# O.P. SINGLA & ANR. ETC v. UNION OF INDIA & ORS

- **Citation:** [1985] 1 S.C.R. 351
- **Court:** Supreme Court of India
- **Decided:** 1984-08-14
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/o-p-singla-anr-etc-v-union-of-india-ors-8687
- **Pages:** 49

## Headnote

•
351
O.P. SINGLA & ANR. ETC
A
v.
UNION OF INDIA & ORS.
August 14, 1984
B
[Y. V. CHANDRACHUD. C.J. R. S. PATHAK AND
SABYASACHI MUKHARJJ, JJ].
Se, vice jurisprudence-Seniority-Fixation of inter-se seniorUy of pron1oled
officers and direct recruits lo the Delhi Higher Judicial Service, under the Delhi
Judicial Service Rules, 1970-Whether the direct recruits who are appointed later
than the pronwted officers under rule 16, termed ten1porary appointments, rank
senior-Whether such pro1noted officers can be treated as men1bers of Higher
Judicial Strvice as defined in rule 2 (b), 2 (d), 6, 7, 16 and 17 applicability quota
and rota rule explained--:Binding nature of previous Judgments of the Court
explained, whether the rules justify the ranking in seniority list-Constitution of
India, Articles 14 and 16.
Regular recruitment after the initial recruitment to the Delhi Higher
Judicial Service under Rule 7 of the Delhi Judicial Service Rules, 1970 is made
by promotion on the basis of selection from members of the Delhi Judicial
Service who have completed not less than 10 years of service and by direct
recruitment from the Bar subject to the provision that not more than one third
of the substantive posts in the service shall be held by direct recruits. In the
case of promoted officers, the appointment to the service shall be made by the
Administrator in consultation with the High Court while the appointment of
direct recruits shall be made on the recommendations of th~ High Court. ·
Rule 2(b) provides that cadre post means any post specified in the
Schedule and includes ~a temporary post carrying the same designation as that
of any of the post specified in the Schedule and any other temporary post
declared as cadre post by the Administrator. Under rule 16 the Administrator
is empowered to create, temporary post in the service and such temporary post
shall be filled in consultation with the High Court from amongst the members
of the Delhi Judicial Service. Under rule 17 the Administrator n1ay in consultation with the High Court fill substantive vacancies in the service by making
temporary appointment£ thereto from amongst members of the Delhi Judicial
Service. Rule 8 speaks of seniority while '.'the inter-se seniority of members of
the Delhi Judicial Service promoted to the service shall be the same as in the
Delhi Judicial Service, the seniority of direct recruits vis-a-vis pron1otees shall be
determined in the order or rot::ition of vacancies between the direct recruits and
promotees based on the quotas of vacancies reserved for both categories by rule
7 provided that the firSt available vacancy will be filled by a direct recruit and
ihe next two vacancies by promotees and so on.
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352
SUPREME COURT REPORTS
[1985] I s.C.R·
The Administrator have appointed the writ petitioners and also the
defendants by resorting to Rule 16 and Rule 7 respectively. But when the
seniority list was Prepared some of the defendants who are direct recurits were
ranked higher than the promoted officers who have been appointed several
years earlier under Rule 16. Hence the two writ petitions by the promoted
officers contending that seniority between promotees and direct recruits must be
determined in accordance with the re~pective dates of their continuous officia·
tion as Additional District and Sessions Judges and that direct recruits who are
appointed as Additional District and Sessions Judges after the promotecs are so
appointed cannot rank higher in seniority over the promotees and that pro~
motees discharge identical functions and bear the same responsibilities as direct
recruits and upon their appointments they constitute only common class and
hence to give seniority to the direct recruits who are appointed later in point of
time is violative of articles 14 and 16 of the Constitution.
Allowing the petitions in part, the Court
HELD : (Per majority)
Per Chandrachud, C. J.
t:l. The
i1npugned seniority list, which is challenged by the promoted

## Text

_Characters 0–39,839 of 125,358. This is a partial read: ask again with offset=39839 for what follows._

•
351
O.P. SINGLA & ANR. ETC
A
v.
UNION OF INDIA & ORS.
August 14, 1984
B
[Y. V. CHANDRACHUD. C.J. R. S. PATHAK AND
SABYASACHI MUKHARJJ, JJ].
Se, vice jurisprudence-Seniority-Fixation of inter-se seniorUy of pron1oled
officers and direct recruits lo the Delhi Higher Judicial Service, under the Delhi
Judicial Service Rules, 1970-Whether the direct recruits who are appointed later
than the pronwted officers under rule 16, termed ten1porary appointments, rank
senior-Whether such pro1noted officers can be treated as men1bers of Higher
Judicial Strvice as defined in rule 2 (b), 2 (d), 6, 7, 16 and 17 applicability quota
and rota rule explained--:Binding nature of previous Judgments of the Court
explained, whether the rules justify the ranking in seniority list-Constitution of
India, Articles 14 and 16.
