Holding

Inter‑se seniority of Delhi Higher Judicial Service officers appointed up to 2006 must be determined by the principle of continuous length of service (date of appointment), not by the 1986 Office Memorandum or the statutory rota‑quota rule.

Summary

The petitioners, directly recruited Additional District and Sessions Judges, challenged the Delhi High Court's seniority list for Delhi Higher Judicial Service (DHJS) officers that was based on the 3 July 1986 Office Memorandum (OM). They argued that seniority should be determined under Rule 8(2) read with Rule 7 of the DHJS Rules, 1970, or at least by the principle of continuous length of service, not by the OM. The Court examined three possible criteria – the statutory rota‑quota rule, the OM, and continuous length of service – and held that the rota‑quota rule could not be applied because recruitment from the two sources was never simultaneous, and the OM could not supplant the statutory rules. Consequently, the Court applied the principle of continuous length of service (date of appointment) for officers appointed up to 2006 and set aside the High Court’s seniority list. The High Court was directed to prepare a fresh inter‑se seniority list accordingly. The writ petitions were allowed.

Issues considered

The appropriate method for determining inter‑se seniority of DHJS officers: (i) statutory rota‑quota rule under Rule 8(2) and Rule 7, (ii) the 1986 Office Memorandum, or (iii) the principle of continuous length of service.
Whether the 1986 Office Memorandum can override the statutory provisions of the DHJS Rules.
Whether the High Court’s resolution dated 18 May 2007, which adopted the OM, is constitutionally valid under Articles 14, 32 and 309 of the Constitution.

Legislation cited

Constitution of Indias. Article 14, s. Article 309, s. Article 32
Delhi Higher Judicial Service Rules, 1970s. Rule 16, s. Rule 17, s. Rule 27, s. Rule 7, s. Rule 8(2)

Subjects

inter se seniorityDelhi Higher Judicial Servicerota quotacontinuous length of serviceservice lawRule 8(2)Rule 7Office Memorandum 1986constitutional validityArticle 14Article 32

Judgment

[2008] 14 S.C.R. 436 ~
'

A S.S. MATHUR & ANR. >--
'
II.
UNION OF INOIA & ORS.
(Writ Petition (Civil) No. 477 of 2007)
OCTOBER 15, 2008
B
[K.G. BALAKRISHNAN, CJI, P. SATHASIVAM AND J.M.
PANCHAL, JJ] ·f-·

Service Law: ,._
/

c Delhi Higher Judicial service rules, 1970:
. rr. 7, 8(2), 16 and 17 - Delhi Higher Judicial Service - \_
Inter se seniority between direct recruits and promotees -
HELD: the principle of "continuous length of service" should
be applied for determining inter se seniority of two categories
D
of officers appointed upto the year 2006 - For determining
inter se seniority of officers of both the categories appointed
after 2006, Supreme Court in its earlier decisions had directed
-+
all the High Courts to make necessary amendment in the
Rules providing for determining the inter se seniority on the
E
basis of 40 point Roster -Necessary amendments relating to I
. inter se seniority for future would be made in the Rules in con-
sonance with the directions given by the Supreme Court in its
earlier decisions - Till such time, the principle of "continuous
length of service" would be applied - 0. M. dated 3. 7. 1986 is-
F sued by DOPT, Government of India.
~

Regular recruitment to the Delhi Higher Judicial Ser-
vice was _provided for under Rule 7 of the Delhi Higher
Judicial Service Rules, 1970: (a) by promotion on the ba-
G
sis of selectio!J from members of Delhi Judicial Service
and (b) 113rd of the posts by direct recruitment from the
Bar. Rule 8(2) laid down for seniority of direct recruits vis-
.
..i.
a-vis promotees ill the order of rotation of vacancies be-
tween the direct recruits and the promotees on the basis
H 436
S.S. MATHUR & ANR. v. UNION OF INDIA 437
& ORS.

