# JOGINDER NATH AND ORS v. UNION OF INDIA AND ORS

- **Citation:** [1975] 2 S.C.R. 553
- **Court:** Supreme Court of India
- **Decided:** 1974-10-31
- **Case number:** Writ Petition No. 1854 of 1973
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/joginder-nath-and-ors-v-union-of-india-and-ors-6179
- **Pages:** 17

## Headnote

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553
JOGINDER NATH AND ORS.
v.
UNION OF INDIA AND ORS.
October 31, 1974
[K. K. MATHEW AND N. L. UNTWALIA, Jf.]
Cons1i1u11'on of India-Art. 14:-Tre~ling unequals as equal,._Length of service-Art. 309-Laches-Whether rule of law or rule of practice-Civil Service· .
-Delhi Higher Judicial Service Rules, l91~Delhi Judicial Service Rules 197()1
-Seniority and confirmati'on-Substantiv~fficiating-Probation appointments.
Interpretation of Statutes-Whether Constitutionality of a rule can be. saved by
interpreting it in a reasonable sensible and Just. manner.
The petitioners originally belonged to the Punjab Civil Service (Judicial) in the·
time scale of Rs. 400-1250. They had been ~ut in the scale of Rs. 1300-1500 ..
On the other hand, respondents 3 to 5 were Judicial officers in the U.P. in the
lower scale of Rs. 300-900. The next higher scale on being appointed to the post
of Additional District Magistrate was Rs. 400-1000. Prior to 1966, the Union
Territory of Delhi for the purposes. of administration of justice was included with- ·
in the territorial jurisdiction of the erstwhile Punjab High Court and the Presiding Officers of the courts at Delhi were posted by transfer from the State of Punjab. There was no separation of executive· and judiciary.
.
In 1970, Delhi Higher Judicial Service Rules, 19io and Delhi Judicial Service
Rules 1970 were framed under Art. 309 of the Constitution. .I\ selection Committee was constituted in accordance with rule 7 of the Delhi Judicial Service
Rules. On the basis of the refommendation of the Selection Committee, appointments of officers by way of initial recruitment to the Delhi Judicial Service were
made. Petitioners l ·and 2 were workiil~ 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. The petitioners were .l'romoted to·
the post of Additional District Judges in January and March, 1972. Respondents.
3 to 5 were not considered to have qualified for being promoted as Additional
District Judges. Respondents 3 to 5 were promoted as Additional District Judges
in June, 1972 and respondent No. 6 was promoted in June, 1973. Thus respon·
dents 3 to 6 were promoted to the higher judicial service later on, yet they were
made to rank senior to petitioners under rule 8 of the Delhi liigher .Judicial Service Rules. Rule 9 of Delhi Judicial Service Rules provides that initial recruit·
ment.to the service would be made from amongst the subordinate Judges and Law
Graduate Judicial Magistrates working in the Union Territory of Delhi on de·
putation from other States as well as members of Civil Judicial Cadres of States
whose names might be recommended by their respective State Governments for
appointment and members of Delhi, Himachal Pradesh and Andaman & Nicobar
Islands who were law graduates. Rule 11 of Delhi Judicial Service Rules provides that the Selection Committee should arrange the seniority of the candidates
recommended by it in accordance with the length of ser-vice rendered by them in
the cadre to which they belonged at the time of their initial recruitment the service
provided that the interse seniority as already fixed in such cagre shall not be altered. Rule 7 of Delhi Uigher Judicial Service Rules provides that recruitment
after the initial recruitment shall be made by promotion from tlie Delhi Judicial
Service and by direct recruitment from the Bar. It f11rther provides that not more
than one third of the substantive posts in the service should be held by direct re·
cruits.
Rules 8 further provides that the interse seniority of members of Delhi
Higher Judicial Service promoted to the service shall be the same as in Delhi
Judicial Service and that the seniority of Direct Recruits vis-a-vis Promotees shall'
be determined on the bas.is of roaster following the quota system.
The pe

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553
JOGINDER NATH AND ORS.
v.
UNION OF INDIA AND ORS.
October 31, 1974
[K. K. MATHEW AND N. L. UNTWALIA, Jf.]
