# S.S. MATHUR & ANR v. UNION OF INDIA

- **Citation:** [2008] 14 S.C.R. 436
- **Court:** Supreme Court of India
- **Decided:** 2008-10-15
- **Bench:** K.G. Balakrishnan, P. Sathasivam, J.M. Panchal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/s-s-mathur-anr-v-union-of-india-23633
- **Pages:** 38

## Headnote

·f-·
Service Law:
/ ,._
c
Delhi Higher Judicial service rules, 1970:
. rr. 7, 8(2), 16 and 17 - Delhi Higher Judicial Service -
\_
Inter se seniority between direct recruits and promotees -
HELD: the principle of "continuous length of service" should
D be applied for determining inter se seniority of two categories
of officers appointed upto the year 2006 - For determining
inter se seniority of officers of both the categories appointed
-+
after 2006, Supreme Court in its earlier decisions had directed
all the High Courts to make necessary amendment in the
E Rules providing for determining the inter se seniority on the
basis of 40 point Roster -Necessary amendments relating to
I
. inter se seniority for future would be made in the Rules in consonance with the directions given by the Supreme Court in its
earlier decisions - Till such time, the principle of "continuous
F
length of service" would be applied - 0. M. dated 3. 7. 1986 issued by DOPT, Government of India.
~
Regular recruitment to the Delhi Higher Judicial Service was _provided for under Rule 7 of the Delhi Higher
Judicial Service Rules, 1970: (a) by promotion on the baG sis of selectio!J from members of Delhi Judicial Service
and (b) 113rd of the posts by direct recruitment from the
.
Bar. Rule 8(2) laid down for seniority of direct recruits vis-
..i.
a-vis promotees ill the order of rotation of vacancies between the direct recruits and the promotees on the basis
H
436
S.S. MATHUR & ANR. v. UNION OF INDIA
437
& ORS.
----< of quotas of vacancies reserved for both the categories A
by Rule 7, and the first available vacancy to be filled by a
direct recruit. However, tempor'!ry posts were being filled
only by the promotee officers in terms of Rules 16 and 17.
Further, recruitment by direct recruitment was not made
every year. Therefore, pursuant to directions by the SuB
preme Court in O.P Singla's1 case, the High Court, by
'
Notification dated 17 .3.1987, amended the Rules to pro-
----',""•
vide for filling up of temporary posts/vacancies under Rule
16 also by direct recruitment as per quota prescribed under Rule 7. In order to restore the balance between the c
direct recruits and the promotees, the High Court decided
to fill up 14 vacancies then existing by direct recruitment.
In Rudra Kumar Sain'2 s case, the Supreme Court held that
inter se seniority must be determined on the basis of continuous length of service in the cadre as indicated in O.P
D
Singla's case. Consequently, the officers of DHJS ap-
~ pointed/promoted to the Service against vacancies prior
to the amendment of the Rules, 1987 were given seniority
on the basis of the principle of length' of service.
On 14.8.2002, the Delhi High Court circulated a tenE
\•
tative seniority list of the officers of DHJS inviting objections, if any, and appointed a Committee of five Judges to
decide the issue of seniority of the officers of DHJS appointed after 1991. The Committee after considering the
J.
representations of the officers from both sides - directly F
recruited as also promotees - submitted their reports. The
majority view of four Judges comprising the Committee
was that the Rota Quota Rule was workable only if simultaneous recruitments were resorted to and since no simultaneous recruitments took place, inter se seniority afG
ter a particular officer, namely, 'KCL' should be settled as
1.· per O.M. dated 3.7.1986 issued by th'e Department of Personnel and Training, Government of India. The dissenting Judge was of the view that the principle of length of
service should be applied. The Full Court, by its resoluH
438
SUPREME COURT REPORTS
[2008] 14 S.C.R.
A tion dated 18.5.2007, accepting the majority'view, decided '(
to confer seniority on the basis of O.M. dated 32.7.1986.
t ..
Aggrieved, the direct recruits filed the instant writ petitions.