----< of quotas of vacancies reserved for both the categories A
by Rule 7, and the first available vacancy to be filled by a
direct recruit. However, tempor'!ry posts were being filled
only by the promotee officers in terms of Rules 16 and 17.
Further, recruitment by direct recruitment was not made
every year. Therefore, pursuant to directions by the Su- B
preme Court in O.P Singla's 1 case, the High Court, by
'
----',""• Notification dated 17.3.1987, amended the Rules to pro-
vide for filling up of temporary posts/vacancies under Rule
16 also by direct recruitment as per quota prescribed un-
der Rule 7. In order to restore the balance between the c
direct recruits and the promotees, the High Court decided
to fill up 14 vacancies then existing by direct recruitment.
In Rudra Kumar Sain'2 s case, the Supreme Court held that
inter se seniority must be determined on the basis of con-
tinuous length of service in the cadre as indicated in O.P
D
Singla's case. Consequently, the officers of DHJS ap-
~ pointed/promoted to the Service against vacancies prior
to the amendment of the Rules, 1987 were given seniority
on the basis of the principle of length' of service.
On 14.8.2002, the Delhi High Court circulated a ten- E
\• tative seniority list of the officers of DHJS inviting objec-
tions, if any, and appointed a Committee of five Judges to
decide the issue of seniority of the officers of DHJS ap-
pointed after 1991. The Committee after considering the
representations of the officers from both sides - directly
J. recruited as also promotees - submitted their reports. The F
majority view of four Judges comprising the Committee
was that the Rota Quota Rule was workable only if simul-
taneous recruitments were resorted to and since no si-
multaneous recruitments took place, inter se seniority af-
G
ter a particular officer, namely, 'KCL' should be settled as
1.· per O.M. dated 3.7.1986 issued by th'e Department of Per-
sonnel and Training, Government of India. The dissent-
ing Judge was of the view that the principle of length of
service should be applied. The Full Court, by its resolu-
H
438 SUPREME COURT REPORTS [2008] 14 S.C.R.

A tion dated 18.5.2007, accepting the majority'view, decided '(
to confer seniority on the basis of O.M. dated 32.7.1986. ..t
Aggrieved, the direct recruits filed the instant writ petitions.
The question for consideration before the Court was
as to which of the following criteria would be most equi-
B table, reasonable and justifiable for determining inter se
seniority of the officers of DHJS:
"r
(i) Principle of Rota Quota as laid down in Rule
8(2) read with Rule 7 of DHJS Rules; \
c (ii) Principle as laid down in the 0.M. of DOPT dated
3.7.198.6; or
(iii) Principle of "continuous length of service", i.e.,
date of appointment.
D Allowing the writ petitions, the Court
HELD: 1.1 An equitable rule for determining inter se
seniority of the direct recruits and the promotees would
+
be one that satisfies the competing claims of both the
groups. In the instant case, a perusal of the Seniority List
E drawn by applying the principle of Rota Quota as laid down .
/
~
in Rule 8(2) read with Rule 7 of DHJS Rules, 1970 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
F the service would rank senior to the promotee officers
-;.._
appointed 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 ap-
pointed from the two sources. Therefore, the principle of
G Rota Quota contained in the statutory Rule 8(2) read with·
Rule 7 of DHJS Rules, 1970, does not properly address
the problem of resolving inter se seniority dispute between -.l
the direct recruits and the promotee officers: [para 15 and
19] [462 F, 464-H, 465 A-8]
H
B.S. MATHUR & ANR. v. UNION OF INDIA 439
& ORS.
~
1.2 Even otherwise, the Rota Quota remains broken A
~
down even on date, because appointments of direct re-
cruits 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. There is absolutely no change in the factual po- B
sition relating to breakdown of Rota Quota even after the
---1· decisions of the Court in O.P Sing/a *and Rudra Kumar
Sain's** cases. [para 24] [471 A-D]
*O.P Sing/a & Anr. vs. Union of India & Ors. (1985) (1)
SCR 351 = (1984) 4 SCC 450; ** Rudra Kumar Sain & Ors. c
vs. Union of India & Ors., 2000 (2) Suppl. SCR 573 = (2000)
'("
8 SCC 25 and Delhi Judicial Services Association & Ors. vs.
Delhi High Court & Ors., 2001 (3) SCR 314 = (2001) 5 SCC
145 - referred to.
D
2.1 The principle contained in the O.M. of DOPT dated
+ 3.2.1986 cannot be applied for determining the inter se se-
niority of the officers of DHJS for (i) the principle contained
in the said O.M. cannot supplant statutory Rules for de-
termining the inter se seniority contained in the statutory
Rules, viz., Rule 8(2) read with Rule 7 of DHJS Rules, E
1970; (ii) the pre-conditions for applicability of the prin-
ciple contained in the O.M. never existed in the service in
question. The 0.M. contemplates recruitment on yearly
basis and also for maintaining year-wise record of the
): vacancies remaining unfilled in any particular category F
before they are bunched as carry forward vacancies for
the next year, and (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 offic- G
ers. As specific provisions for determining the inter se
L
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 0.M. Besides, in
DHJS, the circumstances are entirely different. In DHJS, H
440 SUPREME COURT REPORTS [2008] 14 S.C.R.

