Case: O.P. Singla & Anr. Etc Vs. Union Of India & Ors

CHANDRCHUD, C.J. 1. Once again, we are back to the irksome question of inter se seniority between promotees and direct recruits. The contestants, this time, a re judicial officers of Delhi. Our familiarity, generally, with the difficulties in the way of judicial officers and our awareness of their just aspirations make our task difficult and sensitive. 2. The conclusion to which we have come in this judgment is not different from the one reached by our learned Brother Sabyasachi Mukharji. In this Judgment, Brother Mukharji has discussed, more fully, the various aspects of this matter as also the decisions which were cited before us. Our reasons for writing this separate opinion are, the general importance of this case. the fact that it concerns the higher judiciary and our respectful disagreement with Brother Mukharji on the interpretation of some of the provision s with which we are concerned in these Writ Petitions. 3. There are many decisions bearing upon the familiar controversy between promotees and direct recruits and this will be one more. Perhaps, just another. Since those various decisions have not succeeded in finding a satisfactory solution to the controversy, we would do well by confining our attention to the language and scheme of the rules which are under scrutiny herein, instead of seeking to derive a principle of universal application to the cases like those before us. Previous judgments of this Court are, of course, binding to the extent that they are relevant and they cannot be ignored. But, if they turn upon their own facts, the general set-up of the particular service, its historical development and the words of the impugned provisions, no useful purpose will be served by discussing those cases at length, merely to justify an observation at the end that they have no application and are distinguishable.We have two writ Petitions before us which are filed under Article 32 of the Constitution by promotee Additional District and Sessions judges of Delhi. We will not describe them as `Members of the Delhi Higher Judicial Service because, that precisely is the question to be decided. If they are members of that service they shall have won their point. They were working at the relevant time in temporary posts which were created by the Delhi Administration in the cadre of Additional District and Sessions Judges. In that capacity, some of them are working on deputation as members of one or the other of the Tribunals in Delhi, like the Industrial Tribunal or the Sales Tax Tribunal. The Union of India, the Delhi Administration, the High Court of Delhi and direct recruits to the Delhi Higher Judicial Service are impleaded as respondents to the petitions. 4. The Delhi Higher Judicial Service was constituted on May 15, 1971 with a complement of 12 posts. The Delhi High er Judicial Service Rules, 1970 which were framed by the Lieutenant-Governor of Delhi in consultation with the Delhi High Court, were published in the Delhi Gazette on August 27, 1970. Those Rules were framed under Article 309 of the Constitution. 5. Rule 2(b) provides that `Cadre Post means any post specified in the Schedule and includes a temporary post carrying the same designation as that of any of the posts specified in the Schedule any other temporary post declared as cadre post by Administrator. Rule 2(d) provides that a `Member of the Service means a person appointed in substantive capacity to the Service under the provisions of the Rules. `Service is defined by the Rule 2(e) to mean the Delhi Higher Judicial Service. A person who is appointed to the Delhi Higher Judicial Service by promotion from the Delhi Judicial Service is called the `Promoted Officer, while a person who is appointed to that Service from the Bar is called the `Direct recruit . By Rule 4, the authorised permanent strength of the Service and the posts included therein shall be as specified in the Schedule.art III of the aforesaid Rules deals with the method of recruitment to the Service. Recruitment of promotees is dealt with by Rule 5(1), according to which, recruitment of persons to the service from the Delhi Judicial Service shall be made by the administrator in consultation with the High Court. `Administrator means the Administrator appointed under Article 239 of the Constitution for the Union Territory of Delhi. Appointment of direct recruits is dealt with by Rule 5(2), according to which, in regard to the persons not already in the Delhi Judicial Service, appointment to service s hall be made by the Administrator on the recommendation of the High Court. In other words, promotees are appointed to the Service in consultation with the High Court while direct recruits are appointed to the service on the recommendation of the High Court. Rules 7 and 8 which are crucial to the controversy between the promotees and direct recruits read thus:"Rule 7-REGULAR RECRUITMENT:- Recruitment after the initial recruitment shall be made: (a) by promotion on the basis of selection from members of the Delhi Judicial Service, who have completed not less than 10 years of Service in the Delhi Judicial Service. (b) by direct recruitment from the Bar. Provided that not more than 1/3rd of the substantive posts in the Service shall be held by direct recruits." "Rule 8-(1) The inter-se seniority of members of the Delhi Judicial Service promoted to the Service shall be the same as in the Delhi Judicial Service. (2) The seniority of direct recruits vis-a-vis promotees shall be determined in the order of rotation of vacancies between the direct recruits and promotees based on the quotas of vacancies reserved for both categories by Rule 7 provided that the first available vacancy will be filled by a direct recruit and the next two vacancies by promotees and so on." Rule 9 lays down the qualifications for direct recruits by providing that they should be citizens of India, that they must have practised as advocates for not less than 7 years and that they must have attained the age of 35 years but not attained the age of 45 years on January 1 of the year in which they are appointed. The initial recruitment to the Service was made by the Administrator in consultation with the High Court in accordance with Rule 6, from amongst the District Judges and Additional District Judges who were functioning in the Union