Regular recruitment after the initial recruitment to the Delhi Higher
Judicial Service under Rule 7 of the Delhi Judicial Service Rules, 1970 is made
by promotion on the basis of selection from members of the Delhi Judicial
Service who have completed not less than 10 years of service and by direct
recruitment from the Bar subject to the provision that not more than one third
of the substantive posts in the service shall be held by direct recruits. In the
case of promoted officers, the appointment to the service shall be made by the
Administrator in consultation with the High Court while the appointment of
direct recruits shall be made on the recommendations of th~ High Court. ·
Rule 2(b) provides that cadre post means any post specified in the
Schedule and includes ~a temporary post carrying the same designation as that
of any of the post specified in the Schedule and any other temporary post
declared as cadre post by the Administrator. Under rule 16 the Administrator
is empowered to create, temporary post in the service and such temporary post
shall be filled in consultation with the High Court from amongst the members
of the Delhi Judicial Service. Under rule 17 the Administrator n1ay in consultation with the High Court fill substantive vacancies in the service by making
temporary appointment£ thereto from amongst members of the Delhi Judicial
Service. Rule 8 speaks of seniority while '.'the inter-se seniority of members of
the Delhi Judicial Service promoted to the service shall be the same as in the
Delhi Judicial Service, the seniority of direct recruits vis-a-vis pron1otees shall be
determined in the order or rot::ition of vacancies between the direct recruits and
promotees based on the quotas of vacancies reserved for both categories by rule
7 provided that the firSt available vacancy will be filled by a direct recruit and
ihe next two vacancies by promotees and so on.
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352
SUPREME COURT REPORTS
[1985] I s.C.R·
The Administrator have appointed the writ petitioners and also the
defendants by resorting to Rule 16 and Rule 7 respectively. But when the
seniority list was Prepared some of the defendants who are direct recurits were
ranked higher than the promoted officers who have been appointed several
years earlier under Rule 16. Hence the two writ petitions by the promoted
officers contending that seniority between promotees and direct recruits must be
determined in accordance with the re~pective dates of their continuous officia·
tion as Additional District and Sessions Judges and that direct recruits who are
appointed as Additional District and Sessions Judges after the promotecs are so
appointed cannot rank higher in seniority over the promotees and that pro~
motees discharge identical functions and bear the same responsibilities as direct
recruits and upon their appointments they constitute only common class and
hence to give seniority to the direct recruits who are appointed later in point of
time is violative of articles 14 and 16 of the Constitution.
Allowing the petitions in part, the Court
HELD : (Per majority)
Per Chandrachud, C. J.
t:l. The
i1npugned seniority list, which is challenged by the promoted
officers has been prepared on the basis that the rule of quota and rota will
continue to apply notwithstanding the fact that appointments are 'llade
to the service under rules 16 and 17 of the Delhi Judicial Service Rules and is
violative of articles 14 and 16 of the Constitution since the rule of quota and
rota prescribed by the proviso to rule 7 would cease to apply when appointments are made to service under rules 16 and 17. [378B-C]
1 :2. But the provisions contained in proviso to rule 7 and rule 8(2) of the
Delhi Judicial Service Rules 1970 do not by themselves suffer fro1n any infirmity
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and therefore constitutionally valid. [3BOA]
2:1. When a rule or a section is part or'an integral scheme it should not
be considered or construed in isolation. One must have regard to the scheme
of the fasciculus of the relevant rules or sections in order to detennine the true
meaning of any one or more of them.
An isolated consideration of the provision leads to the risk of some other inter-related provisions becoming otiose or
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devoid of meaning [365H ; 366A]
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2:2. The negative language of the proviso to rule 7 makes it clear that
it merely prescribes, by way of imposing a ceiling that the direct recruits shall
not hold more than one-third of the substantive posts. The language of the
proviso to rule 7 is certainly not felicitous and is unconventional if its intention
was to prescribe a quota for direct recruits. But the proviso must be read along
with rule 8(2) since the two provisions are inter-related. Their combined reading
yields but one result, that the proviso prescribes a quota of one third for direct
recruits. Otherwise there would neither be any occasion nor any justification
for rotating vacancies between direct recruits and promotees. [366C-E]
2:3. In the process of reading the rules as parts of a connected whole
rules 16 and 17 are equally relevant. The position which emerges from th;
. ft
provisions contained in rules 16 aod 17 is thai it js permissible to create
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O.P. SINGLA V. UNION
353
temporary posts in the service and, even substantive vacancies in the service
can be filled by making temporary appointments. The two~fold restriction on
this dual power is that the High Court must.be consulted and such appointments
must be made from amongst tQe promotees only. If ten1p1Jrary appointments
to the service either in temporary posts or in substantive vacancies can be made
within the framework of the rules and have to be n1ade, if at all from amongst
the promotees and promotees only, the quota rule contained in the proviso to
rule 7 must inevitably breakdown when such appointments are made, the
simple reason being that direct recruits cannot be appointed either to temporary
post in the service to substantive vacancies in the service which are filled in by
making temporary appointments. Thus even though the rroviso to rule 7
prescribes a quota of one third for direct recruits, rules 16 and 17 permit the
non-observance of the quota rule in the circumstances stated in those rules.