The question for consideration before the Court was
B
as to which of the following criteria would be most equitable, reasonable and justifiable for determining inter se
sen

## Text

_Characters 0–39,693 of 74,415. This is a partial read: ask again with offset=39693 for what follows._

[2008] 14 S.C.R. 436
~
'
A
S.S. MATHUR & ANR.
>--
'
II.
UNION OF INOIA & ORS.
(Writ Petition (Civil) No. 477 of 2007)
B
OCTOBER 15, 2008
[K.G. BALAKRISHNAN, CJI, P. SATHASIVAM AND J.M.
PANCHAL, JJ]
·f-·
Service Law:
/ ,._
c
Delhi Higher Judicial service rules, 1970:
. rr. 7, 8(2), 16 and 17 - Delhi Higher Judicial Service -
\_
Inter se seniority between direct recruits and promotees -
HELD: the principle of "continuous length of service" should
D be applied for determining inter se seniority of two categories
of officers appointed upto the year 2006 - For determining
inter se seniority of officers of both the categories appointed
-+
after 2006, Supreme Court in its earlier decisions had directed
all the High Courts to make necessary amendment in the
E Rules providing for determining the inter se seniority on the
basis of 40 point Roster -Necessary amendments relating to
I
. inter se seniority for future would be made in the Rules in consonance with the directions given by the Supreme Court in its
earlier decisions - Till such time, the principle of "continuous
F
length of service" would be applied - 0. M. dated 3. 7. 1986 issued by DOPT, Government of India.
~
Regular recruitment to the Delhi Higher Judicial Service was _provided for under Rule 7 of the Delhi Higher
Judicial Service Rules, 1970: (a) by promotion on the baG sis of selectio!J from members of Delhi Judicial Service
and (b) 113rd of the posts by direct recruitment from the
.
Bar. Rule 8(2) laid down for seniority of direct recruits vis-
..i.
a-vis promotees ill the order of rotation of vacancies between the direct recruits and the promotees on the basis
H
436
S.S. MATHUR & ANR. v. UNION OF INDIA
437
& ORS.
----< of quotas of vacancies reserved for both the categories A
by Rule 7, and the first available vacancy to be filled by a
direct recruit. However, tempor'!ry posts were being filled
only by the promotee officers in terms of Rules 16 and 17.
Further, recruitment by direct recruitment was not made
every year. Therefore, pursuant to directions by the SuB
preme Court in O.P Singla's1 case, the High Court, by
'
Notification dated 17 .3.1987, amended the Rules to pro-
----',""•
vide for filling up of temporary posts/vacancies under Rule
16 also by direct recruitment as per quota prescribed under Rule 7. In order to restore the balance between the c
direct recruits and the promotees, the High Court decided
to fill up 14 vacancies then existing by direct recruitment.
In Rudra Kumar Sain'2 s case, the Supreme Court held that
inter se seniority must be determined on the basis of continuous length of service in the cadre as indicated in O.P
D
Singla's case. Consequently, the officers of DHJS ap-
~ pointed/promoted to the Service against vacancies prior
to the amendment of the Rules, 1987 were given seniority
on the basis of the principle of length' of service.
On 14.8.2002, the Delhi High Court circulated a tenE
\•
tative seniority list of the officers of DHJS inviting objections, if any, and appointed a Committee of five Judges to
decide the issue of seniority of the officers of DHJS appointed after 1991. The Committee after considering the
J.
representations of the officers from both sides - directly F
recruited as also promotees - submitted their reports. The
majority view of four Judges comprising the Committee
was that the Rota Quota Rule was workable only if simultaneous recruitments were resorted to and since no simultaneous recruitments took place, inter se seniority afG
ter a particular officer, namely, 'KCL' should be settled as
1.· per O.M. dated 3.7.1986 issued by th'e Department of Personnel and Training, Government of India. The dissenting Judge was of the view that the principle of length of
service should be applied. The Full Court, by its resoluH
438
SUPREME COURT REPORTS
[2008] 14 S.C.R.
