- (1.) THESE writ petitions, under Article 32 of the Constitution of India, are filed by the directly recruited Additional District and Sessions Judges who were appointed to the Delhi Higher judicial Service praying for an order quashing the Resolution dated 18. 05. 2007 of the Full Court of the High Court of Delhi approving the majority report of the Administrative Committee determining the seniority of the petitioners in terms of O. M. dated 03. 07. 1986 and also quashing the final seniority list of the officers of Delhi Higher Judicial Service. They also prayed for appropriate directi on to respondent Nos. 1-4 to determine the seniority of the petitioners in terms of Rule 8 (2) read with rule 7 of the Delhi Higher Judicial Service Rules, 1970.
(2.) SINCE all the petitioners were appointed to the Delhi higher Judicial Service (hereinafter referred to as "dhjs") as additional District and Sessions Judges and the challenge as well as the relief prayed for in all these writ petitions are one and the same, they are being disposed of by a common judgment: a) For convenience, we shall refer to the facts in the case of the petitioners in Writ Petition (c) No. 477 of 2007. The DHJS was constituted in the year 1970 under Delhi higher Judicial Service Rules, 1970 (hereinafter referred to as "the Rules" ). Rule 5 provides for the method of recruitment by way of promotion from amongst the officers of the Delhi judicial Service and Direct Recruitment. Rule 7 provides that after the initial recruitment, regular recruitment would be made on the basis of selection from the Members of the Delhi judicial Service who have completed not less than 10 years of service in the Delhi Judicial Service and by direct recruitment from the Bar. Proviso to Rule 7 provides that minimum 1/3rd of the substantive posts in the service shall be held by direct recruits. Rule 8 provides for inter se seniority. Rule 8 (2)provides that seniority of the Direct Recruits vis-'-vis promotees is to be determined in order of rotation of vacancies between the direct recruits and the promotees based on "quotas of Vacancies" reserved for both categories. Rule 8 (2)further provides that first available vacancy will be filled by a direct recruit and the next two vacancies by promotees and so on. As originally framed, Rule 16 provides for creation of temporary posts in the service and filling up of the same only by way of promotion from amongst the Members of the Delhi judicial Service. Rule 17 provides for filling up of the vacancies by making temporary appointments from amongst the Members of the Delhi Judicial Service. b) The posts in the DHJS were advertised to be filled up by way of direct recruitment from amongst the practicing 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 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 and 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 and Anr. vs. Union of India and Ors. (1984) 4 SCC 450, held that appointments under Rules 16 and 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 and 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 service and further upheld the constitutional validity of Rule 8 (2) which provides for the rotation of the vacancies under Rule 7. Though this Court equated the temporary post with permanent post but had noticed that the judgment will upset the balance between the Direct Recruits and the Promotees in the DHJS. In those circumstances, this Court gave directions in paragraph 43 to frame appropriate Rules to remove the imbalances and thereafter implement the Rules in letter and spirit. 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 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)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 and Ors. vs. Union of India and 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 service against vacancies prior to the amendment of the Rules, 1987 have given seniority on the basis of the principle of length of service. d) In these writ petitions, the claim of the petitioners was that 14 temporary posts which were in existence in 1986 should have been filled up by promotion from amongst the delhi Judicial Service Officers as per the Rules then existing. As the Rules were amended on 17. 3. 1987, an individual officer in his writ petition challenged Rules 7, 16 and 17 as violative of Articles 233 and 16 (1) of the Constitution of India. This Court rejected the contention raised by the Association as well as by the individual officer and dismissed Writ Petition (C) No. 1023 of 1987 etc. titled Delhi Judicial Services association and Ors. vs. Delhi High Court and Ors. , (2001) 5 scc 145. e) On 14. 8. 2002, the Delhi High Court circulated the tentative seniority list of the officers of DHJS and invited objections from the concerned officers. Thereafter the High court appointed a Committee of five Hon'ble Judges to decide the issue of seniority of the officers of DHJS appointed after 1991. The writ petitioners as well as the promotee officers of dhjs submitted their objections to the draft seniority list. Some of the promotee officers of DHJS also sought application of the Office Memorandum (in short "om") dated 3. 7. 1986 issued by the Department of Personnel and Training (in short "dopt") applicable to the Central Civil Services. The committee heard the arguments of the direct recruits as well as the promotee officers. Both of them filed written statements on 23. 