[J6fF; 367A-D]
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3 : 1. Normally, an ex-cadre post means a post outside the cadre of
posts comprised in a service. Therefore. all posts in the service whether permanent or temporary, are generally regarded as cadre posts. But, regardless of the
normal pattern of service rule, rule 2 (b) has the limited effect of making every
post in the service a cadre post. whether the post is permanent or temporary.
The inclusive cl:luse contained in the second part of rule 2 (b) has to be read in
the context of the first part of that rule and must take its meaning from what
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precedes it. This provision is consequential to and in consonance with Rule 16.
Since it is permissible under Rule 16 to create temporary posts in the service,
such posts are also regarded as cadre posts. It wou1d have been anomalous to
treat a post in the service a~ an ex-cadre post merely for the reason that the post
is temporary. [367H ; 368A-B ; 367GJ
Therefore, every promotee who holds the post of an Additional District
and Sessions Judge in the service is the holder of a cadre post, whether the post
is permanent or temporary direct recruits hold cadre post in all events because,
they can only be appointed to substantive post in the service on a permanent
basis. Rules 16 and 17 forbid their appointments to temporary post in the service
or to substantive vacancies in the service on a tempor::i_ry basis. [368C·D]
3 : 2. Rule '.l (<l) which provides that a member of the service means a
person appointed in sub-;tantive capacity to the service under the provisions of
the rules shows that two conditions must co-exist in order that a person can
become a
n1ember of the service. Firstly, his
appointment has to be
in a substantive capacity and secondly, the appointment has to be to the service,
that is to a post in the service. Persons who hold appointments bearing designations similar to the designations of the posts comprised in the service cannot, for
that rea~on alone become members of the service. It is only when they are
appointed in a substantive capacity to a post in the service, that they become
members of the service. [368E-GJ
3 : 3.
By the definition contained in rule 2 (d), the membership of the
service is limited to )Xr:;0ns who are appointed in a substantive capacity to the
service. By the second part of rule 2 (b), if read in an extended sense every
temporar)' post \vhich carries the same designation as that of any of the post
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SUPRE'ME COURT REPORTS
l\98511 S.C.1<.
specified in the schedule is a cadre po'St whether such post is comprised in the
service or- not. Such posts and the posts specified in the Schedule will together
constitute the caJre under rule 2 (b). [369B-C]
4 : 1. Whenever the rules provide for recruitment to a service from
different sources, there is no inherent infirmity in prescribing a quota for appointment of persons drawn fron1 those sources and in working out the rule of quota
by rotating the vacancies as between then1 in a stated proportion. Therefore rule
8 (2) cannot be held to be unconstitutional inerely because it reserves one third
of the vacancies in the service for direct recruits and provides that the first
available vacancy in the service will be filled in by a direct recruit, the next two
by promotees and so on. [369G ; 370B]
Mervyan Coutinho v. Collector of Custo1ns, Bombay, [1966} 3 SCR 600;
S.C. laisinghaniv. Union of India, [1967] 2 SCR 703; Bishan Sarup Gupta v:
Union of India, [1975] l SCR 104; A.K. Subraman v. Union of India, [1975] 2 SCR
979; V.B. Badami v. State of Mysore, [1976] 2 SCC 901 and Paran1jit Singh
Sandhu v. Ran1 Rakha, [1979] 3 SCR 584; referred to.
4: 2. However, there being instances wherein though the provision ofa
rule or a section is not invalid, the manner in which that provision is implemented in practice leads to the creation of disparities between persons who, being
similarly circumstanced are entitled to equal treatment. The provisions of rule
8 (2) must therefore be applied carefully and in such a manner as not to lead to
the violation of the guarantee of equality and equal opportunity contained in
articles 14 and 16 of the Constitution by ascertaining as to which of the promo ..
tees can be regarded as belonging to the same class as the direct recruit<;.
[370C-DJ
4 : 3.
The pre·requisite of the right to inclusion in a common list of
seniority is that· all those who claim that right must, broadly, bear the same
characteristics. The mere circumstance that !hey hold posts which carry the same
designation will not justify the conclusian that they belong to the same class.
Persons who are appointed or promoted on an ad hoc basis or for fortuitous
reasons or by way of a stop gap arrangement cannot rank for purposes of senioM
rity With those who are appointed to their posts in strict conformity with the
rules of recruitment, whether such later class posts are permanent or tem1,orary.
The rules in the instant case do not require that persons belonging to former
category have to satisfy any particular prescription like consultation with the
High Court. [370E-F]
.