A appointments from 1992 to 2006 were never made from
,.__
I
either source on yearly basis. No record was maintained I
regarding the· unfilled vacancies available to either source
on year-wise basis. [para 21] [469 A-F, 470 8-C]
2.2 The Court would not apply the principle of bunch-
B ing as contained in O.M. dated 3.2.1986 for determining
the inter se seniority of the officers of DHJS as by applica-
tion 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
..
c recruits appointed as Additional District and Sessions '
Judges much before their promotions in the cadre of
(
DHJS. This is unjust and inequitable. Further, seniority .. ,
even by one day may materially affect the future prospects
and career of an officer. It will not be fair and equitable to
D 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 0.M. dated 3.7.1986 which does not ipso
facto apply to officers of Delhi Higher Judicial Service
E would produce inequity for officers from one or the other
·source and therefore, has to be avoided if a better prin-
ciple, which is fair and reasonable to all, can be applied. \_

[para 22 and 26] [470 D-E, 472 8-E] ·
'
3.1 As regards the seniority list prepared on the ba-
F sis· of the principle of "continuous length of service", it
J
would be significant to note that ever since the inception
of the service till the seniority up to the officer, namely,
'KCL', was finally decided, the High Court continuously
followed the principle of "continuous length of service"
G as directed to be applied to the officers of DHJS by the
Supreme Court in O.P Sing/a and Rudra Kumar Sain's
cases. When these cases were decided, the Supreme "'1
Court Court had noticed breakdown of Rota Quota in the
se.rvice and it was for that reason, directions were given
H for determining the inter se seniority by applying the prin-
B.S. MATHUR & ANR. v. UNION OF INDIA 441
& ORS.

.. ~
ciple of continuous length of service. [para 23] [470 F-G] A
3.2 The High Court while fixing seniority of officers
upto 'KCL' 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 nor the principles contained therein. B
Their seniprity was fixed essentially on the basis of
--<:· "length of service". There was no good reason for the
High Court to qiscard the principle of "continuous le~gth
of service", which it had followed for determining senior-
ity of officers upto 'KCL' and apply the 0.M. dated 3.7.1986 c
fort.he purpose of fixing the seniority of officers appointed
after 'KCL'. Rule 8(2) cannot be applied on account of
gross inequity and injustice which its application is bound
to produce and since the Court has already held in the
case of Suraj Prakash Gupta* that direct recruits cannot D
claim seniority from the date of occurrence of vacancy in
+ their quota, the seniority should be determined on the
basis of continuous length of service as was held by the
Court in O.P Singla's case and Rudra Kumar Sain's case
and was also done by Delhi High Court in the case of of-, E
ficers upto 'KCL'. If the seniority is fixed in this manner, it
will not cause any injustice either to promotees or to di-
rect recruits.[para 25] [471 E-H, 472-A]
*Suraj Prakash Gupta & Ors. vs. State of J & K 2000 (3)
SCR 807= (2000) 7 SCC 561 - referred to. F
,l
3.3 The seniority list prepared on the basis of the prin-
ciple of "continuous length of service" clearly demon-
strates that in case the seniority of the officers of DHJS is
fixed by reference to their date of appointment, then no-
G
body 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
H
442 SUPREME COURT REPORTS [2008] 14 S.C.R.

