Holding

The amendment to Rule 26(3) is valid; the 'rota' provision does not contravene the principle of seniority and is within the domain of executive discretion.

Summary

The petitioners challenged the constitutional validity of the amendment made on 19 May 1989 to Rule 26(3) of the Delhi Administration Subordinate Service Rules, 1967, which provided for the integration of seniority of officers from the Executive and Ministerial branches by a 'rota' system. The Supreme Court examined whether this amendment departed from the established principle that seniority should be computed on the basis of total length of service in the cadre and whether the alleged unfair advantage to Ministerial officers could invalidate the rule. The Court held that the amendment did not violate the seniority principle, that the 'rota' mechanism is a permissible executive decision, and that the mere fact of perceived disadvantage to Executive officers is not a ground to strike down the rule. Consequently, the amendment was declared valid and the petition dismissed. All related writ petitions, civil appeals and special leave petitions were dismissed.

Issues considered

Whether the amendment to Rule 26(3) of the Delhi Administration Subordinate Service Rules, 1967, is constitutionally valid under Article 32.
Whether the 'rota' method of integrating seniority of Executive and Ministerial officers violates the principle of seniority based on total length of service.
Whether the alleged unfair advantage to Ministerial officers constitutes a ground to invalidate the rule.

Subjects

service lawseniorityexecutive and ministerial servicesRule 26administrative lawconstitutional validityArticle 32Delhi Administration Subordinate Service Rules

Judgment

>.
SHRI KAILASH CHAND AND ORS. A
v.
LT. GOVERNOR OF DELHI AND ORS.

FEBRUARY 3, 1997
B
(J.S. VERMA AND S.P. KURDUKAR, JJ.]

._
.
Service Law:

Delhi Administration Subordinate Service Rules, 1967: Rule 26(3) (as
amended on 19-5-1989) . c
. Seniority-Executive and Ministerial se1vices-Merger of-Provision in
R.26(3) provided for f1Xation of seniority of officers of Executive and Mini-
sterial services in the integrated cadre on basis of length of service in their
f om1er cadre as on the date immediately preceding the date of integration and D
- > rotating the names of officers appointed under Rules 5 or 6 or 19 in the
Executive service with that of the officers appointed under the Ministerial
services under. the. same Rules-Ifeld: The amended Rule 26 incorporated the
principle of service jurisprudence for detennining seniority-Hence Rule 26,
-l
as amended, was valid-The mere fact that on account of certain fortuitous
circumstances the officers of Ministerial branch got an unfair advantage over E
• those belonging to the Executive branch or chances of promotion to those in
Executive branch were remote because of shorter length of service of the latter,
not by itself a ground to· quash the said provisio1t-'Rota' rule-Pennissible
.._ and was a matter within the domain of executive decision .
F
The Executive and Ministerial Class III services of the Delhi Ad-
ministration were merged by a notification and the seniority in the in-
tegrated cadre was to be computed on the basis of total length of service
in the respective services. Subsequently, Rule 26 of the Delhi Administra-
tion Subordinate Service Rules, 1967 was amended on 19-5-198~. Rule
26(3), as amended, provided for fixation of the seniority of Officers of G
Executive and Ministerial services in the integrated cadre on the basis of
their seniority in their former cadre as on the date immediately preceding
...'
r
'"' the date of integration and rotating the names of the Officers appointed
under the same Rules. The petitioners filed a writ petition before this
Court challenging the validity of the amended Rule 26(3). H
791
~
792 SUPREME COURT REPORTS (1997] 1 S.C.R.

A Dismissing the appeal, this Court -"

HELD: 1. I. The amendment made in Rule 26 of the Delhi Ad-
ministration Subordinate Service Rules, 1967 does not depart from the
principle of reckoning seniority computed on the basis of total length of
service in the cadre. The principle of 'rota' incorporated in Rule 26(3) of
B the Rules is permissible and is a matter within the domain of executive

-
decision. There is thus rio vice in Rule 26 of the Rules as amended on
19-5-19~9. [796-A-B] ..
1.2. The mere fact that on account of certain fortuitous circumstan-
ces, the Officers who belong to the Ministerial branch have got an unfair
c advantage over the Officers belonging to the Executive branch and the
chances of promotion to those in Executive branch are remote because of
shorter length of service of the latter in this cadre by itself is not a ground
to strike down the settled principle of service jurisprudence for determin-
ing seniority. [796-C]
D
CIVIL ORIGINAL/APPELLATE JURISDICTION : Writ Petition
(C) No. 525 of 1990 Etc. Etc.
•
-
Under Article 32 of the Constitution of India.