5 : 1. There is no provision in the Rules which requires that ad hoc
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appointments must also be made in accordance with any set formula. The
courtesy shown by the authorities to the High Court when certain appointn1ents
are made is one thing and the obligation imposed by the rules on the authorities
that the High Court shall be consulted when certain appointments are made
i!\ another. Indeed, there is a distinction between the process of consultation
with the High Court and the screening of the promotees done by the High Court,
may be at the instance of the authorities, when their names are considere<l for
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appointment as Additional District and Sessions Jud~e on au <Id hoc, tortuitous
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O.P. SINGLA v. UNION
355
or stop-gap basis. Thus, persons belonging to the Delhi Judicial Service who are
appointed tv temporary posts of Additional District an<l Sessions Judge on an
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ad hoc basis or for fortuitous reasons or by way of a stop-gap arrangement
constitute a class which is separate and distinct fron1 those who are appointed
to posts in the service in ~trict confonnity with the rules of recruitment. In view
of this, the former c!ass of prornotees cannot be included in the list of seniority
of officers belonging to the service. [370H; 371A-D]
5 : 2. lfowever, in the matter of seniority no distinction can be made
between direct recruits who ar1' appointed to substantive vacancies in the service
on the reco;nmenda tion of the High Court under rule 5 (2) and the promotees
who are appointed in consultation with the High Court to posts in the service
under rules 16 and 17. Promotees who are appointed to the service under either
of these two rules must be considered as belonging to the same class as direct
recruits appointed under rule 5 (2). They perform similar functions, discharge
identical duties and bear the same responsibilities as direct r~cruits. They are
appointed on a regular basis to posts in the service in the same manner as direct
recruits arc appointed, the only distinction being that whereas the latter are
appointed on ihe recommendation of the High Court, promotees are appointed
in consultation with the High Court. Exclusion from the Seniority list of those
promotces who are appointed to posts in the service, whether such appointment
is to temporary posts or to substantive vacancies in a temporary capacity will
amount to a violation of the equality ru!e. since, thereby, persons who are
situated similarly shall have been treated dissimilarly in a matter which constitutes aa important facet of their career. [371E-H ; 372A]
S : 3. In situtaions resulting in the suspension of the rule of •quota and
rota', it is difficult to evolve an equitable rule for determining seniority between
direct recruits on the one hand and promotees who are appointed under rules 16
and 17 on the other which will cause no hardship of any kind to any member of
the service. Therefore, the attempt has to be made to mini1nise, as far as possible, the inequities and disparties which are inherent in a system which provides
for recruitment to the service from more than one source by keeping in mind one
guiding principle, namely that the classification is gloss on the right to equality
and to ensure that classification is made on a broad, though rational, basis so as
not to produce the self-defeating result of denying equality to those, who in
substance, are situated simi1arly.[374C-EJ
6. Since the rule of quota and rota ceases to apply when appointments are
made under rules 16 and 17, the seniority of direct recruits and promotees
appointed under those rules must be determined according to the dates on which
direct recruits are appointed to their respective posts and the dates from which
the promotees have been officiating continuously either in a temporary post
created in the service or ia substantive vacancies to which they were appointed
in a temporary capacity. [375F-G]
S.B. Patwardhan v. State of Mahararhtra, [1977] 3 SCR 775; applied;
Ba/eshwar Dass v. State of U.P., [1981] 1 SCR 449 distinguished ; A. Janardhana
v. Union of India, [1983J 3 SCC 601; follow~d. Joginder Nath v. Union of India,
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[1975] 2 SCR 553; held inapplicable.
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356
SUPREME COURT REPORTS
(1985] i S.C.R.
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Per Sabyasaclli Mukharji, J.
1 : 1.
The proviso to rule 7 merely provides that in case io an year there
is vacancy for recruitments from the Bar as well as by promotion more than one
third of substantive posts should not be filled in by direct rccruitn1cnt and
nothing more and thCrefore it cannot be said that there is any quota c;f Bar
recruits of one third. The rule does not say that one third of direct recruits must
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for each year be one third of the recruitments made. It puts a ceiling on number
of Bar recruits in an year where Bar recruits are available and willing to be
appointed. [384C-E]
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: 2. Sub-rule (2) or the makers of :Sub-rule (2) of Rule 8 presumed and
assumed a factual position that quotas of vacancies have beeil reserved for both
categories by R'ule 7 which is real!y not a fact. Rule 7 does not reserve any quota
for either of the categories. Rule 7, 0.4 provides for ceiling of direct recruits by
providing that in case there were recruitments fron1 the Bar as well as by pron10tions in such a case Bar recruits would not be 1nore than one third of the substantive posts in the service. [384H : 385A-B]
2 : 1. It is well-settled th~t breft of anything where a service consists of
recruitrnents n1ade from two different sources and the rules and regulations provide for their recruitment Dnd their rights, inter-se, pri111arily and essentially
those rights have to be adjusted within the scheme of the rules though it might
in some cases lead to certain an1ount of imbalances or injustices because a service
is built on various considerations and various factors induce the legislature or
the rule-making authority to induce different and diverse knowledge, diverse
;aptitudes and requirements needed for running of the service. The legislature or
the rule-making authorities have better \:nowledge and better capacities to adjust
those factors. [3850-F]
2 : 2. Rule 8 (2) proceeds on the 1nisconception that there is qu,ota fiir;:ed
for direct recruits, which rule 7 does not. Ruic 8 (2) cannot on plain literal
meaning also be construed or interpreted to mean that it was deemed by the
legislature and the rule-making body to engraft any quota. There i-; no deemed
quota, if that was the intention then the rule \Vould have said so. The rule is
silent and proceeds on wrong assumption. Therefore, the rule~ should be given
effect to in so far as it can be without reading any quota for the subsequent
years. [384E-F]
Mervyn Coutinho & Ors. v. Callector ofC1lston1s Bo1nbay & Ors [1966] 3
SCR 600; S.C. Jaisi11gha11i v. Union of India & Ors., [1967] 2 SCR p. 703,
Cha11dra111011leshwar Prasad v. Patna High Court & Ors., (1970] 2 SCR 666;
V.B. Badarni Etc. v. State of Mysore & Ors., [1976] 1 SCR 815=2 SCC 901;
and Bisf1an Sarup Gupta v. Union of lndiii & Ors., fl975] Suppl. SCR 491 ; held
inapplicable.
