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Supreme Court of India
THE HONOURABLE MR. JUSTICE TARUN CHATTERJEE & THE HONOURABLE MR. JUSTICE V.S. SIRPURKAR
High Court of Delhi & Others
Versus
A.K. Mahajan & Others
CIVIL APPEAL NOS. 6397-6398 OF 2001 WITH CIVIL APPEAL NOS. 63996400 OF 2001
Decided On : 15-05-2009
(b) Service law – Promotion – Not a right of employees – Mere chance of promotion if affected cannot and does not invalidate the action on the part of employer – Non-consideration at one point of time does not mean total denial of consideration of the employee. (Para 11, 12)
(1997) 6 SCC 623; 1989 Supp. (1) SCC 34 – Referred
(c) Delhi High Court Establishment (Appointment and Conditions of Service) Rules, 1972 – a Schedule II, Rule 7 – Amendment – Retrospective operation – Affecting only chances of consideration for promotion – Not affecting any vested right – Amendment held, not arbitrary. (Para 13)
(d) Delhi High Court Establishment (Appointment and Conditions of Service) Rules, 1972 – a Schedule II, Rule 7 – Amendment – Existing rules providing for single seniority list for three parallel cadres – Removal of this imbalance was need of the day – Amended Rules rightly providing for three seniority lists, one for each cadre – Similarly owing to varying strengths of the feeder cadres amended rules rightly providing for rotational promotion – Once these changes were made, it was but required to give it retrospective operation form 1993 – No infirmity. (Para 16)
(e) Service law – Equal status posts – For treating different posts as equal the duties and sources of recruitment need not be the same – Similarly qualifications for appointment also need not be identical – The only requirement is that the difference in the pay scales or qualifications of the incumbents of the posts concerned or in their duties or responsibilities or regarding any other relevant factor should not be such that that it would be unjust to treat the posts as of equal status. (Para 18)
(f) Interpretation – Judgment – S.B. Mathur holding existing rules to be valid – Did not create any right to combined seniority list – S.B. Mathur cannot be interpreted as prohibiting change in the modality or creation of three separate seniority lists. (Para 20)
1989 Supp. (1) SCC 34; AIR 1998 SC 2267 – Referred
(g) Administration of Justice – Judicial propriety – High Court finding that Rules could not be changed by amendment – In that case whole amendment ought to be nullified – Instead High Court only invalidated retrospective operation – Retrospective effect given from a date after the last promotion – No infirmity (Para 21)
(h) Service law – Promotion – Amendment of rules – Selection process should be completed in accordance with existing rules – However, if rules are amended after commencement of selection process but with retrospective effect then amended rules will be followed. (Para 22)
(1990) 3 SCC 157; (2007) 11SCC 522; (2004) 12 SCC 588; (1974) 1 SCC 19 – Relied upon
AIR 1998 SC 2267 – Referred
Amendment – Retrospectivity – Benefits already given cannot be taken away by amending the rules retrospectively. (Para 23)
Facts of the case:
Employees of the Delhi High Court challenged the notification dated 7.8.1995, making amendment in Schedule II of the Delhi High Court Establishment (Appointment and Conditions of Service) Rules, 1972 pertaining to selection to the posts of Assistant Registrar.
The writ petitions were allowed by the High Court.
Finding of the Court:
The view taken by the High Court is erroneous.
Result:
Writ petitions filed before the High Court dismissed.
Judgment :-
V.S. Sirpurkar, J.
1. This judgment shall govern Civil Appeal Nos. 6397-6398 of 2001 and Civil Appeal Nos. 6399-6400 of 2001. Civil Appeal Nos. 6397-6398 are filed by the High Court of Delhi and Civil Appeal Nos. 6399-6400 by some employees of the High Court of Delhi. In all the Appeals, a common judgment passed by the High Court is in challenge. By the said judgment, Writ Petitions filed by some of the High Court employees were allowed. In the said Writ Petitions, notification dated 7.8.1995, making amendment in Schedule II of the Delhi High Court Establishment (Appointment and Conditions of Service) Rules, 1972 (hereinafter called "the Rules of 1972" for short), that pertain to the selection to the posts of Assistant Registrar, was in challenge. Rule 3 of these Rules dealt with joint inter-se seniority of confirmed employees in categories of equal status posts. There was a joint seniority list for three categories of employees, they being:-
.(1) Superintendents
.(2) Court Masters
.(3) Private Secretaries.
Rule 7 provided the mode of appointment. It provided that the appointment to the post of Assistant Registrar could be made by selection on merit from confirmed officers of categories 5, 6 and 7 of Class I mentioned in Schedule I. These categories were none other, but the Superintendents, Court Masters and Private Secretaries, meaning thereby that these were the feeder posts to the post of Assistant Registrar. The last appointment to the post of Assistant Registrar under the said Rules of 1972 was made on 1.6.1993. In the year 1994, 5 vacancies arose in the post of Assistant Registrar and the selection process was initiated and a Committee, consisting two Honble Judges of that Court, was constituted. However, on 2.7.1994, a representation came to be made by the Superintendents and the Court Masters that if the promotions were made as per the existing Rules on the basis of the combined seniority list, all the 5 post were likely to be filled only by the Private Secretaries, since they were much more in number and they were promoted in large numbers. It was, therefore, necessary to correct the imbalance. On 12.7.1994, the Honble Chief Justice of the High Court directed the representation to be placed before the Committee constituted for selection to the post of Assistant Registrar.
2. On 7.11.1994 and 8.11.1994, the Committee interviewed 14 senior most officers for the aforementioned 5 posts of Assistant Registrar. However, no decision was taken. The said representation made by the Superintendents and Court Masters, however, came to be considered on 19.4.1995 and the Committee, therefore, recommended that the existing Rules should be amended, providing for 1/3rd quota each for Superintendents, Court Masters and Private Secretaries. It was also observed that if the recommendations were not accepted, then the vacant posts of Assistant Registrar could be filled from the candidates already interviewed. On 19.4.1995, the Honble Chief Justice of that Court directed the then pending promotions to be made on the basis of the existing Rules and also held that the amendment of the said Rules should be made. However, that was to be only for the future posts. Another representation came to be filed on 26.4.1995 by the Superintendents and the Court Masters, pointing out that over the years on account of the existing Rules, the feeder category of Private Secretaries had gained maximum promotions to the posts of Assistant Registrar at the cost of the two remaining feeder posts, namely, Superintendents and Court Masters. It was pointed out that in the last 10 years, out of 28 promotions made to the post of Assistant Registrar, 15 were from the Private Secretaries, while only 13 came from the categories of Superintendent and Court Master combined. It was also pointed out that out of the 9 Assistant Registrars already working, 7 were from the category of Private Secretary and only 2 were from the Superintendents and Court Masters. This
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