No 1854 of 1973
Petition under Article 32 of the Constitution of India
VM Tarkunde Shyania Pappu D D Sharma and Ashok Kunnar Srivastava for the petitioners
LN Sinha Solicitor General of India and R N Sachthey for respondents nos
B P Maheshwari for respondent No 3
RK Garg section C Agarwal section C Bhatnagar V J Francis and section K Mehta for respondents nos
The Judgment of the Court was delivered by UNTWALIA J
The four petitioners in this petition under Article 32 of the Constitution of India are working as Additional District  556 Sessions Judges in the Delhi Higher Judicial Service at Delhi
Their prayers in his writ petition are to strike down Rules 9a and 11 of the Delhi Judicial Service Rules 1970 as being ultra vires and violative of Articles 14 and 16 of the Constitution and to declare Rule 8 of Delhi Higher Judicial Service Rules 1970 as void and unconstitutional
Their further prayer is to quash the fixation of the seniority of the petitioners and respondents 3 to 6 and to place petitioners 1 to 4 above respondents 3 to 5 and petitioners 2 to 4 above respondent 6 in the gradation of seniority in Delhi Judicial Service and Delhi Higher Judicial Service
All the four petitioners originally belonged to the Punjab Civil service Judicial
Shri Joginder Nath petitioner No 1 joined he said service on 271956 Shri D C Aggarwal petitioner No 2 on 271957 Shri section R Goel petitioner No 3 on 871957 and Shri P L Singla petitioner No 4 on 10101958
Prior to 1966 the Union Territory of Delhi for the purposes of administration of Justice was included within the territorial Jurisdiction of the erstwhile Punjab High Court and Presiding Officers of the Courts at Delhi were posted by transfer from the State of Punjab
There was no separation of Executive and Judiciary
The Magistrates were selected on ad hoc basis from the States of UP and Punjab and were posted to work as such at Delhi
Later on creation of the States of Punjab and Haryana the officers of Punjab and Haryana Civil Service Judicial cadre used to be posted in Delhi against all judicial posts
A separate High Court for Delhi was constituted on the 31st October 1966
The arrangement in regard to Judicial officers in the lower Courts however continued as before
In 1969 under the Union Territories separation of Judicial and Executive functions Act the magistracy in Delhi was split up into two parts with effect from 2101969
Some magistrates of the State Civil Service Executive Branch were transferred to work under the superintendence and control of the High Court of Delhi while others were assigned Executive duties and remained under the control of the Delhi Administration as before
In pursuance of the Scheme of separation aforesaid respondents 3 to 5 who were working as Judicial Magistrates from before were appointed as Chief or Additional Chief Judicial Magistrates under the aforesaid Union Territories Act of 1969
They were formerly Officers of the UP Judicial Officers Service
Respondent No 6 was a member of the Haryana Civil Service Judicial
Respondents 3 to 5 were performing the functions of Revenue Officers and Judicial Magistrates in UP and thereafter in Delhi
The petitioners case is that on 27 8 1970 the Lt Governor of Delhi respondent No 2 as Administrator of the Union Territory framed Delhi Higher Judicial Service Rules 1970 and Delhi Judicial Service Rules 1970 under Article 309 of the Constitution read with certain notifications of the Government of India Ministry of Home Affairs
A Selection Committee was constituted in accordance with Rule 7 of the Delhi Judical Service Rules
On the basis of the recommendations of the Selection Committee respondent No 2 made appointment of officers by way of initial recruitment to the Delhi 557 Judicial Service under Rule 8
61 officers were selected
It may however be stated here that as per the statement in the counter affidavit filed on behalf of respondent No 2 only 49 officers joined
The petitioners 1 to 4 were placed in the seniority list of the Delhi Judicial Service at serial nos
6 9 12 and 13 respectively while the respective serial nos
assigned to respondents 3 to 6 were 1 2 4 and 7
It would thus be seen that respondent No 6 was junior to petitioner No 1 but senior to petitioners 2 to 4 and respondents 3 to 5 were shown us senior to all the petitioners
The petitioners claim that they were formerly permanent members of the Punjab Civil Service Judicial Branch in the time scale of Rs 4001250
They had been put in the selection grade also in the scale of Rs 1300 1500
On the other hand respondents 3 to 5 were euphemistically called Judicial Officers in UP the State of their parent service
They were in a lower scale of Rs 300 900
The next higher scale on being appointed to the post of Additional District Magistrates was Rs 400 1000 
The petitioners  grievance is that Rule 11 of the Delhi Judicial Service Rules permitting the fixation of the seniority of the selected officers under Rule 9a on the basis of length of service was bad
It was fixed by a notification dated 281971 and was subject to revision on good cause shown
Respondents 3 to 5 had joined service in the year 1947 as Judicial Officers which was not a cadre service
It was only on 141955 that a regular cadre of Judicial officers was created in UP but it was different and distinct from the UP Civil Service Judicial Branch
Petitioners 1 and 2 were working as Assistant Sessions Judges at the time of initial constitution of the Delhi Judicial Service while none of the respondents 3 to 5 was appointed as Assistant Sessions Judge in spite of their longer service in the cadre of UP Judicial Officers Service
The petitioners case further runs thus  Petitioner No 1 was promoted to the post of Additional District Judge with effect from 2411972and the petitioners 2 to 4 were so promoted with effect from 2531972Respondents 3 to 5 were not considered to have qualified themselves for being promoted as Addl
District Judges
One of the reasons for not promoting them to the higher judicial service was that they had not received requisite training in I the Civil Law
Accordingly they were by passed and in the meantime they were given powers of the Subordinate Judges to enable them to get requisite training in Civil Law
Respondent No 6 was posted as Sub Judge First Class and demoted from the post of a Senior Sub Judge on account of inefficiency
He was not enjoying the selection grade of Haryana Civil Service Judicial Branch at the time of his appointment to Delhi Judicial Service while the petitioners were in such grade in their parent service
Respondents 3 to 5 were later promoted as Additional District Judges on 261972 and respondent No 6 was promoted in June 1973
