JUDICIAL OFFICERS - QN. OF SENIORITY

INTER SE SENIORITY OF JUDICIAL OFFICERS

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 477 OF 2007

( Also reported in AIR 2009 SC 137 )

B.S. Mathur & Anr. .... Petitioner (s)

Versus

Union of India & Ors. .... Respondent(s)

With

Writ Petition (C) Nos. 486 of 2007, 487/2007 & 502/2007

JUDGMENT

P. Sathasivam, J.

IMPORTANT PARAGRAPHS FROM THE JUDGEMENT:

19) Perusal of the Seniority List drawn by application of principle of Rota Quota as laid down in Rule 8(2) read with Rule 7 of DHJS Rules shows that in case the principle of Rota Quota is followed, then it would cause a serious injustice to the promotee officers inasmuch as, the direct recruits who have not yet entered the service would rank senior to the promotee officers promoted in their quota way back on 16.8.2000. If this is allowed to happen, this would not only be unreasonable but create a great heart-burning amongst the officers appointed from the two sources. Hence, in our view, the principle of Rota Quota contained in the statutory Rule 8 (2) read with Rule 7 of DHJS Rules, does not properly address the problem of resolving inter se seniority dispute between the

direct recruits and the promotee officers.

20) The other Seniority List got prepared on the basis of the principle of seniority as laid down in the O.M. of DOPT dated 3.7.1986, adopted by the majority view for determining the inter se seniority of the officers of the two groups reveals certain important facts having a bearing on the determination of inter se seniority of the officers of the two groups and they are as under:

a) Promotions of the promotee officers from the cadre of DJS to the cadre of DHJS took place shortly within a few months as and when vacancies became available to them, either through increase in the cadre strength or creation of temporary post.

b) The process for direct recruitment was started many months before the promotions of the promotee officers in the cadre of DHJS. The delay that occasioned in the appointment was only in the case of direct recruits and not of the promotee officers.

c) The vacancies against which direct recruits were appointed became available to them many months before the promotions of the promotee officers against subsequent addition of vacancies.

d) The direct recruits were working as Additional District Judges against the substantive post whereas the promotee officers who were proposed to be made senior to such direct recruits were at the same time working as subordinate Judges in the cadre of DJS. There are other reasons in law why the principle contained in the said O.M. cannot be taken in aid for determining the inter se seniority of the officers of DHJS but before going into those reasons, it would be necessary to discuss the adverse consequences that would flow by application of the principle contained in the said Office Memorandum. It is useful to refer the relevant clauses in O.M., which were adopted in the majority report, are reproduced hereunder:

"GOVERNMENT OF INDIA

DEPARTMENT OF PERSONNEL AND TRAINING

OFFICE MEMORANDUM No. 22011/7/86-Estt.(D)

Dated 3rd July, 1986

"2.4.1 The relative seniority of direct recruits and of romotees shall be determined according to the rotation of vacancies between direct recruits and promotees which shall be based on the quota of vacancies reserved for direct recruitment and promotion respectively in the Recruitment Rules.

2.4.2 If adequate number of direct recruits do not become available in any particular year, rotation of quotas for the purpose of determining seniority would take place only to the extent of the available direct recruits and the promotees.

In other words, to the extent direct recruits are not available, the promotees will be punched together at the bottom of the seniority list below the last position upto which it is possible to determine seniority, on the basis of rotation of quotas with reference to the actual number of direct recruits who become available. The unfilled direct recruitment quota vacancies would, however, be carried forward and added to the corresponding direct recruitment vacancies of the next year (and to subsequent years where necessary) for taking action for direct recruitment for the total number according to the usual practice. Thereafter in that year while seniority will be determined between direct recruits and promotees, to the extent of the number of vacancies for direct recruits and promotees as determined according to the quota for that year, the additional direct recruits selected against the carried forward vacancies of the previous year would be placed en bloc below the last promotee (or direct recruit as the case may be), in the seniority list based on the rotation of vacancies for that year. The same principle holds good for determining seniority in the event of carry forward, if any, of direct recruitment or promotion quota vacancies (as the case may be) in the subsequent year."