Cons1i1u11'on of India-Art. 14:-Tre~ling unequals as equal,._Length of service-Art. 309-Laches-Whether rule of law or rule of practice-Civil Service· .
-Delhi Higher Judicial Service Rules, l91~Delhi Judicial Service Rules 197()1
-Seniority and confirmati'on-Substantiv~fficiating-Probation appointments.
Interpretation of Statutes-Whether Constitutionality of a rule can be. saved by
interpreting it in a reasonable sensible and Just. manner.
The petitioners originally belonged to the Punjab Civil Service (Judicial) in the·
time scale of Rs. 400-1250. They had been ~ut in the scale of Rs. 1300-1500 ..
On the other hand, respondents 3 to 5 were Judicial officers in the U.P. in the
lower scale of Rs. 300-900. The next higher scale on being appointed to the post
of Additional District Magistrate was Rs. 400-1000. Prior to 1966, the Union
Territory of Delhi for the purposes. of administration of justice was included with- ·
in the territorial jurisdiction of the erstwhile Punjab High Court and the Presiding Officers of the courts at Delhi were posted by transfer from the State of Punjab. There was no separation of executive· and judiciary.
.
In 1970, Delhi Higher Judicial Service Rules, 19io and Delhi Judicial Service
Rules 1970 were framed under Art. 309 of the Constitution. .I\ selection Committee was constituted in accordance with rule 7 of the Delhi Judicial Service
Rules. On the basis of the refommendation of the Selection Committee, appointments of officers by way of initial recruitment to the Delhi Judicial Service were
made. Petitioners l ·and 2 were workiil~ 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. The petitioners were .l'romoted to·
the post of Additional District Judges in January and March, 1972. Respondents.
3 to 5 were not considered to have qualified for being promoted as Additional
District Judges. Respondents 3 to 5 were promoted as Additional District Judges
in June, 1972 and respondent No. 6 was promoted in June, 1973. Thus respon·
dents 3 to 6 were promoted to the higher judicial service later on, yet they were
made to rank senior to petitioners under rule 8 of the Delhi liigher .Judicial Service Rules. Rule 9 of Delhi Judicial Service Rules provides that initial recruit·
ment.to the service would be made from amongst the subordinate Judges and Law
Graduate Judicial Magistrates working in the Union Territory of Delhi on de·
putation from other States as well as members of Civil Judicial Cadres of States
whose names might be recommended by their respective State Governments for
appointment and members of Delhi, Himachal Pradesh and Andaman & Nicobar
Islands who were law graduates. Rule 11 of Delhi Judicial Service Rules provides that the Selection Committee should arrange the seniority of the candidates
recommended by it in accordance with the length of ser-vice rendered by them in
the cadre to which they belonged at the time of their initial recruitment the service
provided that the interse seniority as already fixed in such cagre shall not be altered. Rule 7 of Delhi Uigher Judicial Service Rules provides that recruitment
after the initial recruitment shall be made by promotion from tlie Delhi Judicial
Service and by direct recruitment from the Bar. It f11rther provides that not more
than one third of the substantive posts in the service should be held by direct re·
cruits.
Rules 8 further provides that the interse seniority of members of Delhi
Higher Judicial Service promoted to the service shall be the same as in Delhi
Judicial Service and that the seniority of Direct Recruits vis-a-vis Promotees shall'
be determined on the bas.is of roaster following the quota system.
The petitioner's contention was that they should be treated as senior to respondents 3 to 6. The petitioners contended that rule 9 of the Delhi Judicial Ser·
vice Rules was bad as it was not framed in accordance with Article 234 of the·
.554
SUPREME COURT REPORTS
(1975] 2 S.C.R •
Constitution and also because it permitted the initial appointment to the Delhi
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Judicial Service of persons who were not in any judicial service from before. The
petitioners further contended that rule 11 of the Delhi Judicial Service Rules is
bad as it infringes Article 14 of the Constitution inasmuch as it equates lenath of
judicial service with the lenath of non-j\Jdicial service for the purpose of fixina
seniority and thus treats unequals as equals. Rule 8 of the Delli! Hlaher Judicial
Service Rules Is bad because It fixes the seniority In hlaher service accordlna to the
seniority in the·lower one.
