfy  to  eligibility critarion  of  minimum  45 per cent  marks  in  the  written examination, only a limited number of candidates at the  top of the list shall be  called for interview."     The  Bench, however, went on to hold that. in its  view, merely  because  the Haryana Public Service  Commission  had called  all the 1300 candidates who obtained 45 per cent  or                                                   PG NO 791 more  marks  in the written  examination to  appear  in  the interview that did not invalidate the  selection made.  This decision   points   out   that   the   minimum   eligibility qualification  has  to  be kept distinct from  the  zone  of consideration  and  even  if there are  a  large  number  of candidates  who satisfy the minimum eligibility  requirement it  is not always required that they  should be included  in the  zone of consideration, it being open to the   authority concerned to restrict the zone of consideration amongst  the eligible candidates in any reasonable manner.     In  the  case  before us, zone has  been  restricted  by prescribing that  out of the total number of candidates  who satisfy   the   eligibility   requirement,   the   zone   of consideration will be limited to a multiple of  3 to 5 times of the number of vacancies and the persons to be  considered will  be determined on the basis of their seniority  in  the combined  seniority  list. It appears to us  that  there  is nothing unreasonable in this restriction. It was open to the Delhi  High Court to restrict the zone of  consideration  in any reasonable manner and limiting the zone of consideration to  a multiple of the number of vacancies and basing it   on seniority according to the combined seniority  list, in  our view,  it cannot be regarded as arbitrary or  capricious  or mala fide. Nor can it be said that such restriction violates the principle of selection on merit because even  experience in  service is a relevant consideration in assessing  merit. We  may  also refer in this connection, to the  decision  of this  Court  in V.J.  Thomas and Ors. v. Union of  India,  & Ors.,  [1985] Suppl. S.C.C.7 where it has been  pointed  out that even though  minimum eligibility criterion as fixed for enabling  one to take the one to take can be confined  on  a rational basis examination, yet the examination to  recruits up  to a certain number of years. in adopting such a  policy which  underlay the Note to clause (4) of Appendix 1 to  the new  Rules in question, there is nothing which is  arbitrary or amounting to denial of equal opportunity in the matter of promotion.  It had the desired  effect of not having a  glut of  Junior Engineers taking examination  compared  to  fewer number  of  vacancies.  Length  and  experience  were  given recognition by the Note. The promotion can be thus by stages exposing the promotional avenue gradually to persons  having longer  experience. This seems to be the  policy  underlying the Note and there was nothing arbitrary or unconstitutional in it Such a limitation caters to a well-known situation  in service  jurisprudence  that  there must be  some  ratio  of

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candidates  to vacancies. If for taking an examination  this aspect  of  classification  is introduced, it  is  based  an rational and intelligible  differential which has a nexus to the  object  sought to be achieved (see p. 13). In  view  of what we have pointed out above, the submission of Mr. Thakur in this connection must also be  rejected.                                                   PG NO 792     In  fairness to learned Counsel for the petitioners,  we must  at  this stage refer to the decision of  the  Division Bench  of  the Allahabad High Court in Madan Mohan  Saran  & Anr.  v. Honble the Chief Justice and Ors.,[1975]  2  S.L.R. 889 on which strong reliance was placed by learned  Counsel. In that case, the petitioner before the Allahabad High Court challenged  3 orders passed by the Chief Justice  containing general  principles for fixation of seniority of  the  staff holding posts in various grades in the Establishment of  the High  Court  and  the  Gradation List  of  1951,  the  Draft Gradation List of 1967 & the Final Gradation List of 1969 in so  far as certain respondents were shown as senior  to  the petitioners.  We  are not concerned with the  other  reliefs prayed  for  by  the petitioners in that case.  One  of  the contentions  of  the  petitioner (see paragraph  31  of  the report)  was that before making a promotion to the  post  of Assistant  Superintendent  or a Superintendent,  the  entire field of eligibility had to be considered and an omission on the  part of respondents nos. 1 and 2 to do so rendered  the promotion made invalid and that this was what happened  when certain  respondents  were  promoted.  The  Division   Bench pointed  out  that there was no allegation in  the  counter- affidavit that a serutiny of the entire field of eligibility was  made before the  respondents were appointed. Rule 9  of the  Allahabad High Court (Conditions of Service  of  Staff) Rules,  1946 being the relevant rule found place  under  the heading promotion to the posts of responsibility etc." Posts of  Assistant Superintendents and Superintendent were  posts of responsibility and trust and were covered by Rule 9.  The said   rule  provided  that  promotion  to  such  posts   of responsibility   or   trust   or   which   require   special qualifications  "shall  be made by section  irrespective  of seniority".  