Now let us consider the applicability of this provision in the cases on hand. From 1992 to 2006, only five batches of direct recruits were appointed, details of which are as follows:-

Year of direct recruitment      No. of Direct Recruits

1992                                                 1

1995                                                 9

1997                                                 8

2000                                                 7

2003-03                                          12

In the batch of 1992, only one direct recruit, Ms. Veena Birbal was appointed. She being at S.No.1 her seniority is not at all affected by the application of any of the three rules i.e., the principle of Rota Quota as contained in the statutory Rule 8(2) read with Rule 7 of DHJS Rules, principle as contained in the O.M. referred above or the principle of continuous length of service. The seniority of the officers of other three batches of

direct recruits appointed in 1995, 1997 and in the year 2000 is adversely affected to their detriment, if the seniority is decided on the basis of principle contained in the above

referred O.M. It may be seen from the seniority list which is based on the principle contained in the O.M. that the six direct recruits of 1995 batch, namely, Ms. I.K. Kochhar, Mr. A.K. Pathak, Mr. B.S. Mathur, Mr. P.S. Teji, Mr. I.S. Mehta and Mr. Lal Singh who all were appointed against the substantive vacancies in their quota on 7/9.3.1995 would become junior to the promotee officers, Mr. Ajit Bharihoke, Mr. D.K. Saini, Mr. R.S. Khanna, Mr. S.K. Tandon and Mr. Prem Kumar who were promoted from DJS to DHJS on 24.8.1995 against vacancies that became available to them

after the appointment of the above named six direct recruits. In the same way, the seven direct recruits of 1997 batch, namely, Mr. V.P. Vaish, Mr. S.N. Gupta, Mr. S.C. Malik, Mr. A.K. Chawla, Mr. Vinod Goel, Mr. R.P.S. Teji and Mr. S.C. Rajan appointed against substantive vacancies in the quota of direct recruits on 21.4.1997 would become junior to the promotee officers Mr. Mahavir Singhal, Mr. S.K. Sarvaria, Mr. P.C. Ranga, Mr. Babu Lal, Mr. D.C. Anand, Mr O.P. Gupta, Mr. C.K. Chaturvedi, Mr. A.S. Yadav, Mr. R.K. Gauba, Mr. H.S. Sharma, Mr. J.R. Aryan, Mr. K.S. Pal, Mr. M.K. Gupta and Ms. Sangita Dhingra Sehgal, who were promoted from DJS to DHJS after them on 20.11.1997. Similarly, the three direct recruits of 2000 batch, namely, Mr. Rajnish Bhatnagar, Mr. Rakesh Siddartha and Mr. Amar Nath appointed in the direct recruit quota against substantive vacancies on 26.5.2000 would become junior to the promotee officers, Mr. N.P. Kaushik, Ms. Asha Menon, Mr. Pradeep Chaddah and Mr. Narender Kr. Sharma promoted to DHJS on 16.8.2000. None of the above named promotee officers was even promoted to the cadre of DHJS when the above named direct recruits

over whom they are proposed to be made senior were appointed in the cadre of DHJS against substantive vacancies. Those promotee officers were working as sub-Judges/Metropolitan Magistrates in the cadre of Delhi Judicial Service at the time the above named direct recruits were appointed as Additional District Judges in the cadre of DHJS. We are of the view that by no stretch of imagination or legal fiction, a promotee officer working in the lower cadre can be made senior to an officer working on a higher post as an Additional District Judge at that point of time. In case by

application of principle as contained in the O.M., officers working in the lower cadre are made senior to the Additional District Judges of that time, then it would cause a great heart burning amongst those direct recruits who were appointed in their own quota against substantive vacancies before the promotion of the promotee officers in question.