The respondents controvertecl the contention of the petitioners. In addition
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the respondent contended that the Writ Petition was not maintainable on the
'l!round: of delay. It was also C<)ntended that after the impuaned seniority li&t a
further seniority list was puhllsh1'd which has not been challenged and that, there·
fore, the petition ought to lbe dismissed.
HELD : (i) The relative position of th.e potitioners and respondents 3 to 6
remains the same in the new seniority list as it was in the impugned seniority list.
'The contention of the responden't therefore can·not succeed.
(ii) The question of !aches is one of discretion. There is no lower limit and
there is no upper limit. The rulle which says that the court may not enquire into
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the belated and stale claims is not a rule of law but a rule of practice based on
sound and proper exercise of discretion and there. is no inviolable nle that when·
ever there is delay the court must necessarily refqse to entertain the petition. Eaci1
case must depend upon its own facts. In the present case, nothing special has hap-,
pened creating any right in favour of the respondent Qr no such position has 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 aske:d for by the petitioners.
[SS9C; G & A·B]
(iii) It is difficult to find ani• trace of invalidity In rule 9 of the Delhi Judicial
.Service Rules. For the purpose of initial recruitment to the Service officers of the
Judicial cadre all the officers althouah not belonging to the judicial cadre but by
.and large performing the judicial functions could be put togelher. There was no
·infraction of Arts. 14 and 16. Rule 11 of Delhi Judicial Service which rrovides
that the seniority should be determined in accordance with the length o service
does not put unequals as equals. The rule is neither arbitrary nor discriminatory.
Once the Selection Committee found persons belonging to Cause (a) rule.9 suit •
.able for appointment to the service it was under a duty and obligation to arrange
the list of suitable persons by pfacing them in proper place in the matter of senio.
rity. Arranging the seniority in accordance with the length of service rendered in
judicial cadre to which they be.longed at tlie time of their initial recruitment to
the service was perfectly g1Jod.
Petitioners cannot have any grievance in that
-regard. It was not possible, to have a different yardstick. Taking the length of
service for 'the purpose of fixation of seniority was justified, legal and valid. For
the purpose of fixation .of seniority it would have been highly against, and un·
reasonable 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 s~rvice in their parent cadre. It would have been wholly arbitrary. There
was no escape from the p9sition that the entire length of service of the two classes
of officers had got to be counted for the purpose of determination of their senio·
rity on their initial recruitment to the Delhi Judicial Service. It was not possible
or practical to measure th1~ respective merits for the purpose of seniority with
mathematical precision by Barometer but some formula doing largest good to the
largest number had to be evolved. The only reasonable and workable formula
-which could be evolved WM thf: one engrafted in rule 11. [S61F; S62C·Hl
Kwmathat Thatthuni Moopii! Nair v. The State of Kera/a and another, [1961)
3 S.C.R. 77, distinguished.
Jalt111 Trading Co. (Private Ltd.) v. Mill Mazdoor Union, [1961] 1 S.C.R, IS,
distinguished.
(iv) In the 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 whkh included all persons who were similarly situated with respect to
lhe purpose of the law.
[S63G-H]
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JOGINDER v. UNION ( Untwa/ia, J.)
555.
(v) The interse seniority of the members of the Delhi Judicial Service promoted to the higher service would be the same provided the promotion from th~
lower to the higher sei:vice is at the same time. If a member of Delhi Judicial
Service is superseded at the time of recruitment under rule 7 by his ju.nior 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 hi11her service have got to be on,
probation for a period of 2 years ordinarily and 11enerally they would be con·
firmed nt. the end of the said period of 2 years. Strictly speaking, the oucstion of.
determination of interse seniority under rule 8 wlil crop up at the time of con·
firmntion of the appointee. The question of seniority therefore has to be deter·
mined when the persons appointed either temporarily or on officiating basis are
siven substantive appointments. So far as the petitioners and three respondents.
