IMPORTANT POINTS
Rules 7, 8, 16 and 17 of Delhi Higher Judicial Service Rules, 1970 as amendend in 1987 are not violative of Articles 14, 16 and 233 of the Constitution.

Headnote:(i) Delhi Higher Judicial Service Rules 1970-Rules 7, 8, 16 and 17 before amendment by notification dated 17-3-1987 and after-Posts of 14 Temporary Addl. District & Devision Judges in Delhi in June 1986-At that time Appointment to temporary posts in the service could be made only by promotion from Delhi Judcial Service-Supreme Court disposed of the writ by an order dated 18.12.1986-Rules amended in 1987 making the filling of temporary posts in consulation with High Court from amongst the members of the Delhi Judicial Service and by direct recruitment from the Bar-Advertisement issued inviting applications from eligible procticives advocates also-Association of promote officers made reforesatations to the High Court-Rejected on 1-6-1987-Two writ petitioners were filed in Supreme Court, one by the association and other by an individual member of the association-Whether posts be filed up by unamendend Rules or the amendend Rules? (the later)-Whether advertisement in contrary to provisions of Rule 7(b) proviso? (No).
       Held : In nutshell, the impact of the amended rules was that appointments could be made even to the posts temporarily created under Rule 16, both from the Bar as well as from the promotion from the Delhi Judicial Service, which was hitherto being filled up only by promotion. After the amended rules came into force, an advertisement was issued on 6th April, 1987, inviting applications from the practicing advocates for filling up of 10 temporary posts of Additional District Judges in Delhi Higher Service. The Association of promotee officers made representation tot he High Court on 30.4.1987 against the aforesaid advertisement and the same having been rejected and the order of rejection having been communicated by letter dated 1st June, 1987, the two writ petitions were filed in this Court, one by the association and other by an individual member of the association and other by an individual member of the association. (Para 2)
       In view of the submissions made at the Bar, the first question that requires consideration is whether the temporary posts having been created prior to the amendment of the Rules, is it the law that those posts could be filled up only in accordance with the un-amended rules and not otherwise? There is no dispute that 14 temporary posts of Additional District & Sessions Judge were created in June, 1986 and it is also not disputed that as the posts in question were not filled up, which could be filled up at that point of time only by giving promotion to the Delhi Judicial Service, the association had approached this Court in Writ Petition No. 1540/86. Mr. P.N. Misra, relying upon the decision of this Court in the case of Y.V. Rangaiah and Ors. v. J. Sreenivasa Rao and Ors.4, and the decision of this Court in B.L. Gupta and Anr. v. M.C.D.5, vehemently contended that the posts being available prior to the amendment coming into force, it was obligatory for the authority to fill up those posts in accordance with the rules, then in force and even after the amendment those posts could be filled up only in accordance with the un-amended rules. Mr. Misra contends that the rights of the members of the Delhi Judicial Service to get promotion to the Delhi Higher Judicial Service in respect of posts created prior to the amendment of the rules, cannot be taken away by inaction on the part of the concerned authority in not filling up the same and issuing advertisement only after the rules having coming into force. In Rangaiah s case this Court on considerationof the relevant rules as well as the instructions issued by the Government, came to hold that a list of approved candidates was required to be prepared as on 1.9.1996 for making appointments to the grade of Sub-Registrar Grade II by transfer, but no such list having been prepared and instead, the same having been drawn up in 1977, by which time the amended rules have come into force, it was held that the ligitimate right and expectations of those, who were entitled to be included in the list which ought to have been prepared in Septemeber, 1976 cannot be frustrated on account of the fact that the panel had not been prepared and it was so prepared only in the year 1977. It is on this conclusion, the Court had held that the vacancies available prior to 1.9.1976 ought to be filled up under the un-amended rules. The aforesaid decision will have no application to the case in hand inasmuch as in Delhi Higher judicial Service there is no requirement of preparation of any panel or list of candidates eligible for promotion by any particular date. Then again, merely because posts were created under Rule 16, it was not obligatory for the appointing authority to fill up those posts immediately. That apart, the most important feature is the earlier order/direction by this Court dated 18.12.1986, which unequivocally indicated that the High Court should start the process of selection by direct recruitment in accordance with the draft rules which the Court had seen at that point of time. In other words, this Court on being aware of the fact that temporary posts have been created and a grievance has been made by the members of the Delhi Judicial Service that those posts were required to be filled up only by way of promotion from them in accordance with the rules as it stood then, a direction had been given that the posts should be filled up both by promotion and by direct recruitment in accordance with the draft rules, in the event the said draft rules ultimately come into force. This being the position, it is difficult for us to accept the contention of Mr. Misra, appearing for the association that the posts were required to be filled up only by way of promotion under the pre-amended rules notwithstanding the fact the advertisement itself was issued subsequent to the rules being amended and notwithstanding the fact that this Court earlier had indicated that the process of selection even by direct recruitment should take effect, without waiting for the rules being finally enforced. The other decision in Gupta s case, what the Court was cosidering is that the rules of 1995 being prospective in nature the vacancies arisen earlier to that, whether could be filled up under the pre-amended rules or the amended rules. Relying upon three earlier decisions of this Court referred to in paragraph (9) of the judgment, the Court held that the vacancies which had occurred prior to the amended rules were required to be filled up under the old rules and not by the amended rules. This decision undoubtedly could have supported Mr. Misra s contention to a great extent, had not there been the order of this Court dated 18.12.1986 in Writ Petition No. 1540/86. The