Relying  upon the interpretation given  to  the expression  "selection irrespective of seniority" in  Mahesh Prasad  Srivastavaa c. Abdul Khair, [1971] 1 S.C..R 157  the Division  Bench of the Allahabad High Court in  Madan  Mohan Saran   cuse  (supra)  held  that"The  use  of   the   words ‘selection, irrespective of seniority’ shows that the  field of eligibility takes within its embrace even the  Juniormost member of each department. Being a selection post, promotion has  not  to be confined to the members  of  the  particular department  in which the vacancy has occurred; and the  Rule requires respondents Nos 1 and 2 to take into  consideration members   of  the  entire  Establishment.  irrespective   of seniority, in making their choice for promotion- - - - - - - -  -  - - - The question  of merit  enters primarily in  the reckoning.  In  our  view, the petitioner is  right  in  his contention  that  the ranking or position in  the  Gradation List  does  not confer any right on the  respondents  to  be                                                   PG NO 793 promoted  and  that  it  is a  well  established  rule  that promotion  to such posts is to be based primarily  on  merit and not seniority alone". In our view, this decision has  no application  to  the  case  before  us  because  the   words "irrespective  of  merit" which were used in Rule 9  of  the Rules  in question are nowhere to be found in  the  relevant Rules  or  Schedules  before  us. In fact,  if  it  was  the intention of the rule-making authority that all the  persons

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eligible.  for the post should be considered in  making  the selection   on  merit,  expression  like   irrespective   of seniority"  or  without  regard to seniority"  or  on  merit alone" could have been used in the Rules or the Schedule. We do  not find any such words in Rule 5 of the said  seniority Rules,  1971  or in Rule 7 or Item 3 of Schedule II  of  the said Establishment Rules of 1972. The mode of appointment to the post of Assistant Registrar, set out in the said Item  3 of  Schedule 11, merely states that the appointment will  be no selection on merits from confirmed officers of categories 5,  6 & 7 of Class II mentioned in Schedule I and  the  said Item contains no such expression as we have set out  earlier or any other equivalent expression.     Coming  to  the next submission of Mr.  Thakur,  it  was submitted by him that the interpretation placed by the Chief Justice  and the learned Judges of the Delhi High  Court  on Rule  7  of the said Appointment and Conditions  of  Service Rules, 1972 was incorrect. It was urged by him that, even if the  Combined  Seniority  List is valid,  it  could  not  be applied  for the purpose of promotion. In dealing with  this argument,  we may again briefly refer to Rule 5 of the  said Seniority  Rules of 1971 which clearly provides that   joint inter  se seniority of confirmed employees in categories  of equal  status posts shall be determined according  to  their dates of confirmation in any of these categories. The  posts of Superintendents, Court Masters and Private Secretaries to the  Honble Judges are treated as equal status  posts  under Schedule  I to the said Seniority Rules, 1971, framed  under Rule  2 thereof. Rule 7 of the Establishment Rules  of  1972 merely  states that, except for appointment on  officiating, temporary  or ad hoc basis, the mode of  and  qualifications for appointment to the posts specified in Schedule 1I to the said  Seniority Rules of 1971 shall be stated the  rein  and Item  3  of the said Schedule II to which  we  have  already referred  earlier  shows that the appointment  of  Assistant Registrar  is  to  be  made  on  selection  on  merits  from confirmed  officers  in  categories 5, 6 &  7  of  Class  II mentioned  in  Schedule  I. The only  ground  on  which  the validity  of the said Rule 7 is challenged is that if it  is applied  and  the zone of consideration  restricted  on  the basis of the said Combined Seniority List, the prospects  of promotion  which  the  Superintendents   enjoyed  would   be                                                   PG NO 794 reduced. We find ourselves totally unable to appreciate this argument.  In  the first place, it is not as if  either  the said Rule 7 of the Establishment Rules of 1972 or Rule 5  of the Seniority Rules of 1971 which provides for a Combined or Joint  Seniority List negatives the chance of any  promotion to  the posts of Assistant Registrars being granted  to  the Superintendents. In fact, several Superintendents have  been promoted to the posts of Assistant Registrars after the said Rules became effective. All that could be pointed out by Mr. Thakur was that under the Combined Seniority list, for  some time,  relatively fewer Superintendents will be  within  the zone of consideration for the posts of Assistant  Registrars as compared to Private Secretaries to the Honble Judges  and Court  Masters. We fail to see how any of the said Rules  or the said Combined or Joint Seniority List can be struck down on  the basis of such a consequence. In the first place,  it is well settled that no employee has a right to promotion as such.  As  we  have already pointed out the  Rule  does  not exclude the possibility of Superintendents getting  promoted to the posts of Assistant Registrars. It may happen that for an year or two, the number of Superintendents in the zone of consideration might be fewer compared to the number of Court