A tion dated 18.5.2007, accepting the majority'view, decided '(
to confer seniority on the basis of O.M. dated 32.7.1986.
t ..
Aggrieved, the direct recruits filed the instant writ petitions.
The question for consideration before the Court was
B
as to which of the following criteria would be most equitable, reasonable and justifiable for determining inter se
seniority of the officers of DHJS:
(i)
Principle of Rota Quota as laid down in Rule
"r
8(2) read with Rule 7 of DHJS Rules;
\
c
(ii)
Principle as laid down in the 0.M. of DOPT dated
3.7.198.6; or
(iii) Principle of "continuous length of service", i.e.,
date of appointment.
D
Allowing the writ petitions, the Court
HELD: 1.1 An equitable rule for determining inter se
+
seniority of the direct recruits and the promotees would
be one that satisfies the competing claims of both the
E groups. In the instant case, a perusal of the Seniority List
.
drawn by applying the principle of Rota Quota as laid down
/
in Rule 8(2) read with Rule 7 of DHJS Rules, 1970 shows
~
that in case the principle of Rota Quota is followed, then it
would cause a serious injustice to the promotee officers
F
inasmuch as, the direct recruits who have not yet entered
the service would rank senior to the promotee officers
appointed in their quota way back on 16.8.2000. If this is
-;.._
allowed to happen, this would not only be unreasonable
but create a great heart-burning amongst the officers appointed from the two sources. Therefore, the principle of
G Rota Quota contained in the statutory Rule 8(2) read with·
Rule 7 of DHJS Rules, 1970, does not properly address
the problem of resolving inter se seniority dispute between
-.l
the direct recruits and the promotee officers: [para 15 and
19] [462 F, 464-H, 465 A-8]
H
B.S. MATHUR & ANR. v. UNION OF INDIA
439
& ORS.
~
1.2 Even otherwise, the Rota Quota remains broken
A
~
down even on date, because appointments of direct recruits and promotee officers in the service have not taken
place simultaneously. This only shows that Rota Quota
has remained broken down right from the inception of
service. There is absolutely no change in the factual poB
sition relating to breakdown of Rota Quota even after the
---1· decisions of the Court in O.P Sing/a *and Rudra Kumar
Sain's** cases. [para 24] [471 A-D]
*O.P Sing/a & Anr. vs. Union of India & Ors. (1985) (1) c
SCR 351 = (1984) 4 SCC 450; ** Rudra Kumar Sain & Ors.
vs. Union of India & Ors., 2000 (2) Suppl. SCR 573 = (2000)
'("
8 SCC 25 and Delhi Judicial Services Association & Ors. vs.
Delhi High Court & Ors., 2001 (3) SCR 314 = (2001) 5 SCC
145 - referred to.
2.1 The principle contained in the O.M. of DOPT dated D
+
3.2.1986 cannot be applied for determining the inter se seniority of the officers of DHJS for (i) the principle contained
in the said O.M. cannot supplant statutory Rules for determining the inter se seniority contained in the statutory
E
Rules, viz., Rule 8(2) read with Rule 7 of DHJS Rules,
1970; (ii) the pre-conditions for applicability of the principle contained in the O.M. never existed in the service in
question. The 0.M. contemplates recruitment on yearly
basis and also for maintaining year-wise record of the
):
vacancies remaining unfilled in any particular category F
before they are bunched as carry forward vacancies for
the next year, and (iii) Rule 27 of the DHJS Rules which is
a residuary provision explicitly provides that with regard
to matters on which DHJS Rules are silent, help can be
taken from the Rules that are applicable to the IAS officG
L
ers. As specific provisions for determining the inter se
seniority of the officers of DHJS have been made in the
DHJS Rules, there is no question of taking any aid from
any outside Rule as contained in the 0.M. Besides, in
DHJS, the circumstances are entirely different. In DHJS, H
440
SUPREME COURT REPORTS
[2008] 14 S.C.R.