very dispute namely whether a mandamus could be issued to fill up the temporarily created posts by giving promotion to the officers of the Delhi Judicial Service was before this Court and the Court then evolved a formula which was held to be fair and reasonable and, therefore on the agreement of parties, the said formula was embodied in the order. In other words, the Delhi Judicial Service Association, which was petitioner in this Court, agreed to the formula evolved by this Court to be embodied. While embodying the fomula, this Court had indicated that the High Court of Delhi should invite applications from the members of the Bar by way of public advertisement for making direct recruitment in anticipation of the sanction of the draft rules and further stated that after the draft rules are sanctioned and published, a further advertisement, inviting applications from the members of the Bar for direct recruitment shall be published to enable those members of the Bar, who might not have responded to the first advetisement issued in anticipation of the sanction of the rules. In the teeth of the aforesaid order, the conclusion is irresistible that 14 temporary posts created even prior to the amendment of the rules could not have been filled up only by promotion from the Delhi Judicial Service as contended by Mr. Misra, the learned senior counsel appearing for the Association. On the other hand, the earlier order of this Court unequivocally stipulates that those posts should be filled up in accordance with the rules to be amended, which at that stage was only in a draft form. That apart, the process of selection not having been started and even the advertisement itself having been issued and such advertisement having been issued only subsequent to the amendment of the Rules, it is futile to contend that the posts could be filled up under the pre-amended rules, merely because the posts had been created while the amended rules have not come into force. We, therefore, do not find any substance in the first submission of Mr. Misra, the learned senior counsel appearing for the Association. (Para 6)
       Held further : So far as the second contention of Mr. Misra is concerned, it depends upon an interpretation of Rule 7(b) as amended. Rule 7(b) provides that recruitment after the initial recruitment shall be made by direct recruitment from the Bar provided that not more than 1/3rd of the posts in the service shall be held by direct recruits. The expression "Service" has been diefined in Rule 2(e) to mean the Delhi Higher Judicial Service. The expression "direct recruitment" has been defined in Rule 2(i) to mean a person who is appointed to service from the Bar. The expression "Intial Recruitment" has been defined in Rule 2(g) to mean the first recruitment and appointment made to the service after the commencement of these rules. On a plain reading of the proviso, it conveys the only meaning that while making direct recruitment from the Bar to fill up the posts in Delhi Higher Judicial Service, care should be taken so that not more than 1/3rd of the posts in the service could be held by direct recruits at any point of time. Necessarily, therefore, the rules provide a maximum number of posts which could be filled up by direct recruits and it does not say that 1/3rd of the number of vacancies at a given point of time is required to be filled up by direct recruits. The embargo under the proviso is that the High Court, while is entitled to fill up the posts in Delhi Higher Judicial Service both by promotion and by direct recruitment from the Bar, but cannot make direct recruitment so as to exceed 1/3rd of the total number of posts in the service. At the relevant point of time when the advertisement was issued, the total number of posts in the service being 53, 39 permanent and 14 temporary and the number of direct recruits at that point of time in Delhi Higher Judicial Service being 8, the advertisement issued by the High Court being for recruitment by direct recruits for 10 posts, would not constitute an infraction of the proviso to Rule 7(b), as contende by Mr. Misra on the interpretation of the aforesaid provision. We, therefore, are unable to persuade ourselves to agree with the second submission of Mr. Misra, appearing for the Association. (Para 7)
       (ii) Delhi Higher Judicial Service Rules 1970-Rules 7, 8, 16 and 17 after 1987 amendment-Whether violative of Articles 233, 14 and 16 of Constitution? (No).
       Held : Coming to the question as to whether the amended rules, particularly Rules 7, 16 and 17 can be held to be violative of Article 233 or Article 16 of the Constitution, we fail to understand how Article 233 can at all be held to have come into play. The contention of Mr. Thareja is that by providing in Rule 7 that not more than 1/3rd of the posts could be filled up by direct recruitment, there has been a decline in the standard of appointees in the lowest level and the talented people are not willing to enter the judicial service, which in turn affects the efficiency and intelligence of the officers in the cadre and this in turn must be held to be violative of Article 233. The learned counsel also further contended that providing 1/3rd of the posts in the cadre, both temporary and permanent to be filled up by direct recruits results in the denial of equality of opportunity and violates Article 16(1) as well as it is discriminatory and violates Article 14. We see no substance in the aforesaid contention. Article 233 itself provides for appointment of District Judges and while Clause (1) lays down that the appointment could be made by the Governor in consulation with the High Court, exercising jurisdiction in relation to the State by promotion from the Subordinatte judicial Service, Clause (2) provides for appointment by a person not already in service of the Union or the State as District Judge, provided he hasbeen an Advocate for not less than seven years. In other words, Clause (2) itself provides for appointment by direct recruitment from the members of the Bar. The Delhi Higher Judicial Service having been framed in consulation with and on recommendations of the High Court and the rules having privided for filling up the posts in Delhi Higher Judicial Service by promotion as well as by direct recruitment with the rider that the direct recruits cannot be more than 1/3rd of the total number of posts, the contention that such rule violates Articles 14, 16 and 233 is wholly misconceived. In fact the question no longer remains res integra, the same, having been raised and answered by this Court in the case of Orissa Judicial Services Association, Cuttack and Anr. v. State of Orissa and Ors., AIR 1991 SC 382. In the aforesaid premises, the contention of Mr. Thareja cannot be sustained. In the premises as aforesaid, both the writ petitions fail and are dismissed. (Para 8)