A officers ·of the two groups. Therefore, the principle of "con-~
tinuous length of service" should be applied for deter-
mining the inter se seniority of the officers of Delhi Higher
Judicial Service appointed up to the year 2006. (para 27]
(472-F-G]
B 3.4 In case of officers of two categories, namely di-
rect recruits and promotees, appointed on the same date,
·the seniority should be fixed on the principles as stated ·r-
in O.M: dated 3.7.1986 since iD such a case seniority can-
not be determined on the basis of length of service alone.
C [para 27] (472 G-H, 473 A]
4. As far as the inter se seniority of the officers to be
appointed in DHJS after the year 2006 is concerned, this .
I
Court in its judgment in A// India Judges Association's* case,
has directed all the High Courts to make necessary
0
amendment in the Rules providing for determining the
inter se seniority on the basis of 40 point Roster consid-
ered and approved in the case of R.K. Sabharwal & Ors.**-+-
The necessary amendment relating to inter se seniority
for future be made in the DHJS Rules in consonance with
E · the directions of this Court as ref~rred -in the above men-
tioned cases. Till such time the principle of "continuous
length of service" i.e. date of appointment should be ap-
plied for determining the inter se seniority of the officers
of Delhi Higher Judicial Service. (para 2~] (473 B-0] \-
F
*All India Judges Association vs. Union of India 2002 (2) ~ .~
=
SCR 712 (2002) 4 SCC 247; and **R.K. Sabharwal & Ors.' -
vs. State of Punjab 1995 (2) SCR 35 = °(1995) 2 SCC 7 45 -
referred to.
G 5. The seniority list of DHJS prepared on the basis of
the majority view of the Committee of the High Court, and
consequential order of the High Court are set aside. The .....
High Court ·would finalise fresh inter se seniority list of -~
DHJS, in accordance with the judgment as expeditiously
H as possible. [para 29] [473 D-E]
B.S. MATHUR & ANR. v. UNION OF INDIA 443
& ORS.
'

)
~ CASE LAW REFERNECE: A
• (1985) (1) SCR 351 referred to para 2
. 2001 (3) SCR 314 referred to para 2
' referred to para 2
2000 (2) Suppl. SCR 573
2000 (3) SCR 807 referred to para 25 B
2002 (2) SCR 712 referred to para 28
--t,·
1995 (2) SCR 35 referred to para 28
~

<
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
477 of 2007 (Under Article 32 of The Constitution of India) c
WITH
Writ Petition (C) Nos. 486 of 2007, 487 /2007 & 502/2007
···"
G.E. Vahanvathi, S.G., Gopal Subramaniam, A.S.G., Harish
Salve, Rakesh K.Khanna, P.S. Patwalia, A.K. Ganguli, Arun D
Jaitely, R. Venkataramani, P.P. Rao, Vinay K. Garg, Ashok K.
+ Mahajan, A. Mariarputham, Aruna Mathur (for M.s. Arputham,
Aruna & Co.), T.L. Garg, D.K. Thakur, C.N. Sreekumar, P.R.
Nayak, Dushyant Parashar, Kanchan Shukla, A.K. Joseph, Ajay
Jha, Arjun Garg (for Mis. Parekh & Co.), S.P. Sharma, Jayant E
Kumar Mehta and Vasudha J. Mehta for the appearing parties.
I
The Judgment of the Court was delivered by
P. SATHASIVAM, J. 1. These writ petitions, under Article
_._ 32 of the Constitution of India, are filed by the directly recruited F
Additional District and Sessions Judges who were appointed
to the Delhi Higher Judicial Service praying for an order quash-
ing the Resolution dated 18.05.2007 of the Full Court of the
High Court of Delhi approving the majority report of the Ad min-
istrative Committee determining the seniority of the petitioners G
in terms of O.M. dated 03.07.1986 and also quashing the final
. seniority list of the officers of Delhi Higher Judicial Service. They
~·
'-' also prayed for appropriate direction to respondent Nos. 1-4 to
determine the seniority of the petitioners in terms of Rule 8(2)
read with Rule 7 of the Delhi Higher Judicial Service Rules, 1970.
H
444 SUPREME GOURT REPORTS [2008] 14 S.C.R.

