tion Civil No 263 of 1979
Under Article 32 of the Constitution of lndia  DD Thakur A Minocha Mrs Veena Minocha G section Vashisht TR Arti and BS Bali for the Petitioners
Kuldeep Singh Additional Solicitor General C M Nayar and CV 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 Rs500 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 Rs350 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 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 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 31101966 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 Rs350 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 2ii runs as follows 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 writersPersonal Assistant to Judges of Punjab  Haryana High Court from 711
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 SNo
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 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
PS 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 Rs350 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 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 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 1971If 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 Rs350 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 1011 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 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 8c 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 VT Khanzode  ors
vs Reserve Bank of India  Anr 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 71978 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 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 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 vs State of Rajasthan and Ors
 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 5050 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 12 instead of 5050
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 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
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 vs State of Rajasthan und Anr  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 We proceed to consider the next contention of Mr NC 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 vs NC Paliwal  Ors  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
We may also refer here to the decision of a Bench comprising four learned Judges of this Court in Ashok Kumar Yadav  Ors
vs State of Haryana  Ors etc
etc 1985 Suppl
ISCR 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 an 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 VJ Thomas and Ors
vs Union of India  Ors
 1985 Suppl
SCC7 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 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
vs Honble the Chief Justice and Ors
1975 2 SLR 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 the Division Bench of the Allahabad High Court in Madan Mohan Saran cuse supra held thatThe 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 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 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 32
1977 to fill in the vacancy in 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
SL Petition dismissed


Summary:
The appellant was in the service of Respondent firm from April1944 till he resigned on 24583
The employer did not determine the amount of gratuity payable to the appellant
Appellant furnished the necessary application for payment of gratuity and since no action was taken by the employer the appellant approached the statutory controlling authority for gratuity and interest thereon
The employer contested
The controlling authority determined the amount of gratuity at Rs16380 and directed the employer to pay the same along with compound interest at 9
On appeal by the employer the appellate authority confirmed the determination of gratuity but set aside the order for payment of interest
This appeal by special leave is in regard to payability of interest on gratuity
The appellant relied on the provisions of the Interest Act and section 34 of the Code of Civil Procedure also
Dismissing the appeal HELD If It is only when the Collector issue a certificate for recovery of the dues as a public demand that interest as provided under Section 8 is admissible
745Hl 12 In the instant case the appellant is not entitled to interest on the amount of gratuity found due to him
The controlling authority had directed interest as provided in Section 8 to be paid which the Appellate Authority had vacated
From the facts of this case it is clear that the stage for action under section 8 had not been reached in as much the appellant had not applied for recovery of gratuity to the Collector
745G H PG NO 742 PG NO 743 2
There was no provision in the Act for payment of interest when the same was quantified by the controlling authority and before the Collector was approached for its realisation
In fact it is on the acceptance of the lacuna in the law that Act 22 of 1987 brought about the incorporation of sub section 3A in Section 7
But that provision has prospective and not retrospective application
746A B 3
The provisions of the Interest Act and the provisions of Section 34 of the Code of Civil Procedure would be of no avail to the appellant since no notice was given demanding interest and the controlling authority is not a court for falling back on section 34 of the Code
746C