Thus all of them were promoted to the higher Judicial Service after the Petitioners
Yet they were made to ranks senior to petitioners 1 to 4 under Rule 8 of the Delhi Higher Judicial Service Rules
Respondent No 6 in spite of his appointment 558 as an Additional District Judge later than petitioners 2 to 4 was allowed to rank senior to them on the basis of Rule 8 aforesaid
Mr Tarkunde learned counsel for the petitioners submitted support of the Writ Petition the
following points  1
Rule 9a of the Delhi Judicial Service Rules was bad as it was not framed in accordance with Article 234 of the Constitution and because it permitted the initial appointment to the Delhi Judicial Service of persons who were not in any Judicial service from before
In any event respondents 3 to 5 could not be _appointed to the Delhi Judicial Service under Rule 9a
Rule 1 1 of the Delhi Judicial Service Rules is bad as it infringes Article 14 of the Constitution in as much as it equates length of Judicial service with the length of non judicial service for the purpose of fixation of seniority and thus it makes unequals as equals
Rule 8 of the Delhi Higher Judicial Service Rules is bad because it fixes the seniority in higher service according to the seniority in the lower one
A counter affidavit has been filed on behalf of respondent No 2 and learned Solicitor General appeared to oppose the rule on his behalf
various counter affidavits were filed on behalf of respondents 3 to 6 and Mr Garg who appeared on their behalf informed us that respondent No 3 has since retired and the petitioners could not be granted any relief against him
He however raised a preliminary objection to the maintainability of the Writ petition on the ground of delay
He submitted that the seniority fixed on 281971 by list Annexure E1 to one of the rejoinders could not be challenged by filing a writ application in September 1973
He further pointed out that the said seniority list has been revised and substituted by a new list dated 261973 a copy of which is Annexure R 41
The peti tioners have not challenged the correctness of that list in which had merged the first list dated 281971
In our opinion on the facts and in the circumstance of this case the preliminary objection raised on behalf of the respondents cannot succeed
The first list fixing the seniority of the Judicial officers initially recruited to the Delhi Judicial Service was issued on 281971 This was subject to revision on good cause being shown
Petitioners also as we shall show hereinafter in this Judgment on one ground or the other wanted their position to be revised in the seniority list
They however did not succeed
A revised seniority list was issued on 261973
The filing of the writ petition was not designedly delayed thereafter Since the petitioners  position in the seniority list vis a vis respondents 3 to 6 had not been disturbed in the new list dated 261973 it was sufficient for the petitioners to challenge the list dated 281971
We shall point out in this judgment that except the promotion to the posts of Additional District Judges the seniority in relation to which 559 also is under challenge in this writ application nothing special had happened creating any right in favour of the respondents or no such position had been created the disturbance of which would unsettle the long standing settled matters
The writ application therefore cannot be thrown out on the ground of delay in regard to any of the reliefs asked for by the petitioners
It has been pointed out by Hidayatullah CJ in the case of Tilokchand Motichand  Ors
vs H B Munshi  Anr1 at page 831 The action of courts cannot harm innocent parties if their rights emerge by reason of delay on the part of the person moving the Court
 The learned Chief Justice had said at page 832
Therefore the question is one of discretion for this Court to follow from case to case
There is no lower limit and there is no upper limit
A case may be brought within Limitation Act by reason of some Article but this Court need not necessarily give the total time to the litigant to move this Court under article 32
Similarly in a suitable case this Court may entertain such a petition even after a lapse of time
It will all depend on what the breach of the Fundamental Right and the remedy claimed are and how the delay arose
In the case of Rabindra Nath Bose  Ors
vs Union of India  OrS2 Sikri J as he then was delivering the judgment on behalf of the Court has said at page 712  The highest Court in this land has been given Original Jurisdiction to entertain petitions under article 32 of the Constitution
It could not have been the intention that this Court would go into stale demands after a lapse of years
 But under what circumstances a petition under article 32 of the Constitution should be thrown out on the ground of delay has been pointed out in the last paragraph on that page by observing
it would be unjust to deprive the respondents of the rights which have accrued to them
Each person ought to be entitled to sit back
and consider that his appointment and promotion effected a long time ago would not be set aside after the lapse of a number of years
 On the facts of this case the petition was held to have been filed after inordinate delay
In a recent decision of this Court Bhagwati J delivering the judgment on behalf of the bench of five Judges in Ramchandra Shankar Deodhar and others
vs The State of Maharashtra and others3 it age 265 has said In the first place it must be remembered that the rule which says that the Court may not inquire into belated and stale claims is not a rule of law but a rule of practice based on sound and proper exercise of discretion and there is no inviolable rule that whenever there is delay the court must necessarily refuse to entertain the petition
Each case must depend on its own facts
 on the facts and in the circumstances of this case we do not feel persuaded to throw out the petition on the ground of delay as there is none to disentitle the petitioners to claim relief
The two impugned rules in this case were made by the Lt Governor of Delhi in consultation with the High Court of Delhi in exercise of his powers conferred by the proviso to article 309 of the Constitution 1 2 3 AI R  L 319 Sup CI75 560 rW certain notifications of the Government of India Ministry of Rome Affairs
The Delhi Higher Judicial Service Rules regulating the recruitment and condition of higher service could indisputably be made under the proviso to article 309 article 234 says  Appointments of persons other than district judges to the judicial service of a State shall be made by the Governor of the State in accordance with rules made by him in that behalf after consultation with State Public Service Commission and with the High Court exercising Jurisdiction in relation to such State