nrc conctrned that time is yet to come. Two members of the Delhi Judicial Ser·
vice confirmed in the higher service at the same time will retain their interse
seniority as in the lower service but if they are not confirmed· at the same time
then one who is confirmed earlier will be senior to the one who is confirmed later.·
though they might have been appointed on probation at the same time. There
are no rules prescribing the mode of determination of interse seniority of tern•
porary appointees or permitting them to courit their officiation in the temporary
appointments for the purpose of their seniority on their being appointed sub>tan-·
tively. The attack on the constitutionality of rule 8 is obliterated in view of the·
construction placed by this Court. In the absence of such an interpretation rule
8 would be discriminatory and violative of Art. 14 of the Constitution. With the·
aid of well established connons of interpretation we ·see no difficulty in saving
the constitutionality of the rule by interpreting it in a reasonable sensible and just
manner. [566BC; PH]
(vi) The appointment of a Government servant to a permanenf post may besubstantive or on probation or on officiating basis. An appointment to officiate:
in a permanent post is usually made when the incumbent substantively holding
that post is on leave or when the permanent post is vacant and no substantive np·
pointment has yet been m.ade to that post. Such an officiating appointment comes
to an end on the return of the incumbent substantively holding post from leave·
in the former case or on the substantive appointment. In the instant case due to•
ju1tiftable reasons the appointment of respondents 3 and 4 substantively to 14th
nnd 15th vacancies was deferred and the petitioner No. 1 was made to officiate
in a temporary capacity against the substantive vacancy. Such an officiation
came to an end on the substantive appointment of either of respondent No. 3'
or 4. [569A-C]
ORIGINAL JURISDICTION :Writ Petition No. 1854 of 1973.
Petition under Article 32 of the Constitution of India.
V. M. Tarkunde, Shyamia Pappu, D. D. Sharma and Ashok Kuma11
Srivastava, for the petitioners.
L.N. Sinha, Solicitor General of India and R. N. Sachthey for resG
pondents nos. 1-2.
B. P. Maheshwari for respondent no. 3.
R.K. Garg, S. C. Agarwal, S. C. Bhatnagar, V. J. Francis
ana
S. K. Mehta, for respondents nos. 4-6.
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The Judgment of the Court was delivered by
UNTWALIA, J.-The four petitioners in this petition under Article32 of the Constitution of India are working as Additional District &-
556
SUPREME COURT REPORTS
[1975] 2 S.C.R.
:Sessions Judges in the Delhi Higher Judicial Service at Delhi. Their
,prayers in this writ petition J!re to strike down Rules 9(a) and 11 of
.the Delhi Judicial Service Rules, 1970 as being ultra vires and violative
.. of Articles 14 and 16 of th:e Constitution and to declare Rule 8 of
Delhi Higher Judicial Service Rules, 1970 as void and unconstitutional.
Their further prayer is to quash the fixation of the seniority of the
,petitioners and respondents 3 to 6 and to place petitioners 1 to 4 .above
respondents 3 to 5 and petitioner~ 2 to 4 above respondent 6 in the
gradation of seniority in Delhi Judicial Service and Delhi Higher
Judicial Service.
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 10.10.1958. 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 eif Punjab. There was no separation of Exe-
-cutive and Judiciary. The Magistrates were selected on ad hoc basis
'from the States of U.P. and Punjab and were posted to work oas such
:at Delhi. Later on creation of the States of Punjab and Haryana Lhe
-0fficers of Punjab and Haryana 9ivil Service (Judicial) oadre used to
be posted in Delhi against all judicial posts. A separate High Court
for Delhi was constituted on the 31st October, 1966 .. The arrange-
·ment in regard to Judicial olficers in the lower Courts however continued as before. In 1969 under the Union Territories (separation of
Judicial and Executive func1ions) 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 assigm~d Executi'Ve duties and remained under the
·control of th1i Delhi Administration as before. In pursuance of the
·scheme of separation aforesaid, respondents 3 to 5 who were working as Judicial Magistrat·es 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. R6spondent no. 6 was a member of the Haryana
Civil Service (Judicial). Rc:spondents 3 to 5 were performing the
functions of Revenue Officers and Judicial Magistrates in U.P.
and
thereafter in Delhi.