Territory of Delhi on deputation from other States and those whose names were recommended by the respective States for such appointment. Those persons who were appointed to the Service as part of the initial recruitment stood confirmed with effect from the very date of their appointment. That is provided by Rule 12(1). Sub-rule (2) of Rule 12 provides that all other candidates who are appointed to the service shall be on probation for a period of two years. Rule 13 requires that all persons appointed to the Service on probation shall be confirmed at the end of the said period of two years: provided that the Administrator may, on the recommendation of the High Court extend the period of probation but not so as to exceed three years on the whole. After the successful completion of probation, the officer is confirmed in the service by the Administrator in consultation with the High Court as provided in Rule 15. Rules 16 and 17, which occur in part V of the Rules called `Temporary Appointments, are also important for our purpose though they fall in a category distinct and separate from the one in which Rules 7 and 8 fall. They read thus:"Rule 16(1) The Administrator may create temporary posts in the service. (2) Such posts shall be filled, in consultation with the High Court, from amongst the members of the Delhi Judicial Service.""Rule 17- Notwithstanding anything contained in these rules, the Administrator may, in consultation with the High Court, fill substantive vacancies in the Service by making temporary appointments thereto from amongst members of the Delhi Judicial Service." 6. The Schedule to the Rules shows that the initial authorised permanent strength of the Delhi Higher Judicial Service was 16, out of which one was to be a District and Sessions Judge and 12 were to be Additional District and Sessions Judges. The remaining 3 were appointed in Leave-Deputation reserve vacancies. Out of these 16 posts, one was a super-time scale post, three were selection grade posts and twelve were time-scale posts. 7. The contention of the petitioners is that seniority between promotees and direct recruits must be determined in accordance with the respective dates of their continuous officiation as Additional District and Sessions Judges and that, direct recruits who are appointed as Additional District and Sessions Judges after the promotees are so appointed, cannot rank higher in seniority over the promotees. It is urged that promotees discharge identical functions and bear the same responsibilities as direct recruits and upon their appointments, they constitute one common class. Therefore, to give seniority to the direct recruits who are appointed later in point of time is violative of Articles 14 and 15 of the Constitution. 8. In support of these contentions, the promotees have filed charts showing what, according to them, is a grave and glaring act of injustice done to them in the matter of seniority. These charts show, indisputably, that promotees who have been functioning as temporary Additional District an d Sessions Judges for an unbroken period of anything between 8 to 12 years are regarded as juniors to the direct recruits who have been appointed as Additional District and Sessions Judges much later. A few illustrations will help appreciate the grievance of the promotees. Shri G.S. Dakha, who is one of the respondents to these writ petitions, was appointed directly to the Service on September 27, 1978. However, he ranks higher in seniority over Shri C.D. Vasishta and Shri O.P. Singla who were appointed as temporary Additional District and Sessions Judges on June 7, 1977 and April 1, 1978 respectively. Miss Usha Mehra, who was appointed directly as an Additional District and Sessions Judge on April 22, 1980, is regarded as senior to several promotees who were appointed as temporary Additional District and Sessions Judges long before her. Shri D.C. Aggarwal, Shri B.K, Agnihotri, Shri Mahesh Chandra, Shri S.R. Goel and Shri P.L. Singla were all appointed as temporary Additional District and Sessions Judges on March 24, 1972, which was 8 years before Miss Usha Mehra was appointed as a direct recruit from the Bar. Twenty-five other members of the Delhi Judicial Service were appointed a s temporary Additional District and Sessions Judges on various dates between August 31, 1973 and December 11, 1979. All these have been shown as junior to Miss Usha Mehra.The answer to the question as regards the infringement of the constitutional protection of equality and equal opportunity will depend upon the meaning which can reasonably be given to the rules which we have cited above. Therefore, in the first place, we shall have to decide whether the rules justify the rankings in the seniority list. It is only if the language of the rules justifies those rankings that the question will arise whether the rules violate the provisions of Articles 14 and 16. Logically, we must begin this inquiry with the question as to the interpretation of the proviso to Rule 7. Does that proviso prescribe a quota or does it merely provide for a ceiling ? In other words, does the proviso require that, at any given point of time, 1/3rd of the substantive posts i n the Service shall be reserved for direct recruits or does it only stipulate that the posts held by direct recruits shall not be more than 1/3rd of the total number of substantive posts in the Service ? The proviso reads thus:"Provided that not more than 1/3rd of the substantive posts in the Service shall be held by direct recruits." 9. This language is more consistent with the contention of the promotees that the proviso merely prescribes, by way of imposing a ceiling, that the direct recruits shall not hold more than 1/3rd of the substantive posts. Experience shows that any provision which is intended to prescribe a quota, generally provides that, for example, "1/3rd of the substantive posts shall be filled in by direct recruitment." A quota provision does not use the negative language, as the proviso in the instant case does, that "not more than" one- third of the substantive posts in the Service shall be held by direct recruits. 