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357
.Joginder 1Vath and Ors. v. Union of India & Ors., [1975] 2
SCR
553
referred to.
'
3.1. Service jurisprudence in India has developed in a prculiar way. It
has sought to infuse both fresh blood and old experience but somehow our
administrators did not for a see the need for expanding administration and the
personal necessary for this expension, as a result in making appointments and
even granting promotions, the1c has been a good deal of ad-hoc arrangements
creating in practically every branch of administration feeling of discontent and
misunderstanding between promotees and direct recruits, and damaging the
friendly atmosphere which should prevail among the members of the administration, if administration has to ren1ain a vehicle of social progress and trans·
formation which the Indian administration must, in view of the very great pos ..
sibility and the tran!!itory nature through which it is passing in spite of the
severe personal and economic hardships that the member of the administradon
go through. [388H ; 389A·C!
3:2. In Balesluvar Dass & Ors. Etc. v. State of U.P. & Ors. Etc. [1981]
l .SC.R. 449, the Supreme Court noted that a persoh is said to hold a post in
a substantive capadty wJ1en he holds it for an indefinite period, especially of long
duration in contradistinction to a person who holds it for a definite or a tern ..
porary period or holds that on probation and subject to confirmation. If the
appointm~nt was to post and the capacity in which the appointment was to be
made was of indefinite duration, if the proper authority had been consulted and
had approVed, if the tests prescribed have been taken and passed, if probation
has been prescribed, and has been approved it can be said that the post was held
by the incumbent in a substantive capacity. Applying these tests to the facts and
circumstances of this case dealing with the officers holding the post for a long
time there is no doubt that the petitioners officers have held the positions in
substantive capacities [392G-H ; 393A·B]
Further by reason of rule 2 (b) and rule 2 {d) the pet'.tioners being holders
of ten1porary post in substantive capacities are holding 'cadre posts' and are also
n1embers of the Service. Appointment in a substantive capacity is certainly different fron1 appointment to a substantive post. Therefore the holders of
substantive posts i.e. the 12 posts originally at the inception of service and 22
posts now, alone are not members Of the service. Ali incumbents holding either
substantive posts or temporary post in substantive capacities are members of the
service in the context of the present rule. [393C·EJ
S.B. Patwardhan & Ors. Etc. Etc. v. State of Maharaslztra & Ors., [1977]
3 SCR p. 775 ; Rajendra Narain Singh & Ors. v. State of Bihar & Ors,. (1980] 3
SCR 450; A. Janardhana v. Union of India & Ors., [1983] 3 SCC 601 at
627 ; and Baleshawr Dass & Ors. Etc. v. State of U.P. & Ors. Etc. [1981] l
SCR 449 ; referred to.
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3 :3. The principles of harmonious construction mus! b~ accepted so that
ail the rules are rendered o~erative and one does not make the other rule nugaH
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358
SUPREME COURT REPORTS
[ 1985) 1 S.C.R.
tory. In the context of the present circumstances rule 7 can have only application to recruitments to the substantivo posts in the service. Rule 7 provides
two different sources of recrument and without fixing any actua I quota. but a
ceiling that not more than one third of the substantive posts be held by direct
recruitments. Rule 7 and 8 does not exist in isolation and must be read with th;:
other particularly rule 16.