A appointments from 1992 to 2006 were never made from
,.__
either source on yearly basis. No record was maintained
I
I
regarding the· unfilled vacancies available to either source
on year-wise basis. [para 21] [469 A-F, 470 8-C]
B
2.2 The Court would not apply the principle of bunching as contained in O.M. dated 3.2.1986 for determining
the inter se seniority of the officers of DHJS as by application of the said principle the promotee officers who at the
'(
relevant time (i.e. 1995, 1997 and 2000) were still in the
lower cadre of DJS would become senior to those direct
..
'
c recruits appointed as Additional District and Sessions
Judges much before their promotions in the cadre of
(
DHJS. This is unjust and inequitable. Further, seniority
.. ,
even by one day may materially affect the future prospects
and career of an officer. It will not be fair and equitable to
D give march to a later appointee over a prior appointee of
the same year, even if that march is for a few months or
even for a few days. It, therefore, cannot be disputed that
the application of 0.M. dated 3.7.1986 which does not ipso
facto apply to officers of Delhi Higher Judicial Service
E would produce inequity for officers from one or the other
·source and therefore, has to be avoided if a better principle, which is fair and reasonable to all, can be applied.
\_
[para 22 and 26] [470 D-E, 472 8-E]
·
'
3.1 As regards the seniority list prepared on the baF sis· of the principle of "continuous length of service", it
J
would be significant to note that ever since the inception
of the service till the seniority up to the officer, namely,
'KCL', was finally decided, the High Court continuously
followed the principle of "continuous length of service"
G as directed to be applied to the officers of DHJS by the
Supreme Court in O.P Sing/a and Rudra Kumar Sain's
cases. When these cases were decided, the Supreme
"'1
Court Court had noticed breakdown of Rota Quota in the
se.rvice and it was for that reason, directions were given
H for determining the inter se seniority by applying the prin-
B.S. MATHUR & ANR. v. UNION OF INDIA
441
& ORS.
~ ciple of continuous length of service. [para 23] [470 F-G] A
..
3.2 The High Court while fixing seniority of officers
upto 'KCL' including those who were appointed after
amendment of the Rules and whose seniority was not
determined in Rudra Kumar Sain's case, did not apply the
B
O.M. dated 3.7.1986 nor the principles contained therein.
Their seniprity was fixed essentially on the basis of
--<:·
"length of service". There was no good reason for the
High Court to qiscard the principle of "continuous le~gth
of service", which it had followed for determining seniority of officers upto 'KCL' and apply the 0.M. dated 3.7.1986 c
fort.he purpose of fixing the seniority of officers appointed
after 'KCL'. Rule 8(2) cannot be applied on account of
gross inequity and injustice which its application is bound
to produce and since the Court has already held in the
case of Suraj Prakash Gupta* that direct recruits cannot D
claim seniority from the date of occurrence of vacancy in
+
their quota, the seniority should be determined on the
basis of continuous length of service as was held by the
Court in O.P Singla's case and Rudra Kumar Sain's case
and was also done by Delhi High Court in the case of of-, E
ficers upto 'KCL'. If the seniority is fixed in this manner, it
will not cause any injustice either to promotees or to direct recruits.[para 25] [471 E-H, 472-A]
*Suraj Prakash Gupta & Ors. vs. State of J & K 2000 (3)
SCR 807= (2000) 7 SCC 561 - referred to.
F
,l
3.3 The seniority list prepared on the basis of the principle of "continuous length of service" clearly demonstrates that in case the seniority of the officers of DHJS is
fixed by reference to their date of appointment, then noG
body would suffer any injustice. Each and every officer
,.)-./
would get due weightage of the service rendered by him
or her in the cadre of DHJS. If inter se seniority is finally
decided by applying the· principle of "continuous length
of service", it may bring an end to litigation between the
H
442
SUPREME COURT REPORTS
[2008] 14 S.C.R.