10. If the matter were to rest with the proviso, its interpretation would have to be that it does not prescribe a quota for direct recruits: it only enables the appointment of direct recruits to substantive posts so that, they shall not hold more than 1/3rd of the total number of substantive posts in the Service. However, it is well recognised that, when a rule or a section is a part of an integral scheme, it should not be considered or construed in isolation. One must have regard to the scheme of the fasciculus of the relevant rules or sections in order to determine the true meaning of any one or more of them. An isolated consideration of a provision leads to the risk of some other inter-related provision becoming otiose or devoid of meaning. That makes it necessary to call attention to the very next rule, namely, rule 8. It provides by clause 2 that:"The seniority of direct recruits vis-a-vis promotees shall be determined in the order of rotation of vacancies between the direct recruits and promotees based on the quotas of vacancies reserved for both categories by Rule 7 provided that the first available vacancy will be filled by a direct recruit and the next two vacancies by promotees and so on." (emphasis supplied) 11. This provision leaves no doubt that the overall scheme of the rules and the true intendment of the proviso to Rule 7 is that 1/3rd of the substantive posts in the Service must be reserved for direct recruits. Otherwise, there would neither be any occasion nor any justification for rotating vacancies between direct recruits and promotees. Rule 8 (2), which deals with fixation of seniority amongst the members of the Service, provides, as it were, a key to the interpretation of the proviso to Rule 7 by saying that the proviso prescribes "quotas" and reserves vacancies for both categories. The language of the proviso to Rule 7 is certainly not felicitous and is unconventional if its intention was to prescribe a quota for direct recruits. But the proviso, as I have stated earlier, must be read along with Rule 8 (2) since the two provisions are inter-related. Their combined reading yields but one result, that the proviso prescribes a quota of 1/3rd for direct recruits. 12. The process of reading the Rules as parts of a connected whole does not end with Rules 7 and 8. Rules 16 and 17 are also relevant for the present purpose and have, indeed, an important bearing on the question of reservation of vacancies for direct recruits to the extent of one-third of the substantive posts in the Service. Clause (1) of Rule 16 confers power upon the Administrator to create temporary posts in the Service. By clause (2) of Rule 16, such pos ts are required to be filled, in consultation with the High Court, from amongst the members of the Delhi Judicial Service, that is to say, the promotees. Rule 17, which is in the nature of a non-obstante provision, provides that not withstanding anything contained in the Rules, the, Administrator may, in consultation with the High Court, fill substantive vacancies in the Service by making temporary appointments thereto from amongst the members of the Delhi Judicial Service. The position which emerges from the provisions contained in Rules 16 and 17 is that it is permissible to create temporary posts in the Service and, even substantive vacancies in the Service can be filled by making temporary appointments. The twofold restriction on this dual power is that the High Court must be consulted and such appointments must be made from amongst the promotees only. If temporary appointment to the Service, either in temporary posts or in substantive vacancies, can be made within the framework of the Rules and have to be made, if at all, from amongst the promotees and promotees only, the quota rule contained in the proviso to Rule 7 must inevitably break down when such appointments are made . The simple reason leading to that consequence is that direct recruits cannot be appointed either to temporary posts in the Service or to substantive vacancies in the Service which are filled in by making temporary appointments. Thus, even though the proviso to Rule 7 prescribes a quota of one-third for direct recruits, Rules 16 and 17 permit the non- observance of the quota rule in the circumstances stated in those rules.At this stage, it is necessary to call attention to the definition of `Cadre Post in Rule 2 (b) and to clear the misunderstanding which is likely to arise on account of that definition. Rule 2 (b) provides that `Cadre Post means any post specified in the Schedule and includes a temporary post carrying the same designation as that of any of the posts specified in the Schedule. This definition may, at first sight, create an impression that every temporary post of an Additional District and Sessions Judge is a Cadre Post, whether or not that post is included in the Service. That is not so. The first part of the definition says that `Cadre Post means a post specified in the Schedule. Posts which are specified in the Schedule are posts in the Service. Therefore, by reason of the first part of the definition, posts in the Service are Cadre Posts. It is the second part of the definition which is likely to create a misunderstanding of the true position. That part of the definition says that Cadre Post includes a temporary post carrying the same designation as that of any of the posts specified in the Schedule. This provision is consequential to and in consonance with Rule 16. Since it is permissible under that rule to create temporary posts in the Service, such posts are also regarded as Cadre Posts. It would have been anomalous to treat a post in the Service as an ex-cadre post merely for the reason that the post is temporary. Normally, an ex-cadre post means a post outside the cadre of posts comprised in a Service. 13. Therefore all posts in the Service, whether permanent or temporary, are generally regarded as Cadre Posts, But, regardless of the normal pattern of service rules, what is necessary to appreciate is that Rule 2 (b) has the li mited effect of making every post in the Service a Cadre Post, whether the post is permanent or temporary. The inclusive clause contained in the second part of Rule 2 (b) has to be read in the context of the first part of that Rule and must take its meaning from what precedes it. Therefore, every promotee who holds the post of an Additional District and Sessions Judge in the Service is the holder of a Cadre Post, whether the post is permanent or temporary. Direct recruits hold cadre posts in all events because, they can only be appointed to substantive posts in the Service on a permanent basis. Rules 16 and 17 forbid their appointments to temporary posts in the Service or to substantive vacancies in the Service on a temporary basis.Though this is the true scope and meaning of Rule 2 (b), it is unnecessary to be dogmatic about it. As will appear presently, even if it is assumed for the purposes of argument that temporary posts not included in the Service are a lso Cadre Posts, that will not make any difference to the principle on the basis of which the Seniority List of the Service will have to be drawn. 