R.ulc !6 is a rule of relaxation or an additional rule
of recruitment providing for temporary posts being filkd up in addition to the
substantive posts. Th;: effect of the creation of temporary posts is to expand
the area of membership of the service. As the filling of the temporary po!. ts
under rule 16 is confined to recruitment from the n1e1nbers of Delhi Judical
Service Ruic 7 cannot be made applicable for the rccruitn1cnt to temporary
posts. Therefore, there is no quota rule applicable with regard to ten1porary
po,ts. [393F·H]
4:1. Assuming that proviso to rule 7 (b) provides for a quota of one
third for direct recruits, rule 16 (1) which empowers the adn1inistrator to create
temporary posts in the service read with rule 16 (2) which provides that tcn1porary posts shall be filled in, ,in consultation with the High Court from amongst
the membets of the Delhi Judicial Service either constitutes an exception to the
quota rule or in the alternative proceeds on the basis of 1ealization or abrogation
of quota rule. By Ruic 16 (2) a direct r.:cruit canno< be appointed to a temporary
post. In other words, only pro111otees can be appointed to temporary post. Jf the
source of recruitment to te1nporary posts is one and one only namely, the members of the Delhi Judical Service, no question of applying the quota rule can
possibly arise. The quota rule ca.n have application only if there is more than
one source of recruitment ai; envisaged by rule 16 (1) and if such posts have
been filled in as it appears to have been done here in consu!<tation with the High
Court from amongst members of Delhi Judicial Service as required under rule
16 (2) of the rules, quota rule assuming that there is any, cannot apply to such
appoi11tments.
The validity of such appintinents is not open to the exception
that these violate the quota rule, if any. [394F-H ; 395A-B]
4 : 2. As bet~een direct recruits on the one hand and the members of the
Delhi Judicial Service who were appointed in substantive capacity to temporary
posts of Additional District and Sessions Judge on the other hand, ·the seniority
must be governed by the rules of continuous officiation in the cadre post i.e. a
direct recruit who is appointed in a substantive capacity to a temporary post of
Additional District and Sessions Judge cannot and should not rank higher than
the latter in the list of seniority, if a direct recruit is appointed after a member
of the ·Delhi Judicial Service thus promoted he would rank lower in seniority
than the latter. [395D-E]
4 : 3.
An appointment on probation is not a jurispfudential sine qua non
for absorption into the services, though normally and generally various rules of
different services make such provisions as rule 12 (2) here. During the P:!ndency
of the Writ Petitions some of the promotees were placed on prob:.Hion retrospectively by different orders. Such probations are meaningless forn1alities. In the
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(J.P. SJNGLA v. lJNTON
359
instant case, the placement of pron1otees on probation has not been very strictly
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followed for which the promotees cannot suffer. [396G-H1
4 : 4. It cannot be said that the petitioners were not appointed regularly
in accordance with the qualifications laid down under rule 7 (a). In fact the selections were made by the full court of the High Court and appointmenls were
made on merit-cum-seniority-basis. {397B-C]
B
M. Verraia11 Chowdhary & 42 Ors. v. The Government of A.P. • & 87 Ors.
C. A. No. 2030 of 1981; S.P. Gupta etc. v. Union of India & O'"• [19811 Supp.
sec 87, held inapplicable.
OBSERVATION
[One should insist that Gover111nent 1nust abolish this system of making
appointments from tWo different sources in ad hoc manner. lf appointments have
to be made from two different sources then the authorities should so plan that
recruits come from two different sources in tin1e and officers from one source are
not required to function substantively and effectively in the jobs which are inten·
ded to be performed by recruits of other source and face the prospect of being
either pushed back or thrown out.]-[398G-HJ
'
ORIGINAL JUR!SICITlON : Writ Petition Nos. 5669 of
1980 and 1345 of 1981
(Under Article 32 of the Constitution of India)
G. L. Sanghi, S. K.
Dholakia, S. C. Gupta, D. S. Gupta, P .
Narashiman and R. C. BhatiJ for the Petitioners in WP. No. 1345 of
1981.
A. K. Sen, Anil Kumer Gupll, Brij Bhushan and Mrs. Reuu Gupta
for the Petitioners in WP. No. 5669 of 1980.
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V. C. Mahajan, N. C. Ta/ukdar,
V. B. Saharya and R. N.
Poddar for Respondents Nos. I & 2.
P. P. Rao, Girish Chandra, A. Mariarputham, Miss A. Subhashini
and Miss Aruna Mathur for Respondent. (Delhi High Court)
K. K. Venugopal, Mrs.
Urmila Kapoor and K. Lakshmi
Venugopa/ for Respondent No. 4. (G.S. Dakha)
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Dr. L. M. Singhvi, A. M. Singhvi, K. Lakshmi Vei111gopa/ and
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Mrs. Shobha Dikshit for Respondents 5 & 6.
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SUPREME COURT REPORTS
(198)] I s.c.R.
M. C. Bila11dare and S.S. Srivastava for Respondent No. 7. ·
M. C. Blwndare for the Intervener (Delhi High Court Bar
Association)
A. K. Ganguli for the intervener (Delhi High Court & Delhi
Bar Associations)
B.P. Maileshwari (Delhi Bar Council)
The following Judgments were delivered
CHANDRCHUD, C. J.
Once again, we are back to the irksome
C
question of inter se seniority between promotees and direct recruits.