 It was not disputed on either side that the word State in the said Article would include a Union Territory also
But the learned Solicitor General pointed out that there was no judicial service in the Union Territory of Delhi before its creation by initial recruitment to the service under the Delhi Judicial Service Rules
The initial recruitment to the service could be made only under la valid rule framed under article 309 Framing of a rule under article 234 was not necessary
We may however point out that part IV of Delhi Judicial Service Rules refers to recruitment to the service after the initial recruitment
In our opinion however the rules framed by the Lt Governor for appointment to the Delhi Judicial Service either at the initial stage or thereafter cannot be held to be invalid merely because they were not framed in accordance with article 234
Rules framed under article 309 in consultation with the Delhi High Court were good and valid and cannot be assailed
When it was pointed out to the learned counsel of the petitioners that on the argument advanced with reference to article 234 even the initial recruitment of the petitioners to the Delhi Judicial Service was in jeopardy the point was ultimately given up and not pressed
The constitution and strength of the Delhi Judicial Service as provided in rule 3 of the Delhi Judicial Service Rules will be of the service consisting of two grades namely Grade I Selection Grade and Grade 2
The posts in Grade I shall be civil posts class I Gazetted and those in Grade 11 shall be civil posts class 11 Gazetted
Clause d of Rule 3 provides A person appointed to the service shall be designated as Subordinate Judge or Judicial Magistrate or as Subordinate Judge or Judicial Magistrate or as Subordinate Judge cum Judical Magistrate in accordance with the duties being discharged by him for the time being The posts borne on the permanent strength of the service and the posts included therein have been specified in the Schedule appended to the rules
10 of the permanent strength of the service will be the posts in the selection grade
A Selection Committee was constituted consisting of 3 Hon ble Judges of the Delhi High Court the Chief Secretary and a Secretary of the Delhi Administration
The initial recruitment was made by the Lt Governor in accordance with Rule 9 which reads as follows  9
For initial recruitment to the service the Selection Committee shall recommend to the Administrator suitable persons for appointment to the service from amongst the following  a Subordinate Judges and Law Graduate Judicial Magistrates working in the Union territory of Delhi on deputation from other States 561 b members of Civil Judicial cadres of States whose names may be recommended by their respective State Governments for appointment and c members of the Delhi Himachal Pradesh and Andaman and Nicobar Islands Civil Service who are Law Graduates
The consent of the officer to be recommended and the consent of his parent Government shall be necessary before his appointment to the service It would thus be noticed that the Selection Committee was to recommend only suitable persons for appointment to the service
It is stated in paragraph 12 of the writ application that clause c of Rule 9 was struck down by the High Court of Delhi in Writ Petition No132270 D K Paddar vs Lt Governor at Delhi
We are not concerned in this case with clause c
The source of the initial recruitment to the service under clause a was Subordinate Judges who necessarily belong to the Judicial cadre of a State and Law Graduate Judicial Magistrates not merely Judicial Magistrates working in the Union territory of Delhi
The creation of the service being only in two grades grade 2 and grade I selection grade and there being no provision for appointment in the selection grade at the stage of the initial recruitment of the service it is plain that all those who fulfilled the qualifications laid down in clause a of Rule 9 and who were found suitable by the Selection Committee could be initially recruited to the Delhi Judicial Service
Even Judicial Magistrates have been put on a par with the Subordinate Judges
None of the respondents 3 to 5 either in their parent service in UP or in the Union Territory of Delhi was a Magistrate on the Executive side
All of them were doing the work of Judicial Magistrates and of Revenue officers which also included performance of judicial duties
It is difficult to find any trace of invalidity in rule 9a of the Delhi Judicial Service Rules
For the purpose of initial recruitment to the service officers of the judicial cadre of a State and officers although not belonging to the judicial cadre but by and large performing the judicial functions could be put together
There was no infraction of articles 14 and 16
In the counter affidavit filed on behalf of respondent 2 it is mentioned that respondents 3 to 5 were in the regular cadre of UP Judicial Officers wef 141955
It has been pointed out by this Court in the case of Chandra Mohan vs State of Uttar Pradesh  Ors
1 at page 80 that the expression judicial officers is a euphemism for the members of the Executive department who discharge some revenue and magisterial duties Strictly speaking the expression Judicial duties was held to be a misleading one for the purpose of recruitment to the higher judicial service in accordance with article 233 of the Constitution
In the context and set up of the Article it was pointed out that the source of service for appointment as a District Judge must be the Judicial service and not any service
It is plain that the same principle cannot apply to the recruitment of persons to the lower judicial service obviously not covered by article 233
1 562 Rule 11 of the Delhi Judicial Service Rules reads as follows 11
The Selection Committee shall arrange the seniority of the candidates recommended by it in accordance with the length of service rendered by them in the cadre to which they belong at the time of their initial recruitment to the service
Provided that the inter se seniority as already fixed in such cadre shall not be altered
 The question for determination is was there any infirmity in rule 1 1  Did it put unequals with equals and violated article 14 of the Constitution Was the rule arbitrary and discriminatory Once the Selection Committee found persons belonging to clause a of Rule 9 suitable for appointment to the service it was under a duty and obligation to arrange the list of suitable persons by placing them in proper places in the matter of seniority
They were all being initially appointed to the Delhi Judicial Service wherein there was no separate gradation of posts