14. But, before adverting to that principle, it would be useful to draw attention to Rule 2 (d) which provides that a Member of the Service means a person appointed in substantive capacity to the Service under the provisions of the Rules. This Rule shows that two conditions must co-exist in order that a person can become a `Member of Service. Firstly, his appointment has to be in a substantive capacity and secondly, the appointment has to be to the Service, that is, to a post in the Service. Persons who hold posts bearing designations similar to the designations of posts comprised in the Service cannot, for that reason alone, become members of the Service. It is only when they are appointed in a substantive capacity to a post in the Service, that they became members of the Service. 15. The acceptance of the alternative hypothesis, that temporary posts bearing the same designation as that of the posts specified in the Schedule are Cadre posts whether such posts are comprised in the Service or not, will, at any rate, justify the proposition that, according to the scheme of the rules in this case, `Service. is a narrower body than the `Cadre. By the definition contained in Rule 2 (d), membership of the Service is limited to persons who are appointed in a substantive capacity to the Service. By the second part of Rule 2 (b), if read in an extended sense, which is what the alternative hypothesis requires, every temporary post which carries the same designation as that of any of the posts specified in the Schedule is a Cadre Post, whether such post is comprised in the Service or not. Such posts and the posts specified in the Schedule will together constitute the Cadre under Rule 2 (b), if an extended meaning is given to the second part of that rule.In this background and with this understanding of the interpretation and effect of Rules 2(b), 2(d), 7, 8, 16 and 17, it will be easier to deal with the question of seniority between direct recruits and promotees. The contention of the petitioners which we have to examine is that t he rule of seniority provided in Rule 8 is constitutionally invalid. We are not concerned in this case with the provision contained in Rule 8 (1) which governs the inter se seniority of members of the Delhi Judicial Service who are promoted to t he Delhi Higher Judicial Service. Members of the subordinate judicial service promoted to the Delhi Higher Judicial Service retain their former seniority. We are concerned with clause (2) of Rule 8, which provides, in so far as relevant, that the seniority of direct recruits vis- a-vis the promotees shall be determined in the order of rotation of vacancies between the direct recruits and promotees based on the quota of vacancies reserved for both the categories by Rule 7 , provided that the first available vacancy will be filled by a direct recruit, the next two vacancies by promotees and so on. 16. This Court has taken the view in many cases that whenever the rules provide for recruitment to a Service fro m different sources, there is no inherent infirmity in prescribing a quota for appointment of persons drawn from those sources and in working out the rule of quota by rotating the vacancies as between them in a stated proportion. (Se e, for example, Mervyn Coutinho v. Collector of Customs, Bombay, (1) S. C. Jaisinghani v. Union of Indiu, (2) Bishan Sarup Gupta v. Union of India, (1) A.K. Subraman v. Union of India, (2) V. B. Badami v. State of Mysore(3) and Paramjit Singh Sandhu v. Ram Rakha.(4) Therefore, Rule 8 (2) cannot be held to be unconstitutional merely because, it reserves one-third of the vacancies in the Service for direct recruits and provides that the first available vacancy in the Service will be filled in by a direct recruit, the next two by promotees and so on.However, instances are not unknown wherein, though the provision of a rule or a section is not invalid, the manner in which that provision is implemented in practice leads to the creation of disparities between persons who, being similarly circumstanced, are entitled to equal treatment. Care has therefore to be taken to apply the provisions of Rule 8(2) in such a manner as not to lead to the violation of the guarantee of equality and equal opportunity contained in Articles 14 and 16 of the Constitution. For that purpose. it is necessary to ascertain as to which of the promotees can be regarded as belonging to the same class as the direct recruits. 17. The p re-requisite of the right to inclusion in a common list of seniority is that all those who claim that right must, broadly. bear the same characteristics. The mere circumstance that they hold posts which carry the same designation will not justify the conclusion that they belong to the same class. Persons who are appointed or promoted on an ad hoc basis or for fortuitous reasons or by way of a stop-gap arrangement cannot rank for purposes of seniority with those who are appointed to their posts in strict conformity with the rules of recruitment, whether such latter class or posts are permanent or temporary. The rules in the instant case do not require that person belonging to the former category have to satisfy any particular prescription like consultation with the High Court. We are informed that in practice, persons who are promoted to the Delhi Higher Judicial Service on an ad hoc basis or for fortuitous reasons or by way of a stop-gap arrangement a re appointed only after their names are cleared or approved by the High Court. That may or may not be so. The point of the matter is that there is no provision in the Rules which requires that such appointments must also be made in accordance with any set formula. The courtesy shown by the authorities to the High Court when certain appointments are made, is one thing; The obligation imposed by the Rules on the authorities that the High Court shall be consulted when certain other appointments are made is quite another. Indeed, there is a distinction between the process of consultation with the High Court and the screening of the promotees done by the High Court, may be at the instance of the authorities, when their names are considered for appointment as Additional District and Sessions Judges on an ad hoc, fortuitous or stop-gap basis.Thus, persons belonging to the Delhi Judicial Service who are appointed to temporary posts of Additional District and Sessions Judges on an ad hoc basis or for fortuitous reasons or by way of a stop-gap arrangement. constitute a class which is separate and distinct from those who are appointed to posts in the Service in strict conformity with the rules of recruitment. In view of this, the former class of promotees cannot be included in the list of seniority of officers belonging to the Service. 