The petit~oners 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 find 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 Judical Service Rules.
On the basis of the
recommendations of the Selection Committee, respondent no. 2 made
:appointment 1of officers by •1ay of initial recruitment to the Delhi
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JOGINDER v. UNION ( Untwa/ia, J.)
557
Judicial Service under Rule 8. 61 officers were selected. It lll'ay,
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
. pP;titioners 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 re~pondents 3 to 6 were I, 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.
The petitioners claim that they were formerly permanent members
of the Punjab Civil Service Judicial Branch in the time scale of Rs. 4001250. 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/-.
. ·
The petitioners' grievance is that Rule 11 of the Delhi Judicial
Service Rules permitting the fixation of the seniority of the selected
officers under Rule 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 joined s~rvice in
the year 194 7 as Judicral 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. Civii
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.
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 effeq from
25,3.1972. Respondents 3 to 5 were not considered to have quhlified
themsel\'es 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.
fJe 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. 6 was
promoted in June, 1973. Thus all of them were promoted to the
higher Judicial Service after the netitioners.
Yet they were made to
ranks senior to petitioners 1 to 4 under Rule 8 of the Delhi Higher
Judicial service Rules. Respondent no. 6 in spite of his appointment
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558
SUPREME COURT REPORTS
[1975] 2 S.C.R.
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.
Mr. Tarkunde, learned counsel for the
petitione~s submitted in
support of the Writ Petition the following points :
1. Rule 9 (a) olt the Delhi Judicial Service Rules was
bad as it was not framed in accordance with Article
234 of tl)e Constitution and because it permitted the
initial appointment to the Delhi Judicial Service of
pc:rsons who were not in any Judicial service from
bc:fore.
In any event respondents 3 to 5 could not
be appointed to the Delhi Judicial Service under Rule
9(a).
2. Rule 11 of the Delhi Judicial Service Rules is bad as
it infringes Article 14 of the Corstitution in as much
as it equates length of Judicial service with the length
of non-judicial sc:rvice for the purpose of fixation of
seniority and thus it makes unequals as equals.
3. Rule 8 of the: Delhi Higher Judicial Service Rules is
bad because it fixes the seniority in higher service according to the: seniority in the lower one.
A counter-affioavit has been filed on behalf of respondent no. 2
and learned Solicitor G<:nerul appeared to oppose the rule on his behDlf.
Various counter-affidavits were filed on behalf of respondents
3 to 6 and Mr. Garg who appeared on their behalf informed us that
respondent no. 3 has since retired and the petitioners could not be
granted any relief against him.
He, however, roaised a preliminary
objection to the maintainability of the Writ petition on the ground of
deiay.
He submitted that the seniority fixed on 2.8.1971
by list
Annexure Ell to one of the rejoinders could not be challenged by
filing a writ application in September,, 1973. He further pointed out
that the said seniority list has been revised and substituted by a new
list elated 2.6.1973, a copy of which is Annexure R-4/1. The petitioners have not challenged the correctness of that list in which had
merged the first list dated 2.8.1971.
In our opinion on the facts and in the circumstance 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 sucoeed. 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 senioritv 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 th~
posts of Additional District Judges, the seniority in relation to which
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JOGINDBR v. UNION (Untwalia, J.)
55 9
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 <lela y in regard to any of the reliefs
asked for by the petitioners.
·
It has been pointed out by Hid•ayatulfah, C.J. in the
case
of
Ti!okchand Motichand & Ors. v. H.B. Munshi & Anr.(1) at page 831
"The action of courts cannot harm innocent parties if their rights
emerge by reason of delay on the part of the person moving the Court."
The learned Chief Justice had said at page 832.
"Therefore, Lhe
question is one of discretion for this Court to follow from C'ase to case.
Th~re is no lower limit and there is no upper limit.
A case may be
brought within Limitation Act by reason of some Article but this
Court need not necessarily give the total time to the litigant to move
this Court under Art. 32.
