TMI Blog1974 (10) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioners and respondents 3 to 6 and to place petitioners 1 to 4 above respondents 3 to 5 and petitioners 2 to 4 above respondent 6 in the ,,gradation of seniority in Delhi Judicial Service and Delhi Higher Judicial Service. All the four petitioners originally belonged to the Punjab Civil service (Judicial). Shri Joginder Nath, petitioner no. 1 joined ,he said service on 2.7.1956, Shri D. C. Aggarwal, petitioner no. 2 on 2.7.1957, Shri S. R. Goel, petitioner no. 3 on 8.7.1957 and Shri P. L. Singla, petitioner no. 4 on 10.10.1958. Prior to 1966, the Union .Territory of Delhi for the purposes of administration of Justice was included within the territorial Jurisdiction of the erstwhile Punjab High ,Court and Presiding Officers of the Courts at Delhi were posted by transfer from the State of Punjab. There was no separation of Executive and Judiciary. The Magistrates were selected on ad hoc basis from the States of U.P. and Punjab and were posted to work as such ::at Delhi. Later on creation of the States of Punjab and Haryana the officers of Punjab and Haryana Civil Service (Judicial) cadre used to be posted in Delhi against all judicial posts. A separate High Court for Delhi wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he time scale of ₹ 4001250. They had been put in the selection grade also in the scale of ₹ 1300-1500. On the other hand, respondents 3 to 5 were euphemistically called Judicial Officers in U.P.-the State of their parent service. They were in a lower scale of ₹ 300-900. The next higher scale on being appointed to the post of Additional District Magistrates was ₹ 400-1000/-. The petitioners' grievance is that Rule 11 of the Delhi Judicial Service Rules permitting the fixation of the seniority of the selected officers under Rule 9(a) on the basis of length of service was bad. It was fixed by a notification dated 2.8.1971 and was subject to revision on good cause shown. Respondents 3 to 5 had joined service in the year 1947 as Judicial Officers which was not a cadre service. It was only on 1.4.1955 that a regular cadre of Judicial officers was created in U.P. but it was different and distinct from the U.P. Civil Service Judicial Branch. Petitioners 1 and 2 were working as Assistant Sessions Judges at the time of initial constitution of the Delhi Judicial Service while none of the respondents 3 to 5 was appointed as Assistant Sessions Judge, in spite of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... niority in higher service according to the seniority in the lower one. A counter-affidavit has been filed on behalf of respondent no. 2 and learned Solicitor General appeared to oppose the rule on his behalf. various counter-affidavits were filed on behalf of respondents 3 to 6 and Mr. Garg who appeared on their behalf informed us that respondent no. 3 has since retired and the petitioners could not be ,/granted any relief against him. He, however, raised a preliminary objection to the maintainability of the Writ petition on the ground of delay. He submitted that the seniority fixed on 2.8.1971 by list Annexure E/1 to one of the rejoinders could not be challenged by filing a writ application in September, 1973. He further pointed out that the said seniority list has been revised and substituted by a new list dated 2.6.1973, a copy of which is Annexure R-4/1. The peti- tioners have not challenged the correctness of that list in which had merged the first list dated 2.8.1971. In our opinion on the facts and in the circumstance of this case the preliminary objection raised on behalf of the respondents cannot succeed. The first list fixing the seniority of the Judicial officers init ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o into stale demands after a lapse of years. But under what circumstances a petition under Art. 32 of the Constitution should be thrown out on the ground of delay, has been pointed out in the last paragraph on that page by observing. it would be unjust to deprive the respondents of the rights which have accrued to them. Each person ought to be entitled to sit back. and consider that his appointment and promotion effected a long time ago would not be set aside after the lapse of a number of years. On the facts of this case the petition was held to have been filed after inordinate delay. In a recent decision of this Court, Bhagwati, J. delivering the judgment on behalf of the bench of five Judges in Ramchandra Shankar Deodhar and others. v. The State of Maharashtra and others A.I. R. 1974 S.C. 259, L 319 Sup CI/75 r/W it age 265 has said In the first place, it must be remembered that the rule which says that the Court may not inquire into belated and stale claims is not a rule of law, but a rule of practice based on sound and proper exercise of discretion, and there is no inviolable rule that whenever there is delay, the court must necessarily refuse to entertain the petition. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wo grades-namely Grade I (Selection Grade) and Grade 2. The posts in Grade I shall be civil posts, class I Gazetted, and those-in Grade 11 shall be civil posts, class 11 Gazetted. Clause (d) of Rule 3 provides A person appointed to the service shall be designated as Subordinate Judge or Judicial Magistrate or as Subordinate Judge or Judicial Magistrate or as Subordinate Judge-cum-Judical Magistrate in accordance with the duties being discharged by him for the time being. The posts borne on the permanent strength of the service and the posts included therein have been specified in the Schedule appended to the rules. 10% of the permanent strength of the service will be the posts in the selection grade. A Selection Committee was constituted consisting of 3 Hon'ble Judges of the Delhi High Court, the Chief Secretary and a Secretary of the Delhi Administration. The initial recruitment was made by the Lt. Governor in accordance, with Rule 9 which reads, as follows : 9. For initial recruitment to the service, the Selection Committee shall recommend to the Administrator suitable persons for appointment to the service from amongst the following : (a) Subordinate Judges and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in the regular cadre of U.P. Judicial Officers w.e.f. 1.4.1955. It has been pointed out by this Court in the case of Chandra Mohan v. State of Uttar Pradesh Ors. [1971] 1 S.C.R. 77.at page 80 that the expression judicial officers is a euphemism for the members of the Executive department who discharge some revenue and magisterial duties. Strictly speaking the expression Judicial duties was held to be a misleading one for the purpose of recruitment to the higher judicial service in accordance with Art. 233 of the Constitution. In the context and set up of the Article it was pointed out that the source of service for appointment as a District Judge must be the Judicial service and not any service. It is plain that the same principle cannot apply to the recruitment of persons to the lower judicial service obviously not covered by Art. 233. Rule 11 of the Delhi Judicial Service Rules reads as follows 11. The Selection Committee shall arrange the seniority of the candidates recommended by it in accordance with the length of service rendered by them in the cadre, to which they belong at the time of their initial recruitment to the service. Provided that the inter-se seni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld have been wholly arbitrary. In our judgment, therefore, there was no escape from the position that the entire length of service of the two classes of officers had got to be counted for. the purpose of determination of their seniority on their initial recruitment to the Delhi Judicial service. It was not possible or practical measure their respective merits for the purpose of seniority with mathematical precision by a barometer. Some formula doing largest good to the largest number had to be evolved. The only reason-able and workable formula which could be evolved was the one engrafted in rule 11 of the Delhi Judicial Service Rules. The decision of this Court in Kunnathat Thathunni Moopil Nair v. The State of Kerala and another relied on by the petitioners is clearly distinguishable. Sinha, C.J.'in his judgment at page 92 pointed out the nature of equal burden of tax placed upon unequals and said It is clear, therefore, that inequality is writ large on the Act and is inherent in the very provisions of the taxing section. It is also clear that there is no attempt at classification in the provisions of the Act. Hence, no more need be said as to what could have been the bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the purpose of initial recruitment and fixation of seniority was reasonable as the classification was one which included all persons who were similarly situated with respect to the purpose of the law. We have therefore no difficulty in rejecting the argument put forward on behalf of the petitioners that rule 11 of Delhi Judicial Service Rules is bad as being violative of Arts. 14 and 16 of.of the Constitution. It was not suggested on behalf of the petitioners and rightly so that fixation of their seniority vis-a-vis respondents 3 to 6 in the Delhi Judicial Service was not in accordance with rule 11. Two more facts need be noted here in connection with the question of seniority and they are these : A notification dated September 30, 1967 was issued by the Governor of U.P., a copy of which is Annexure 'H' to the rejoinder on behalf of the petitioners to the counter-affidavit filed by respondent 2 under Art. 237 of the Constitution directing that the remaining provisions of Chapter VI of Part VI of the Constitution shall, With effect from October 2, 1967, apply in relation to such magistrates including additional District Magistrates (Judicial), in the State as belong to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent no. 6 Petitioners 2 to 4 joined