The contestants, this time, are judicial officers of Delhi. Our fami·
liarity, generally, with the difficulties in the way of judicial officers
and our awareness of their just aspirations make our task difficult
and sensitive.
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The tonclusion to which we have come in this judgment is not
different from the oi1e reached by our learned Brother Sabyasachi
Mukharji. In this Judgment, Brother Mukharji has dicussed, more
fully, the various aspects of this matter as also the decisions which
were cited before us.
Our reasons for writing this separate opinion
are, the general importance of this case. the fact that it concerns the
E
higher judiciary and our respectful disagreement with Brother
Mukharji on the interpretation of some of the provisions with which
we are concerned in these Writ Petitions.
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There are many decisions bearing upon the familiar controversy
between prumcitees and direct recruits and this will be one more.
Perhaps, just another. Since those various
decisions have not
succeeded in finding a satisfactory solution to the controversy, we
would do well by confining our attention to the language and scheme
of the rules which are under scrutiny herein, instead of seeking to
derive a principle of universal application to the cases like those
before us. Previous judgments of this Court are, of course, binding
to the extent that they are relevant and they cannot be ignored.
But. if they turn upon their own facts, the general set-up of the
particular service, its historical development and the words of the
impugned provisions, no useful purpose will be served by discussing
those cases af length, merely to justify an observation at the end
that they have no application and are distinguishable.
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0.P. S!NGLA v. UNION (Chandrachud, C,/.)
361
We have two writ Petitions before us which are filed under
Article 32 of the Constitution by promotee Additional District and
Sessions judges of Delhi. We will not describe them as 'Members
of the Delhi Higher Judicial Service' because, that precisely is the
question to be decided, If they are members of that service they shall
have won their point.
They were workiug at the relevant time in
temporary posts which were created by the Delhi Administration in
the cadre of Additional District and Ses ions Judges. In that capacity, some of them are working on deputation as members of one
or the other of the Tribunals in Delhi, like the Industrial Tribunal or
the Sales Tax Tribunal. The Union of India, tl;e Delhi Administra·
tion, the High Court of Delhi and direct recruits to the Delhi
Higher Judicial Service are impleaded as respoudents to the petitions.
The Delhi Higher Judicial Service was constituted on May 15,
1971 with a complement of 12 posts. The Delhi Higher Judicial
Service Rules, 1970 which were framed by the Lieutenant-Governor
of Delhi in consultation with the Delhi High Court, were published in
the Delhi Gazette on August 27, 1970. Those Rules were framed
under Article 309 of the Constitution.
Rule 2(b) provides that 'Cadre Post' means any post specified in
the Schedule and includes a temporary post carrying the same designation as that of 2ny of the posts specified in the Schedule any other
temporary post declared as cadre post by Administrator. Rule 2(d)
provides that a 'Member of the Service' means a person appointed in
substantive capacity to the Service under the provisions of the Rules.
'Service' is defined by the Rule 2(c) to mean the Delhi Higher Judicial
Service. A person who is appointed to the Delhi Higher Judicial
Service by promotion from the Delhi Judicial Service is called the
'Promoted Officer', while a person who is appointed to that Service
from the Bar is called the 'Direct recruit'. By Rule 4, the
authorised permanent strength of the Service and the posts included
therein shall be as specified in the Schedule.
Part Ill of the aforesaid Rules deals with the method of recruitment to the Service. Recruitment of promo(ees is dealt with by
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Rule 5(1 ), according to which, recruitment of persons to the service
from the Delhi Judicial Service shall be made by the administrator
in consultation with the High Court. 'Administrator' means the
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SUPREME COURT REP OR TS
[1985] 1 s.c.R
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Administrator appointed under Article 239 of the Constitution for
the Union Territorfof Delhi. Appointment of direct recruits is dealt
with by Rule 5(2), according to which, in regard to the persons not
already in the Delhi Judicial Service, appointment to service shall
be made by the Administrator on the recommendation of the High
Court. -In other words, promotees are apponited to the Service in
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consultation with the High Court while direct recruits are appointed
to the service on the recommendation of the High Court.
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Rules 7 and 8 which are crucial to the controversy between the
promotees and direct recruits read thus :
"Rule 7-REGULAR RECRUITMENT:-
Recruitment after the initial recruitment shall be made:
(a) by promotion on the basis of selection from members
of the Delhi Judicial Service, who have completed not
less than 10 years of Service in the Delhi Judicial
Service.
(b) by direct recruitment from the Bar.
Provided that not more than I/3rd of the substantive
posts in the Service shall be held by direct recruits."
"Rule 8-(I) The inter-se seniority of members of the
Delhi Judicial Service promoted to the Service shall be the
same as in the Delhi Judicial Service.
(21 The seniority of direct recruits vis-a-vis promotees
shall be determined in the order of rotation of vacancies
between the direct recruits and promotees based on the
quotas of vacancies reserved for both categories by Rule 7
provided that the first available vacancy will be filled by a
direct recruit and the next two vacancies by promotees and
so on."
