Holding

The quota‑and‑rota rule does not apply to appointments made under Rules 16 and 17; seniority between promotees and direct recruits must be determined by their respective dates of appointment and continuous service, rendering the impugned seniority list unconstitutional.

Summary

The case concerned the inter‑se seniority of promotee judges (appointed by promotion under Rule 16) and direct recruits (appointed from the Bar under Rule 5(2)) to the Delhi Higher Judicial Service. The petitioners, promotees, argued that seniority should be based on their dates of continuous officiation and that the seniority list prepared using the quota‑and‑rota mechanism of Rules 7 and 8 was unconstitutional under Articles 14 and 16. The Court examined the scheme of Rules 7, 8, 16 and 17 and held that the quota‑and‑rota rule applies only to regular recruitments to substantive posts and breaks down when appointments are made under Rules 16 and 17, which are limited to promotees. Consequently, seniority must be fixed by the actual dates of appointment for direct recruits and by continuous service for promotees. The impugned seniority list was quashed and a new list was ordered to be prepared accordingly.

Issues considered

The meaning and constitutional validity of the proviso to Rule 7 and Rule 8(2) of the Delhi Higher Judicial Service Rules, 1970 with respect to seniority between promotees and direct recruits.
Whether the quota‑and‑rota scheme prescribed by Rule 7 applies to appointments made under Rules 16 and 17.
Whether the seniority list prepared on the basis of the quota‑and‑rota rule violates Articles 14 and 16 of the Constitution.

Legislation cited

Constitution of Indias. Article 14, s. Article 16, s. Article 309

Subjects

senioritypromoteedirect recruitDelhi Higher Judicial ServicequotarotaArticles 14 and 16temporary appointmentservice lawrule interpretation

Judgment

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
c
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. D

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 E
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 F
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 consul-
tation with the High Court fill substantive vacancies in the service by making
temporary appointment£ thereto from amongst members of the Delhi Judicial G
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.
352 SUPREME COURT REPORTS [1985] I s.C.R·
The Administrator have appointed the writ petitioners and also the
A 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
B 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
c
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
D 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 appoint-
ments 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
E 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 provi-
sion leads to the risk of some other inter-related provisions becoming otiose or
P devoid of meaning [365H ; 366A]
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 •
G 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
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
A
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 B
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]
G
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 perma-
nent 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 D
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
E
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]
II
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 designa-

- tions 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
G

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
H
service. By the second part of rule 2 (b), if read in an extended sense every I.
temporar)' post \vhich carries the same designation as that of any of the post
354 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
A 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 appoint-
ment 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
B
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;
'l
S.C. laisinghaniv. Union of India, [1967] 2 SCR 703; Bishan Sarup Gupta v:
0 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 implemen-
ted in practice leads to the creation of disparities between persons who, being
"
D 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

E 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 tem 1,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
G 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
ff appointment as Additional District and Sessions Jud~e on au <Id hoc, tortuitous
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 A
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 .B
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 a
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 D
situated similarly shall have been treated dissimilarly in a matter which consti-
tutes 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 E
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 possi-

- ble, 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
F

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 G
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,
[1975] 2 SCR 553; held inapplicable. H
356 SUPREME COURT REPORTS (1985] i S.C.R.

A 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
B 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]

: 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
·c 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 pron10-
tions in such a case Bar recruits would not be 1nore than one third of the subs-
tantive posts in the service. [384H : 385A-B]
'
D 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 pro-
vide 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
E ;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
F 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]

G 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.
H
o.i>. s1NGlA '" UNioN 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 B
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 adminis-
tration, 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 0
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
D
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
E
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 diffe- F
rent 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

G
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.

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 nuga- H
358 SUPREME COURT REPORTS [ 1985) 1 S.C.R.

A tory. In the context of the present circumstances rule 7 can have only applica-
tion 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
B 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]

c·
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 tcn1-
porary 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
D 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 mem-
bers 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
E 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

F
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
G
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 retros-
H pectively by different orders. Such probations are meaningless forn1alities. In the
(J.P. SJNGLA v. lJNTON 359
instant case, the placement of pron1otees on probation has not been very strictly A
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 selec-
tions 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 c
[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 D
either pushed back or thrown out.]-[398G-HJ '

ORIGINAL JUR!SICITlON : Writ Petition Nos. 5669 of
1980 and 1345 of 1981
E
(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.
F
A. K. Sen, Anil Kumer Gupll, Brij Bhushan and Mrs. Reuu Gupta
for the Petitioners in WP. No. 5669 of 1980.

• 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
G
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)

Dr. L. M. Singhvi, A. M. Singhvi, K. Lakshmi Vei111gopa/ and H
Mrs. Shobha Dikshit for Respondents 5 & 6.
36() SUPREME COURT REPORTS (198)] I s.c.R.

M. C. Bila11dare and S.S. Srivastava for Respondent No. 7. ·
A
M. C. Blwndare for the Intervener (Delhi High Court Bar
Association)

A. K. Ganguli for the intervener (Delhi High Court & Delhi
Bar Associations)
B
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.

D 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.

There are many decisions bearing upon the familiar controversy
F 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
G
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
ff that they have no application and are distinguishable.
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 A
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
B
the cadre of Additional District and Ses ions Judges. In that capa-
city, 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
i Higher Judicial Service are impleaded as respoudents to the petitions. c
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
D
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 designa-
tion as that of 2ny of the posts specified in the Schedule any other E
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.

G
Part Ill of the aforesaid Rules deals with the method of recruit-
ment to the Service. Recruitment of promo(ees is dealt with by
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 H
362 SUPREME COURT REP OR TS [1985] 1 s.c.R

A 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
B consultation with the High Court while direct recruits are appointed
to the service on the recommendation of the High Court.

Rules 7 and 8 which are crucial to the controversy between the
promotees and direct recruits read thus :

c "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
D 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
..
E 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
F 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."
G
Rule 9 lays down the qualifications for direct recruits by pro-
viding 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.
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 A
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 B
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 c
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 consulta-
tion with the High Court as provided in Rule 15.
D
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:

E
"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."
F
"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."
G
' 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
ff
364 SUPREME COURT REPORTS (1985] l S.C.R,

A 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
B 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
c 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 injus-
D tice 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
F 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
F 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
G 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.
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 B
Articles 14 and 16 .
•
Logically, we must begin this inquiry with the question as to
the interpretation of the proviso to Rule 7. Docs that pro-
viso prescribe a quota or do·es it merely provide for a ceiling?
c
' In other words, does the proviso require that, at any given point of
time, I /3rd of the substantive posts in the Service shall be reserved
for direct recruits or does it only stipulate that the posts held by
direct recruits shall not be more than !/3rd of the total number of
substantive posts in the Service ? The proviso reads thus:
D
"Provided that not more than l /3rd of the substantive posts
in the Service shall be held by direct recruits."

This language is more consistent with the contention of the
promotees that the proviso merely prescribes, by way of imposing a
ceiling, that the direct recruits shall not hold more than 1/3rd of the E
substantive posts. Experience shows that any provision which is
intended to prescribe a quota, generally provides that, for example,
"I/3rd of the substantive posts shall be filled in by direct recruitment."
A ·quota provision does not use the negative language, as the
proviso in the instant case does, that "not more than" one-third of F
the substantive posts in the Service shall be held by direct recruits.

If the matter were to rest with the proviso, its interpretation
would have to be that it does not prescribe a quota for direct
recruits : it only enables the appointment of direct recruits to
substantive posts so that, they shall not hold more than I/3rd of the G
• total number of substantive posts in the Service. However, it is well
recognised that, when a rule or a section is a part of 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 determine the true meaning of any one
pf more of them, An isolated copsideration of a provision leads to H
366 SUPREME COURT REPORTS [1985] 1 s.c.a.

A the risk of somo other inter-related provision becoming otiose or
devoid of meaning. That makes it necessary to call attention to the
very next rule, namely, rule 8. It provides by clause 2 that ;

"The seniority of direct recruits vis-a-vis promotees shall
be determined in the order of rotation qf l'acancies between
B the direct recruits and promotees based on the quotas of
vacancies reservtd 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." (emphasis supplied)

c This provision leaves no doubt that the overall scheme of the 1.
rules and the true intendment of the proviso to Rule 7 is that I/3rd
of the substantive posts in the Service must be reserved for direct
recruits. Otherwise, there would neither be any occasion nor any
justification for rotating vacancies between direct recruits and
promotees. Rule 8 (2), which deals with fixation of seniority
D amongst the members of the Service, provides, as it were, a key to
the interpretation of the proviso to Rule 7 by saying that the proviso
prescribes "quotas" and reserves vacancies for both categories.
· 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, as I have stated earlier, must be read
E 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 I/3rd for direct recruits.

The process of reading the Rules as parts of a connected
whole does not end with Rules 7 and 8. Rules 16 and 17 are also rele-
F vant for the present purpose and have, indeed, an important bearing
on the question of reservation of vacancies for direct recruits to the
extent of one-third of the substantive posts in the Service. Clause
(I) of Rule 16 confers power upon the Administrator to create
te1nporary posts in the Service. By clause (2) of Rule 16, such posts
are required to be filled, in consultation with the High Court, from
G
amongst the members of the Delhi Judicial Service, that is to say, •
the promote es. Rule 17, which is in the nature of a non-obstante
provision, provides that not withstanding anything contained in the
Rules, the, Administrator may, in consultation with the High
Court, fill substantive vacancies in the Service by making temporary
H appointments thereto from amongst the 111embers of the Delhi
O.P. SINGLA v. UNION (Chandrachud, C.J.) 367

Judicial Service. The position which emerges from the provisions
A
contained in Rules 16 and 17 is that it is permissible to create
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 Conrt must be
consulted and such appointments must be made from amongst the
promotees only. If temporary appointment to the Service, either
i in temporary posts or in substantive vacancies, can be made within B
the framework of the Rules and have to be made, if at all, from
amongst the promotees and promotees only, the quota rule con-
tained in the proviso to Rule 7 must inevitably break down when
such appointments are made. The simple reason leading to that
consequence is that direct recruits cannot be appointed either to
temporary posts In the Service or to substantive vacancies in the
Service which are filled in by making temporary appointments.
Thus, even though the proviso to Rule 7 prescribes a quota of one-
third for direct recruits, Rules 16 and !?'permit the non-observance
of the quota rule in the circumstances stated in those rules.

