Case: Joginder Nath And Ors Vs. Union Of India And Ors

2. All the four petitioners originally belonged to the Punjab Civil Service Judicial). Shri Joginder Nath, petitioner No. 1 joined the said service on 2-7-1956, Shri D. C Aggarwal, petitioner No. 2 on 2-7-1957, Shri S. R. Goel, petitioner No. 3 on 8-7-1957, and Shri P. L. Singla, petitioner No. 4 on 10-10-l958. Prior to 1966, the Union Territory of Delhi for the purposes of administration of justice was included within the territorial jurisdiction of the erstwhile Punjab High Court and Presiding Officers of the Courts at Delhi were posted by transfer from the State of Punjab. There was no separation of Executive and Judiciary. The Magistrates were selected on ad hoe basis from the States of U. P. and Punjab and were posted to work as such at Delhi. Later on, on creation of the States of Punjab and Haryana the officers of Punjab and Haryana Civil Service (Judicial) cadre used to be posted in Delhi against all Judicial posts. A separate High Court for Delhi was constituted on the 31st October, 1966. The arrangement in regard to Judicial officers in the lower Courts however continued as before. In 1969 under the Union Territories (Separation of Judicial and Executive Functions) Act, the magistracy in Delhi was split up into two parts with effect from 2-10-1969. Some magistrates of the State Civil Service, Executive Branch, were transferred to work under the superintendence and control of the High Court of Delhi while others were assigned Executive duties and remained under the control of the Delhi Administration as before. In pursuance of the Scheme of separation aforesaid, respondents 3 to 5 who were working as Judicial Magistrates from before were appointed as Chief or Additional Chief Judicial Magistrates under the aforesaid Union Territories Act of 1969. They were formerly Officers of the U. P. Judicial Officers Service. Respondent No. 6 was a member of the Haryana Civil Service (Judicial). Respondents 3 to 5 were performing the functions of Revenue Officers and Judicial Magistrates in U. P. and thereafter in Delhi.3. The petitioners case is that on 27-8-1970 the Lt. Governor of Delhi, respondent No. 2 as Administrator of the Union Territory framed Delhi Higher Judicial Service Rules, 1970 and Delhi Judicial Service Rules, 1970 under Article 309 of the Constitution read with certain notifications of the Government of India, Ministry of Home Affairs. A Selection Committee was constituted in accordance with Rule 7 of the Delhi Judicial Service Rules. On the basis of the recommendations of the Selection Committee, respondent No. 2 made appointment of officers by way of initial recruitment to the Delhi Judicial Service under Rule 8. 61 officers were selected. It may however, be stated here that as per the statement in the counter-affidavit filed on behalf of respondent No. 2 only 49 officers joined. The petitioners 1 to 4 were placed in the seniority list of the Delhi Judicial Service at serial Nos. 6, 9, 12 and 13 respectively while the respective serial Nos. assigned to respondents 3 to 6 were 1, 2, 4 and 7. It would thus be seen that respondent No. 6 was junior to petitioner No. 1 but senior to petitioners 2 to 4 and respondents 3 to 5 were shown as senior to all the petitioners.4. The petitioners claim that they were formerly permanent members of the Punjab Civil Service Judicial Branch in the time scale of Rs. 400-1250. They had been put in the selection grade also in the scale of Rs. 1300-1500. On the other hand, respondents 3 to 5 were euphemistically called Judicial Officers in U. P. the State of their parent service. They were in a lower scale of Rs. 300-900. The next higher scale on being appointed to the post of Additional District Magistrates was Rs. 400-1000.5. The petitioners grievance is that B. 11 of the Delhi Judicial Service Rules permitting the fixation of the seniority of the selected officers under R. 9 (a) on the basis of length of service was bad. It was fixed by a notification dated 2-8-1971 and was subject to revision on good cause shown. Respondents 3 to 5 had pined service in the year 1947 as Judicial Officers which was not a cadre service. It was only on 1-4-1955 that a regular cadre of Judicial officers was created in U. P. but it was different and distinct from the U. P. Civil Service Judicial Branch. Petitioners 1 and 2 were working as Assistant Sessions Judges at the time of initial constitution of the Delhi Judicial Service while none of the respondents 3 to 5 was appointed as Assistant Sessions Judge in spite of their longer service in the cadre of U. P. Judicial Officers Service.6. The petitioners case further runs thus: Petitioner No. 1 was promoted to the post of Additional District Judge with effect from 24-1-1972 and the petitioners 2 to 4 were so promoted with effect from 25-3-1972. Respondents 3 to 5 were not considered