A 2. Since all the petitioners were appointed to the Delhi ~
Higher Judicial Service (hereinafter referred to as "DHJS") as ·
Additional District and Sessions Judges and the challenge as
well as the relief prayed for in all these writ petitions are one
and the same, they are being disposed of by a common judg-
B ment:
a) For convenience, we shall refer to the facts· in the
case of the petitioners in Writ Petition (c) No. 477 of '.;t-
2007. The DHJS was constituted in the year 1970
under Delhi Higher Judicial Service Rules, 1970
C (hereinafter referred to as "the Rules"). Rule 5
provides for the method of recruitment by way of
promotion from amongst the officers of the Delhi
Judicial Service and Direct Recruitment. Rule 7
provides that after the initial recruitment, regular
D recruitment would be made on the basis of selection
from the Members of the Delhi Judicial Service who
have completed not less than ·10 years of service in -.,+.
' the Delhi Judicial Service and by direct recruitment
from the Bar. Proviso to Rule 7 provides that minimum
E 113rd of the substantive posts in the service shall be
held by direct recruits. Rule 8 provides for inter se
seniority. Rule 8(2) provides that seniority of the Direct
Recruits vis-a-vis promotees is to be determined in
order of rotation of vacancies between the direct
recruits and the promotees based on "Quotas of
F
Vacancies" reserved for both categories. Rule 8(2) >
further provides that first available vacancy will be
filled by a direct recruit and the next two vacancies
by promotees and so on. As originally framed, Rule
16 provides for creation of temporary posts in the
G
service and filling up of the same only by way of
promotion from amongst the Members of the Delhi
Judicial Service. Rule 17 provides for filling up of the '-'
vacancies by making temporary appointments from
amongst the Members of the Delhi Judicial Service.
H
B.S. MATHUR & ANR. v. UNION OF INDIA 445
& ORS. [P. SATHASIVAM, J.]

-( b) The posts in the DHJS were advertised to be filled A
up by way of direct recruitment from amongst the
practicing members of the Bar by an advertisement
issued in March, 1994. Last date for submission of
the applications was 11.4.1994. Since the petitioners
fulfilled the qualifications for the same, they applied B
in pursuance of the said advertisement. All the
candidates who applied were screened and
-\·
ultimately 90 candidates were called for interview
which was conducted from 16.9.1994 to 20.9.1994.
Upon conclusion of the same, 9 candidates were c
selected, 6 in the general category, 2 in the reserved
category of Scheduled Castes and one in the
Scheduled Tribes category. All the writ petitioners
were amongst those who were selected. All the
respondents (except the Government Bodies) in
D
these writ petitions were promotees promoted to the
DHJS from the Delhi Judicial Service. According to
t-- the petitioners, the cadre strength of the DHJS as on
31.12.1991- was of 60 officers. Later on the strength
was increased and as on date the cadre strength of
DHJS is of 174 officers. The seniority_ of DHJS E
officers was not settled by the High Court of Delhi
ever since the year 1992. Till 1980, only substantive
appointees to the service from the Bar as also
promotees were being given seniority under Rule
8(2). In 1980, a writ petition was filed in this Court by F
,J
the promotee officers challenging Rules 7 and 8 of
the Rules, which provided Rota and Quota. In the
said writ petition, the promotee officers claimed that
even appointments to the temporary posts/vacancies
under Rules 16 & 17 [as in the original Rules] was G
similar to the substantive appointments to the service
and the incumbents under those rules were also
entitled to get seniority from the date of their
appointments. This Court, in O.P. Sing/a & Anr. vs.
Union of India & Ors. (1984) 4 SCC 450, held that H
446 SUPREME COURT REPORTS [2008] 14 S.C.R.

)~
A appointments under Rules 16 & 17 to the temporary
posts/vacancies are similar to those of the
substantive appointments. With the said equation by I

legal fiction, the distinction between the said two rr
types of appointments i.e. temporary and substantive, t
B having been extinguished, the Court came to the
conelusion that since no appointments of the direct
recruits under Rules 16 & 17 were possible under ·'t-
the Rules at that point of time, inevitably the Rota
)
Quota had been broken down. However, thi's Court '1

c upheld the constitutional validity of Rule 7 and held
that tbere is a quota for 1;3rd of the direct recruits in
the service and further upheld the constitutional validity
of Rule 8(2) which provides for the rotation of the
vacancies under Rule 7. Though this Court equated
the temporary post with permanent post but had
D
noticed that the judgment will upset the balance
between the Direct Recruits and the Promotees in ,_
-i ,_
the DHJS. In those circumstances, this Court gave
directions in paragraph 43'to frame appropriate Rules
to remove the imbalances and thereafter implement
E' the Rules in letter and spirit. \
c) After the judgment in O.P Singla's case in 1985, the ...;
High Court of Delhi undertook the exercise of the
amendment of the Rules to provide for filling up of I
\