the same service later and were junior to respondent no. 6. When the State of Punjab was bifurcated into two States of Punjab and Haryana of 1.11.1966 the petitioners were allotted the cadre of Punjab and respondent no. 6 came to the cadre of Haryana. On Constitution of the Delhi Judicial Service, respondent no. 6 was recommended by the Haryana St-ate and was initially recruited to the Delhi Service which he joined on 1.9.1971. Eventually respondent no. 6 was placed in the selection grade w.e.f. 25.3.1972 and he was promoted as Additional District Sessions Judge w.e.f. 1.6.1973. It would thus be seen that allocation of a place of seniority in the Delhi Judicial Service to respondent no. 6 below petitioner no. 1 and above petitioners 2 to 4 was valid and justified. Coming to the Delhi Higher Judicial Service Rules, 1970 we find that under rule 6 the initial recruitment to the higher service was made.. None of the petitioners or the respondents was initially recruited.. The regular recruitment to the higher service after the initial recruit- ment has been provided in rule 7 in-these terms 7. Regular recruitment-Recruitment after the init ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his junior but gets a chance of promotion later, it is obvious that he cannot retain his seniority in the lower rank. All candidates on appointment to the higher service have got to be on probation for a period of two years under rule 12(2) and ordinarily and generally they would be confirmed at the end of the said period of two years in accordance with rule 13. Strictly speaking the question of determination of inter-se seniority under rule 8 will crop up at the time of the confirmation of the appointee. In Chandramouleshwar Prasad 'v. Patna High Court I Ors. [1970] 2 S.C.R. 666 referring to the relevant rules of the Bihar Superior Judicial Service Rules, Mitter, J delivering the judgment on behalf of this Court said at page 671 : It may be noted at this stage that the gradation of the officers by the High Court or maintaining any list showing such gradation is not sanctioned by any service rules. The Bihar Superior Judicial Service Rules to which our attention %,as drawn do not contain any provision which would entitle the High Court to make such a gradation or act thereon. Rule 5 of the said Rules prescribes that ordinarily appointments to the post of Additional District ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y add here also that as between the temporary appointees for practical purposes and for the facility of the administration it will be open to the High Court to permit the promotees to retain their seniority in the lower judicial service after they are temporarily appointed at the same time till they continue in the temporary appointments. The vires of rule 8(1) of the Delhi Higher Judicial Service Rules was challenged by Mr. Tarkunde, learned counsel for the petitioners on the ground that rule 8(1) equates all who are promoted to the higher service and permits them to retain their seniority in the lower service irrespective of the time of their appointment. Counsel submitted that those who came earlier to the higher service whether under rule 7 or under rule 16 or 17 should have been allowed to rank senior to those who came to be appointed either substantively or temporarily to the higher service later. The attack on the constitutionality of rule 8(1) is obliterated if by construction it is held, as it has been done above, that the question of retention of seniority in the lower service arises only when the promotion is at the same time and not otherwise. In absence of such an inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rary posts were created by a notification dated 13th March, 1974. Petitioners 2, 3 and 4 were temporarily appointed to three of these posts by notification dt. 22nd March, 72 by the Administrator of Delhi in exercise of his powers under rule 16(2) of the Delhi Higher Judicial Service Rules. Copies of these notifications issued under Rules 7, 17 and 16 of the Delhi Higher Judicial Service Rules are collectively Annexure 'B' to the counter-affidavit of respondent no. 2. Respondents 3 and 4 have been confirmed during the pendency of this Writ petition in the higher service by notification dated 13,6,1974-Annexure R-4/4 w.e.f. 2nd June, 1974. The, petitioners have not challenged the notifications appointing them temporarily to the higher service under rule 16 or rule 17 and appointing respondents 3 and 4 substantively under rule 7. The confirmation of the latter therefore is perfectly in order and it goes without saying that they will be senior to such members of the Delhi Judicial Service who would be substantively appointed and confirmed later. A copy of the notification appointing respondent no. 6 to the higher judicial service from 1.6.1973 does not seem to be in the record ..... X X X X Extracts X X X X X X X X Extracts X X X X
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