18. It is however difficult to appreciate how, in the matter of seniority, any distinction can be made between direct recruits who are appointed to substantive vacancies in the Service on the recommendation of the High Court under Rule 5(2) and the promotees who are appointed in consultation with the High Court to posts in the Service under Rules 16 and 17. Rule 16 provides for the appointment of promotees to temporary posts in the Service, while Rule 17 provides for appointment of promotees to substantive vacancies in the Service on a temporary basis. Promotees who are appointed to the Service under either of these two rules must be considered as belonging to the same class as direct recruits appointed under Rule 5(2). They perform similar functions, discharge identical duties and bear the same responsibilities as direct recruits. They are appointed on a regular basis to posts in the Service in the same manner as direct recruits are appointed, the only distinction being that whereas the latter are appointed on the recommendation of the High Court promotees are appointed in consultation with the High Court. There fore, no distinction can be made between direct recruits on one hand and promotees appointed to the Service on the other, in the matter of their placement in the seniority list. Exclusion from the seniority list of those promotees who are appointed to posts in the Service, whether such appointment is to temporary posts or to substantive vacancies in a temporary capacity, will amount to a violation of the equality rule since, t hereby, persons who are situated similarly shall have been treated dissimilarly in a matter which constitutes an important facet of their career.A representative order of appointment under Rule 16, which is annexed to one of the writ petitions, shows why promotees appointed under that rule (and for similar reasons, those appointed under Rule 17) cannot be discriminated against in the matter of seniority in comparision with direct recruits. That order reads thus:"DELHI ADMINISTRATION DELHI NOTIFICATION Dated the 22 March 1972 No. F. 1(76)/70-Judl.(i)-In pursuance to the provisions of sub-rule (2) of rule 16 of the Delhi Higher Judicial Service Rules, the Administrator of Delhi, is pleased to appoint in consultation with the High Court, the following members of the Delhi Judicial Services, temporarily to the Delhi Higher Judicial Service, till further orders, with effect from the date they take over charge of their offices, against the four posts of Additional District and Sessions Judges, created vide his notification No.F1(13)/ 72-Judl. dated the 13th March, 1972. 1. Shri Dalip Chand Aggarwal 2. Shri Bishma Kumar Agnihotri 3. Shri Sadhu Ram Goel 4. Shri Pyare Lal Singla. By Order. (Desh Deepak) Secretary (Law &Judicial) Delhi Administration, Delhi." 19. This order shows that, firstly, by a notification dated March 13, 1972, the Administrator created temporary posts in the Service under Rule 16(1); secondly, four promotees were appointed to those posts in the Delhi Higher Judicial Service; and thirdly, that they were appointed `till further orders. The appointments were neither ad-hoc, nor fortuitous, nor in the nature of stop-gap arrangement. Indeed, no further orders have ever been passed recalling the four promotees and, others similarly situated, to their original posts in the subordinate Delhi Judicial Service. Promotees who were appointed under Rule 1 6 have been officiating continuously, without a break, as Additional District and Sessions Judges for a long number of years. It is both unrealistic and unjust to treat them as aliens to the Service merely because the authorities did not take up to the necessity of converting the temporary posts into permanent ones, even after some of the promotees had worked in those posts from five to twelve years. Considering the history of the Delhi Higher Judicial Service, it is clear that the phrase `till further orders, is only a familiar official device to create and perpetuate temporary posts in the Service when the creation of permanent posts is a crying necessity. The fact that temporary posts created in the Service under Rule 16( 1) had to be continued for years on end shows that the work assigned to the holders of those posts was, at least at some later stage, no longer of a temporary nature. And yet, instead of converting the temporary posts into permanent ones, the authorities slurred over the matter and imperilled, though unwittingly, the reasonable expectations of the promotees. Unwittingly because, no one appears to have been interested in belittling the contribution of the promotees w ho held temporary posts in the Service or in consciously jeopardising their prospectus. The tragedy is that no one was interested in anything at all. Or else, why was direct recruitment not made from time to time, at regular intervals? If that were done, the undesirable situation which confronts us to-day could have been easily avoided. The proviso to Rule 7 prescribes a system of quota and rota. why was that rule put in cold storage by creating temporary posts in the Service when permanent posts were clearly called for? Permanent posts could have been allocated to direct recruits and promotees in the ratio of one to two. In these circumstances, it will be wholly unjust to penalise the promotees for the dilatory and unmindful attitude of the authorities. It is not fair to tell the promotees