JUDGMENT

CHANDRACHUD, CJI. (On behalf of himself and Pathak J.) (Majority View) :—Once again, we are back to the irksome question of inter se seniority between promotees and direct recruits. The contestants, this time, are judicial officers of Delhi. Our familiarity, generally, with the difficulties in the way of judicial officers and our awareness of their just aspirations make our task difficult and sensitive.

2. The conclusion to which we have come in this judgment is not different from the one reached by our learned brother Sabyasachi Mukharji. In his judgment, brother Mukharji has discussed, 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 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.

3. There are many decisions bearing upon the familiar controversy between promotees 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 at length, merely to justify an observation at the end that they have no application and are distinguishable.

4. 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 working at the relevant time in temporary posts which were created by the Delhi Administration in the cadre of Additional District and Sessions 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, the Delhi Administration, the High Court of Delhi and direct recruits to the Delhi Higher Judicial Service are impleaded as respondents to the petitions.

5. 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 Delhi High Court, were published in the Delhi Gazette on August 27, 1970. Those Rules were framed under Article 309 of the Constitution.

6. 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 posts specified in the Schedule and any other temporary post declared as cadre post by the 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 Rule 2 (e) 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.

7. Part III of the a