JUDGMENT

Pattanaik, J.-The unending dispute between the promotees and direct recruits in Delhi Superior Judicial Service has reached the third round in these two writ petitions and we hope and trust that this will be the final round, at least for quite sometime to come. After the judgment of this court in Singla s case, way back in 1984, disputes arose in the matter of its implementation and the writ petitions filed in this Court under Article 32 on being referred to a Constitution Bench, on a misconceived notion that the validity of the judgment in Single s case is pending consideration before a Constitution Bench, remained pending for long 16 years and was finally disposed of by the Constitution Bench since reported in Rudra Kumar Sain and Ors. v. Union of India and Ors.1. The dispute was the manner in which the inter se seniority has to be computed between the direct recruits and promotees in Delhi Higher Judicial Service. The present two writ petitions were initially also there before the Constitution Bench, but in view of the fact that the subject matter of dispute was different, an order had been passed to de-link these two matters. Be it be stated that the writ petitions which had been filed and were disposed of by the Constitution Bench on 22.8.2000 was at the behest of the promotee officers. The second round of litigation was at the behest of some direct recruits, claiming seniority over some of the promotees and that stood disposed of on 31.1.2001. These two writ petitions are at the behest of promotee officers, one by the Association and another by an individual. While the Association of promotee officers claimed the relief that the vacancies available prior to 1987, when Delhi Higher Judicial Service Rules stood amended, will have to be filled up under the pre-amended rules and, therefore, the advertisement that was issued on 6.4.1987, inviting applications for filling up 10 posts by direct recruitment must be struck down, the other application by an individual promotee officer assails the validity of Rules 7, 8, 16 and 17 of the amended rules, which were brought on 17th of March, 1987. The brief facts necessary for disposal of these two writ petitions may be stated hereunder. In exercise of powers conferred by the proviso to Article 309 of the Constitution, the Lieutenant Governor of Delhi in consulation with the High Court of Delhi made a set of rules governing the conditions of service of the Members belonging to the Delhi Higher Judicial Service called the Delhi Higher Judicial Service Rules, 1970 (hereinafter referred to as the Rules ). The Rules came into force on being published in the Gazette in 1971. The said rules define "Initial recruitment" in Rule 2(g) to mean the first recruitment and appointment made to the service after the commencement of the rules and Rule 5 provides the method of recruitment to the service subsequent to the initial recruitment and Rule 6 provides the method for having the initial recruitment. Rule 16 conferred power on the Administrator to create temporary posts in the service and also to fill up the same in consulation with the High Court by persons from amongst the members of the Delhi Judicial Service. Thus, the temporary posts created by the Administrator were intended to be filled up by promotion from the Delhi Judicial Service. Rule 17 also enables the Administrator to fill up the substantive vacancies in the service by making temporary appointment thereto from amongst the members of the Delhi Judicial Service in consulation with the High Court. Rule 7 provided that recruitment to the Delhi Higher Judicial Service could be from the Bar by direct recruitment but under the proviso, not more than 1/3rd of the substantive posts in the service could be held by the direct recruits. When writ petitions were filed by some of the promotees, O.P. Singla and Ors., making a grievance as to their continuance on ad hoc or temporary basis for years together and as to the discriminatory t

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2001 Supreme(SC) 819

IMPORTANT POINTS Rules 7, 8, 16 and 17 of Delhi Higher Judicial Service Rules, 1970 as amendend in 1987 are not violative of Articles 14, 16 and 233 of the Constitution.

Cases Referred (5)

IMPORTANT POINTS
Rules 7, 8, 16 and 17 of Delhi Higher Judicial Service Rules, 1970 as amendend in 1987 are not violative of Articles 14, 16 and 233 of the Constitution.