At this stage, it is ncessary to call attention to the definition D
of 'Cadre Post' in Rule 2 (b) and to clear the misunderstanding
which is lil::ely to arise on account of that definition. 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. This definition may, at
first sight, create an impression that every temporary post of an E
Additional District and Sessions Judge is a Cadre Post, whether or
not that post is included in the Service. That is not so. The first
part of the definition says that 'Cadre Post' means a post specified
in the' Schedule. Posts which are specified in the Schedule are posts
in the Service. Therefore, by reason of the first part of the defini- F
tion, posts in the Service are Cadre Posts. It is the second part of
the definition which is likely to create a misunderstanding of the
true position. That part of the definition says that Cadre Post
includes a temporary post carrying the same designation as that of
• any of the posts specified in the Schedule. This provision is
G
consequential to and in consonance with Rule 16. Since it is
permissible under that rule to create temporary posts in the Service,
such posts are also regarded as Cadre Posts. .It would. have been
anomalous to treat a post in the Service as an ex-cadre post merely
for the reason that the post is temporary. Normally, an ex-cadre
post means a post O\Jtside the cadre of posts comprised in a Service. B
368 SUPREME COURT REPORTS (1985] l S.C.R•

A Therefore all posts in the the Service, whether permanent or
temporary, are generally regarded as Cadre Posts, But, regardless
of the normal pattern·of service rules, what is necessary to appreciate
is that 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 clause contained in the second part of Rule 2 (b) has
B to be read in the context of the first part of that Rule and must take
its meaning from what precedes it. 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 posts in all events because,
they can only be appointed to substantive posts in the Service on a
c permanent basis. Rules 16 and 17 forbid their appointments to
temporary posts in the Service or to substantive vacancies in the '
Service on a temporary basis.

Though this is the true scope and meaning of Rule 2 (bl, it is
unnecessary to be dogmatic about it. As will appear presently,
D
even if it is assumed for the purposes of ·argument that temporary
posts not included in the Service are also Cadre Posts, that will not
make any difference to the principle on the basis of which the
Seni?rity List of the Service will have to be drawn.
0

E But, before adverting to that principle, it would be useful to
draw attention to Rule 2 (d) which provides that a Member of the
Service' means a person appointed in substantive capacity to the
Service under the provisions of the Rules. This Rule shows that
two conditions must co-exist in order that a person can become a
~Member of Service'. Firstly, his appointment has to be in a
F substantive capacity and secondly, the appointment has to be to the
Service, that is, to a post in the Service. Persons who hold posts
bearing designations similar to the designations of posts comprisei:I
in the Service cannot, for that reason alone, become members of the
Service. It is only when they are appointed in a substantive capa-
city to a post in the' Service, that they beceme members of the
G Service. •

The acceptance of the alternative hypothesis, that tempora~
posts bearing the saine designation as that of the posts specified m
the Schedule are Cadre posts whether such posts are comprised in the
ff Service or not, will, at any rate, justify the proposition that, accor-
o.P. SINGLA v. UNION (Chandrachud, C.T.) 369

ding to the scheme of the rules in this case, 'Service'. is a narrower
body than the 'Cadre'. By the definition contained in Rule 2 (d),
membership of the Service is limited to persons who are appointed
in a substantive capacity to the Service. By the second part of Rule
2 (b), if read in an extended sense, which is what the alternative
hypothesis requires, every temporary post which carries the same
designation as that of any of the posts specified in the Schedule is a B
Cadre Post, whether such post is comprised in the Service or not.
Such posts and the posts specified in the Schedule will together
constitute the Cadre under Rule 2 (b), if an extended meaning is
given to the second part of that rule .
• c
In this background and with this understanding of the inter-
pretation and effect of Rules 2(b), 2(d), 7, 8, 16 and 17, it will be
easier to deal with the question of seniority between direct recruits
and promotees. The contention of the petitioners which we have to
examine is that the rule of seniority provided in Rule 8 is constitu-
D
tionally invalid. We are not concerned in this case with the pro-
vision contained in Rule 8 (I) which governs the inter se seniority of
members of the Delhi Judical Service who are promoted fto the
Delhi Higher Judicial Service. Members of the subordinate judicial
service promoted to the Delhi Higher Judicial Service retain their
former seniority. We are concerned with clause (2) of Rule 8,
E
which provides, in so far as relevant, that the seniority of direct
recruits vis-a·vis the promotees shall be determined in the "order of
rotation of vacancies between the direct recruits and promotees
based on the quota of vacancies reserved for both the categories
by Rule'7, provided that the first available vacancy will be filled by a
direct recruit, the next two vacancies by promotees and so on: I!

This Court has taken the view in many cases that whenever the
rules provide for for recruitment to a Service from different sources,
there is no inherent infirmity in prescribing a quota for appointment
of persons drawn from those sources and in working out the rule of
G
quota by rotating the vacancies as between them in a stated propor-
tion. (See, for example, Mervyn Coutinho v. Collector of Customs,
Bombay,(1) S. C. Jaisinghani v. Union of lndiu,( 2) Bishan Sarup

(I) [1967[ 2 SCR 703. ff
(2) [1966) 3 SCR 60Q.

"
370 SUPREME COURT REPORTS [1985) J S.C.R.
A
Gupta v. Union of India, (1) A.K. Subraman v. Unian of India,(')
V. B. Badami v. State of Mysore (3 ) and Paramjit Singh Sandhu v. Ram
Rakha.<') Therefore, Rule 8 (2) cannot be held to be unconstitu-
tional merely because, it reserves one-third of tbe vacancies in the
B 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.
•
However, instances are not unknown wherein, though the
provision of a rule or a section is not invalid, the manner in which
D that provision is implemented in practice leads to the creation of
disparities between persons who, being similarly circumstanced, are
entitled to equal treatment. Care has therefore to be taken to apply
the provisions of Rule 8(2) in such a manner as not to lead to the
violation of the guarantee of equality and equal opportunity con-
tained in Articles 14 and 16 of the Constitution. For that purpose.
c it is necessary to ascertain as to which of the promotees can be
regarded as belonging to the same class as the direct recruits.

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 they hold posts
which carry the same designation will not justify the conclusion 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 seniority with
those who are appointed to their posts in strict conformity with the
rnles of recruitment, whether such latter class of pos~s are permanent
or temporary. The rules in the instant case do not reqnire that per-
son belonging to the former category have to satisfy any particnlar
prescription like consultation with the High Court. We are informed
that in practice, persons who are promoted to the Delhi Higher
Judicial Service on an ad hoc basis or for fortuitous reasons or by
way of a stop-gap arrangment are appointed only after their names

-
G
are cleared or approved by the High Court. That may or may not be
so. The point of the mrtter is that there is no provision in the Rules
which requires that such appointments must also be made in accor-

(I) [197511 SCR 104.
(2) [1975] 2 SCR 979.
(3) [1976] 2 SCR 901.
(4) [1979) 3 SCR 584,
().P. SINGLA v. UNION ( Chandrachud, CJ.) 371

dance with any set formula. The courtesy shown by the authorities A
to the High Court when certain appointmeuts are made, is one thing;
The obligation imposed by the Rules on the authorities that the High
Court shall be consulted when certain other appointments are made
is quite another. Indeed, there is a distinction between the process
of consultation with the High Court and the screening of the pro-
motees done by the High Court, may be. at the instance of the B
authorities, when their names arc considered for appointment as
Additional District and Sessions Judges on an ad hoc, fortuitous or
stop-gap basis.

Thus, persons belonging to the Delhi Judicial Service who are
appointed to temporary posts of Additional District and Sessions
Judges on an ad hoc basis or for fortuitous reasons or by way of a
stop-gap arrangement. constitute a class which is separate and dis-
tinct from those who are appointed to posts in the Service in strict
conformity with the ru !es of recruitment. In view of this, the former
class· of promotees cannot be included in the list of seniority of D
officers belonging to the Service.

It is however difficult to apreciate how, in the matter of
. seniority, any distinction can be made between direct recruits who
are appointed to substantive vacancies in the ·Service on the
recommendation 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. Rule 16 provides for the appoint-
ment of promotees to temporary posts in the Service, while Rule 17 E
provides for appointment of promotees to substantive vacancies in
the Service on a temporary basis. Promotees who are appointed to
the Service under either of these two rules must be considered as
belonging to the same class as direct recf'uits appointed under Rule
5(2). They perform similar functions, discharge identical duties and
bear the same responsibilities as direct recruits. They are appointed
on a regular basis to posts in the Service in the sam·e manner as G
direct recruits are appointed, the only distinction being that whereas
the latter are appointed on the ·recommendation of the High Court
promotees are appointed in consultation with Urn High Court. There
fore, no distinction can be made between direct recruits on one hand
and promotees appointed to the Service on the other, in the matter
of their placement in the seniority list. Exclusion from the seniority
list of those promotees who are appointed to posts in the Servic,e H
372 SUPRBMB COURT MPORTS (!9g)j l S.C.R.