that they will rank as juniors to direct recruits who were appointed five to ten years after they have officiated continuously in the posts created in the Service and held by them, though such posts may be temporary. This Court, at least, must fail them not.From an earlier part of this judgment it would appear how, though the proviso to Rule 7 prescribes a quota of one- third for direct recruits and provides for rotation of vacancies between them and the promotees who are appointed to the Service, that rule must inevitably break down when appointments to promotees are made to the Service under Rules 16 and 17. Appointments under th ese two Rules have to be made from amongst the promotees only. Whenever appointments are made to the Service under either of these Rules, neither the quota reserved for direct recruits nor the rule of rotation of vacancies between them and the promotees can have any application. The question then is, in situations resulting in the suspension of the rule of `quota and rota, which its the equitable rule for determining seniority between direct recruits on the one hand and promotees who are appointed under Rules 16 and 17 on the other ? It is difficult to evolve a rule which will cause no hardship of any kind to any member of the Service. Therefore, the attempt has to be to minimise, as far as possible, the inequities and disparities which are inherent in a system which provides for recruitment to the Service from more than one source. While doing this, the one guiding principle which must be kept in mind is that classification is a gloss on the right to equality. It is but a step in the process of working out the equities between persons who are entitled to equal treatment. It is therefore necessary to ensure that classification is made on a broad, though rational, basis so as not to produce the self-defeating result of denying equality to those who in substance, are situated similarly. 20. That is why, it would be hyper-technical to make a sub- classification between promotess appointed under rule 16 and those appointed under Rule 17, with the object of denying to the latter the equality of status and opportunity with the former and with direct recruits. It is true that under Rule 16, promotees are appointed to temporary posts in the Service while, under Rule 17 they are appointed in a temporary capacity to substantive vacancies in the Service. But this kind of service jargon clouds the real issue as to whether persons appointed under different rules necessarily belong to different classes and tends to p roduce inequalities by an artful resort, dictated by budgetary expediency, to the familiar device of fixing dissimilar labels on posts which carry the same duties and responsibilities and are subject to similar pre-appointment tests . It may even be that in the process of consultation, the High Court exercises greater vigilance in regard to appointments proposed under Rule 16 than in regard to appointments which are proposed under Rule 17.But, the fact that the Hi gh Court chooses to adopt, of its own volition any particular approach in the matter of appointments made under different rules, cannot justify the proposition that persons appointed under different rules necessarily belong to different classes . The requirement for appointments under both the Rules is, equally, that they must be made in consultation with the High Court. The High Court is, therefore, expected to apply the same standard and adopt the same approach whether appointments are pr oposed to be made under Rule 16 or Rule 17. Any attempt to sub divide the promotees according as to whether they are appointed under Rule 16 or Rule 17 will result in the creation of a distinction where no difference exists. The object of classification is to find a remedy to such situations, not to create or perpetuate them. 21. It may bear emphasis that promotees appointed under Rules 16 and 17 to the Higher Judicial Service can rank for seniority along with direct recruits only if they are appointed in consultation with the High Court as required by those Rules and if they satisfy the requirement laid down in Rule 7(a) that they must have completed not less than ten years of service in the Delhi Judicial Service. 22. The best solution to the situation which confronts us is to apply the rule which was adopted in S.B. Patwardhan v. State of Maharashtra.(1) It was held by this Court in that case that all other factors being equal, continuous officiation in a non- fortuitous vacancy ought to receive due recognition in fixing seniority between persons who are recruited from different sources, so long as they belong to the same cadre, discharge similar functions and bear the same responsibilities. Since the rule of `quota and rota ceases to apply when appointments are made under Rules 16 and 17, the seniority of direct recruits and promotees appointed under those Rules must be determined according to the dates on which direct recruits were app ointed to their respective posts and the dates from which the promotees have been officiating continuously either in temporary posts created in the Service or in substantive vacancies to which were appointed in a temporary capacity.Our attention was drawn to several decisions but most of them turn of their own facts. For example, the promotees placed great reliance on the decision in Baleshwar Dass v. State of U.P.(2) In that case, there was only one rule of recruitment to both the permanent and temporary posts in the cadre. Besides, no rotation of vacancies was prescribed for the purpose of fixing seniority. The position which arises in the case before us did not therefore arise in that case. However, the observations made by Krishna Iyer, J. in that case are not without relevance for the present purpose. The learned judge observed:"We must emphasis that while temporary and permanent posts have great relevancy in regard to the career o f government servants, keeping posts temporary for long, sometimes by annual renewals for several years, and denying the claims of the incumbents on the score that their posts are temporary makes no sense and strikes us as arbitrary, especially when both temporary and permanent appointees are functionally identified. If, in the normal course, a post is temporary in the real sense and the appointee knows that his tenure cannot exceed