The assignment of duties was to follow on the basis of seniority list
Arranging the seniority of the candidates recommended by the Selection Committee in accordance with the length of service rendered by them in the judicial cadre to which they belonged at the time of their initial recruitment to the service was perfectly good
The petitioners could not have any grievance in that regard
On their initial recruitment to the Delhi Judicial Service they retained their original seniority inter se as was assigned to them in their parent cadre
Was it possible to have a different yardstick some other date or shorter period for fixation of the seniority of the law graduates judicial magistrates on their initial recruitment to the service  from which date their seniority ought to have been reckoned  Was it possible to treat them as the first and the new recruits to the Delhi Judicial Service
Even so what would have been the basis of determining their seniority inter se  The questions posed are suggestive of the answers
Taking the length of service rendered by the candidates in their respective cadres for the purpose of fixation of seniority under rule 1 1 of the Delhi Judicial Service Rules was justified legal and valid
Had it been otherwise it Would have been discriminatory
It was not equating unequals with equals
It was merely placing two classes at par for the purpose of seniority when it became a single class in the integrated judicial service of Delhi
For the purpose of fixation of seniority it would have been highly unjust and unreasonable to take the date of their initial recruitment to the service as their first appointment
Nor was it possible to take any other date in between the period of their service in their parent cadre
It would have been wholly arbitrary
In our judgment therefore there was no escape from the position that the entire length of service of the two classes of officers had got to be counted for
the purpose of determination of their seniority on their initial recruitment to the Delhi Judicial service
It was not possible or practical measure their respective merits for the purpose of seniority with mathematical precision by a barometer
Some formula doing largest good to the largest number had to be evolved
The only reason able and workable formula which could be evolved was the one engrafted in rule 11 of the Delhi Judicial Service Rules
563 The decision of this Court in Kunnathat Thathunni Moopil Nair vs The State of Kerala and another1 relied on by the petitioners is clearly distinguishable
Sinha CJ in his judgment at page 92 pointed out the nature of equal burden of tax placed upon unequals and said It is clear therefore that inequality is writ large on the Act and is inherent in the very provisions of the taxing section
It is also clear that there is no attempt at classification in the provisions of the Act
Hence no more need be said as to what could have been the basis for a valid classification
It is one of those cases where the lack of classification creates inequality In the instant case for the purpose of fixing the seniority at the stage of the initial recruitment to the Delhi Judicial Service no other classification no different yardstick was possible
The inequality was avoided to a large extent by rule 1 1
The case of Jalan Trading Co Private Ltd vs Mill Mazdoor Union 2 is also of no help to the petitioners
Distinguishing Moopil Nair s case 19613 SCR 77 Shah J as he then was pointed out at page 36  If the classification is not patently arbitrary the Court will not rule it discriminatory merely because it involves hardship or inequality of burden
Equal treatment of unequal objects transactions or persons is not liable to be struck down as discriminatory unless there is simultaneously absence of a rational relation to the object intended to be achieved by the law
 The principles enunciated when applied correctly to the facts of the instant case rather go against the petitioners Equal treatment of unequal objects even if we prefer to call them different classes is not discriminatory in this case as there is a rational relation to the object intended to be achieved by the law
The object of the Delhi Judicial Service Rules was to create a service by integration of different classes of persons already working as Judicial officers
The fixation of seniority on the basis of length of service in their respective parent cadres bad a rational nexus to the object intended to be achieved
One of us in the case of The State of Gujarat and another etc
vs Shri Ambica Mills Ltd Ahmedabad etc3 delivering the judgment on behalf of the Court hag pointed out at page 1313  A reasonable classification is one which includes all who are similarly situated and non who are not
The question then is  what does the phrase similarly situated  mean The answer to the question is that we must look beyond the classification to the purpose of the law
A reasonable classification is one which includes all persons who are similarly situated with respect to the purpose of the law
The purpose of a law may be either the elimination of a public mischief or the achievement of some positive public good
 In the instant case treat in the two classes as one for the purpose of initial recruitment and fixation of seniority was reasonable as the classification was one which included all persons who were similarly situated with respect to the purpose of the law
We have therefore no difficulty in rejecting the argument put forward on behalf of the petitioners that rule 11 of Delhi Judicial Service Rules is bad as being violative of articles 14 and 16 of 1  2  3  564 of the Constitution
It was not suggested on behalf of the petitioners and rightly so that fixation of their seniority vis a vis respondents 3 to 6 in the Delhi Judicial Service was not in accordance with rule 11
Two more facts need be noted here in connection with the question of seniority and they are these  A notification dated September 30 1967 was issued by the Governor of UP a copy of which is Annexure H  to the rejoinder on behalf of the petitioners to the counter affidavit filed by respondent 2 under article 237 of the Constitution directing that the remaining provisions of Chapter VI of Part VI of the Constitution shall With effect from October 2 1967 apply in relation to such magistrates including additional District Magistrates Judicial in the State as belong to the Uttar Pradesh Judicial officers Service as they apply in relation to persons appointed to the Judicial Service of the State subject to the certain exceptions and modifications mentioned in the said notification
It is no doubt true that respondents 3 to 5 were already on deputation to the Union territory of Delhi