Similarly in a suitable case this Court may
entertain such a petition even .after a !•apse of time. It will all depend
on what the breach of the Fundamental Right •and the remedy claimed
are and how the delay arose. In the case of Rabindra Nath
Bose
& Ors. v. Union of India & Ors.( 2) Sikri J, as he then was, delivering
the judgment on behalf of the Court has said at page 712 : "The
highest Court in this land has been given Original Jurisdiction to entertain petitions under Art. 32 of the Constitution.
It could not have
been the intention that this Court would go into stale demands after
a lapse of years." But under what circumstances a petition under Art.
32 of the Constitution should be thrown out on the ground of delay,
bas been pointed out in the last paragraph on that page by observing .
"lt \\ould be unjust· to deprive the respondents of the rights ,which
have accrued to them.
Each person ought to be entitled to sit back
and consider that his appointment and promotion effected a long time
ago would not be set aside after the lapse of a number of years." On
the facts of this case ·the petition was held to have been filed after
inordinate delay.
In a recent decision of this Court, Bhagwati, J. delivering the judgment on behalf of the -bench of five Judges in Ramchandra Shankar
Deodhar and others. v. The State of Maharashtra and others(8) 1t page
265 has said "In the first place, it must be remembered that the rule
which says that the Court may not inquire into belated and stale claims
is not a rule of law, but a rule of practice based on sound and ::>roper
exercise of discretion, and there is no inviolable rule that whenever
there is delay, the court must necessarily refuse to entertain the petition.
Each case must depend on its own facts."
On the facts and
in the circumstances of this case we do not feel persuaded to throw
out the' petition on the ground of delay as there is none to disentitle the
petitioners to claim relief.
The two impugned rules in this case were made by the Lt. Governor of Delhi in consultation with the High Court of Delhi in exercise
of his powers conferred by the proviso to Art. 309 of the Constitution
(I) (1969] 2 S.C.R. 824.
(2) (1972] 2 S.C.R. C97,
(3) A.IR. 1974 S.C. 259,
5 L 319 Sup CI/75
560
SUPltE'ME COURT REPORTS
(1975] 2 S.C.R.
r/w certain notifications of the Government of India, Ministry of Hom~
Affairs. The Delhi Higher Judicial Service Rules regulating
the
recruitment and condition l)f higher service could indisputably be
macle under the proviso to Art. 309 Art. 234 says : "Appointments
of persons other than district jμdges to the judicial service of a State
shall be made by the Governor of the State in accordance with rules
made by him in that behalf after consultation with State Public Service
Commission and with the High Court exercising Jurisdiction in relation to such State." It was :not disputed on either side that the word
"State" in the said Article would include a Union Territory also. But
the lea.med Solicitor General pointed out that there was no judicial
service in the Union Territory of Delhi before its creation by initial
recruitment to the service under the Delhi Judicial Service Rules.
The initial recruitment to thie service could be made only under n
valid rule framed under Art. 309 Framing of a rule under Art. 234
was not necessary.
We may, however, point out that part IV of Delhi
Judicial Service Rules refers to recruitment to ihe service after the
initial recruftment. In our opinion, however, the rules framr-d by
the Lt. Governor for appointment to the Delhi Judicial Service dther
at the initial stage or thereafter cannot be held to be invalid merely
because they wer~ not framed in accordance with Art. 234. Rules
framed under-Art. 309 in consultation with the Delhi High Court were
good and valid and cannot be assailed.
When it was pointed out to
the learned counsel of the petitioners that on the argument advanced
with reference to Art. 234 even the initial recruitment of the petitioners
to the Delhi Judicial Serviiee was in jeopardy, the point was ultimately
given up and not pressed.
. The constitution and strength of the Delhi Judicial Service as
provided in rule 3 of the Delhi Judicial Service Rules will be of the
service consisting of two grades-namely Grade I (Selection Grade)
and Grade 2.
The posts in Grade I shall be civil posts, class I Gazet·
ted, and those-in Grade II :shaU be civil posts, class II Gazetted. Clause
(d) of Rule 3 provides A "person apJ>?inted to the service shall be
designat(:d as Subordinate Judge or Judicial Magistrate or as
Subordi~
nate Judge or Judicial Magistrate or as Subordinate Judge-cum-Judicnl
Magistrate in accordance with the duties being discharged by him for
the time being .. " The posts borne on the permanent strength of the
service and the posts included therein have been specified in the Schedule appended to the rules..