E M.S. Ganesh, H.L. Aggarwal, Ms. Suruchi Aggarwal, Dr. M.P. Raju,
(ME. Mary Scaria) for S. P. Sharma, Ms. Binu Tamta, S.A. Matto, Raj
Kumar Gupta, H.P. Sharma, Rajesh, (B. Krishna Prasad) (NP) and S. N.
Terdol for the appearing parties.

The Judgment of the Court was delivered by
F
J.S. VERMA, J. The main point for decision in this writ petition and
the connected matters is the constitutional validity of Rule 26 of the Delhi
Administration subordinate Service Rules, 1967 (for short "Rules") as
amended on May 19, 1989. A brief background of this challenge is neces-
sary to indicate the narrow compass in which the controversy now survives.
G
The Executive and Ministerial Class III services were merged by
notification dated December 4, 1980 and the seniority in the integrated
cadre was to be reckoned on the basis of their placement in the cadre. A
"' •
writ petition was filed in the Delhi High Court to challenge this act of
H merger of the Executive and Ministerial branches as well as Rule 26 of the
KAILASH CHAND v. L.G. OF DELHI [J.S. VERMA, J.] 793

said Rules which provided for determination of the seniority on merger of A
the two branches. The High Court by its judgment dated May 13, 1982
rejected the challenge to the merger of the Executive and Ministerial
• branches but it struck down Rule 26 as invalid. The decision of the Delhi
High Court was upheld by this Court by dismissal of the special leave
petition on August 12, 1985. Thereafter Rule 26 was amended on July 12,
B
1985. The amended Rule 26 was challenged before the Central Administra-
tive Tribunal. The Tribunal by its judgment dated July 23, 1987 reaffirmed
validity of the merger of the two branches but it quashed the amended Rule
26; and consequently the seniority list prepared on that basis was also
quashed. The Tribunal's order was challenged in this Court by a special
leave petition which was dismissed on February 12, 1988 but it was held c
that the amendment to Rule 26 made on July 12, 1985 is prospectively valid.
An application for clarification of this Court's order was then made which
was disposed of by order dated August 30, 1988. In that order it was clearly
stated as under :
D
"Rule 26 which came into force from July 1985 recognised the
principle of seniority to be computed on the basis of total length
of service. Therefore, when this court made the order on 12.2.1988,
it found that since the practice of total length of service being the
determinative feature for seniority has been accepted, even without
the rule, there was no justification to strike down the Rule and the E
Rule was, therefore, said to be made applicable prospectively from
July 1985. There is no quarrel with that position by any of the
parties."

Thus by the aforesaid qrder dated August 30, 1988 it was made clear F
that seniority computed on the basis of total length of service is an accepted
principle and Rule 26 as amended from July 12, 1985 recognised that
principle because of which there was no justification to strike down the
<
rule as it was valid. It was, therefore, settled by that decision of this Court
• that a provision in the Rule providing for computation on the basis of total
length of service is valid in the present case. The controversy to this extent, G
therefore, is to be treated as settled by that decision of this Court.

The present litigation is a sequel of a further amendment made in
Rule 26 on may 19, 1989, even though Rule 26 as amended on July 12, 1985
was upheld in the earlier round of litigation as indicated above. Writ H
794 SUPREME COURT REPORTS (1997] 1 S.C.R.

A Petition No. 525 of 1990 has been filed under Article 32 of the Constitution
in this Court challenging the validity of Rule 26 as amended on May 19,
1989. Challenge is also made in this writ petition to the validity of merger
of the Executive and Ministerial branches. However, a fresh challenge to
.
the merger of the two branches is no longer permissible on account of the
earlier decisions on the point. The only question for decision in the writ
B petition is, therefore, the validity of Rule 26 as amended on May 19, 1989
in the above background. The connected matters also involve the same
challenge and the same point of decision and they arise out of the unsuc-
cessful challenge made to this effect before the Central Administrative
Tribunal.
c
Rule 26 as amended on May 19, 1989, is, as under :

"26. (1) following principles shall be followed for fixation of
seniority of persons appointed on regular or officiating basis to
various grades under rules 6 and 19 prior to 12 th July 1985,
D namely:

(a) The inter se seniority of direct recruits, and promotees who
have beeh appointed in the grade on the recommendation of duly
constituted Departmental Promotion Committee, shall be deter-
mined from the date of appointment in the respective grade. For
E
the purpose of determining the seniority in a grade the date of
appointment in respect of officers appointed to Grade-I of the
service will be construed as the date of the order of appointment
and in respect of officers appointed in grade-II or Grade-III or
Grade-IV of the service, it will be the date of nomination for
F appointment in the respective grade if for any valid reason, a
person having secured higher merit in the select list was
nominated/appointed later, in such cases the date of nomina-
tion/appointment of his immediate junior will be assumed as the
date of his nomination/appointment. ••
G
(b) In respect of officials inducted to the cadre from ex-cadre, the
seniority, unless otherwise specified, will count from the date of
notification through which the official was inducted in a particular
grade of the service. ·

H (c) In respect of persons appointed on compassionate grounds the
>-·
KAILASH CHAND v. L.G. OF DELHI [J.S. VERMA, J.] 795
....
seniority will count from the date of appointment in the grade. A

-· (2) The seniority list of the officers of the Executive and Ministerial
Cadres of the service appointed against any post in the cadres
under Rules 5, 6 and 19 prior to 4th December 1980 shall separate-
ly be prepared showing the position of each officer in the respec-
tive grade as on 3rd December, 1980. B
...
(3)(a) The inter se seniority of officers appointed against various
posts under rule 5, or rule 6, or rule 19 in the Executive and
Ministerial Cadres of the Service prior to 4th December, 1980 shall
be integrated on the basis of the date of their respective seniority c
as in the seniority list prepared under sub-rule (2) indicating the
position of each officer in a particular grade of the service as on
4th December, 1980.

(b) The integration shall be made by rotating the names of the
>- officers appointed under rule 5, or rule 6, or rule 19 of the D
Executive cadre with that of officers appointed in the Ministerial
cadre under rule 5, or rule 6, or rule 19. In the event of officers
appointed under rule 5, or rule 6, or 19 in a particular cadre not
being equal the names of officer in excess shall be placed below
the officers appointed under rule 5, or rule 6, or rule 19, as the E
case may be.

(4) The seniority of persons appointed against various posts in a
J..
grade of the service by direct recruitment or by promotion in a
regular or officiating capacity on or after 12th July, 1985 shall be
determined in accordance with the principles laid down in the F
Delhi Administration (Seniority) Rules, 1965."

The challenge to the validity of the aforesaid amended Ruic ts
confined essentially to Clause 3 thereof.

It cannot be doubted that if this further amendment made in Rule G
cl 26 does not depart from the principle of reckoning seniority computed on
the basis of total length of service in the cadre, then the challenge has to
be rejected. That principle has already been upheld at the earlier stages of
litigation between the two branches and, therefore, that issue no longer
survives. The clear stand on behalf of the Delhi Administration is that the H
796 SUPREME COURT REPORTS [1997] 1 S.C.R.
A same principle of determining seniority on the basis of total length of
service in the cadre continues even under the latest amendment made in
Rule 26. Nothing has been shown on behalf of the petitioners/appellants
who belong to the Executive wing to indicate that this is not so. The
principle of 'rota' incorporated in sub-clause (b) of Clause 3 of Rule 26 is
B also permissible in such a situation and is a matter within the domain of
executive decision. There is thus no vice in Rule 26 _as amended on May
19, 19S9.

Shri M. S. Ganesh learned counsel for the petitioners strenuously
urged that on account of certain fortuitous circumstances, those who
C belong to the Ministerial branch have got an unfair advantage over persons
belonging to the Executive branch and the chances of promotion to those
in_ Executive branch are remote because of shorter length of service in this
cadre. Suffice it to say that this by itself is not a ground to strike down Rule
26 which incorporates a settled principle of service jurisprudence for
determining seniority. The legality of the merger having been upheld earlier
D the logical consequence. thereof in application of the well recognisll.d rule
for determination of seniority on the basis of total length of service in the
cadre has to be accepted. At any rate this cannot be a ground to hold that
Rule.26 as amended on May 19, 1989 is invalid for any reason.

E The only surviving challenge which arises for consideration in these
matters being untenable, all these matters have to be dismissed. Conse-
quently, the writ petition, civil appeals and special leave petition are
dismissed.

v.s.s. Petitions and appeals are dismissed.