A officers ·of the two groups. Therefore, the principle of "con-~
tinuous length of service" should be applied for determining the inter se seniority of the officers of Delhi Higher
Judicial Service appointed up to the year 2006. (para 27]
(472-F-G]
B
3.4 In case of officers of two categories, namely direct recruits and promotees, appointed on the same date,
·the seniority should be fixed on the principles as stated ·rin O.M: dated 3.7.1986 since iD such a case seniority cannot be determined on the basis of length of service alone.
C [para 27] (472 G-H, 473 A]
4. As far as the inter se seniority of the officers to be
appointed in DHJS after the year 2006 is concerned, this
Court in its judgment in A// India Judges Association's* case,
0 has directed all the High Courts to make necessary
amendment in the Rules providing for determining the
inter se seniority on the basis of 40 point Roster considered and approved in the case of R.K. Sabharwal & Ors.**-+-
The necessary amendment relating to inter se seniority
for future be made in the DHJS Rules in consonance with
I .
E · the directions of this Court as ref~rred -in the above mentioned cases. Till such time the principle of "continuous
length of service" i.e. date of appointment should be applied for determining the inter se seniority of the officers
of Delhi Higher Judicial Service. (para 2~] (473 B-0]
\-
F
*All India Judges Association vs. Union of India 2002 (2) ~
.~
SCR 712 = (2002) 4 SCC 247; and **R.K. Sabharwal & Ors.' -
vs. State of Punjab 1995 (2) SCR 35 = °(1995) 2 SCC 7 45 -
referred to.
G
5. The seniority list of DHJS prepared on the basis of
the majority view of the Committee of the High Court, and
consequential order of the High Court are set aside. The .....
High Court ·would finalise fresh inter se seniority list of -~
DHJS, in accordance with the judgment as expeditiously
H as possible. [para 29] [473 D-E]
B.S. MATHUR & ANR. v. UNION OF INDIA
443
& ORS.
' ~
CASE LAW REFERNECE:
A
)
(1985) (1) SCR 351
referred to
para 2
•
.
2001 (3) SCR 314
referred to
para 2
'
2000 (2) Suppl. SCR 573
referred to
para 2
2000 (3) SCR 807
referred to
para 25
B
2002 (2) SCR 712
referred to
para 28
--t,·
1995 (2) SCR 35
referred to
para 28
~
<
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
477 of 2007 (Under Article 32 of The Constitution of India)
c
WITH
Writ Petition (C) Nos. 486 of 2007, 487 /2007 & 502/2007
···"
G.E. Vahanvathi, S.G., Gopal Subramaniam, A.S.G., Harish
Salve, Rakesh K.Khanna, P.S. Patwalia, A.K. Ganguli, Arun
D
+
Jaitely, R. Venkataramani, P.P. Rao, Vinay K. Garg, Ashok K.
Mahajan, A. Mariarputham, Aruna Mathur (for M.s. Arputham,
Aruna & Co.), T.L. Garg, D.K. Thakur, C.N. Sreekumar, P.R.
Nayak, Dushyant Parashar, Kanchan Shukla, A.K. Joseph, Ajay
Jha, Arjun Garg (for Mis. Parekh & Co.), S.P. Sharma, Jayant E
I
Kumar Mehta and Vasudha J. Mehta for the appearing parties.
The Judgment of the Court was delivered by
P. SATHASIVAM, J. 1. These writ petitions, under Article
_._
32 of the Constitution of India, are filed by the directly recruited
F
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 Ad ministrative Committee determining the seniority of the petitioners G
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 direction 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.
H
444
SUPREME GOURT REPORTS
[2008] 14 S.C.R.
A
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 judgB ment:
a)
For convenience, we shall refer to the facts· in the
case of the petitioners in Writ Petition (c) No. 477 of '.;t2007. The DHJS was constituted in the year 1970
under Delhi Higher Judicial Service Rules, 1970
C
(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
D
E
F
G
H
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
113rd 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-a-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.S. MATHUR & ANR. v. UNION OF INDIA
445
& ORS. [P. SATHASIVAM, J.]