10% of the permanent strength of the
service will be the posts in the 11election grade. A Selection Committee
vras constituted consisti.ng of 3 Hon'ble Judges of the Delhi High Court,
the Chief Secretary and a Secretary of the Delhi Administration. The
initial recruitm1~nt was mad~ by the Lt. Governor in accordance with
Rule 9 which reads as follows :
"9. For initial recruitm1mt to the service, the Selection Committee
shall recommend to the Administrator suitable persons for appointment
to the service from amongst the following :
(a) Subordinate Judges and Law
Graduate
Judicial
Magistrates working in the Union territory of Delhi
on deputation from other States;
A
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JOGINDER v. UNION (Untwalia, J.)
5 6 I
(b) members of Civil Judicial cadres of States whose
names may be recommended by their respective State
Governments for appointment, and
(c) members of the Delhi
Himachal Pradesh
and
Andaman and Nicol?_ar Islands Civil Service, who
are Law Graduates.
The consent of the officer to be recommended and the consent of
his parent Government . shall be necessary before his appointment to
the service.":
It would thus be noticed that the Selection Committee was to recommend only "suitable persons" for appointment to the service. It
is stated in paragraph 12 of the. writ application that clause ( c) of Rule
9 was struck down by the High Court of Delhi in Writ Petition No.
1322/70-D. K. Poddar v. Lt. Governor at Delhi. We are not c.oncerned in this case with clause ( c). The source of the initial recruitment
to the service under clause (a) was Subordinate Judges who necessarily belong to the Judicial cadre of a State and Law Graduate Judicial
Magistrates (not merely Judicial Magistrates) working in tl;ie Union
territory of De)hi. The creation of the service being only in
two
grades, grade 2 and grade I (selection grade) and there being no provision for appointment in the selection grade at the stage of the initial
recruitment of the service it is plain that all those who fulfilled the
qualifications laid down in clause (a) of Rule 9 and who were found
"suitable" by the Selection Committee could be initially recruited to
the Delhi Judicial Service.
Ev~ Judicml Magistrates have been put
on a par with the Subordinate Judges. None of the respondents 3 to
5 either in their parent service in U .P. or in the Union Territory of
Delhi was a Magistrate on the Executive side. All of them were
doing the work of Judicial Magistrates a11,d of Revenue officers which
~!so included performance of judicial duties. It is difficult to find
any trace of invalidity in rule 9(a) qf the Delhi Judicial Service Rules.
For the purpose of initial .recruitment to the service, officers of the
judicial cadre of a State and officers although not belonging to the
judicial cadre but by and large performing the _judicial functions could
be put together. There was no infraction of Arts. 14 and 16. In
the counter-affi.d'avit filed on behalf of respondent 2 it is mentioned
that respondents 3 to 5 were in the regular cadre of U.P. Judicial
Officers w .e.f. 1.4.1955. It has been pointed out by this Court in
the case of Cha."!dra Mohan v. Stat• of Uttar Pradesh & Ors.( 1> at page
80 "that the exi-ression "judicial officers" is ta euphemism for the
members of the Executive department who discharge some revenue
ar.d magisterial duties." Strictly speaking the expression
"Judicial
duties" was held to be a misleading one for the pmpose of recruitment to the higher judicial service in accordance with Art. 23 3 of the
Constitution. In the context and set up of the Article it was pointed
out tlmt the source of service for appointment as a District Judge must
be the Judicial service and not any service. It is plain that the same
H principle cannot apply to the recruitment of persons to the lower judicial service obviously not covered by Art. 2 3 3.
(I) [ 19771 1 S.C.R. 77.
562
SUPREME COURT REPORTS
[1975] 2 s.c.R.
Rule 11 of the Delhi Judicial Service Rules reads as follows :
"11. The Selection Committee shall arrange the seniority of the
candidates recommended by it in accordance with the length of service
rendered by them in the cadre to which they belong at the time of
their initial recruitment to the service.
Provided that the inter-se seniority as already fixed in such cadre
shall not be altered."