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Masters  and Private Secretaries within the zone.  But  that situation might well be reversed a few years later and it is impossible to hold that any of the said provisions is bad in law  on  that  ground.  It  was  next  submitted  il,   this connection that in the mode of appointment set out in Item 3 of  Schedule  II to the Establishment Rules of  1972  it  is stated that for the posts of Assistant Registrars, selection on  merits  had  to  be  made  from  confirmed  officers  of categories 5, 6 & 7 of Class II mentioned in Schedule I.  It was urged that the reference to categories 5, 6 & 7  without reference to the Combined or Joint Seniority List  indicated that even if the zone of consideration was to be  restricted on the basis of seniority this could be done only  according to  separate  seniority  lists  for  each  of  these   three categories  and that the Combined Seniority List was not  to be   used  for  the  purposes  of  limiting  the   zone   of consideration.  According to learned Counsel,  the  Combined Seniority  List  was  applicable only  for  the  purpose  of transfers. In our view, this argument is unsound and  cannot be accepted. The reference to categories 5, 6 & 7 in Item  3 of  Schedule II to the said Establishment Rules of  1972  is merely made with a view to set out the categories from which promotion  or  selection  has to be made  to  the  posts  of Assistant  Registrars.  The  language  of  Item  3   nowhere indicates that there was any idea to create anything like  a quota  for  each of the said three categories  and  in  fact reading fairly the relevant Rules and Item in the  Schedule, it  appears to us that the intention is to treat  all  these categories  as  forming  a  single  class  or  category  for                                                   PG NO 795 purposes  of  promotion  to  the  posts  of  the   Assistant Registrars. There is no warrant for limiting the use of  the Combined  Seniority List merely to purpose of transfers.  In fact, it appears to us that Rule 5 of the Seniority Rules of 1971 and the Combined Seniority List framed pursuant thereto were  intended  to  provide for  a  combined  seniority  for purposes of transfer as well as for purposes of promotion.     Finally,  it was pointed out by learned Counsel for  the Petitioners that no uniform policy has been followed in  the past  regarding the limitation of zone of  consideration  as far as the selection to the posts of Assistant Registrars is concerned.  This  may be so. But, we are afraid,  by  itself that   circumstance  cannot  lead  to  a   conclusion   that promotions  are  made  arbitrarily because  the  failure  to follow one uniform policy in respect of limiting the zone of consideration  would not, by Itself, necessarily render  the limitation  of  the  zone of consideration  invalid  on  the ground   of   arbitrariness.  So  long  as   the   zone   of consideration  is  limited by the competent authority  in  a manner not inconsistent with the Rules or in a manner  which is not arbitrary or capricious or mala fide, the validity of the  decision to limit the zone of consideration  cannot  be successfully  called  in  question on the  ground  that  the manner  in which the zone of consideration was  limited  was not  uniform.  The  zone might have  been  limited  on  each occasion   keeping  in  view  the   relevant   circumstances including  the number of posts vacant and on a basis  having nexus  to  the  purpose of  selection.  Although,  the  main grievance  of  the  Petitioners as  disclosed  in  the  oral arguments  is  regarding  the  limitation  of  the  zone  of consideration  to  3  times the  number  of  vacancies  that grievance  is  not reflected in the prayer  sought  and  the prayer  to the petition only relates to the decision of  the Administrative Committee of the learned judges of the  Delhi High Court arrived at on 3.2. 1977 to fill in the vacancy in

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the  post of Assistant Registrar by selection from the  five seniormost   persons  from  the  joint  seniority  list   of Superintendents, Court Masters and Private Secretaries which list  was finalised under the said Seniority Rules  of  1971 read with the Establishment Rules of 1972. This decision  is at annexure 16 to the petition and it has been arrived at by a  Committee  of Administrative Judges comprising  the  then learned  Chief Justice and four other learned Judges of  the Delhi  High Court. Nothing has been shown to us to  indicate that  this  decision  of the Committee  was  in  any  manner capricious, arbitrary or mala fide. The only contention  is, as we have already pointed out, that it was not open to  the Committee  to  limit the zone of consideration  at  all  and secondly, that this could not be done with reference to  the joint  seniority  list  both of which  contentions  we  have                                                   PG NO 797 already rejected earlier. In view of this, the challenge  to this decision must fail.     In the result, the petition fails and must be dismissed. However,  looking to all the facts and circumstances of  the case,  it  appears that the parties should  bear  their  own costs. Hence, the petition is dismissed and rule  discharged with no order as to costs. S.L.                                    Petition dismissed.