the post in longevity, there cannot be anything unfair or capricious in clothing him with no rights. Not so, if the post is, for certain departmental or like purposes, declared temporary, but it is within the ken of both the government and the appointee that the temporary posts are virtually long-lives. It is irrational to reject the claim of the `temporary appointee on nominal score of the terminology of the post. We must also express emphatically that the principle which has received the sanction of this Courts pronouncements is that officiating service in a post is for all practical purposes of seniority as good as service on a regular basis. It may be permissible, within limits, for government to ignore officiating service and count only regular service when claims of seniority come before it provided the rules in that regard are clear and categorical and do not admit of any ambiguity and cruelly arbitrary cut-off of long years of service does not take place or there is functionally and qualitatively, substantial difference in the service rendered in the two types of posts. While rules regulating conditions of service are within the executive power of the State or its legislative power under proviso to Article 309, even so, such rules have to be reasonable, fair and not grossly un just if they are to survive the test of Articles 14 and 16." In A. Janardhana v. Union of India, (1) the Court had to consider the validity of rules of seniority which were applicable to the Military Engineering Service. The recruitment to the Service was made from two sources, directly and by promotion. The appellant was a promotee of 1962 who, it was argued in that case, could find a place in the seniority list in 1989, when it would be time for him to retire. D.A. Desai, J. observed in that case:"... In other words, after having rendered service in a post included in the service, he is hanging outside the service without finding a berth in service, whereas direct recruits of 1976 have found their place and berth in the service. This is the situation that stares into ones face while interpreting the quota rota rule and its impact on the service of an individual. But avoiding any humanitarian approach to the problem, we shall strictly go by the relevant Rules and precedents and the impact of the Rules on the members of the service and determine whether the impugned seniority list is valid or not. But, having done that we de propose to examine and expose an extremely undesirable, unjust and inequitable situation emerging in service jurisprudence from the precedents namely, that a person already rendering service as a promotee ha s to go down below a person who comes into service decades after the promotee enters the service and who may be a schoolian, if not in embryo, when the promotee on being promoted on account of the exigencies of service as required by the Government started rendering service. A time has come to recast service jurisprudence on more just and equitable foundation by examining all precedents on the subject to retrieve this situation." No two cases are alike and. therefore an attempt has been made in this judgment to consider the language and implication of the Rules which govern appointments to the Delhi Higher Judicial Service. But, the observations which we have extracted above are not without relevance to the decision of the case before us. They lend considerable support to the conclusion which has been recorded in this judgment.The decision of this Court in Joginder Nath v. Union of India(1), does not afford any assistance on the question which is in issue before us. That case arose out of a controversy between the promotees inter se and not between promotees and direct recruits. 23. The seniority list which is impugned in this case has been prepared on the basis that the rule of `quota and rota will continue to apply notwithstanding the fact that appointments are made to the Service under Rule 16 and 17. As pointed out earlier, the rule of `quota and rota which is prescribed by the proviso to Rule 7 would cease to apply when appointments are made to the Service under Rules 16 and 17. The seniority list has therefore to be quashed. A new seniority list shall have to be prepared by the authorities on the basis of the view taken in this judgment. The new seniority list will include (i) direct recruits and (ii) promotees appointed under Rules 16 and 17. They will rank for seniority as explained above. The question of the seniority of respondent 4, Shri G.S. Dakha has to be dealt with on a different basis. He was appointed as an Additional District and Sessions Judge in a vacancy reserved for members of the scheduled castes. He will retain his position in the seniority list since that position is due to him as a member of a scheduled caste. The case of Miss Usha Mehra has caused us some anguish. She was appointed as a direct recruit on April 22, 1980. The rule of `quota and rota was in operation since the inception of the Delhi Higher Judicial Ser vice and she must have joined the Service on the basis of certain reasonable expectations flowing out of a senior position. Though comparatively young, she had a fairly large practice at the Bar when she was appointed as an Additional District and Sessions Judge. A strong plea has been made on her behalf that her place in the seniority list should not disturbed. We wish that were possible. It would be incongruous to do so because, if the rule of `quota and rota ceased to apply when appointments were made to the Service under Rules 16 and 17, her present position in the seniority list which has been accorded to her on the basis of that rule cannot be maintained. For this consequence the promotees are not to blame, and cert ainly, not any of the direct recruits. The promotees had made a representation to the High Court as long back as in the year 1977 but, for a reason not easy to understand, the High Court did not dispose of that representation for over three years , Indeed, one of the contentions of the High Court before us is that those writ petitions are premature because the representation of the promotees is still pending before it. Miss Mehra was appointed three years after the promotees had made their representation to the High Court, which was the most appropriate authority for them to approach. A timely disposal of the representation