21) Further, in our view, the principle of inter se seniority contained in the above O.M. can even otherwise be not applied for determining the inter se seniority of the officers of DHJS for the following reasons, (i) The principle of inter se seniority contained in the O.M. of DOPT dated 3.7.1986 cannot supplant statutory Rules for determining the inter se seniority contained in the statutory Rules viz., Rule 8(2) read with Rule 7 of DHJS Rules, 1970; (ii) The pre-conditions for applicability of the principle contained in the above referred O.M. Never existed in the service in question. The O.M. Contemplates

recruitment on yearly basis and also for maintaining year-wise record of the vacancies remaining unfilled in any particular category before they are bunched as carry forward vacancies for the next year, (iii) Rule 27 of the DHJS Rules which is a residuary provision explicitly provides that with regard to matters on which DHJS Rules are silent, help can be taken from the Rules that are applicable to the IAS officers. As specific provisions for determining the inter se seniority of the officers of DHJS have been made in the DHJS Rules, there is no question of taking any aid from any outside Rule as contained in the O.M. Further the IAS Seniority Rules, 1987 prescribed principle that is altogether different from the kind of Rota Quota principle embodied in DHJS Rules, 1970. The majority report has also noted that though the O.M. Of 1986 does not apply by recourse to Rule 27 of the DHJS Rules 1970, yet has recommended its applicability for determining the inter se seniority of the officers of DHJS on the assumption that the Central Government would be within its right to apply the said Memorandum or make similar principle for application to the members of the All India Service in future. The inter se seniority of IAS Officers is determined by reference to the year of allotment as provided in Rule 4 of IAS (Regulation of Seniority) Rules, 1987. The principle of bunching of officers appointed against carry forward vacancies and then putting them below the last officer appointed against the current vacancy of that year is not applicable to the IAS officers for determining their inter se seniority but in DHJS,

the circumstances are entirely different. The appointments from 1992 to 2006 were never made from either source on yearly basis. No record was maintained regarding the unfilled vacancies available to either source on year-wise basis.

22) In view of what has been discussed above, we are of the view that we should not apply the principle of bunching as contained in the above referred O.M. for determining the inter se seniority of the officers of DHJS as by application of the said principle the promotee officers who at the relevant time (i.e. 1995, 1997 and 2000) were still in the lower cadre of DJS would become senior to those direct recruits appointed as Additional District and Sessions Judges much before their promotions in the cadre of DHJS. This is unjust and inequitable.

23) Now let us have a glance the seniority list prepared on the basis of the principle of "continuous length of service". Ever since the inception of the service till the seniority up to Mr. K.C. Lohia was finally decided, the High Court has continuously followed the principle of "continuous length of service" as directed to be applied to the officers of DHJS by this Court in O.P. Singla and Rudra Kumar Sain's cases (supra). When O.P. Singla and Rudra Kumar Sain's cases were decided by this Court, this Court had noticed breakdown of Rota Quota in the service and it was for that reason, directions were given for determining the inter se seniority by applying the principle of continuous length of service.

24) A perusal of seniority list which is based on the principle of Rota Quota would show that the Rota Quota remains broken down even today. It may be pertinent to mention here that steps for appointment of direct recruits were actually taken by the High Court many years before their appointment actually took place but the appointments came in place only after considerable delay. Though as per law the direct recruits cannot be faulted with for the delay caused in their appointments, the fact remains that delay in appointments should not cause any disadvantage to the incumbents

appointed in the service. We need not go into all these aspects because the fact that has emerged is that the appointment of direct recruits and promotee officers in the

service have not taken place simultaneously. This only shows that Rota Quota has remained broken down right from the inception of service till now. There is absolutely no change in the factual position relating to breakdown of Rota Quota even after the decision of this Court in O.P. Singla and Rudra Kumar Sain's cases. There is no reason to depart from the said principle and take a shelter under the O.M. of DOPT dated 3.7.1986 for determining the inter se seniority of the officers of DHJS.

