B.S.Mathur & Anr vs Union Of India & Ors

b) The posts in the DHJS were advertised to be filled up by way of direct recruitment from amongst the practicing 3 members of the Bar by an advertisement issued in March, 1994. Last date for submission of the applications was 11.4.1994. Since the petitioners fulfilled the qualifications for the same, they applied in pursuance of the said advertisement. All the candidates who applied were screened and ultimately 90 candidates were called for interview which was conducted from 16.9.1994 to 20.9.1994. Upon conclusion of the same, 9 candidates were selected, 6 in the general category, 2 in the reserved category of Scheduled Castes and one in the Scheduled Tribes category. All the writ petitioners were amongst those who were selected. All the respondents (except the Government Bodies) in these writ petitions were promotees promoted to the DHJS from the Delhi Judicial Service. According to the petitioners, the cadre strength of the DHJS as on 31.12.1991 was of 60 officers. Later on the strength was increased and as on date the cadre strength of DHJS is of 174 officers. The seniority of DHJS officers was not settled by the High Court of Delhi ever since the year 1992. Till 1980, only substantive appointees to the service from the Bar as also promotees were being given 4 seniority under Rule 8(2). In 1980, a writ petition was filed in this Court by the promotee officers challenging Rules 7 and 8 of the Rules, which provided Rota and Quota. In the said writ petition, the promotee officers claimed that even appointments to the temporary posts/vacancies under Rules 16 & 17 [as in the original Rules] was similar to the substantive appointments to the service and the incumbents under those rules were also entitled to get seniority from the date of their appointments. This Court, in O.P. Singla & Anr. vs. Union of India & Ors. (1984) 4 SCC 450, held that appointments under Rules 16 & 17 to the temporary posts/vacancies are similar to those of the substantive appointments. With the said equation by legal fiction, the distinction between the said two types of appointments i.e. temporary and substantive, having been extinguished, the Court came to the conclusion that since no appointments of the direct recruits under Rules 16 & 17 were possible under the Rules at that point of time, inevitably the Rota Quota had been broken down. However, this Court upheld the constitutional validity of Rule 7 and held that there is a quota for 1/3rd of the direct recruits in the 5 service and further upheld the constitutional validity of Rule 8 (2) which provides for the rotation of the vacancies under Rule

c) After the judgment in O.P. Singla's case in 1985, the High Court of Delhi undertook the exercise of the amendment of the Rules to provide for filling up of the temporary posts/vacancies under Rules 16 and 17 also by direct recruitment as per the quota prescribed under Rule 7 for the respective categories. The High Court had also decided that in order to restore the balance between the number of direct recruit appointees and promotees, 14 existing vacancies are to be filled up by direct recruitment. The Association of promotee officers, in order to highlight their grievances, made a representation to the Chief Justice of the Delhi High Court 6 claiming that the newly created temporary posts should be filled up by promotion from amongst the members of the Delhi Judicial Service. Since according to them the said representation failed to evoke any response, they filed Writ Petition No. 1540 of 1986 titled as Delhi Judicial Service Association vs. Union of India under Art. 32 of the Constitution of India before this Court wherein they prayed for the issuance of mandamus to the official respondents that all 14 temporary posts of the Additional District and Sessions Judge were to be filled up by promotion. The said writ petition was disposed of by an order dated 18.12.1986 with a request to the High Court to finalise the amendment in the draft rules by 15.1.1987 and also to the Delhi Administration/Union of India to sanction the amendment expeditiously. It was further directed that thereafter advertisement would be published inviting applications from the members of the Bar so as to fill up all the 14 posts by way of direct recruitment. Consequent to the said direction, 1970 Rules were amended by Notification issued on 17.3.1987. The expression "in substantive capacity" occurring in Rule 2(d) 7 was deleted and consequential amendments were made in the Rules so that appointments could be made to the posts temporarily created under Rule 16 both from the Bar and by promotion from the Delhi Judicial Service. In the meanwhile, certain promotees and direct recruits of DHJS have filed Writ Petition No. 490 of 1987, Writ Petition No. 1252 of 1990 and others before this Court raising issue as to whether inter-se seniority between the promotees and the direct recruits had actually been determined as per directions given by this Court in O.P. Singla's case. Those writ petitions came to be decided by this Court on 22.8.2000 in the judgment in Rudra Kumar Sain & Ors. vs. Union of India & Ors., (2000) 8 SCC 25. In the said judgment, this Court quashed the seniority list both provisional and final so far as it related to the appointees either by direct recruitment or by promotion in the DHJS, prior to the amendment of the Recruitment Rules in the year 1987, and held that their inter se seniority must be re- determined on the basis of continuous length of service in the cadre, as indicated in O.P. Singla's case. Pursuant to the said decision, the officers of DHJS appointed/promoted to the 8 service against vacancies prior to the amendment of the Rules, 1987 have given seniority on the basis of the principle of length of service.