to have qualified themselves for being promoted as Addl. District Judges. One of the reasons for not promoting them to the higher judicial service was that they had not received requisite training in the Civil Law. Accordingly they were by-passed and in the meantime they were given powers of the Subordinate Judges to enable them to get requisite training in Civil Law. Respondent No. 6 was posted as Sub-Judge, First Class and demoted from the post of a Senior Sub-Judge on account of inefficiency. He was not enjoying the selection grade of Haryana Civil Service (Judicial Branch) at the time of his appointment to Delhi Judicial Service while the petitioners were in such grade in their parent service. Respondents 3 to 5 were later promoted as Additional District Judges on 2-6-1972 and respondent No. 8 was promoted in June, 1973. Thus all of them were promoted to the higher Judicial Service after the petitioners. Yet they were made to rank senior to petitioners 1 to 4 under Rule 8 of the Delhi Higher Judicia1 Service Rules. Respondent No. 8 in spite of his appointment as an Additional District Judge later than petitioners 2 to 4 was allowed to rank senior to them on the basis of Rule 8 aforesaid.

Reasoning:
9. In our opinion on the facts and in the circumstances of this case the preliminary objection raised on behalf of the respondents cannot succeed. The first list fixing the seniority of the Judicial officers initially recruited to the Delhi Judicial Service was issued on 2-8-1971 This was subject to revision on good cause being shown. Petitioners also, as we shall show hereinafter in this judgment on one ground or the other, wanted their position to be revised in the seniority list. They, however, did not succeed. A revised seniority list was issued on 2-6-1973. The filing of the writ petition was not designedly delayed thereafter. Since the petitioners position in the seniority list vis-a-vis respondents 3 to 6 had not been disturbed in the new list dated 2-6-1973 it was sufficient for the petitioners to challenge the list dated 2-8-1971. We shall point out in this judgment that except the promotion to the posts of Additional District Judges, the seniority in relation to which also is under challenge in this writ application, nothing special had happened creating any right in favour of the respondents or no such position had been created the disturbance of which would unsettle the long standing settled matters. The writ application, therefore, cannot be thrown out on the ground of delay in regard to any of the reliefs asked for by thethe Selection Committee found persons belonging to clause (a) of Rule 9 suitable for appointment to the service it was under a duty and obligation to arrange the list of suitable persons by placing them in proper places in the matter of seniority. They were all being initially appointed to the Delhi Judicial Service wherein there was no separate gradation of posts. The assignment of duties was to follow on the basis of seniority list. Arranging the seniority of the candidates recommended by the Selection Committee in accordance with the length of service rendered by them in the judicial cadre to which they belonged at the time of their initial recruitment to the service was perfectly good. The petitioners could not have any grievance in that regard. On their initial recruitment to the Delhi Judicial Service they retained their original seniority inter se as was assigned to them in their parent cadre. Was it possible to have a different yardstick, some other date or shorter period for fixation of the seniority of the law graduates judicial magistrates on their initial recruitment to the service? From which date their seniority ought to have been reckoned? Was it possible to treat them as the first and the new recruits to the Delhi Judicial Service? Even so what would have been the basis of determining their seniority inter se? The questions posed are suggestive of the answers. Taking the length of service rendered by the candidates in their respective cadres for the purpose of fixation of seniority under Rule 11 of the Delhi Judicial Service Rules was justified, legal and valid. Had it been otherwise it would have been discriminatory. It was not equating unequals with equals. It was merely placing two classes at par for the purpose of seniority when it became a single class in the integrated judicial service of Delhi. For the purpose of fixation of seniority it would have been highly unjust and unreasonable to take the date of their initial recruitment to the service as their first appointment. Nor was it possible to take any other date in between the period of their service in their parent cadre. It would have been wholly arbitrary. In our judgment, therefore, there was no escape from the position that the entire length of service of the two classes of officers had got to be counted