A' whether such appointment is to temporary posts or to substantive
vacancies in a temporary capacity, will amount to a violation of the
equality rule since, thereby, persons who are situated similarly shall
have been treated dissimilarly in a matter, which constitutes an
important facet of their career.

B A representative order of appointment under Rule 16, which is
annexed to one of the writ petitions, shows why promotees appointed
under that rule (and for similar reasons, those appointed under Rule
17) cannot be discriminated against in the matter of seniority in
comparision with direct recruits. That order reads thus:
'.)
•
c "DELHI ADMINISTRATION DELHI A

NOTIFICATION

Dated the 22 March 1972 No. F. 1(76)/70-Judl.(i)-In pursu-
ance to the provisions of sub-rule (2) of rule 16 of the Delhi
Higher Judicial Service Rules, the Administrator of Delhi,
D is pleased to appoint in consultation with the High Court,
the following members of the Delhi Judicial Services,
temporarily to the Delhi Higher Judicial Service, till fur- ,
ther orders, with effect from the date they take over charge
of their offices, against the four posts of Additional District
E and Sessions Judges, created vide his notification No.Fl(13)/
72-Judl. dated the 13th March, 1972.

I. Shri Dalip Chand Aggarwal
2. Shri Bishma Kumar Agnihotri
3. Shri Sadhu Ram Goel
F
4. Shri Pyare Lal Singla.
By Order.
(Desh Deepak)
Secretary (Law & Judicial)
Delhi Administration, Delhi."

This order shows that, firstly, by a notification dated March 13,
1972, the Administrator created temporary posts in the Service under
Rule 16(1); secondly, four promotees ~ere appointed to those posts
in the l)elhi Higher Judicial Service; and thirdly, that they were
appointed 'till further orders'. The appointments were neither ad-
6.i>. SlNGLi\ v. UNION (Chandrachud, C.i.) 373

hoc, nor fortuitous, nor in the ~ature of a stop-gap arrangement. A
Indeed, no further orders have ever been passed recalling the four
promotees and, others similarly situated, to their original posts in the
subordinate Delhi Judicial Service. Promotees who were appointed
under Rule 16 have been officiating continuously, without a break,
as Additional District and Sessions Judges for a long number of
years. It is both unrealistic and unjust to treat them as aliens to the
• Service merely because the authorities did not take up to the necessity
of converting the temporary posts into permanent ones, even after
.. some of the promotees had worked in those posts from five
to twelve years. Considering the history of the Delhi Higher Judicial )
'
Service, it is clear that the phrase 'till further orders, is only a familiar
official device to create and perpetuate temporary posts in the Service! -
when the creation of permanent posts is a crying necessity. The fact tha
0
temporary posts created in the Service under Rule 16(1) had to be
continued for years on end shows that the work assigned to the
holders of those posts was, at least at some later stage, no longer of
a temporary nature. And yet, instead of converting the temporay
posts into permanent ones, the authorities slurred over the matter
and imperilled, though unwittingly, the reasonable expectations of D
the promotees. Unwittingly' because, no one appears to have been
interested in belittling the contribution of the promotees who held
temporary posts in the Service or in consciously jeopardising their
prospectus. The tragedy is that no one was interested in anything at
all. Or else, why was direct recruitment not made from time to time,
at regular intervals? If that were done, the undesirable situation E
which confronts us to-day could have been easily avoided. The pro-
viso to Rule 7 prescribes a system of quota and rota. why was that
rule put iu cold storage by creating temporary posts in the Service
when permanent posts were clearly called for? Permanent posts could
have been allocated to direct recruits and promotees in the ratio of p
• one to two. In these circumstances, it will be wholly unjust to pena-
lise the promotees for the dilatory and unmindful attitude of the
the authorities. It is not fair to tell the promotees that they will rank

- as juniors to direct recruits who were appointed five to ten years after
they have officiated continuously in the posts created in the Service
and held by them, though such posts may be temporary. This Court,
at least, must fail them not.
G

From an earlier part of this judgment it would appear how,
though the proviso to Rule 7 prescribes a quota of one-third for
H
314 SUPREME COURT REPORTS [ 1985] I s.C.R.

direct recruits and provides for rotation of vacancies between them
A
and the promotees who are appointed to the Service, that rule
must inevitably break down when appointments to promotees are
made to the Service under Rules 16 and 17. Appointments under
these two Rules have to be made from amongst the promotees only.
Whenever appointments are made to the Service under either of
B these Rules, neither the quota reserved for direct recruits nor the
rule of rotation of vacancies between them and the promotees can
have any application. The question then is, in situations resulting
in the suspension of the rule of 'quota and rota': which its the •
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? It is difficult to evolve a rule which will cause no
hardship of any kind to any member of the Service. Therefore, the
attempt has to be to minimise, as far as possible, the inequities and
disparities which are inherent in a system which provides for recruit-
ment to the Service from more than one source. While doing this,
the one guiding principle which must be kept in mind is that classi·
D fication is a gl6ss on the right to equality. It is but a step in the
process of working out the .equities between persons who are entitled
to equal treatment. It is therefore necessary to ensure that classi-
fication is made on a broad, though rational, basis so as not to
produce the self-defeating result of denying equality to those who in
E substance, are situated similarly.

That is why, it would be hyper-technical to make a sub-classi-
•
fication between promotess appointed under rule 16 and those
appointed under Rule 17, with the object of denying to the latter the
equality of status and opportunity with the former and with direct
F recruits. It is true that under Rule 16, promotees are appointed to
temporary posts in the Service while, under Rule 17 they are appoint-
ed in a temporary capacity to substantive vacancies in the Service.
But this kind of service jargon clouds the real issue as to whether
persons appointed under different rules necessarily belong to
different classes and tends to produce inequalities by an artful resort,
G
dictated by budgetary expediency, to the familiar device of fixing
dissimilar labels on posts which carry the same duties and responsi-
bilities and are subject to similar pre-appointment tests. It may
even be that in the process of consulation, the High .Court exercises
greater vigilance in regard to appointments proposed under Rule 16
H than in regard to appointments which are proposed under Rule 17.
O.P. Sl.NGLA v. ONION (Chandrachud, CJ.) 375

But, the fact that the High Court chooses to adopt, of its own volition A
any particular approach in the matter of appointments made under
different rules, cannot justify the proposition tI1at persons appointed
' under different rules necessari'Iy belong to different classes. The
requirement for appointments under both the Rules is, equally, that
they must be made in consultation with the High Court. The High B
Court is, therefore, expected to apply the same standard and adopt
the same approach whether appointments are proposed to be made
• under Rule 16 or Rule 17. Any attempt to sub divide the promotees
according as to whether they are appointed under Rule 16 or Rule
17 will result in the creation of a distinction where no difference
exists. The object of classiffcation is to find a remedy to such c
situations, not to create or perpetuate them.

It may bear emphasis that promotees appointed under Rules
16 and 17 to the Higher Judicial Service can rank for seniority along
with direct recruits only if they are appointed in consultation with the
High Court as required by those Rules and if they satisfy the require- D
ment laid down in Rule 7(a) that they must have completed not less
than ten years of service in the Delhi Judicial Service.

The best solution to the situation which confronts us is to apply
the rule which was adopted in S.B. Pa1wardha11 v. State of
Maharashtra.l1 ) It was held by this Court in that case that all other E
factors being equal, continuous officiation in a non-fortuitous vacancy
ought to receive due recognition in fixing seniority between persons
who are recruited from different sources, so long as they belong to
the same cadre, discharge similar functions and bear the same
responsibilities. Since the rule of 'quota and rota' ceases to apply
when appointments are made under Rules 16 and 17, the seniority r
of direct recruits and promotees appointed under those Rules must be
determined according to the dates on which direct recruits were
• appointed to their respective posts and the dates from which the
promotees have been officiating continuously either in temporary posts
created in the Service or in substantive vacancies to which were G
appointed in a temporary capacity.
Our attention was drawn to several decisions but most of them
tnrn of their own facts. For example, the promotees placed great
reliance on the decision in Baleshwar Dass v. State of U.P.('J In that

(I) [1977] 3 SCR 775.
(2) [I98J]i' SCR 449. .H
~16 I SUPREME COURT REPORTS (198$) I s.c.k.