(iii) Applying the O.M. is totally unjustified, uncalled for, unconstitutional and liable to be set aside;

(ii) the tentative seniority list was circulated to all the members and representations were made by the direct recruits as well as the promotees. The Committee of five Judges, after affording personal hearing, considered the same and submitted their reports. Having regard to the various circumstances including the fact that the appointment from both sources was not followed regularly and there exists disparity between the direct recruits and the promotees, the Full Court by applying O.M. dated 3.7.1986, accepted the majority report of the Committee, hence, the course adopted by the High Court and its ultimate decision 20 cannot be faulted with and all the writ petitions are liable to be dismissed.

7. Regular Recruitment:- Recruitment after the initial recruitment shall be made:-

22 (2) Such posts shall be filled by Administrator, in consultation with the High Court, from amongst the members of the Delhi Judicial Service and by direct recruitment from the Bar Explanation: Rule 5 and rules 7,8,9,10, and 11 shall apply to appointments made under this rule.

14) In view of the objections of the officers against tentative seniority list, three options available before us for deciding the inter se seniority dispute amongst the officers of DHJS are as follows:

(iii) Principle of "continuous length of service", i.e., date of appointment.

Judges/Metropolitan Magistrates in the cadre of Delhi Judicial Service at the time the above named direct recruits 40 were appointed as Additional District Judges in the cadre of DHJS. We are of the view that by no stretch of imagination or legal fiction, a promotee officer working in the lower cadre can be made senior to an officer working on a higher post as an Additional District Judge at that point of time. In case by application of principle as contained in the O.M., officers working in the lower cadre are made senior to the Additional District Judges of that time, then it would cause a great heart burning amongst those direct recruits who were appointed in their own quota against substantive vacancies before the promotion of the promotee officers in question.

22) In view of what has been discussed above, we are of the view that we should not apply the principle of bunching as contained in the above referred O.M. for determining the inter se seniority of the officers of DHJS as by application of the said principle the promotee officers who at the relevant time (i.e. 1995, 1997 and 2000) were still in the lower cadre of DJS would become senior to those direct recruits appointed as Additional District and Sessions Judges much before their 43 promotions in the cadre of DHJS. This is unjust and inequitable.

27) As observed earlier, perusal of the seniority list prepared on the basis of the principle of "continuous length of service"

The necessary amendment relating to inter se seniority for future be made in the DHJS Rules in consonance with the directions of this Court as referred in the above mentioned cases. Till such time the principle of "continuous length of service" i.e. date of appointment should be applied for determining the inter se seniority of the officers of Delhi Higher Judicial Service.

29) For the aforestated reasons, we allow all the writ petitions. The inter se seniority list of DHJS as suggested by the majority view and consequential order of the High Court are set aside. Now, the High Court is requested to finalise fresh inter se seniority list of DHJS, as observed above, as expeditiously as possible. No order as to costs.

October 15, 2008.