for the purpose of determination of their seniority on their initial recruitment to the Delhi Judicial Service. It was not possible or practical to measure their respective merits for the purpose of seniority with mathematical precision by a barometer. Some formula doing largest good to the largest number had to be evolved. The only reasonable and workable formula which could be evolved was the one engrafted in Rule 11 of the Delhi Judicial Servicethe instant case treating the two classes, as one for the purpose of initial recruitment and fixation of seniority was reasonable as the classification was one which included all persons who were similarly situated with respect to the purpose of the law. We have therefore no difficulty in rejecting the argument put forward on behalf of the petitioners that Rule 11 of the Delhi Judicial Service Rules is bad as being violative of Articles 14 and 16 of the Constitution. It was not suggested on behalf of the petitioners and rightly so that fixation of their seniority vis-a-vis respondents 3 to 6 in the Delhi Judicial Service was not in accordance with Rule 11.18. Two more facts need be noted here in connection with the question of seniority and they are these: A notification dated September 30, 1967 was issued by the Governor of U. P., a copy of which is Annexure H to the rejoinder on behalf of the petitioners to the counter-affidavit filed by respondent 2 under Article 237 of the Constitution directing that the remaining provisions of Chapter VI of Part VI of the Constitution shall, with effect from October 2, 1967, apply in relation to such magistrates including Additional District Magistrates (Judicial), in the State as belong to the Uttar Pradesh Judicial Officers service as they apply in relation to persons appointed to the Judicial Service of the State subject to the certain exceptions and modifications mentioned in the said notification.. It is no doubt true that respondents 3 to 5 were already on deputation to the Union Territory of Delhi. Yet they could not be denied the advantage of this notification in principle. They were doing the judicial work in Delhi and on initial recruitment to the Delhi Judicial Service became its fullfledged members. The letter dated September 29, 1967, a copy of which is Annexure R-4/5; to the supplementary affidavit of the respondent No. 4 written by the Chief Secretary to the Government of U. P. to the Registrar, High Court of Allahabad also supports the above position. It is admitted that on or from 2-10-1969 there was no separation of Executive and Judiciary in Delhi also and all officers working on the judicial side were placed under the control of the Delhi High Court.19. Annexure "A" to the counter affidavit of respondent No. 2 is a copy of the order dated 18th December, 1972 passed by Honble Mr. Justice V. S. Deshpande and Honble Mr. Justice S. Rangarajan of the Delhi High Court. The representations of the petitioners were rejected. The order indicates that the initial recruits were given seniority according to the length of service in their cadres. The representations accepted this position and the matter was closed. Their new stand that since they belonged to the selection grade of Subordinate Judges in the Punjab and Haryana Judicial Service cadre they ought to have been appointed to such a grade in Delhi Judicial Service even at the time of initial recruitment was not accepted to be correct. It is, therefore, plain that on initial recruitment to the Delhi Judicial Service all those who are recruited including the petitioners and respondents 3 to 6 were at par and the fixation of their seniority in accordance with Rule 11 of the Delhi Judicial Service Rules was legal and valid.20. The facts in relation to the 6th respondent are these. This respondent also formerly belonged to the combined Punjab Civil Service (Judicial) P. C. S. cadre. This respondent and petitioner No. 1 were selected in the open competition together and later joined the Judicial Service in the year 1956. Both were confirmed in the year 1958. Petitioner No. 1 was senior to respondent No. 6. Petitioners 2 to 4 joined the same service later and were junior to respondent No. 6. When the State of Punjab was bifurcated into two States of Punjab and Haryana on 1-11-1966 the petitioners were allotted the cadre of Punjab and respondent No. 6 came to the cadre of Haryana. On constitution of the Delhi Judicial Service, respondent No. 6 was recommended by the Haryana State and was initially recruited to the Delhi Service which he joined on 1-9-1971. Eventually respondent No. 6 was placed in the selection grade w. e. f. 25-3-1972 and he was promoted as Additional District and Sessions Judge w. e. f. 1-6-1973. It would thus be seen that allocation of a place of seniority in the Delhi Judicial Service to respondent No. 6 below petitioner No. 1 and above petitioners 2 to 