A case, there was only one rule of recruitment to both the permanent
and temporary posts in the cadre. Besides, no rotation of vacancies
was prescribed for the purpose of fixing seniority. The position
which arises in the case before us did not therefore arise in that case.
However, the o?servations made by Krishna Iyer,J. fo that case
are not without relevance for the present purpose. The learued judge
B observed :
•
"We must emphasis that while temporary and perma-
nent posts have great relevancy in regard to the career of
government servants, keeping posts temporary for long,

c
sometimes by annual renewals for several years, and deny- ..
ing the claims of the incumbents on the score that their
posts are temporary makes no sense and strikes us as
arbitrary, especially when both temporary and permanent
appointes are functionally identified. If, in the normal
course, a post is temporary in the real sense and the
appointee knows that his tenure cannot exceed the post in
D
longevity, there cannot be anything unfair or capricious in
clothing him with no rights. Not so, if the post is, for
certain departmental or like purposes, declared temporary,
but it is within the ken of both the government and the
appointee that the temporary posts are virtuatllylong-lives. It
is irrational to reject the claim of the 'temporary' appointee
E
o~ nominal score of the terminology of the post.We must
also express emphatically that the principle which has
received the sanction of this Court's pronouncements is that
officiating service in a post is for all practical purposes of
seniority as good as service on a regular basis. It may be
-
permissihle, within limits, for government to ignore officia-
ting service and count only regular seryice when claims of
seniority come before it provided the rules in that regard are
F
clear and categorical and do not admit of any ambiguity and -
cruelly arbitrary cut-off of long years of service does not take
place or there is functionally and qualitatively, substantial
difference in the service rendered in the two types of posts.
G While rules regulating conditions of service are within the
executive power of the State or its legislative power under
proviso to Article 309, even so, sueh rules have to be
reasonable, fair and not grossly unjust if they are to survive
the test of Articles 14 and 16."
•
H
6.P. slNGtA v. UNiON (Chandrachud, C.J.) 311
,
In A. Janardhana v. Union of India,(') the Court had to consider A
the validity of rules of seniority which were applicable to the Military
Engineering Service. The recruitment to the Serviee was made
from two sources, directly and by promotion. The appellant was a
promotee of 1962 who, it was argued in that case, could find a place
in the seniority fat in 1989, when it would be time for him to retire.
D.A. Desai, J. observed in that case: B
•
" ... In other words, after having rendered service in a
post included in the service, he is hanging outside the service
without finding a berth in service, whereas direct recruits of c
1976 have found their place and berth in the service. This
is the situation that stares into one's face while interpreting
the quota-rnta rule and its impact on the service of an
individual. But avoiding any humanitarian approach to
the problem, we shall strictly go by the relevant Rules and
precedents and the impact of the Rules on the members of n·
the service and determine whether the impugned seniority "
list is valid or not. But, having done that we de propose
to examine and expose an extremely undesirable, unjust
.and inequitable situation emerging in service jurisprudence
from the precedents namely, that a person already render-
E
ing service as a promotee has to go down below a person
who comes into service decades after the promotee enters.
• the service and who may be a schoolian, if not in embryo,
when the promotee on being ·-promoted on account of the
exigencies of service as required by the Government started
rendering service. A time has come to recast service F
jurisprudence on more just and equitable foundation by
examining all precedents on the subject to retrieve this
situation.'' •
•
No two cases are alike and. therefore an attempt has been
made in tl1is judgment to consider the language and implication of
the Rules which govern appointments to the Delhi Higher
!.. Judicial Service. But, the observations which we have extracted G
above are not without relevance to the decision of the case before
us. They lend considerable support to the conclusion which has
been recorded in this judgment.

,,
(I) [19831 3 sec 601.
1:1
378 SUPREME COURT REPORTS [1985] 1 s.c.R.

A . The decision of this Court in Joginder Nath v. Union of India('),
docs not afford any assistance on the questioil which is in issue
before us. That case arose out of a controversy between the pro-
motces inter se and not between promotees and direct recruits.

The seniority list which is impugned in this case has been
prepared on the basis that the rule of 'quota and rota' will continue
B
to apply notwithstanding the fact that appointments are made to
the Service under Rule 16 and 17. As pointed out earlier, the rule
of 'quota and rota' which is prescribed by the proviso to Rule 7
would cease to apply when appointments are made to the Service
under Rules 16 and 17. The seniority list has therefore to be
c quashed.

A new seniority list shall have to be prepared by the autho-
rities on the basis of the view taken in this judgment. The new
seniority list will include (i) direct recruits and (ii) promotees appoin-
ted under Rules 16 and 17. They will rank for seniority as ex-
D plained above.

The question of the seniority of respondent 4, Shri G.S.
Dakha has to be dealt with on a different basis. He was appoin•
ted as an Additional District and Sessions Judge in a vacancy
reserved for members of the scheduled castes. He will retain his
..
E position in the seniority list since that position is due to him as a
member of a scheduled caste.
•

-
The case of Miss Usha Mehra has caused us some anguish.
She was appointed as a direct recruit on April 22, 1980. The rule
of ·quota and rota' was in operation since the inception of the
F Delhi Higher Judicial Service and she must have joined the Service
on the basis of certain reasonable expectations flowing out of a
, senior position. Though comparatively young, she had a fairly
large practice at the Bar when she was appointed as an Additional •
District and Sessions Judge. A strong pica has been made on her
behalf that her place in the seniority list should no! disturbed.
G We wish that were possible. It would be incongruous to do so
because, if the rule of 'quota and rota' ceased to apply when appoint-
ments were made to the Service under Rules 16 and 17, her
present position in the seniority list which has been accorded to
her on the basis of that rule cannot be maintained. For this

H (\) [197S] 2 SCR SS3.
O,P. SJNGLA v. UNION (Chandrachud, C.J.) 379

consequence the promotees are not to blame, and certainly, not A
any of the direct recruits. The promotees had made a represen-
tation to the High Court as long back as in the year 1977 but, for
a reason not easy to understand, the High Court did not dispose of
that representation for over three years, Indeed, one of the con-
tentions of the High Court before us is that those writ petitions are
premature because the representation of the promotees is still pen- B
ding before it. Miss Mehra was appointed three years after the
promotees had made their representation to the High Coort, which
was the most appropriate authority for them to approach. A timely
disposal of the representation by the High Court would have saved
the predicament in which some of the direct recruits like Miss c
Mehra w'tll now find themselves. It was urged that the promotees
ought not to grudge one little exception in favour of Miss Mehra
since they have derived quite some benefits from the operation of
Rules 16 and 17. It is true that the promotees have derived a
substantial benefit by the operation of Rules 16 and 17. They
monopolised all the appointments to temporary posts as eJso tem- DJ
porary appointments to substantive vacancies in the Service.
Simultaneonsly, they also derived benefit from the rule of 'quota
and rota'. For example, though N.L. Kald:ar and· Shri R.K.
Sinha were promoted to the Service in 1972, they were placed in
the seniority list above Shri N.C. Kochar who was recruited
directly in 1971. That was done in conformity with the quota and E
• rota rule of 1 : 2. If, at least some of the temporary posts had
been converted into permanent ones as they ought to have been,
one out of every three-posts would have gone to a direct recruit.
But as pointed out by us, the difficulty in the way of maintaining
Miss Mehra's present position in the seniority list is that doing so F
would be inconsistent with the view which we have taken in this
• judgment. We cannot, therefore, make an exception in the case of
any particular direct recruit.

... It is patent that this judgment will upset the balance between
direct recruits and promotees in the Delhi Higher Judicial Service. G
If the authorities desire to restore that balance, appropriate rules
shall have to be framed for future application. But, more than
merely framing the rules, care shall have to by taken to implement
the rules both in letter and in spirit. That will call for greater
concern and understanding on the part of the authorities for the
future of a syst~m. which one believes, has stood. the peopl~ well.
380 SUPREME COURT REPORTS [1985] ! S.C.R. r
A In the result, the proviso to Rule 7 and Rule 8(2) bear the
meaning° and interpretation which is given to them in this judgment,
those provisions do not by themselves suffer from any eonstitu-
tiona,l infirmity. But, the seniority list which is challenged by the
promotees in these Writ Petitions is violative of the provisions of
Articles 14 and 16 of the Constitution. That list is quashed and
B the Writ Petitions are allowed to the extent indicated above. There
will be no order as to costs.

SABYASACH! MUKHARJI, J. With great respect I find myself
unable to agree with the learned Chief Justice on certain aspects of
·-
the relevant rules in this case. I would, therefore, like to state my
t
c reasons with such relevant rules as are nec·essary.

These two Writ petitions under article 32 of the Constitution
question the validity of Rule 8(2) of Delhi Higher Judicial Service
Rules, 1970 hereinafter referred to as the said rules and the fixation
of inter-se seniority of the promotees and direct recruits of Delhi
D Higher Judicial Service.

In the first one, namely Writ Petition No. 5669 of 1980, the
petitioners me, one Shri O.P. Singla, who was at the relevant time
working as an Additional District & Sessions Judge and at the
time of the institution of the petition working as the Presiding
E Officer, Industrial Tribunal in Tis Hazari Court, Delhi alongwith
Shri D.C. Aggarwal, Additional District and Sessions Judge,
•
Delhi. The respondents to this application are the Union of
India, Delhi Administration, Delhi High Court, respondent No. 4,
Shri G.S. Dakha, Additional District and Sessions Judge, Tis
Hazari, Delhi and respondent No. 5 Miss Usha Mehra, Additional
F District and Sessions Judge, Tis Hazari, Delhi.

In the second petition there are 32 petitioners who are Addi- •
tional District and Sessions Judges in the Delhi Higher Judicial
Service alongwith Delhi Judicial Service Association. The respon-
dents to the said petition are apart from the Union of India, Delhi
G Administration, Delhi High Court, Shri G.S, Dakha, who is a res-
pondent to the other petition also, Miss Usha Mehra (who is also
a respondent in other petition) and two other respondents, namely,
Shri C.D. Vashist, Additional District and Sessions Judge, Tis
Hazari Delhi and one Shri S.P. Singh Chowdhary, Additional
Distric~ and Sessions Judge, Tis Hazari, Del\li.
~ O.P. S!NGLA v. UNION (S Mukhmji, J.) 381

The immediate cause which prompted the tiling of the second A
petition, according to the petitioners, was the advertisement pub-
lished in the. 'Indian Express' dated 30th January, 1981 which invited
applications for filling three permanent posts in the cadre of Delhi
Higher Judicial Service. The case of the petitioners is that peti·
tioners in both these petitions are promotee Additional District
and Sessions Judges in the Delhi Higher Judicial Service and they B
had joined the,service long time back. The petitioners in the first
petition namely, Writ Petition No. 5669 of 1980 had joined the
Delhi Higher Judicial Service in the beginning of 1972 and have
been serving since then with ability. . ,

The other relevant facts have been stated in the judgment C
of my brother, the learned Chief Justice. It is,· therefore, not
necessary for me' to state these again.