Yet they could not be denied the advantage of this notification in principle
They were doing the judicial work in Delhi and on initial recruitment to the Delhi Judicial Service became its fulfledged members
The letter dated September 29 1967 a copy of which is Annexure R 45 to the supplementary affidavit of the respondent No 4 written by the Chief Secretary to the Govt
of UP to the Registrar High Court of Allahabad also supports the above position
It is admitted that on or from 2101969 there was no separation of Executive and Judiciary in Delhi also and all officers working on the judicial side were placed under the control of the Delhi High Court
Annexure A to the counter affidavit of respondent No 2 is a copy of the order dated 18th December 72 passed by Hon ble Mr Justice V section Deshpande and Hon ble Mr Justice section Rangarajan of the Delhi High Court
The representations of the petitioners were rejected
The order indicates that the initial recruits were given seniority ac cording to the length of service in their cadres
The representationists accepted this position and the matter was close
Their new stand that since they belonged to the selection grade of Subordinate Judges in the Punjab and Haryana Judicial Service cadre they ought to have been appointed to such a grade in Delhi Judical Service even at the time of initial recruitment was not accepted to be correct
It is therefore plain that on initial recruitment to the Delhi Judicial Service all those who are recruited including the petitioners and respondents 3 to 6 were at par and the fixation of their seniority in accordance with rule 11 of the Delhi Judicial Service Rules was legal and valid
The facts in relation to the 6th respondent are these
This respondent also formerly belonged to the combined Punjab Civil Service Judicial PCS cadre
This respondent and petitioner No 1 were selected in the open competition together and later joined the Judicial Service in the year 1956
Both were confirmed in the year 1958
Petitioner No 1 was senior to respondent No 6 Petitioners 2 to 4 joined the same service later and were junior to respondent No 6
When the State of Punjab was bifurcated into two States of Punjab and Haryana of 1111966 the petitioners were allotted the cadre of 565 Punjab and respondent No 6 came to the cadre of Haryana
On Constitution of the Delhi Judicial Service respondent No 6 was recommended by the Haryana St ate and was initially recruited to the Delhi Service which he joined on 191971
Eventually respondent No 6 was placed in the selection grade wef 2531972 and he was promoted as Additional District  Sessions Judge wef
161973
It would thus be seen that allocation of a place of seniority in the Delhi Judicial Service to respondent No 6 below petitioner No 1 and above petitioners 2 to 4 was valid and justified
Coming to the Delhi Higher Judicial Service Rules 1970 we find that under rule 6 the initial recruitment to the higher service was made
None of the petitioners or the respondents was initially recruited
The regular recruitment to the higher service after the initial recruit ment has been provided in rule 7 in these terms 7
Regular recruitment Recruitment after the initial recruitment shall be made  a by promotion from the Delhi Judicial Service b by direct recruitment from the Bar
Provided that not more than 13rd of the substantive posts in the service shall be held by direct recruits
 Rule 8 prescribes the mode of determination of inter se seniority of the promotees and the seniority of the direct recruits vis a vis promotees
It runs as follows  8
1 The inter se seniority of members of the Delhi Judicial Servicepromoted to the service shall be the same as in the Delhi Judicial Service
2 The seniority of direct recruits vis a vis Promotees shall be determined in the order of rotation of vacancies between the direct recruits and promotees based on the quotas of vacancies reserved for both categories by rule 7 provided that the first available vacancy will be filled by a direct recruit and the next two vacancies by promotees and so on
 We may notice here two rules viz Rules 16 and 17 relating to temporary appointments forming part V of the Delhi Higher Judicial Service Rules
They read as follows  16 1 The Administrator may create temporary posts in the service
2Such posts shall be filled in consultation with the High Court from amongst members of the Delhi Judicial Service 17
Notwithstanding anything contained in these rule the Administrator may in consultation with the High Court fill substantive vacancies in the service by making temporary appointments thereto from amongst members of the Delhi Judicial Service
 It would thus be seen that there are two types of appointments to Delhi Higher Judicial Service one by regular recruitment the source of which is by promotion from the Delhi Judicial Service and by direct 566 recruitment from the Bar
Rule 8 prescribes the mode of determination of seniority of such regular recruits
The inter se seniority of the members of the Delhi Judicial Service promoted to the higher service has got to be the same as in the lower rank
As a matter of construction it necessarily follows that it would be the same provided the promotion from the lower to the higher service is at the same time
Learned Solicitor General appearing for respondent No 2 in his usual fairness conceded to this interpretation and added that it cannot but be so
If a member of the Delhi Judicial Service is superseded at the time of recruitment under rule 7 by his junior but gets a chance of promotion later it is obvious that he cannot retain his seniority in the lower rank
All candidates on appointment to the higher service have got to be on probation for a period of two years under rule 122 and ordinarily and generally they would be confirmed at the end of the said period of two years in accordance with rule 13
Strictly speaking the question of determination of inter se seniority under rule 8 will crop up at the time of the confirmation of the appointee
In Chandramouleshwar Prasad vs Patna High Court I  Ors
1 referring to the relevant rules of the Bihar Superior Judicial Service Rules Mitter J delivering the judgment on behalf of this Court said at page 671  It may be noted at this stage that the gradation of the officers by the High Court or maintaining any list showing such gradation is not sanctioned by any service rules
The Bihar Superior Judicial Service Rules to which our attention as drawn do not contain any provision which would entitle the High Court to make such a gradation or act thereon