25) The High Court while fixing seniority of officers upto Shri K.C.Lohia including those who were appointed after amendment of the Rules and whose seniority was not determined in Rudra Kumar Sain's case, did not apply the O.M. dated 3.7.1986 or the principles contained therein. Their seniority was fixed essentially on the basis of "length of service". There was no good reason for the High Court to discard the principle of "continuous length of service", which it had followed for determining seniority of officers upto Shri K.C. Lohia and apply the O.M. dated 3.7.1986 for the purpose of fixing the seniority of officers appointed after the appointment of Shri K.C. Lohia. Rule 8(2) cannot be applied on account of gross inequity and injustice which its application is bound to produce and since this Court has already held in the case of Suraj Prakash Gupta & Ors. vs. State of J & K, (2000) 7 SCC 561 that direct recruits cannot claim seniority from the date of occurrence of vacancy

in the direct recruitment quota, the seniority should be determined on the basis of continuous length of service as was done by this Court in O.P. Singla's case and Rudra Kumar Sain's case and was also done by Delhi High Court in case of officers upto Shri K.C. Lohia. If the seniority is fixed in this manner, it will not cause any injustice either to promotees or to direct recruits.

26) Further it has to be kept into consideration that seniority even by one day may materially affect the future prospects and career of an officer. The person appointed even on day earlier may reach a position which the person appointed one day later may not be able to reach due to reasons such as limited number of higher posts or his becoming age barred by the time next vacancy arises. The only advancement in the

career of a member of Delhi Higher Judicial Service is elevation to the High Court. Therefore, it will not be fair and equitable to give march to a later appointee over a prior

appointee of the same year, even if that march is for a few months or even for a few days. It, therefore, cannot be disputed that the application of O.M. dated 3.7.1986 which

does not ipso facto apply to officers of Delhi Higher Judicial Service would produce inequity for officers from one or the other source and therefore, has to be avoided if a better principle, which is fair and reasonable to all can be applied.

27) As observed earlier, perusal of the seniority list prepared on the basis of the principle of "continuous length of service" clearly demonstrates that in case the seniority of the officers of DHJS is fixed by reference to their date of appointment, then nobody would suffer any injustice. Each and every officer would get due weightage of the service rendered by him or her in the cadre of DHJS. If inter se seniority is finally decided by applying the principle of "continuous length of service", it may bring an end to litigation between the officers of the two groups. Therefore, the principle of "continuous length of service" should be applied for determining the inter se seniority of the officers of Delhi Higher Judicial Service appointed up to the year 2006. In case of officers appointed on the same date, whether direct appointees or promotees, the

seniority should be fixed on the principles as stated in O.M. dated 3.7.1986 since it cannot be determined on the basis of length of service alone in case of appointment from two different sources on the same date.

28) As far as the inter se seniority of the officers to be appointed in DHJS after the year 2006 is concerned, this Court in its judgment in All India Judges Association vs. Union of India , (2002) 4 SCC 247 has directed all the High Courts to make necessary amendment in the Rules providing for determining the inter se seniority on the basis of 40 point Roster considered and approved in the case of R.K. Sabharwal & Ors. vs. State of Punjab, (1995) 2 SCC 745. The necessary amendment relating to inter se seniority for future be made in the DHJS Rules in consonance with the directions of this Court as referred in the above mentioned cases. Till such time the principle of "continuous length of service" i.e. date of appointment should be applied for

determining the inter se seniority of the officers of Delhi Higher Judicial Service.

29) For the aforestated reasons, we allow all the writ petitions. The inter se seniority list of DHJS as suggested by the majority view and consequential order of the High Court are set aside. Now, the High Court is requested to finalise fresh inter se seniority list of DHJS, as observed above, as expeditiously as possible. No order as to costs.

......................................CJI.

(K.G. BALAKRISHNAN)

..........................................J.

(P. SATHASIVAM)

..........................................J.

(J.M. PANCHAL)

NEW DELHI;

October 15, 2008.