The controversy in these two writ petitions is inter-se
seniority between the promotees and the direct recruits and for 0
this, one must refer to some other relevant provisions of the said
rules and mainly to rules 7 and 8 alongwith Rules 16 and 17 of the
said rules. The rules are as follows :-
"Rule 7. REGULAR RECRUITMENT :-
Recruitment after the initial recruitment shall be E
made:-
•
(b) by promotion on the basis of selection from members
of Delhi Judicial Service, who have completed not
less than 10 years of service in the Delhi Judicial
Service :
F
• (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."

There is a further proviso which is not really relevant for the G
present controversy and which provides that where a member of
the Delhi Judicial Service is considered for such appointment
under Clause (a),· all persons senior to him in the Service shall also
be considered, irrespective of the fact whether or not they fulfil the
requirements as to the minimum of IO rears service. T~ere is an ff,
11
382 SUPREME COURT REPORTS [1985] 1 s.c.R.

A Explanation for calculation of period of 10 years which again is
not relevant for the present purpose.

Rule 8 is as follows :-

"8. (1) The inter-se seniority of members of Delhi
B Judicial Service promoted to the service shall be the same
7
as in the Delhi Judicial Service.

(2) The seniority of direct recruits vis-a-vis promotees
shall be determined in the order of rotation vacancies bet-
ween the direct recruits and promotees based on the
c quotas of vacancies reserved for both categeries by rule 7
provided that the first available vacancy will be filled by
direct recruitment and the next two vacancies by promotees
so on."

D Rule 9 deals with the qualifications for direct recruits and
provides that they (1) should be citizen of India, (2) must have
practised as an advocate for not less than seven years, (3) must
have attained the age of 35 years and not attained the age of 45
years on !st January of the year in which his appointment is
made.
E
The submission of the petitioners is that the officers intented •
to hold the posts of District Judges cannot artificially be prevented
from holding such posts substantively, either because of delay in
making posts permanent or by being discriminated against in the
F
fixation of seniority in the cadre vis-a-vis direct recruits to the
service, who have lesser years of practice at the Bar as compared to
-.
the period of promotee-officers' judicial service period and period
of practice at the Bar, if any, put together. The petitioners have •
given instances of the incongruities, according to them, that will
result if the present system is allowed to cont.inue. The petitioners
G themselves and through their association had miide several repre-
sentations in January, 1978, July, 1978 and December, 1978 and
.
also sought remedy against what they call injustice and they also
submitted that direct recruitment from the Bar might not be made
by the High Court to the Delhi Higher Judicial Service until
the question was resolved. The petitioners contend that the pre-
sent interpretation and the present seniority list create anomalous
positions,

"
O.P. SINGLA v. UNION (S. Mukharji, J.) 383
After the petitions were filed, rules nisi were issued and cer-
tain interim orders were passed. It is not necessary to set out the A:
details of the said orders made by this Court from time to time.

It may be mentioned, however, that on the 29th September,
1981 this Court issued rules nisi in both these matters and further B
ordered that there would be no reversion either from the category I·

ofpromotees who were working as District and Sessions Judges or
from the category of direct recruits who were also working in the
same capacity. Several intervention applications were allowed.
On 27th April, 1982 thi~ Court further directed that if any officer g,
who was then working on deputation returns to the parent cadre,
')
it 'might become neeessary to revert the junior-most officer who is
at present holding the post of Additional District and Sessions
Judge, but this Court noted that even then such a reversion should
as far as possible, be avoided.
D
.,
Jn these petitions, charts of the gradation list have been
annexed. According to the list, Shri J?akha, respondent No. 4
has been shown as number 6 and Miss Usha Mehra, respondent
No.5 as number 9. This is so because of artfiiciai reading of Rule
7 and Rule 8 of the said rules, according to the petitioners. By
the same process,it is indicated that Miss Usha Mehr who had joined
as Additional District and Sessions Judge on probation on 24th April
1980 supersedes by the working of Rule 7 and Rule 8 in improper
and illegal way, 22 officers, including Shri Mahesh Chandra, _whose
date of birth was 12th October, 1928 and whose date of appoint-.
ment as Additional District and Sessions Judge was 8 years before F
Miss Mehra. She also supersedes Shri S.R; Goel who was born
on 12th October, f929 and who had joined the service on 24th .
• March, 1972-8 years before Miss Mehra had joined as Additional
District and Sessions Jurlge ; more or less similar is the position
in case of Shir Y.B. Gupta, Shri P.K. Bahri, Shri H.P. Bagchi and

- ·-
Mrs. Santosh Duggal who was born on 21st March, J931 and had
joined the service as Additional _District and Sessions Judge on 29th
September, 1975 and numerous other officers last of whom had
joined on 23rd August, 1979 and most of whom were at least JO.
G

·'
years older than respondent _No. 5, Miss Mehra. Similarly
Shri Dakha supersedes 16 officers by joining as Addition"! District
and Sessions Judge in 1978 and is superseding officers who had
joined in 1972, 1973, 1974, 1975 and some of whom were much' H
..
384 SUPREME COURT REPORTS [1985] 1 S.C.R.
older than him in age. Shri J.B. Goel will also be superseding
some of the officers who have been indicated in the chart.
This anomaly has been caused by the operation of Rule 7(b)
of the said rules read with sub-rule (2) of Rule 8. Rule 7 which
deals with regular recruitment provides two modes of recruitment,
namely (1) by promotion on the basis of selection and (2) by direct
B recruitment from the Bar. So far as direct recruitment from the
Bar is concerned, it clearly states that "not more than I/3rd of
the substantive ports in the Service shall be held by direct recruits".
Reading it simply without anything else and unaided or unin-
fluenced by service parlance and without Ming inhibited by any
interpretation of other statutes in the context of some other Rules,
a it appears that it merely provides that in case a year there is
vacancy for recruitments from the Bar as well as by promotion,
more than !/3rd of substantive posts should not be filled in by
direct recruitment. It says this and no more. It is difficult to
contend that there is any quota of Bar recruits of I/3rd. The Rule
D does not say that I/3rd of direct recruits must for each year be
I/3rd of the recruitments made. It puts a ceiling on number of
Bar recruits in a year where Bar recruits are available and willing
to be appointed. It does not fix any quota far them. As the •
working of the rule would, indicate, it was for unnecessary and
hypothetical situation which never arose in years subsequent to the
K framing of the rules. The framers of the Rules perhaps thought
and assumed that many Bar recruits would be willing to join the
service and selections would be made from Bar regularly and timely
eliminating thereby the the chances of the promotees whose know-
ledge and experience were also necessary to be retained for the
better administration of the judicial service. Many factors have
F worked otherwise and the assumption upon which this rule t.ad
been framed has not proved to be correct.
If Rule 7 was standing itself simpliciter, no problem would
have arisen. The problem, however, arises by virtue of sub-rule (2)
of Rule 8. Sub-rule(!) of Rule 8 stipulates that inter-se seniority of
the members of Delhi Judicial Service promoted to the service shall
G
be the same as in the Delhi Judicial Service. This creates no problem
for t!\e present controversy. Sub-rule (2) of Rule 8, however, stipu-
lates that seniority of direct recruits vis-a-vis promotees shall be
determined in the order of rotation of vacancies between direct
recruits and promotees based on quotas of vacancies reserved for
both categories by Rule 7 provided that first available vacancy sha 11
H be by direct recruitment and the ne~t two vacancies by promotee3
O.P. SINGLA v. UNION (S. Mukharji, J.) 385
and so on. Sub-rule (2) or the makers of sub-rule (2) of Rule 8
presumed and assumed a factual position that quotas of vacancies
have been reserved for both categories by Rule 7 which is really not
a fact. Rule 7 does not reserve any quota for either of the categories.
Rule 7 only provides for ceiling of direct recruits by providing that
in case there were recruitment from Bar as well as by promotions, in
such a case Bar recruits would not be more than I /3rd of the substan- B
tive posts in the Service. This brings the problem of so interpreting
the rules as to avoid any possible injustice to any section, if possible.
In this task in the instant case there is one advantage that
though there are numerous decisions, dealing with rights and privileges
of promotees vis-a-vis direct recruits, there is no case, at least none. c
to which attention was drawn in this case, where the rule dealing )
with possition between direct recruits and promotees in a service
cornposed of two different types of recruits, is worded in the manner
as provided in the rules in the instant case. It is well-settled that
bereft of anything where a service consists of recruitments made from
two defferent sources and the rules and regulatiom provide for their D
recruitment and their rights inter-se, primarily and essentially those t
rights have to be adjusted within the scheme of the rules though it
might in so~e cases lead to certain amount of imbalances or injus.
tices because a service is built on various considerations and various
factors induce the legislature or the rule making authority to induce
E
different and diverse knowledge, diverse aptitudes and requirments
• needed for running of the service. The legislature or the rule-making
authorities have better knowledge and better capacities to adjust
those factors. It is common knowledge that administration of justice
in this vast land of ours, where there are growing expectations with
the explosion of ideas with new problems, call for fusion of different F
calibres, talents and aptitudes. Administration of justice calls for
independence of m.ind, freshness of outlook, uninhibited by normal
• service life and routine. It also calls for experience in writing
judgments and knowledge gathered in conducting cases from lower
rank and gaining experience thereby and any ideal system would be
where there is complete fusion between these two sources and streams G
• of knowledge to enrich the machinery of the administration of justice.
But the machinery of the administration of justice fused in- that
.'
manner must work with a sense of justice wtihin itself but if, as very
often is the case in thi• country, where there are recruitments from
different sources instead of creating harmony and that harmony
utilised with dedication for the purpose of the ii1stitution, creates
idsharmony and discontent amongst the various segments of that H
II
386 SUPREME COURT REPORTS (1985) l S.C.R.