Rule 5 of the said Rules prescribes that ordinarily appointments to the post of Additional District and Sessions Judges shall be made by the Government in consultation with the High Court and under R 8 a person appointed either on substantive or officiating basis to the post of Additional District and Sessions Judge shall draw pay on the lower time basis
Rule 16b provides that seniority inter se of promoted officers shall be determined in accordance with the dates of their substantive appointments to the service and R 16d lays down that more than one appointment is made by promotion at one time the seniority inter se of the officers promoted shall be in accordance with the respective seniority in the Bihar Civil Service Judicial Branch
The question of seniority therefore has to be determined when the persons appointed either temporarily or on an officiating basis are given substantive appointments
So far as the petitioner and the three respondents are concerned that time is yet to come
 On a parity of reasoning it follows that question of determination of seniority comes in at the time of confirmation of the appointees
Two members of the Delhi Judicial Service confirmed in the higher service at the same time will retain their inter se seniority as in the lower service
But if they are not confirmed at the same time then one who is confirmed earlier will be senior to the one who is confirmed later even though they might have been appointed on probation under rule 7 at the same time
We may however add that for practical purposes and for the facility of administration the High Court for the 1  567 time being may consider the promoted probationers as retaining their inter se seniority of the lower service if they are appointed at the same time until they are confirmed
In our judgment members of the Delhi Judicial Service coming to the higher service on temporary appointments either under rule 16 or rule 17 of the Delhi Higher Judicial Service Rules cannot claim the benefit of the inter se seniority under rule 8
There are no rules prescribing the mode of determination of inter se seniority of such temporary appointees or permitting them to count their officiation in the temporary appointments for the purpose of their seniority on their being appointed substantively
The question of determination of interse seniority of the promotees under rule 81 as already stated would crop up only after the promotees have been substantively appointed
We may add here also that as between the temporary appointees for practical purposes and for the facility of the administration it will be open to the High Court to permit the promotees to retain their seniority in the lower judicial service after they are temporarily appointed at the same time till they continue in the temporary appointments
The vires of rule 81 of the Delhi Higher Judicial Service Rules was challenged by Mr Tarkunde learned counsel for the petitioners on the ground that rule 81 equates all who are promoted to the higher service and permits them to retain their seniority in the lower service irrespective of the time of their appointment
Counsel submitted that those who came earlier to the higher service whether under rule 7 or under rule 16 or 17 should have been allowed to rank senior to those who came to be appointed either substantively or temporarily to the higher service later
The attack on the constitutionality of rule 81 is obliterated if by construction it is held as it has been done above that the question of retention of seniority in the lower service arises only when the promotion is at the same time and not otherwise
In absence of such an interpretation it would be a truism to say that rule 81 would be discriminatory and violative of article 14 of the Constitution
But with the aid of well established cannons of interpretation we see no difficulty in saving the constitutionality of the rule by interpreting it in a reasonable sensible and just manner as we have done in this case
The second part of the argument of Mr Tarkunde to rope in the temporary appointees for the purpose of determination of inter se seniority of the promotees under rule 81 is obviously wrong and cannot be accepted as sound
It may also be added that sub rule 2 of rule 8 will militate against the acceptance of the submission aforesaid
Judging the facts of the instant case in the light of the interpretation which we have put to the relevant rules of the Delhi Higher Judicial Service it will be noticed that the grievance of the petitioners in relation to the seniority of respondents 3 to 6 is either unjustified or premature
Even though respondent No 3 has already retired and determination of such a question vis a vis him would be futile while referring to the relevant facts of the case we may point out that the grievance of the petitioners as against respondents 3 and 4 is wholly unjustified
568 Annexure J  is a copy of the notification dated 20th January 1972 whereby the Administrator of Delhi was pleased to appoint in consultation with the High Court Shri Joginder Nath petitioner No 1 and one Om Prakash Singla members of the Delhi Judicial Service to the Delhi Higher Judicial Service temporarily till further orders
The appointment was under rule 17 of the Delhi Higher Judicial Service Rules against the 14th and
15th vacancies
In paragraph 15 of the counter affidavit filed on behalf of respondent No 2 reason has been given as to why petitioner No 1 was temporarily appointed and the appointments of respondents 3 to 5 was deferred
It was not because they were found unfit that they were not appointed but to enable them to have more experience of the civil work they were made Subordinate Judges
After sometime respondents 3 and 4 were appointed on probation for 2 years under rule 7 against the 14th and 15th vacancies
By another notification of the same date issued under rule 17 petitioner No 1 and respondent No 5 were temporarily appointed in officiating capacity till further orders
Four temporary posts were created by a notification dated 13th March 1974
Petitioners 2 3 and 4 were temporarily appointed to three of these posts by notification dt
22nd March 72 by the Administrator of Delhi in exercise of his powers under rule 162 of the Delhi Higher Judicial Service Rules
Copies of these notifications issued under Rules 7 17 and 16 of the Delhi Higher Judicial Service Rules are collectively Annexure B  to the counter affidavit of respondent No 2
Respondents 3 and 4 have been confirmed during the pendency of this Writ petition in the higher service by notification dated 1361974 Annexure R 44 wef
2nd June 1974
The petitioners have not challenged the notifications appointing them temporarily to the higher service under rule 16 or rule 17 and appointing respondents 3 and 4 substantively under rule 7