by the High Court would have saved the predicament in which some of the direct recruits like Miss Mehra will now find themselves. It was urged that the promotees ought not to grudge one little exception in favour of Miss Mehra since they have derived quite some benefits from the operation of Rules 16 and 17. It is true that the promotees have derived a substantial benefit by the operation of Rules 16 and 17. They monopolised all the appointments to temporary posts as also temporary appointments to substantive vacancies in the Service. Simultaneously, they also derived benefit from the rule of `quota and rota. For example, though N.L. Kakkar and Shri R.K. Sinha were promoted to the Service in 1972, they were placed in the seniority list above Shri N.C. Kochar who was recruited directly in 1971. That was done in conformity with the quota and rota rule of 1: 2. If, at least some of the temporary posts had been converted into permanent ones as they ought to have been, one out of every three posts would have gone to a direct recruit. But as pointed out by us, the difficulty in the way of maintaining Miss Mehras present position in the seniority list is that doing so would be inconsistent with the view which we have taken in this judgment. We cannot, therefore, make an exception in the case of any particular direct recruit.It is patent that this judgment will upset the balance between direct recruits and promotees in the Delhi Higher Judicial Service. If the authorities desire to restore that balance, appropriate rules shall have to be framed for future application. But, more than merely framing the rules, care shall have to be taken to implement the rules both in letter and in spirit. That will call for greater concern and understanding on the part of the authorities for the future of a system, which one believes, has stood the people well. 24.

Decision:
1[ds]The seniority list which is impugned in this case has been prepared on the basis that the rule of `quota and rota will continue to apply notwithstanding the fact that appointments are made to the Service under Rule 16 and 17. As pointed out earlier, the rule of `quota and rota which is prescribed by the proviso to Rule 7 would cease to apply when appointments are made to the Service under Rules 16 and 17. The seniority list has therefore to be quashedA new seniority list shall have to be prepared by the authorities on the basis of the view taken in this judgment. The new seniority list will include (i) direct recruits and (ii) promotees appointed under Rules 16 and 17. They will rank for seniority as explained aboveThe question of the seniority of respondent 4, Shri G.S. Dakha has to be dealt with on a different basis. He was appointed as an Additional District and Sessions Judge in a vacancy reserved for members of the scheduled castes. He will retain his position in the seniority list since that position is due to him as a member of a scheduled casteThe case of Miss Usha Mehra has caused us some anguish. She was appointed as a direct recruit on April 22, 1980. The rule of `quota and rota was in operation since the inception of the Delhi Higher Judicial Ser vice and she must have joined the Service on the basis of certain reasonable expectations flowing out of a senior position. Though comparatively young, she had a fairly large practice at the Bar when she was appointed as an Additional District and Sessions Judge. A strong plea has been made on her behalf that her place in the seniority list should not disturbed. We wish that were possible. It would be incongruous to do so because, if the rule of `quota and rota ceased to apply when appointments were made to the Service under Rules 16 and 17, her present position in the seniority list which has been accorded to her on the basis of that rule cannot be maintained. For this consequence the promotees are not to blame, and cert ainly, not any of the direct recruits. The promotees had made a representation to the High Court as long back as in the year 1977 but, for a reason not easy to understand, the High Court did not dispose of that representation for over three years , Indeed, one of the contentions of the High Court before us is that those writ petitions are premature because the representation of the promotees is still pending before it. Miss Mehra was appointed three years after the promotees had made their representation to the High Court, which was the most appropriate authority for them to approach. A timely disposal of the representation by the High Court would have saved the predicament in which some of the direct recruits like Miss Mehra will now find themselves. It was urged that the promotees ought not to grudge one little exception in favour of Miss Mehra since they have derived quite some benefits from the operation of Rules 16 and 17. It is true that the promotees have derived a substantial benefit by the operation of Rules 16 and 17. They monopolised all the appointments to temporary posts as also temporary appointments to substantive vacancies in the Service. Simultaneously, they also derived benefit from the rule of `quota and rota. For example, though N.L. Kakkar and Shri R.K. Sinha were promoted to the Service in 1972, they were placed in the seniority list above Shri N.C. Kochar who was recruited directly in 1971. That was done in conformity with the quota and rota rule of 1: 2. If, at least some of the temporary posts had been converted into permanent ones as they ought to have been, one out of every three posts would have gone to a direct recruit. But as pointed out by us, the difficulty in the way of maintaining Miss Mehras present position in the seniority list is that doing so would be inconsistent with the view which we have taken in this judgment. We cannot, therefore, make an exception in the case of any particular direct recruit.It is patent that this judgment will upset the balance between direct recruits and promotees in the Delhi Higher Judicial Service. If the authorities desire to restore that balance, appropriate rules shall have to be framed for future application. But, more than merely framing the rules, care shall have to be taken to implement the rules both in letter and in spirit. That will call for greater concern and understanding on the part of the authorities for the future of a system, which one believes, has stood the people well.