insitution generating amongst many a brooding sense of injustice,
A
real or imaginery. Justice should be the end of all. law. But then
what is justice? Is it merely creating situations for the realisations of
one's just expectations or is it adjustment of the rights and expecta-
tions of many in the administration with sense of justice within the
machinery administering justice in accordance with the rules designed
to attract talents? Independence, experience and knowledge must be the
B
aim and purpose of these rules intended to regulate their conditions
and if these rules are not clear, these should be so interpreted, where
the courts are not fettered or bound by precedents, to ensure that
justice flows, such justice is essential for society to survive. It is im-
portant because it enables the individuals in the administration of

• justice to serve justice and to identify themselves with the process .
But by rules, we cannot make justice certain in this uncertain age
but all we can ensure is, attempt to prevent injnstice. Most of the
problems as are apparent in working out these types of schemes and
rules have been due to the failure to see the reality and the desire tci
proceed on adhocism.
D
The rules in question have been noted in the instant case in detail.
There is no quota as such. Rule 8(2) proceeds on the misconcep-
tion that there is quota fixed for direct recruits, which rule 7 does not.
Rule 8(2) cannot on plain literal meaning also be construed or inter-
preted to mean that it was deemed by the legislature and the rule-
E making body to engraft any quota. There is no deemed quota, if that
was the intention then the rule would have said so. It has not. Rule •
8(2) proceeds on wrong assumption. Therefore, it should be given
effect to in so far as it can be without reading any quota for the sub-
sequent years. How it shoulil be so read would be presently indicated.
There is another aspect of the matter. Rule 16 permits making addi-
F tional appointments. Before the actual situation, where Rule 7 and
Rule 8(2) can be adjusted is dealt with, it would be relevant to note •
some of the decisions cited at the Bar though, most of these are not
relevant. On the wording of rule 7 read in conjunction with rule 8(2)
one is on virgin ground.
G Jn the case of Mervyn Coutinho & Ors. v. Collector of Customs
Bombay & Ors(')., this Court noted that there was no inherent vice
in the principle of fixing seniority by the rotation in a case where a
service is composed of fixed proportion of direct recruits and promotions
(emphasis supplied). There as indicated by the emphasis supplied
that the rule proceeded on different basis than the present one. In

.H O> [19661 3 s.c.R. p.600.
b.P. S!NGLA v. UNtol'o (S. Mukhar}i, J.)

the instaat case in view of the specific and clear language of proviso A
to rule 7 read with rule 8 it cannot be said that recruitment to the /
service was "in fixed proportion". In that view of the matter, the
observation·s of this Court in the said decision would dot throw much
light in resolving the present controversy.
In the case of S.G. Jaisinghani v. Union of lndia &· Ors (1).,
this Court was concerned with the Seniority Rules of the Income- B
tax Service. There the context in whjch controversy arose must be
considered in the context of the rules. This Court noted that in order
10 improve the Income-tax administration, the Government of India
on 29.9.1944 reconstituted and classified the prevailing Income-tax
Service as Class I and Class II. The reorganisational system pro-
0
vided for recruitment of Income-tax Officer Class I, Grade II service
partly by promotion and partly by direct recruitment. The
reorganisational system was set out in certain Government communi-
cation. Reading of the rules would indicate that there was a fixed
proportion, in the instant case there is none. In the light of this,
it is not necessary to deal with the observations made by this Court D
in the context of the said rules,
In the case of Chandramou/eshwar Prasad v. Patna High
Court & Ors.(3 ) this Court was concerned with a situatibn and rules
entirely d[fferent from the terminology of proviso to rule 7 of tJ:;e
present rules. It, is therefore, also not necessary to persue the said
E
decision any further .
• Some reliance was placed on the decision of this Court in the
case of V.B. Badami Etc. v. State of Mysore & Ors.(') The Court
observed in the context of the rules before this Court in that · case
that as long as the quota rule remained neither promotees could be
allotted any of the substantive vacancies of the quota of direct
recruits nor could direct recruits be allotted promotional vacancies.
• Two more principles were settled; one was that quotas which were
fixed were unalterable. Quotas which were fixed could only be altered
by fresh determination of quotas under the relevant rule. The other
was that one group could not claim the quota fixed for the other G
group either on the ground that the quotas were not filled up or on
the ground that because there had been a number in excess of quota
the same should be absorbed depriving the other group of quota.
(I) [1967] 2 S,C.R. 703.
(2) [1970] 2 S.C.R. 666.
(3) [19761 1 S,C.R. 815-[1976] 2 S.C.C. 901.
H
388 SUPREME COURT REPORTS [1985] 1 s.c.R.
The observations made in that decision would have been very
A apposite and might have helped the present respondents if it was
possible to find that there was any fixed or unalterable quota so
far as direct recruits are concerned in this case as in that case and
further that ad-hoc arrangements or promotions meeting the exigen·
cies of the service had not been made in accordance with the
procedure envisaged by the rules itself, namely rule 16 in the instant
B
case.
The case of Bishan Sarup Gupta v. Union of India & Ors.(1) also
deals with quota rule in connection with Income-t~x Officers. In view
of the present rules in the instant case, it is also not necessary to
deal with the said decision.
C The facts of this case and the rule und erwhich the problem has
to be adjusted have been set out hereinbefore. Some of the general
principles enunciated in some decisions of this Court might be
noted in resolving the unfortunate controversy that has arisen in
this case.

D In the case of Joginder Nath and Ors. v. Union of India & Ors( 2 )
this Court had to construe the Delhi Judicial Service Rules, 1970
in the context of seniority and cofirmation. But this was not in
the context of inter-se seniority between promotees and direct
recruits. The question was the seniority amongst the members Of
the promotees who were members of the Delhi Judicial Service
E Rules who became absorbed in Delhi Higher Judicial Service.
In view of the main controversy in this case that is only an incidental
point but so far as that controversy i.e. the question of seniority
amongst the promotee officers of the Delhi Higher Judicial Service, it
would suffice to say that in so far as that controversy affects any posi-
--
tion whereas in the instant case, the same will be guided by the ratio
F of the decision in Joginder Nath & Ors. case (supra). But so far as
the controversy regarding the fixation of the seniority list between •
promotees and direct recruits which is the main point here, the same
will be dealt with separately.
In approaching the present controversy. it is necessary to keep
G certain basic fundamental principles in mind which are of impor- '
tance in service jurisprudence. Service Jurisprudence in this coun-
try has developed in a peculiar way. It bas sought to infuse both
fresh blood and old experience but somehow our administrators did
(1) [1975) Suppl. S.C.R. 49.
H 12> [19751 2 s.c.R. 553.
O.P. stNGLA v. UNION (S. Mukharfi, J.) 389
not fores;; ~·: c need for expanding administration and the personnel
A
necessary fJ:· this expansion, as a result in making appointments
and even in granting promotions, there has been a good deal of ad-hoc
arrangements with the result that it has created in practically every
branch of our administration feeling of discontent and misunder-
standing between promotees and direct recruits. This has, to a very
large extent, damaged the friendly atmosphere which should prevail B
among the members of the administration, if the .administration has
to remain a vehicle of social progress and transformation which the
Indian administration must, in view of the very great possibility and
the transitory nature through which it is passing in spite of the
severe personal and economic hardships that the members of the
administration go through. c
' The decision in the case of S. B. Patwardhan & Ors. Etc. Etc.
v. State of Maharashrra & Others\1) may be noted, in resolving the
present controversy though the decision in that case was rendered
in the context of the controversy of the Engineering Service. Rule
8 (I) of the relevant rules in that case before this Court dealt with
the various categories which manned the Class II sub-divisional D
posts which were compiled in two lists, one list of Bombay Service
of Engineers, Class II cadre of permanent Deputy Engineers and
the other list of officiating Deputy Engineers. 1t is not necessary
for the present controversy to set out the details of the same. The
controversial provision was rule 8 (iii) which was as follows:
E
"The probationers recruited directly to the Bombay
Service of Engineers, Class II cadre in any year shall, in a

- bunch, be placed senior to promotees confirmed during
that year."
Learned Chief Justice observed that this rule was highly
discriminatory against the promotees and gave preferential treatment F
to direct recruits. Its main justification was said to be that persons
who were promoted as officiating Deputy Engineers did not belong
to cadre so long as they were not confirmed as Deputy Engineers
whereas direct recruits appointed on probation as Deputy Engineers
either from that class or cadre on the very date of their appointment
since after a satisfactory completion of probation, confirmation was G
guaranteed to them. Learned Chief Justice felt that this needed
careful examination. More or less similar submissions were made
in the present writ petitions. This Court further noted that there
was no universal rule, either that a cadre consisted of both per·

(L) it977] J S.C.R. 775. . H
390 SUPREME COURT l\EPOTRTS [198S] i S,C, R,
manent or tamporary employees or that it must consist of both,
A
That is primarily a matter of rules and regulations governing the
particular service in relation to which the question regarding the
composition of the cadre arises, The Court noted several decisions
on this point At page 800 of the report, learned Chief Justice
observed as follows:

"We are not unmindful of the administrative difficul-
ties in evolving a code of seniority which will satisfy all
conflicting claims, But care ought to be taken to avoid a
clear transgression of the equality clauses of the Constitu-
tion, The rules framed by the State Governments were
constitutionally so vulnerable that the administration was
c compelled to adopt inconsistent postures from time· to
time leaving the employees no option save to resort to
courts for vindication of their rights, In this process,
courts, high and low, had to discharge functions which are
best left to the expertise of the appropriate departments of
the Government Having struck down certain rules, we do
not want to take upon ourselves the task of framing rules of
seniority, That is not the function of this Court and frankly
it lacks the expertise and the data to do so, We· however
hope that the Government will bear in mind the basic
principles that if a cadre consists of both permanent
and temporary employees, the accident of confirmatio1
cannot be an intelligible criterion for determining seniority as
between direct recruits and promotees, All other Sectors

F
being equal continuos officiation in a non~fortuitous vacancy
ought to receive due recognition in detern1ining rules o~f senio-
rity as between persons recruited fro1n different sources, so
long as they belong to the same cadre, dis similar func-
tions and bear similar responsibilities. Saying anything boyond
-
this will be trespassing on a field which does not belong
to the courts!' (Emphasis supplied)
The aforesaid observations have to be borne in mind in deci-
ding the present controversy.
G
In the case of Rajendra Narain Singh and Others v, State of
Bihar and Others (1 ) the question was about the interpretation of the
Bihar Police Service (Recruitment) Rules 1953. In that case Rule
3 of the relevant rules was thus :

'H (I} [19801 3 S.CR. 450,

'
O.I>. SiNGLA v. !INION (S. Mukharji, J.) 391
"The Governor shall decide in each year to numbe~ of A
vacancies to be filled in that year.
. Provided that the number of vacancies to be filled by promo-
tion in the service in any one year shall not, unless the Governor is
satisfied that there is not a sufficient number of officers fit for
promotion, be less than half the total number of vacancies to be 8
filled in any such year."
The Court further observed that Rule 3 of Bihar Police Service
(Recruitment) Rules was not really a quota rule and it did not lay
down any proportion, all it did was lo insist that the number of
vacancies to be filled in by promotion should not be less than half
of the total number of vacancies to be filled in any year. Adding c
J to the number of vacancies and filling them by promotion did not
certainly violate the rule requiring, that no less than half of the
vacancies must be filled by promotecs.
The observations of this Court in the case of A. Janardhana v.
Union of India and Others (lJ may be referred to. This Court. said .o
thus after pointing out anomalies similar to the facts of the instant
case.
"It is therefore, time to clearly. initiate a proposition
that a direct recruit who comes into service after the pro-
motee was already unconditionally and without reservation
promoted and whose promotion is not shown to be invalid or
illegal according to relevant statutory or nonstatutory
rules should not be permitted by any principle of seni-
ority to score a march over a promotee because that itself
being arbitrary would be violative of Articles 14 and
16. Mr. Ramamurthi, learned counsel for some of the fl
direct recruits, in this connection urged that if at the time
when the promotee was recruited by promotion. his
appointment/promotion was irregular or illegal and which
•
is required to be regularised, any subsequent direct recurit
coming in at a later date can seek relief and score a march
G
ov_er such irregular or illegal entrant. We find it difficult to
subscribe to this view. Though we have dwelt at some
• legth on this aspect any enunciation of general principle on
the lines indicated by us would require a reconsideration of
some of the decisions of this court. We say no more save
that we have solved the riddle in this case in accordance
(I) [1983] 3 S.C.R. p. 601 at page. 627
I'
392 SUPREME COURT REPORTS [1985] 1 s.c.R.
with the decisions of this conrt and interpretation of rele-
A
vant rules."
The decision in the case of Baleshwar Dass & Ors. Etc. v.
State of U. P. & Ors. Etc,(') was also referred to. There in the
context of different rules namely U.P. Service of Engineers (Junior
and Senior Scales) Irrigation Branch Rules, this Court observed
B that officiating service in a post is for all practical purposes. of senio-
rity as good as service on a regular basis. It may be permissible
within limits, for government to ignore officiating service and count
only regular service when claims of seniority arise before it, provided
the rules in that regard are clear and categeric and do not admit of
any ambiguity and an arbitrary cut of long years of service does
c not take place. While rules regulating conditions of service are
within the executive power of the State or its legislative power under
proviso to Article 309, such rules have to be reasonable, fair and
not grossly unjust if they are to survive the test of articles 14 and
16 of the Constitution. This Court further noted that for purposes
of seniority, one has to go normally by the order of appointment to
D the Service in a substantive capacity. But no fixed connotations can
be attributed to expressions like 'substantive capacity', 'service',
'cadre' and the like because probation even for temporary appoint-
ments is provided for in the rules may mean that even temporary
appointments can be substrntive. For there cannot be probation
E for g wernment servant who is not be absorbed substantively in the
service on completion thereof. Permanency carries with it other rights
than mere seniority and promotion. Permanent posts and tem-
porapry posts are in official terminology sharply different, but in that
case the Court further noted that from this alone, there was no
diference, in the historical context of U.P. Service of Engineers.
F The Court noted in that even the case of temporary engineers
required consultation with the Public Service Commission. In the
context Ruic 16 of the Rules in the instant case requiring consultation
with the High Court may be noted. •
In the aforesaid decision this Court noted that a person is said
G to hold a post in a substantive capacity when he holds it for an inde-
finite period, especially of long Juration in contradistinfaion to .a
person who holds it for a definite ~r a temporary penod or holds 1t
on probation subject to confirmat10n. If the appomtment was to
a post and capacity in which the appomtment was to be made
was of indefinite duration, if the proper authonty had been consul-

H \I) [198ll 1 s.c. R· p. 449.
O.P. S!NGLA v. llN!ON (S. Mukharji, J.) 393
ted and had approved, if the tests prescribed have been taken and
A
passed, if probation has. been prescribed and has boen approved,
one may well say that the post was held by the incumbont in a subi-
tantive 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.
B
This can be looked at from another point of view. Most of the
petitioners are holders of temporary posts in substantive capacities.
These posts have been created by the Administrator under rule 16.
See also rule '17 which begins with the non-obstante clause. By reason
J of rule 2(b) and rule 2(d), the petitioners being .holders of temporary
posts in substantive capacities are holding 'cadre posts' and are also ()
members of the service. Appointment in a substantive capacity is
different from appointment to a substantive post. This has been
held in the case of Baleshwar Dass (supra) (pages 449, 467-469)=
A.LR. 1983 S.C. 769 at paragraph 23, page 779, though, as was
contended on behalf of the High Court the context of the relevant
·rule was somewhat different from the present one but that differ- D
ence is not of much significant distinction in principle. It is, there·
• fore, erroneous to contend that the holders of substantive posts,
i.e. the 12 posts originally at the inception .of the service and 22
posts now, alone are members of the service. All incumbents hold-
ing either substantive posts or temporary posts in substantive capaci· E
ties are members of the service, in the context of the present rule.

That actual terms of rule 7 have been noted but is manifest
r that in the context of the present circumstances, Rule 7 can have
only application to recruitments to the substantive posts in the service.
It provides two different sources of recruitment. and without fixing F
any actual quota, but a ceiling of not more than 1/3 of the substan-
• tive posts to be held by direct recruitments. Rules 7 and 8 do not
exist in isolation. These have to be read with the other rules, parti-
cularly Rule 16. The principles of harmonious construction
must be accepted so that all the rules are rendered operative
and one does not make the other nugatory. Rule 16 is a rule of G
relaxation or an additional rule of recruitment providing for
temporary posts being filled up in addition to the substantive posts.
The effect of the creation of temporary posts is to expand the area
of membership of 'the service'. As the filling up of the temporary
posts under Rule 16 is confined to recruitment from the members of
Delhi Judicial Service, Rule 7 cannot be made applicable for the
H
394 SUPREME COURT REP9RtS (1985] 1 S.C.R.
A recruitment to temporary posts. Therefore, there is no quota rule
applicable with regard to temporary posts.
In the aforesaid view of the matter, it appears that by defini-
tion, temporary posts of District and Sessions Judges are 'cadre
posts'. See in this connection Rule 2(b) of the said rules. Holders
B of such temporary posts become members of the Delhi High er
Judicial Service if they are appointed to such posts in substantive
capacity under rule 2(dJ and rule 2(e) of the said rules. A person
can be said to hold a post, permanent or temporary, in a substantive
capacity only if his appointment to that post is not fortuitous or
adhoc. A person appointed to a post as a stop-gap arrangement
c cannot be said to hold that post in substantive' capacity. In
addition to the requirement that the appointment should not be
fortuitous stop-gap or ad hoc nature, no appointment to a temporary
post can be regarded as substantive unless it is made in compliance
with the rules and regulations which have to be complied with
while making appointments· to permanent posts. In the instant
D case for example, an appointee to a temporary post of Additional
District and Sessions Judge can only hold that post in a substantive
capacity if he has completed not less than ten years of service in
the Delhi Judicial Service as required by Rule 7(a) and if he was
appointed on the basis of selectionJrom amongst the members of ,
the Delhi Judicial Service in consultation with the High Court as
E enjoined by Rule 5(1) of.the said rules.
The proviso to Rule 7(b) does not prescribe any quota of I /3rd
for direct recruits. As has been noted, it merely indicates a ceiling
i.e. that not more than I/3rd of the~substantive posts of service shall
be held by direct recruits.
F Even if one assumes that proviso to rule 7(b) provides for a quota
of I/3rd for direct recruits, rule 16(1) which empowers the Adminis
trator to create temporary ~posts ·in the service, read with rule 16(2)
which provides that temporary posts shall b~ filled in, in consultation
with the High Court from amongst the members of the Delhi Judicial '
G Service either constitutes an exception to the quoto rule or in the
alternative proceeds on the basis of relaxation or abrogation of quota
rule. By rule 16(2) a direct recruit cannot be appointed to a
temporary posts. Jn other words, only promotees can be appoint-
ed posts. If the source of recruitment to temporary posts
is one and one only namely, the members of the Delhi Judicial
Service, uo question of applying the quota rule can possibily
arise. The quota rulecan have application only if there is more
H than one, source of recruitment. If temporary posts in the service
- O.P. SINGLA v. UNION (S. Mitkha~ii, !.)