The confirmation of the latter therefore is perfectly in order and it goes without saying that they will be senior to such members of the Delhi Judicial Service who would be substantively appointed and confirmed later
A copy of the notification appointing respondent No 6 to the higher judicial service from 161973 does not seem to be in the records of this case
We were however informed at the Bar that he was also temporarily appointed either under rule 16 or rule 17
That being so it was not clear to us whether the grievance of the petitioners in paragraph 19 of the writ petition that respondent No 6 inspite of his appointment as Additional District Judge later than petitioners 2 to 4 was allowed to rank senior to them on the basis of rule 8 of the Delhi Higher Judicial Service Rules is correct or justified
The question of the 6th respondent s ranking senior to any of the petitioners will not arise until they are substantively appointed to the higher judicial service
We may however reiterate our observation that from a practical point of view and for the facility of administration in the temporary appointments respondent No 6 who came later than the petitioners cannot rank senior to any of them
In the well known case of Parshotam Lal Dhingra vs Union of India1 Das CJ delivering the judgment on behalf of majority of 1  569 this Court pointed out at pages 841 and 842 thus  The appointment of a Government servant to a permanent post may be substantive or on probati on or on an officiating basis 
An appointment to officiate in a permanent post is usually made when the incumbent substantively holding that post is on leave or when the permanent post is vacant and no substantive appointment has yet been made to that post
Such an officiating appointment comes to an end on the return of the incumbent substantively holding the post from leave in the former case or on substantive appointment being to that permanent post in the later case  
In the instant case it is clear that due to justifiable reasons the appointment of respondents 3 and 4 substantively to the 14th and the 15th vacancies was deferred and petitioner No 1 was made to officiate in a temporary capacity against the substantive vacancy
But such an officiation came to an end on the substantive appointment of either of respondents 3 or 4
For the reasons aforesaid we hold that the petitioners have made out no case entitling them to any relief asked for by them in this writ petition
It accordingly fails and is dismissed without costs


Summary:
The petitioners originally belonged to the Punjab Civil Service Judicial in the time scale of Rs 400 1250
They had been put in the scale of Rs 1300 1500
On the other hand respondents 3 to 5 were judicial officers in the UP in the lower scale of Rs 300 900
The next higher scale on being appointed to the post of Additional District Magistrate was Rs 400 1000
Prior to 1966 the Union Territory of Delhi for the purposes
of administration of justice was included within the territorial jurisdiction of the erstwhile Punjab High Court and the Presiding Officers of the courts at Delhi were posted by transfer from the State of Punjab
There was no separation of executive and judiciary
In1970 Delhi Higher Judicial Service Rules 1970 and Delhi Judicial Service Rules1970 were framed under article 309 of the Constitution
A selection Committee was constituted in accordance with rule 7 of the Delhi Judicial Service Rules
On the basis of the recommendation of the Selection Committee appointments of officers by way of initial recruitment to the Delhi Judicial Service were made
Petitioners 1 and 2 were working as Assistant Sessions Judges at the time of initial constitution of the Delhi Judicial Service while none of the respondents 3 to 5 was appointed as Assistant Sessions Judge in spite of their longer service in the cadre of UP Judicial Officers Service
The petitioners were promoted to the post of Additional District Judges in January and March 1972
Respondents 3 to 5 were not considered to have qualified for being promoted as Additional District Judges
Respondents 3 to 5 were promoted as Additional District Judges in June 1972 and respondent No 6 was promoted in June 1973
Thus respondents 3 to 6 were promoted to the higher judicial service later on yet they were made to rank senior to petitioners under rule 8 of the Delhi Higher Judicial Ser vice Rules
Rule 9 of Delhi Judicial Service Rules provides that initial recruitment to the service would be made from amongst the subordinate Judges and Law Graduate Judicial Magistrates working in the Union Territory of Delhi on de putation from other States as well as members of Civil Judicial Cadres of States whose names might be recommended by their respective State Governments for appointment and members of Delhi Himachal Pradesh and Andaman  Nicobar islands who were law graduates
Rule 11 of Delhi Judicial Service Rules provides that the Selection Committee should arrange the seniority of the candidates recommended by it in accordance with the length of service rendered by them in the cadre to which they belonged at the time of their initial recruitment the service provided that the interse seniority as already fixed in such cadre shall not be al tered
Rule 7 of Delhi Higher Judicial Service Rules provides that recruitment after the initial recruitment shall be made by promotion from the Delhi Judicial Service and by direct recruitment from the Bar
It further provides that not more than one third of the substantive posts in the service should be held by direct recruits
Rules 8 further provides that the interse seniority of members of Delhi Higher Judicial Service promoted to the service shall be the same as in Delhi Judicial Service and that the seniority of Direct Recruits vis a vis Promotees shall be determined on the basis of roaster following the quota system
The petitioner s contention was that they should be treated as senior to respondents 3 to 6
The petitioners contended that rule 9 of the Delhi Judicial Service Rules was bad as it was not framed in accordance with Article 234 of them 554
Constitution and also because it permitted the initial appointment to the Delhi Judicial Service of persons who were not in any judicial service from before
The petitioners further contended that rule 11 of the Delhi Judicial Service Rules is bad as it infringes Article 14 of the Constitution inasmuch as it equates length of judicial service with the length of non judicial service for the purpose of fixing seniority and thus treats unequals as equals
Rule 8 of the Delhi Higher Judicial Service Rules is bad because it fixes the seniority in higher service according to the seniority in the lower one