6. 2006. After considering the arguments raised by both the parties and also the written submissions filed, four Hon'ble Judges of the Committee submitted a report being of the majority view. A dissenting view was taken by one Hon'ble Judge who separately submitted an independent report. The majority report submitted by the Committee took the view that Rota Quota Rules for determining seniority is workable only if simultaneous recruitment is resorted to failing which they 'break down'. They took the view that no simultaneous recruitment had taken place as such and there was need for search for an equitable and reasonable principle and in their opinion 1986 memorandum fitted the description. As per the majority report, the inter se seniority of DHJS after shri K. C. Lohia should be settled as per O. M. dated 3. 7. 1986 of DOPT. The Committee also issued further directions for proper implementation. The learned dissenting Judge took the view that Rota and Quota had broken down as the appointments from two sources had taken place after lot of delay. As such the learned dissenting Judge recommended that the principle of continuous length of service should be applied for inter se seniority of the officers of DHJS. Two views expressed by the members of the Committee as well as individual views of Justice Rekha Sharma and Justice S. N. Dhingra were considered by the Full Court of the Delhi High court. The Full Court accepted the majority view expressed by the Committee and decided to confer seniority to the members of DHJS on the basis of O. M. dated 3. 7. 1986. Based on the said decision, the High Court by letter dated 18. 5. 2007 circulated the final list of officers of DHJS as on 1. 1. 2007. Feeling aggrieved by the said decision of the Full Court dated 18. 5. 2007 and consequent determination of the final seniority list, the petitioners have filed the present writ petitions on various grounds. In all the writ petitions, the High Court of Delhi has filed separate but identical counter affidavit highlighting its stand. The salient features of the stand of the High Court are as follows: (i) The disputes are about inter se seniority and preparation of the final seniority list. After the tentative seniority list was circulated, representations were made by various persons i. e. the direct recruits and the promotees making different grievances and a Committee was constituted to examine the same. The Committee consisting of five hon'ble Judges gave a personal hearing to the representative groups and, thereafter, submitted two reports, majority report of four Hon'ble Judges and another report by one Hon'ble judge in regard to determination of inter se seniority. Thereafter the matter was considered by the Full Court which adopted the report of the majority (four Members Committee ). The Full Court also considered the note circulated by two other Hon'ble Judges before taking a final view in the matter. The disputes and grievances relating to inter se seniority was done after giving due opportunity to all concerned and detailed consideration and deliberations and conscious application of mind to various aspects of the matter. (ii) Appointments to DHJS are made both by direct recruitment from the Bar and also by way of promotion of eligible officers from Delhi Judicial Service. Rule 7 provides for appointment to the extent of 1/3rd of the posts in the service by direct recruitment and 2/3rd of the posts being filled up by promotee officers. Earlier to 1987, the division of posts between the direct recruits and the promotees was confined to the substantive posts in the service and insofar as temporary posts in the service were concerned, they were to be filled up exclusively by promotees. This resulted in grievances being made by persons promoted against such temporary posts in regard to their seniority vis-'-vis the direct recruits appointed against substantive posts. After the decision of this Court in o. P. Singla's case, the Rules were amended in 1987 providing for direct recruitment also against temporary posts. iii) Insofar as inter se seniority of the members of DHJS appointed to the same post by way of direct recruitment and promoted to the same post from the Delhi Judicial Service is concerned, Rule 8 provides that it shall be determined in the order of rotation of vacancies between the direct recruits and the promotees, based on the quota of vacancies reserved for both the categories by Rule 7. Rule 27 of DHJS Rules provides that where no provision regarding conditions of service has been made or insufficient provision has been made in the DHJS Rules, resort could be had to directions or orders of the Government of India in force which are applicable to officers of comparable status in the Indian Administrative service and serving in connection with the affairs of Union of india. The relevant portion of O. M. dated 03. 07. 