F the temporary posts/vacancies under Rules 16 and r
,....
17 also by direct recruitment as per the quota :\ .
prescribed under Rule 7 for the respective I
categories. The High Court had also decided that in
order to restore the balance between the number of tI
direct recruit appointees and promotees, 14 existing
G ~
vacancies are to be filled up by direct recruitment. [
The Association of promotee officers, in order to ..... ~

highlight their grievances, made a representation to \
-.L

the Chief Justice of the Delhi High Court claiming f
that the newly created temporary posts should be ''
H
S.S. MATHUR & ANR. v. UNION OF INDIA 447
& ORS. [P. SATHASIVAM, J.]
---{
filled up by promotion from amongst the members of A
the Delhi Judicial Service. Since according to them·
the said representation failed to evoke any response,
they filed Writ Petition No. 1540 of 1986 titled as
Delhi Judicial Service Association vs. Union of India
under Art. 32 of the Constitution of India before this B
Court wherein they prayed for the issuance of
---\• mandamus to the official respondents that all 14
temporary posts of the Additional District and
.. Sessions Judge were to be filled up by promotion .
The said writ petition was disposed of by an order c
dated 18.12.1986 with a request to the High Court to
finalise the amendment in the draft rules by 15.1.1987
and also to the Delhi Administration/Union of India to
sanction the amendment expeditiously. It was further
directed that thereafter advertisement would be
D
published inviting applications from the members of
the Bar so as to fill up all the 14 posts by way of
direct recruitment. Consequent to the said direction,
1970 Rules were amended by Notification issued
on 17.3.1987. The expression "in substantive
capacity" occurring in Rule 2(d) was deleted and E
consequential amendments were made in the Rules
so that appointments could be made to the posts
temporarily created under Rule 16 both from the Bar
;..
and by promotion from the Delhi Judicial Service. In
_) the meanwhile, certain promotees and direct recruits F
of DHJS have filed Writ Petition No. 490 of 1987,
Writ Petition No. 1252 of 1990 and others before
this Court raising issue as to whether inter-se
seniority between the promotees and the direct
recruits had actually been determined as per G
directions given by this Court in O.P Singla's case.
,.C:-
Those writ petitions came to be decided by this Court
on 22.8.2000 in the judgment in Rudra Kumar Sain
& Ors. vs. Union of India & Ors., (2000) 8 SCC 25.
In the said judgment, this Court quashed the seniority H
448 SUPREME COURT REPORTS [2008] 14 S.C.R.

A list both provi~ional and final so far as it related to }--
the appointees either by direct recruitment or by
promotion in the DHJS, prior to the amendment of
the Recruitment Rules in the year 1987, and held
that their inter se seniority must be re-determined on
B the basis of continuous length of service in the cadre,
as indicated in O.P Singla's case. Pursuant to the
said decision, the officers of DHJS appointed/ )-·
promoted to the service against vacancies prior to
the ame_ndment of the Rules, 1987 have given
c seniority on the basis of the principle of length of
service.
d) In these writ petitions, the claim of the petitioners
was that 14 temporary posts which were in existence
in 1986 should have been filled up by promotion from
D amongst the Delhi Judicial Service Officers as per
the Rules then existing. As the Rules were amended
on 17 .3.1987, an individual officer in his writ petition
challenged Rules 7, 16 & 17 as violative of Articles
233 and 16(1) of the Constitution of India. This Court
E rejected the contention raised by the Association as
well as by the individual officer and dismissed Writ
Petition (C) No. 1023of1987 etc. titled Delhi Judicial
Services Association & Ors. vs. Delhi High Court &
Ors., (2001) 5 sec 145.
F e) On 14.8.2002, the Delhi High Court circulated the \
tentative seniority list of the officers of DHJS and
invited objections from the concerned officers.
Thereafter the High Court appointed a Committee of
five Hon'ble Judges to decide the issue of seniority
G of the officers of DHJS appointed after 1991. The
writ petitioners as well as the promotee officers of
DHJS submitted their objections to the draft seniority ~'
list. Some of the promotee officers of DHJS also
sought application of the Office Memorandum (in
H short "OM") dated 3. 7 .1986 issued by the Department
B.S. MATHUR & ANR. v. UNION OF INDIA 449
& ORS. [P. SATHASIVAM, J.]