The question for- determination is was there any infirmity in rule
11 ? Did it put unequals with equals and violated Art. 14 of the Constitution ?- Was the rule arbitrary and discriminatory? Once the
Selection Committee found persons belonging to clause (a) of Rule
9 suitable for appointment to tile 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 senigrity. They were all being initially appointed
to the Delhi Judicial Service wherein there was no separate gradation
of posts. The assignment of duties wa8 to follow on the basis of seniority · 1ist. 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 Dc~lhi Judicial Service they retained their original seniority inter-se as w:as assign~lrfci them in their parent cadre. Was
it possible to have a different yarosfick, some. other date or shorter
period for fixation of the seniority of
th~ · law gt'llduates judicial
magistra,tes 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 tlte 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 t11e service as their first appointment. Nor
was it possible to take a~y 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
countr,d 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 bad to be evolved. The only reason-
!lble and workable formula whicb could be evolved was the one engrafted in rule 1 l of the Delhi Judicial Service Rules.
B
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A
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JOOINDER v. UNION (Untwalia, 1.)
563
The decision of this Court in Kunnathat Thathunni Moopil Nair
v. The State of Kera/a and another(!) relied on by the petitioners is
clearly distinguishable. Sinha, C.J. in his judgment at page 92 point·
ed out the nature of equal burden of tax placed upon unequals and
~ai? "It is clear, therefore, thai ineqU'ality is writ large on the Act and
is inherent in the very provisions of the taxing section. It is
also
clear that there is no attempt at classification in the provisions of the
Act. Hence, no more need be said as to what could have been the
basis, for a valid classifioation. It is one of those cases where the
lack of classification creates inequality." In the instant case for the
purpose of fixing the seniority at the stage of the initial recruitment
to the Delhi Judicial Service, no other classification, no
differeut
yardstick was possible. The inequality was avoided to a large extent
by rule 11.
The case of Jalan Trading Co. (Private Ltd.) v. Mill Mazdoor ·
Union( 2 ) is also of no help to the petitioners. Distinguishing Moopil
Nair's case-[1961 (3) S.C.R. 77] Shah, J. as he then was pointed out
at page 36 : "If the classification is not patently •arbitrary, the Court
will not rule it discriminatory merely because it involves liardship or
inequality of burden ...... Equal treatment of unequal objects, transactions or P!!rsons is not· liable to be struck down as discriminatory
unless there is simultaneously absence of a rational relation to the
object intended to be achieved by the law . .''
The principles enunciated
when applied correctly to the facts of the instant case rather go against
lhe petitioners. "Equal treatment of unequal objects" even if we
prefer to call them different classes, is not discriminatory in this case
as there is a rational relation to the object intended to be achieved by
the law.
The object of the Delhi Judicial Service Rules was to create
a service. by integration of different classes of persons already working
as Judicial officers.
The fixation of seniority on the basis of length
of service in their respective parent cadres had a rational nexus to the
object intended to be achieved. Orie of us in the case of The State of
Gujarat and anothef etc. v. Shri Ambica Mill;r Ltd. Ahmedabad etc(8 )
delivering the judgment on behalf of the Court has pointed out at page
1313: "A reasonable classification is one which includes all who are
similarly situated •and non who are not. The question then is : what
does the phrase 'similarly situated' mean? The answer to the question is
that we must look beyond the classification to the purpose of the law.
A reasonable classification is one which includes all persons ·who are
similarly situated with respect to the purpose of the law.
The purpose
of a law may be either the elimination of a public mischief or the
achievement of some positive public good." In the 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 !ejecting the
· argument put forward on behalf of the petitioners that rule 11 of Delhi
Judicial Service Rules is bad as being violative of Arts. 14 and 16 of
, (I) [1961] 3 S.C.R. 77.
(2) [1967] I S.C.R. IS.
(3) A.LR. 1974, S.C. 1300,
564
SUPREME COURT REPORTS
(1975] 2 S.C.R.
of the Constitution. It was not suggested on behalf of the petitioners
A '
' 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.
Two more facts needl Qe 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 rejoind1~r on behalf of the petitioners to the
B
counter-affidavit filed by respondent 2 under Art.