4 was valid and justified.It would thus be seen that there are two types of appointments to Delhi Higher Judicial Service - one by regular recruitment, the source of which is by promotion from the Delhi Judicial Service and by direct recruitment from the Bar. Rule 8 prescribes the mode of determination of seniority of such regular recruits. The inter se seniority of the members of the Delhi Judicial Service promoted to the higher service has got to be the same as in the lower rank. As a matter of construction it necessarily follows that it would be the same provided the promotion from the lower to the higher service is at the same time. Learned Solicitor General appearing for respondent No. 2 in his usual fairness conceded to this interpretation and added that it cannot but be so. If a member of the Delhi Judicial Service is superseded at the time of recruitment under Rule 7 by his junior but gets a chance of promotion later, it is obvious that he cannot retain his seniority in the lower rank. All candidates on appointment to the higher service have got to be on probation for a period of two years under Rule 12 (2) and ordinarily and generally they would be confirmed at the end of the said period of two years in accordance with Rule 13.Strictly speaking the question of determination of inter se seniority under R. 8 will crop up at the time of the confirmation of the appointees.In our judgment members of the Delhi Judicial Service coming to the higher service on temporary appointments either under Rule 16 or Rule 17 of the Delhi Higher Judicial Service Rules cannot claim the benefit of the inter se seniority under Rule 8. There are no rules prescribing the mode of determination of inter se seniority of such temporary appointees or permitting them to count their officiation in the temporary appointments for the purpose of their seniority on their being appointed substantively. The question of determination of inter se seniority of the promotees under Rule 8 (1) as already stated would crop up only after tile promotees have been substantively appointed. We may add here also that as between the temporary appointees for practical purposes and for the facility of the administration it will be open to the High Court to permit the promotees to retain their seniority in the lower judicial service after they are temporarily appointed at the same time till they continue in the temporary appointments.26. The vires of Rule 8 (1) of the Delhi Higher Judicial Service Rules was challenged by Mr. Tarkunde, learned counsel for the petitioners on the ground that R. 8 (1) equates all who are promoted to the higher service and permits them to retain their seniority in the lower service irrespective of the time of their appointment. Counsel submitted that those who came earlier to the higher service whether under R. 7 or under R. 16 or 17 should have been allowed to rank senior to those who came to be appointed either substantively or temporarily to the higher service later. The attack on the constitutionality of Rule 8 (1) is obliterated if by construction it is held, as it has been done above, that the question of retention of seniority in the lower service arises only when the promotion is at the same time and not otherwise. In absence of such an interpretation it would be a truism to say that Rule 8 (1) would be discriminatory and violative of Article 14 of the Constitution. But with the aid of well-established canons of interpretation we see no difficulty in saving the constitutionality of the rule by interpreting it in a reasonable, sensible and just manner as we have done in this case. The second part of the argument of Mr. Tarkunde to rope in the temporary appointees for the purpose of determination of inter se seniority of the promotees under Rule 8 (1) is obviously wrong and cannot be accepted as sound. It may also be added that sub-rule (2) of Rule 8 will militate against the acceptance of the submission aforesaid.27. Judging the facts of the instant case in the light of the interpretation which we have put to the relevant rules of the Delhi Higher Judicial Service it will be noticed that the grievance of the petitioners in relation to the seniority of respondents 3 to 6 is either unjustified or premature. Even though respondent No. 3 has already retired and determination of such a question vis-a-vis him would be futile, while referring to the relevant facts of the case we may point out that the grievance of the petitioners as against respondents 3 and 4 is whollythe instant case it is clear that due to justifiable reasons, the appointment of respondents 3 and 4 substantively to the 14th and the 15th vacancies were deferred and petitioner No. 1 was made to officiate in a temporary capacity against the substantive vacancy. But such an officiation came to an end on the substantive appointment of either of respondents 3 or 4.