are created as has been done in this case by the Administrator as
395

A
envisaged by rule 16(1) and if such posts have been filled in as it
appears to have been done here ill consultation with the High Court
from amongst members of Delhi iudieiai Service as required lindet
Rule i6(2) of the Rules, <tuota rule assuming that there is any,
cannot apply to such appointments. the validity of such appoint·
ments is not open to the exception that these violate the quota rule,
if any. As has been mentioned herein before it is impossible to find
in Rule 7 any quota rule simply because Rule 8 assumes, that quota
rule is tl\efe ih Rule 7, and then proceeds to make a rotational
.\
system. It would not be proper to accept the position that there is

• any quota rule specially in view of the fact that working of the said
rules ovet all these years indicate that the rule was not adbered to
and the fulfilment of the rule cannot be adhered to if the appoint•
ments Under Rule 16 is given effect to and aim in view of the fact
that if the quota rule is adhered to in conjnction with rule 8(2), it
will result in manifest injustice. As between 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 & Sessions Judges on the other hand, the seniority must be D
governed by the rules of continuous offication in the cadre post i.e.
a direct recruit who is appointed after a member of the Delhi
Judicial Service is appointed in a substantive capacity to a temporary
post of Additional District & 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 E
thus promoted, he would rank lower in seniority than the latter. The
following conclusions follow :
(1) Rule 7(b) is not in the nature of a quota rule;
(2) The temporary posts can be held in substantive
• capacity ; F
(3) The holders of such temporary posts are members of
the Delhi Higher Judicial Service.
(4) Rule 8(2) which provides for a rotation of vacancies
between direct recruits and promotees "based on the
quota of vacancies reserved for both categories by G
Rule 7", must be read so as to restrict its application
to simultaneous appointments of direct recruits and
promotees or in the c'ase of first and init al appoint-
ment. Any other construction will make the rule
incongruous as well as invaild offending articles 14 and
! 6 of the Coµstitutio!!· H
396 SUPREME COURT .REPORTS [1985] 1 S.C.R.

A The history of Delhi Judicial Service shows that placement of
the promotees on probation is a matter of idle curiosity. Promotees
were placed on probation retrospectively as is shown by the recent
instances which occurred during the pendency of these writ petitions.
By an order dated 6th September, 1983, the Secretary (Law and
Judicial), Delhi Administration, notified that five promotees were
B placed on probation with effect from various dates ranging from
1.10.1981 to 10.5.83. The promotee at Serial No. 1, Smt. Santosh
Duggal was placed on probation retrospectively from 1st October,
1981, that means her probationary period of 2 years would be over
within three weeks of the letter dated 6th September, 1983, it is
also interesting to note that Shrimati Duggal had been working as
c a Judicial member of the Customs and Excise Gold Control Appel-
late Board since October, 1982. Such probations are meaningless
formalities. Therefore, promotees who were appointed in substan-
tive capacities in the sense indicated above can be placed on proba-
tion now if that has not been done so far.
D
As has been noted in the decision of A. Janardlzana v. Union of
India and Ors. at 608 of the Report, if proviso to rule 7(b) is read
with rule 8(2) and in the manner contended by the respondents, it
might so happen that a candidate's position may be placed in such
a way that by legal fiction, he will be placed as senior to a person
E as a District and Sessions Judge by national placement at a time
when he di<l not even reach the age at which he or she would have
become eligible for appointm cnt. That would be unfortunate and
would produce incongrous result. Indeed such a result had happen-
ed in A. Janardhana's case (supra).

An argument was advanced on beha If of the respondents that
F
there is no provision for probat10n for the appointments under
rules 16 & 17 of the said rules, but sub-rule (2) of rule 12 required
that all candidates shall be on probation for a period of two years.
•
An appoictment on probation is not a jurisprudential sine qua non
for absorption into the services, thdugh normally and generally
G various rules of different services make such provisions as rule 12(2)
'here. But as has been noted in the working out the practice of
Delhi Judicial Service placement of promotees on probation has
not been very strictly followed. The promotees cannot suffer for
this. It was, then, urged that there was no process of selection. It
may be mentioned that Rule 7(a) provides for recruitment to the
ff Delhi Higher Judicial Service alia inter by promotion on the basis
O.P. SINGLA v. UNION (S, Muklzurji, J.) 397
of selection from the members of Delhi Judicial Service, who
A
have completed not Jess than ten years of Service in the Judicial
Service. It m'Y be mentioned that in actual practice all appoint-
ments have been made by selecting people from Delhi Judicial
Service and sometimes officers have been passed over on the basis
of assessment of comparitive merits.
B
It may he appropriate here to note on the question whether the
petitioners were appointed regularly that all the promotees were
appointed to temporary posts in accordance with qualifications laid
down under Rule 7(a1, namely, by selection and after completion of
I a minin1UITI often years judici::tl service, rfhe selections \\'CfC JTI:tde
by the Full Court of the High Court and appointments were made c
on merit-cum-seniority basis so much so that persons found not fit
for promotions were ignored as in the case of Shri C.D. Vashist and
Shri S.P. Singh Chowdhary.

On behalf of the respondents attention was drawn to the deci- D
sions of this Court in the case of M. Veeraian Chowdhary & 42 Ors
..... v. The Government o( A. P. & 87 Ors. (Civil Appeal No. 2010 of
1981) as well as the decision of this court in this case of S.P. Gupta
etc. v. Union of India and Ors.(1) Inasmuch as the context of the pro-
visions involved in those two decisions are entirely different from
the context of the rules in the instant case, the respondents cannot E
have ~ny support from the aforesaid two decisions.

Another argument canvassed was that Bar recruits had
joined the services and some of them with a very good practice
about which we have no doubt that they had and they had joined
the service at great sacrifice, would suffer if any alteration of the F
gradation list was now made. It was submitted that if necessary
at all the same should be done prospectively, if the seniority list is
revised, it should be done prospectively without affecting the
positions of those Bar recruits where seniority on the old basis in
the light of the High Court's understanding before these petitions G
were filed had been existing.

One should give anxious considerations to this aspect of the
matter. One should be l1esitant and loath to upset the just expec-

(l) HR. [1981] Suppl. S-C.C. Page 87. H
398 SUPREME COURT REPORTS ( 1985] I S.C.R.

A tatioqs of the members of the legal profession who have joined the
service and one would be very sorry to do that. Judicial appoint-
ments are no longer attractive for any lawyer of any kind of success.
One would be hesitant to put further disincentives for those with
professional experience to join Judicial service, and therefore be
reluctant to interfere with the just expectations of professional ent-
8 rents who had entered Judicial service at sacrifice of considerable
money and position. But the provisions of the rule as well as of
the Constitution must be given effect to. In the instant case
members of the Judicial service, the petitioners had made repre-
sentations to the High Court in 1977. The two entrants who would
G
be vitally affected by the re-adjustment of the list would be Shri
G.S. Dakha who joined the service on 27th of September, 1978 and
Miss Usha Mehra who joined the service on probation on 24th of
'
April, 1980. At that time challenge in the form of representation
to existing seniority before the High Court was there. Shri J.B.
Goel had joined the service on 10th November, 1980 and Shri B.S.
D Chaudhary had joined the service on 10th November, 1982. So

-
far as Shri Dakha as a member of Scheduled Caste and Tribe, hi•
position may not be affected on other grounds. We say no more
on this aspect. So far as Miss Mehra is concerned, she was appo-
inted on probation in April, 1980 and got her confirmation during
the pendency of the present petitions. Miss Mehra is still young
E and has a long tenure. It is hoped that she will overcome any
temporary or momentary loss of seniority and would continue to
render her valuable service to the administration of justice. In
judicial careers many just expectations get upset as experiences of
recent times would indicate.

fl The interpretation indicated above and the principles men-
tioned herein-before in adjusting the rights between the promotees
and direct recruits in the background of the rules prevailing in the
instant case are appropriate and rational. One should insist that
government must abolish this system of making appointments from
two different sources in ad-hoc manner. If appointments have to
G be made from two different sources, then the authorities should so
plan that the recruits come from two different sources in time and
officers from one source are not required to function substan-
tively and effectively in the jobs which are intended to be per-
formed by recruits of other source and face the prospect of being
either pushed back or thrown out. Nothing more need to be said,
0.1'. SINGLA v. UNION (S. Mukharji, J.) 399
The rules nisi are made absolute. Current gradation list of
A
the JudiCial Department of the Delhi Administration specially with
reference to respondents Nos. 4 and 5 is quashed with a direction
to the respondents Nos. I to 3 prepare the gradation list of the
Delhi Higher Judicial Service on the basis of the principles indi-
cated in this judgment. This, however, will not in any way preju-
dice the claim of seniority of respondent No. 4, Shri G.S. Dakha B
on the ground of his being member of Scheduled Caste or Sche-
duled Tribe. This direction will also not in any way affect the
seniority of the promotee officers of the Delhi Higher Judicial
Service amongst themselves. That position would be guided by
the· principles laid down by this Court in Joginder Nath and Ors.'
) c
case (supra) (indicated hereinbefore).

In the fact and circrmstances of the case, parties will bear
their own costs.

D

S.R. Petitions partly a/lowed E

.,