-(
b)
The posts in the DHJS were advertised to be filled
A
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
B
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 c
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 D
these writ petitions were promotees promoted to the
t--
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
E
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
F
,J
the promotee officers challenging Rules 7 and 8 of
the Rules, which provided Rota and Quota. In the
said writ petition, the promotee officers claimed that
even appointments to the temporary posts/vacancies
under Rules 16 & 17 [as in the original Rules] was G
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. Sing/a & Anr. vs.
Union of India & Ors. (1984) 4 SCC 450, held that H
446
SUPREME COURT REPORTS
[2008] 14 S.C.R.
A
appointments under Rules 16 & 17 to the temporary
)~
posts/vacancies are similar to those of the
substantive appointments. With the said equation by
I
legal fiction, the distinction between the said two
rr
types of appointments i.e. temporary and substantive,
t
B
having been extinguished, the Court came to the
conelusion that since no appointments of the direct
recruits under Rules 16 & 17 were possible under
·'tthe Rules at that point of time, inevitably the Rota
Quota had been broken down. However, thi's Court
)
'1
c
upheld the constitutional validity of Rule 7 and held
that tbere 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
D
the temporary post with permanent post but had
noticed that the judgment will upset the balance
between the Direct Recruits and the Promotees in
-i
,_
the DHJS. In those circumstances, this Court gave
,_
directions in paragraph 43'to frame appropriate Rules
E'
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
I
the temporary posts/vacancies under Rules 16 and
\
F
r
17 also by direct recruitment as per the quota
:\
,....
..
prescribed under Rule 7 for the respective
I
categories. The High Court had also decided that in
order to restore the balance between the number of
t
direct recruit appointees and promotees, 14 existing
I
G
~
vacancies are to be filled up by direct recruitment.
[
The Association of promotee officers, in order to
~
highlight their grievances, made a representation to
.....
\
-.L
the Chief Justice of the Delhi High Court claiming
f
'
that the newly created temporary posts should be
'
H
S.S. MATHUR & ANR. v. UNION OF INDIA
447
& ORS. [P. SATHASIVAM, J.]
---{
filled up by promotion from amongst the members of A
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
B
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 c
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 D
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
E
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
F
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 G
,.C:-
directions given by this Court in O.P Singla's case.
Those writ petitions came to be decided by this Court
on 22.8.2000 in the judgment in Rudra Kumar Sain
& Ors. vs. Union of India & Ors., (2000) 8 SCC 25.
In the said judgment, this Court quashed the seniority
H
448
SUPREME COURT REPORTS
[2008] 14 S.C.R.
A
list both provi~ional 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
B
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 ame_ndment of the Rules, 1987 have given
c
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
D
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 & 17 as violative of Articles
233 and 16(1) of the Constitution of India. This Court
E
rejected the contention raised by the Association as
well as by the individual officer and dismissed Writ
Petition (C) No. 1023of1987 etc. titled Delhi Judicial
Services Association & Ors. vs. Delhi High Court &
Ors., (2001) 5 sec 145.
F
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
G
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
H
short "OM") dated 3. 7 .1986 issued by the Department
B.S. MATHUR & ANR. v. UNION OF INDIA
449
& ORS. [P. SATHASIVAM, J.]
--(
of Personnel and Training (in short "DOPT") A
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 B
the written submissions filed, four Hon'ble Judges of
--1;
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 c
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 D
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 E
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
F
}
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 G
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 H
450
SUPREME COURT REPORTS
[2008] 14 S.C.R.
A
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
B
on various grounds.
3. In all the writ petitions, the High Court of Delhi has filed
separate but identical counter affidavit highlighting its stand. The
tsalient features of the stand of the High Court are as follows:
c
(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
D
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
E
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
F
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.
G
(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 113rd of
H
the posts in the service by direct recruitment and 21
B.S. MATHUR & ANR. v. UNION OF INDIA
451
& ORS. [P. SATHASIVAM, J.]
--f
3rd of the posts being filled up by promotee officers.