--( of Personnel and Training (in short "DOPT") A
applicable to the Central Civil Services. The
Committee heard the arguments of the direct recruits
as well as the promotee officers. Both of them filed
written statements on 23.6.2006. After considering
the arguments raised by both the parties and also B
the written submissions filed, four Hon'ble Judges of
--1; the Committee submitted a report being of the
majority view. A dissenting view was taken by one
Hon'ble Judge who separately submitted an
independent report. The majority report submitted c
by the Committee took the view that Rota Quota
Rules for determining seniority is workable only if
simultaneous recruitment is resorted to failing which
they 'break down'. They took the view that no
simultaneous recruitment had taken place as such
D
and there was need for search for an equitable and
reasonable principle and in their opinion 1986
+- memorandum fitted the description. As per the
majority report, the inter se seniority of DHJS after
Shri K.C. Lohia should be settled as per O.M. dated
3.7.1986 of DOPT. The Committee also issued further E
directions for proper implementation. The learned
dissenting Judge took the view that Rota and Quota
had broken down as the appointments from two
sources had taken place after lot of delay. As such
the learned dissenting Judge recommended that the F
"" }
principle of continuous length of service should be
applied for inter se seniority of the officers of DHJS.
Two views expressed by the members of the
Committee as well as individual views of Justice
Rekha Sharma and Justice S.N. Dhingra were G
considered by the Full Court of the Delhi High Court.
}:-· The Full Court accepted the majority view expressed
by the Committee and decided to confer seniority to
the members of DHJS on the basis of O.M. dated
3.7.1986. Based on the said decision, the High Court H
450 SUPREME COURT REPORTS [2008] 14 S.C.R.

A by letter dated 18.5.2007 circulated the final list of )--
officers of DHJS as on 1.1.2007. Feeling aggrieved
by the said decision of the Full Court dated 18.5.2007
and consequent determination of the final seniority
list, the petitioners have filed the present writ petitions
B on various grounds.
3. In all the writ petitions, the High Court of Delhi has filed
separate but identical counter affidavit highlighting its stand. The
salient features of the stand of the High Court are as follows:
t-
c (i) The disputes are about inter se seniority and
preparation of the final seniority list. After the tentative
seniority list was circulated, representations were
· made by various persons i.e. the direct recruits and
the promotees making different grievances and a
Committee was constituted to examine the same.
D
The Committee consisting of five Hon'ble Judges
gave a personal hearing to the representative groups
and, thereafter, submitted two reports, majority report
of four Hon'ble Judges and another report by one
Hon'ble Judge in regard to determination of inter se
E seniority. Thereafter the matter was considered by
the Full Court which adopted the report of the majority
(four Members Committee). The Full Court also
considered the note circulated by two other Hon'ble
Judges before taking a final view in the matter. The
F disputes and grievances relating to inter se seniority ....
was done after giving due opportunity to all concerned ~
and detailed consideration and deliberations and
conscious application of mind to various aspects of
the matter.
G
(ii) Appointments to DHJS are made both by direct
recruitment from the Bar and also by way of promotion
·~.
of eligible officers from Delhi Judicial Service. Rule
7 provides for appointment to the extent of 113rd of
the posts in the service by direct recruitment and 21
H
B.S. MATHUR & ANR. v. UNION OF INDIA 451
& ORS. [P. SATHASIVAM, J.]
--f 3rd of the posts being filled up by promotee officers. A
\
Earlier to 1987, the division of posts between the
direct recruits and the promotees was confined to
the substantive posts in the service and insofar as
temporary posts in the service were concerned, they
were to be filled up exclusively by promotees. This B
resulted in grievances being made by persons
---<- promoted against such temporary posts in regard to
their seniority vis-a-vis the direct recruits appointed
against substantive posts. After the decision of this
Court in O.P Singfa's case, the Rules were amended c
in 1987 providing for direct recruitment also against
temporary posts.
(iii) Insofar as inter se seniority of the members of DHJS
appointed to the same post by way of direct
recruitment and promoted to the same post from the D
Delhi Judicial Service is concerned, Rule 8 provides
that it shall be determined in the order of rotation of
vacancies between the direct recruits and the
promotees, based on the quota of vacancies
reserved for both the categories by Rule 7. Rule 27 E
of DHJS Rules provides that where no provision
regarding conditions of service has been made or
insufficient provision has been made in the DHJS
Rules, resort could be had to directions or orders of
the Government of India in force which are applicable F
-j to officers of comparable status in the Indian
Administrative Service and serving in connection with
the affairs of Union of India. The relevant portion of
O.M. dated 03.07.1986 makes it clear that to the
extent the direct recruits are not available, the
G
promotees would be bunched together at the bottom
of the seniority list below the last position up to which
k'
it is possible to determine seniority, on the basis of
rotation concluded with reference to actual number
of the direct recruits, who become available. The
H
452 SUPREME COURT REPORTS [2008] 14 S.C.R.