1986 makes it clear that to the extent the direct recruits are not available, the promotees would be bunched together at the bottom of the seniority list below the last position up to which it is possible to determine seniority, on the basis of rotation concluded with reference to actual number of the direct recruits, who become available. The unfilled direct recruitment quota vacancies would, however, be carried forward and added to the corresponding direct recruitment vacancies of the next year for taking action for direct recruitment for the total number according to the usual practice. Thereafter, in that year, while seniority will be determined between the direct recruits and the promotees, to the extent of number of vacancies for the direct recruits and the promotees as determined according to the quota for that year, the additional direct recruits selected against the carried forward vacancies of the previous year would be placed en bloc below the last promotee in the seniority list based on the rotation of vacancies for that year. The same principle holds good for determining seniority in the event of carrying forward, if any, of direct recruitment or promotion quota vacancies in the subsequent year. iv) The principle set out in the O. M. dated 03. 07. 1986 was found to be reasonable, just and fair by the Full Court for application to DHJS having regard to the fact that recruitment from the two sources did not take place simultaneously in some years, making it difficult to follow the rotational principle of fixation of seniority for all the appointees. Therefore, while applying the principle of rotation to the extent possible, year-wise, seniority has been fixed in a reasonable and consistent manner. v) The majority report (submitted by four Hon'ble Judges)which was accepted by the Full Court and pursuant to which the impugned seniority list was prepared, noticed the rival submissions and finding the principles laid down in O. M. dated 03. 07. 1986 are equitable, applied the same along with the Rules for resolving disputes concerning inter-se seniority arising out of appointments not being made from either source in any given year, delays in appointments from either source and appointments not being made to the full extent of the respective quotas every year etc. The inter se seniority between the direct recruits and the promotees has been worked out on a year to year basis, applying the ratio provided in Rule 7 and the rotation between the direct recruits and the promotees provided in Rule 8 and rotating them to the extent officers from both the categories are available in that year and placing the remaining officers en bloc thereafter below them by applying the principle laid down in the O. M. dated 03. 07. 1986. There is no legal infirmity in the same. On the other hand, it is just and fair. vi) The statutory Rules are to be enforced on their true construction in precedence to any circular/guideline as the latter are only intended to supplement or fill-up the gaps in complete enforcement of the Rules. At best, it must be read and applied to a situation but certainly in comity to the Rules. Because of undue delay in appointments, the rule of Rota-Quota in stricto senso could not be applied. It is an equitable principle which can be applied on harmonious construction. The language of Rule 27 in no way prohibits adoption or reference to the memorandum issued by the Government of india as it is equally applicable to the IAS Rules wherever and whenever it is so needed. The 1986 Memorandum affords a reasonable and non-discriminatory solution to the vexed issue at hand. It minimizes the hardship to one or other class of officials, in the event of inaction in recruitment, by adding the inadequately represented class/group in the next vacancy year, even while applying the quota as between the two groups, to the extent feasible. The guideline neither favours "continuous officiation" nor blanket rotation of vacancies and instead suggests a middle path. For the period 1987 to 1991, the rule or principle applied thereto was different; it, however, was certainly not a strict application of the quota/rota rule. Equally, application of the continuous officiation principle, an option suggested by some of the promotees, is unfeasible, more so, after the 1987 amendment. The 1986 memorandum fits the description. In the above premises, all the writ petitions are without merit and the same deserve to be dismissed. In the reply filed by the petitioners, they once again reiterated the stand taken in the writ petition. Apart from the delhi High Court, the promotee officers shown as respondents. were also filed rejoinder highlighting their stand. They also reiterated the stand taken by the Delhi High Court.
(3.) IN the light of the pleadings of the parties, we heard Mr. Harish Salve, Mr. Rakesh K. Khanna, Mr. P. S. Patwalia, Mr. A. K. Ganguli, learned senior counsel for the petitioners and mr. G. E. Vahanvati, learned Solicitor General, Mr. Gopal subramaniam, learned Addl. Solicitor General, Mr. Arun jaitley, Mr. R. Venkataramani and Mr. P. P. Rao, learned senior counsel for the respondents. All the counsel appearing for the petitioners mainly contended that, (i) seniority has to be determined in terms of Rule 8 (2)read with Rule 7 of 1970 Rules; (ii) the course adopted by the High Court in passing the resolution based on an administrative instruction i. e. O. M. dated 03. 07. 1986 instead of rules 7 and 8 (2) is ultra vires of the provisions of article 14 read with Article 309 of the Constitution of India; (iii) Applying the O. M. is totally unjustified, uncalled for, unconstitutional and liable to be set aside; (iv) Upon the promulgation of DHJS Rules, 1970 the o. M. or its modification or amendment will cease to have applicability to the service; (v) The said O. M. has failed to bring in any equity. ;