A
\
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
B
resulted in grievances being made by persons
---<-
promoted against such temporary posts in regard to
their seniority vis-a-vis the direct recruits appointed
against substantive posts. After the decision of this
Court in O.P Singfa's case, the Rules were amended c
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 D
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
E
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 F
-j
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 G
promotees would be bunched together at the bottom
k'
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 H
452
A
B
c
D
SUPREME COURT REPORTS
[2008] 14 S.C.R.
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
E
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
F
G
H
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
(
\_
B.S. MATHUR & ANR. v. UNION OF INDIA
453
& ORS. [P. SATHASIVAM, J.]
--(
appointments from either source and appointments
A
\
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
B
direct recruits and the promotees provided in Rule 8
-1and 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 c
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 fillD
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
E
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.
F
)
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
G
the next vacancy year, even while applying the quota
-r
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 1 ~91, H
454
SUPREME COURT REPORTS
[2008] 14 S.C.R.
A
the rule or principle applied thereto was different; it, r
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
B
amendment. The 1986 memorandum fits the
description. In the above premises, all the writ
petitions are without merit and the same deserve to
tbe dismissed.
4. In the reply filed by the petitioners, they once again reit-
""II
c erated 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.
D
5. 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 Addi .. Solicitor General, Mr. Arun Jaitley, Mr. R.
E
Venkataramani and Mr. P.P. Rao, learned senior counsel for
the respondents.
;
6. All the counsel appearing for the petitioners mainly contended that,
(i)
seniority has to be determined in terms of Rule 8(2)
F
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)
G
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;
H
(iv)
Upon the promulgation of DHJS Rules, 1970 the O.M.
B.S. MATHUR & ANR. v. UNION OF INDIA
455
& ORS. [P. SATHASIVAM, J.]
--I
or its modification or amendment will cease to have A
\
applicability to the service;
(v)
The said O.M. has failed to bring in any equity.
7. On the other hand, learned counsel appearing for the
respondents including learned senior counsel appearing for the
B
High Court submitted that,
-~·
(i)
there is no challenge to the rule of seniority, in such
case, the writ petition under Article 32 will not be
4
maintainable;
c
(ii)
the tentative seniority list was circulated to all the
members and representations were made by the
direct recruits as well as the promotees. The
Committee of five Judges, after affording personal
hearing, considered the same and submitted their D
reports. Having regard to the various circumstances
including the fact that the appointment from both
sources was not followed regularly and there exists
disparity between the direct recruits and the
promotees, the- Full Court by applying O.M. dated
E
, ,
3. 7 .1986, accepted the majority report of the
Committee, hence, the course adopted by the High
Court and its ultimate decision cannot be faulted with
and all the writ petitions are liable to be dismissed.
8. We have carefully perused the pleadings of both the
F
•
parties, Committee reports, deliberation of the Full Court and
:/-
considered the rival contentions. The Lieutenant Governor of
Delhi in consultation with the High Court of Delhi by exercising
the power conferred by the proviso to Article 309 of the Constitution read with the Government of India, Ministry of Home Affair's G
Notification dated 29.05.1970 and 25.07.1970 made the Rules
called Delhi Higher Judicial Service Rules, 1970. In order to
'
~ appreciate the above contentions, it is useful to refer the relevant Rules/provisions from DHJS Rules, 1979 as amended
by Notification issued on 17.3.1987-:
H
456
SUPREME COURT REPORTS
[2008] 14 S.C.R.
A
2 (b) "Cadre Post" means any post specified in schedule
\----
and includes a temporary post carrying the same
designation as that of any of the posts specified in that
schedule and any other temporary post declared as cadre
post by the Administrator.
B
(d) "Member of the Service" means a person appointed to
the service under the provisions of these rules.
(e) "Service" means the Delhi High Judicial Service.
·>-
(g) "Initial recruitment" means the first recruitment and
c
appointment made to the service after the commencement
of these rules.
(h) "Promoted Officer" means a person who is appointed
to the service by promotion from Delhi Judicial Service.
D
(i) "Direct recruit" means a person who is appointed to
service from the Bar.
7. Regular Recruitment:- Recruitment after the initial
-..;-
recruitment shall be made:-
E
(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.