Rule 9 lays down the qualifications for direct recruits by providing that they should be citizens of India, that they must have
practised as advocates for not less than 7 years and that they must
have attained the age of 35 years but not attained the age of 45 years
H
on January l of the year in which they are appointed.
'
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O.P. SINGLA v. UNION (Chandrachud, C1.)
363
The initial recuritment to the Service was made by the
Administrator in consultation with the High Court in accordance
with Rule 6, from amongst the District Judges and Additional
District Judges who were functioning in the Union Territory of
Delhi on deputation from other States and those whose names were
recommended by the respective States for such appointment. Those
persons who were jappointed to the Service· as part of the initial
recuritment stood confirmed with effect from the very date of their
appointment. That is provided by Rule 12(1). Sub-rule (2) of Rule
12 provides that all 01her candidates who are appointed to 1he
service shall be on probation for a period of two years.
Rule 13
requires that all persons appointed to the Service on probation shall
be confirmed at the end of the said period of two years: provided that
the Administrator may, on the recommendation of the High Court
extend the period of probation but not so as to exceed three years
on the whole. After the successful compktion of probation, the
officer is confirmed in the Service by the Administrator in consultation with the High Court as provided in Rule 15.
Rules 16 and 17, which occur in part V of the Rules called
'Temporary Appointments', are also important for our purpose though
'"
they fall in a category distinct and seperate from the one in which
Rules 7 and 8 fall. They read thus:
'
"Rule 16([) The Administrator may create temporary
posts in the service.
• (2) Such posts shall be filled, in consultation with the
High Court, from amongst the members of the I)e\hi
Judicial Service."
"Rule 17- Notwithstanding anything contained in \hese
rules, the Administrator may, in consultation with the High
Court, fill substantive vacancies in the Service by making
temporary appointments thereto from amongst members of
the Delhi Judicial Service."
The Schegule to the Rules shows that the initial authorised
permanent strength of the Delhi Higher Judicial Service was 16 out
of which one was to be a District and Sessions Judge and 12 we;e to
be Additional District and Sessions Judges. The remaining 3 were
appointed in Leave-Deputation reserve vaea~~ics. Out of these 16
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364
SUPREME COURT REPORTS
(1985] l S.C.R,
posts, one was a super-time scale post, three were selection grade
posts and twelve were time-scale posts.
The contention of the petitioners is that seniority between
promotees and direct recruits must be determined in accordance with
the respective dates of their continuous offic.iation as Additional
District and Sessions Judges
and that, direct rc,cru;ts who are
appointed as Additional District and Sessions Judges after the
p··omotees arc so appointed, cannot rank higher in seniority over the
promotees. It is urged that promo\ees discharge identical functions
and bear the same rcsponsibilites as direct recruits and upon their·
appointments, they constitute one common class. Therefore, to give
seniority to the dlrect recruits who 'are appointed later in point ·of
time is violative of Articles 14 and 15 of the Constitution.
In support of these contentions, the promotces have filed charts
showing what, according to them, is a grave and glaring act of injustice done to them in the matter of seniority. These chart.s show,
indisputably, that promotees who have been functioning as temporary
Additional District and Sessions Judges for an unbroken period of
anything between 8 to 12 years are regarded as juniors to the direct
recruits who have been appointed as Additional District and Sessions
Judges much later. A few illustrat;ons will
help appreciate the
grievance of the promotees. Shri G.S. Dakha, who is one of the
respondents to these writ petitions, was appointed directly to the
Service on September 27, 1978. However,
he ranks higher in
seniority over Shri C. D. Vasishta and Shri O.P. Singla who were
appointed as temporary Additional District and Sessions Judges on
June 7, 1977 and April l, 1978 respectively. Miss Usha Mehra, who
was appointed directly as an Additional District and Sessions Judge
on April 22, 1980, is regarded as senior to several promotees who
were appointed as temporary Additional District and Sessions Judges
long before her. Shri D.C. Aggarwal, Shri B.K, Agnihotri, Shri
Mahesh Chandra, Shri S. R. Goel and Shri P.L. Singla were all
appointed as temporary Additional District and Sessions Judges on
March 24, 1972, which was 8 years before Miss Usha Mehra was
appointed as a direct recruit from the Bar. Twenty-five other
members of the Delhi Judicial Service were appointed as temporary
Additional District and Sessions Judges on various dates between
August 3.1, 1973 and December 11, 1979. All these have been shown
as junior to Miss Usha Mehra.
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O.P. SINGLA 1'. UNION (Chandrac/md, C.J.)
365
The answer to the question as regards the infringement of the
A
constitutional protection of equality and equal opportunity will
depend upon the meaning which can rearnnably be given to the rules
which we have cited above. Therefore, in the first place, we shall
. have to decide whether the rules justify the rankings in the seniority
list. It is only if the language of the rules justifies those rankings that
the question will arise whether the rules violate the provisions of
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Articles 14 and 16 .
Logically, we must begin this inquiry with the question as to
the interpretation of the proviso to Rule 7.