The respondents controverted the contention of the petitioners
In addition the respondent contended that the Writ Petition was not maintainable on the ground of delay
It was also contended that after the impugned seniority list a further seniority list was published which has not been challenged and that therefore the petition ought to be dismissed
HELD  i The relative position of the petitioners and respondents 3 to 6 remains the same in the new seniority list as it was in the impugned seniority list
The contention of the respondent therefore cannot succeed
iiThe question of laches is one of discretion
There is no lower limit and there is no upper limit
The rule which says that the court may not enquire into the belated and stale claims is not a rule of law but a rule of practice based on sound and proper exercise of discretion and there is no inviolable rule that when ever there is delay the court must necessarily refuse to entertain the Petition
Each case must depend upon its own facts
In the present case nothing special has happened creating any right in favour of the respondent or no such position has been created the disturbance of which would unsettle the long standing settled matters
The writ application therefore cannot be thrown out on the ground of delay in regard to any of the reliefs asked for by the petitioners
559C G  A D iiiIt is difficult to find any trace of invalidity in rule 9 of the Delhi Judicial Service Rules
For the purpose of initial recruitment to the Service officers of the Judicial cadre all the officers although not belonging to the judicial cadre but by and large performing the judicial functions could be put together
There was no infraction of articles 14 and 16
Rule 11 of Delhi Judicial Service which provides that the seniority should be determined in accordance with the length of service does not put unequals as equals
The rule is neither arbitrary nor discriminatory
Once the Selection Committee found persons belonging to Clause a rule 9 suitable for appointment to the service it was under a duty and obligation to arrange the list of suitable persons by placing them in proper Place in the matter of seniority
Arranging the seniority in accordance with the length of service rendered in judicial cadre to which they belonged at the time of their initial recruitment to the service was perfectly good
Petitioners cannot have any grievance in that regard
It was not possible to have a different yardstick
Taking the length of service for the purpose of fixation of seniority was justified legal and valid
For the purpose of fixation of seniority it would have been highly against and un reasonable to take the date of their initial recruitment to the service as their first appointment
Nor was it possible to take any other date in between the period of their service in their parent cadre
It would have been wholly arbitrary
There was no escape from the POsition that the entire length of service of the two classes of officers had got to be counted for the purpose of determination of their seniority on their initial recruitment to the Delhi Judicial Service
It was not possible or practical to measure the respective merits for the purpose of seniority with mathematical precision by Barometer but some formula doing largest good to the largest number had to be evolved
The only reasonable and workable formula which could be evolved was the one engrafted in rule 11
561F 562C H Kunniathat Thatthuni Moopil Nair vs The State of Kerala and another   distinguished
Jalan Trading Co Private Ltd vs Mill Mazdoor Union  distinguished
ivIn the instant case treating the two classes as one for the purpose of initial recruitment and fixation of seniority was reasonable as the classification was one which included all persons who were similarly situated with respect to the purpose of the law
563G H 555 vThe interse seniority of the members of the Delhi Judicial Service promoted to the higher service would be the same provided the promotion from the lower to the higher service is at the same time
If a member of Delhi Judicial Service is superseded at the time of recruitment under rule 7 by his junior but gets a chance of promotion later it is obvious that he cannot retain his seniority in the lower rank
All candidates on appointment to higher service have jot to be on
probation for a period of 2 years ordinarily and generally they would be confirmed it the end of the said period of 2 years
Strictly speaking the Question of determination of interse seniority under rule 8 will crop up at the time of confirmation of the appointee
The question of seniority therefore has to be determined when the persons appointed either temporarily or on officiating basis are given substantive appointments  So far as the petitioners and three respondents
are concerned that time is yet to come
Two members of the Delhi Judicial Service confirmed in the higher service at the same time will retain their interse seniority as in the lower service but if they are not confirmed at the same time then one who is confirmed earlier will be senior to the one who is confirmed later though they might have been appointed on probation at the same time
There are no rules prescribing the mode of determination of interse seniority of temporary appointees or permitting them to count their officiation in the temporary appointments for the purpose of their seniority on their being appointed substantively
The attack on the constitutionality of rule 8 is obliterated in view of the construction placed by this Court
In the absence of such an interpretation rule 8 would be discriminatory and violative of article 14 of the Constitution
With the aid of well established connons of interpretation
we see no difficulty in saving the constitutionality of the rule by interpreting it in a reasonable sensible and just manner
566BC FH viThe appointment of a Government servant to a permanent post may be
substantive or on probation or on officiating basis
An appointment to officiatein a permanent post is usually made when the incumbent substantively holding that post is on leave or when the permanent post is vacant and no substantive appointment has yet been made to that post
Such an officiating appointment comes to an end on the return of the incumbent substantively holding post from leavein the former case or on the substantive appointment
In the instant case due to justifiable reasons the appointment of respondents 3 and 4 substantively to 14th and 15th vacancies was deferred and the petitioner No 1 was made to officiation in a temporary capacity against the substantive vacancy
Such an officiation came to an end on the substantive apppointment of either of respondent No 3 or 4
569A C