A unfilled direct recruitment quota vacancies would,
however, be carried forward and added to the
corresponding direct recruitment vacancies of the
next year for taking action for direct recruitment for
the total number according to the usual practice.
B Thereafter, in that year, while seniority will be
determined between the direct recruits and the
promotees, to the extent of number of vacancies for
the direct recruits and the promotees as determined
according to the quota for that year, the additional
c direct recruits selected against the carried forward
vacancies of the previous year would be placed en
bloc below the last promotee 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 carrying forward, if any, of direct recruitment
D
or promotion quota vacancies in the subsequent year.
(iv) The principle set out in the O.M. dated 03.07.1986
was found to be reasonable, just and fair by the Full
Court for application to DHJS having regard to the
E fact that recruitment from the two sources did not
take place simultaneously in some years, making it
difficult to follow the rotational principle of fixation of
seniority for all the appointees. Therefore, while
applying the principle of rotation to the extent
F possible, year-wise, seniority has been fixed in a (

reasonable and consistent manner. \_

(v) The majority report (submitted by four Hon'ble
Judges) which was accepted by the Full Court and
pursuant to which the impugned seniority list was
G prepared, noticed the rival submissions and finding
the principles laid down in O.M. dated 03.07.1986
are equitable, applied the same along with the Rules
for resolving disputes concerning inter-se seniority
arising out of appointments not being made from
H either source in any given year, delays in
B.S. MATHUR & ANR. v. UNION OF INDIA 453
& ORS. [P. SATHASIVAM, J.]
--(
\ appointments from either source and appointments A
not being made to the full extent of the respective
quotas every year etc. The inter se seniority between
the direct recruits and the promotees has been
worked out on a year to year basis, applying the
ratio provided in Rule 7 and the rotation between the B
direct recruits and the promotees provided in Rule 8
-1- and rotating them to the extent officers from both the
categories are available in that year and placing the
... remaining officers en bloc thereafter below them by
applying the principle laid down in the O.M. dated c
03.07.1986. There is no legal infirmity in the same.
On the other hand, it is just and fair.
(vi) The statutory Rules are to be enforced on their true
construction in precedence to any circular/guideline
as the latter are only intended to supplement or fill- D
up the gaps in complete enforcement of the Rules.
At best, it must be read and applied to a situation but
certainly in comity to the Rules. Because of undue
delay in appointments, the rule of Rota-Quota in stricto
senso could not be applied. It is an equitable principle E
which can be applied on harmonious construction.
The language of Rule 27 in no way prohibits adoption
or reference to the memorandum issued by the
Government of India as it is equally applicable to the
IAS Rules wherever and whenever it is so needed. F
) The 1986 Memorandum affords a reasonable and
non-discriminatory solution to the vexed issue at
hand. It minimizes the hardship to one or other class
of officials, in the event of inaction in recruitment, by
adding the inadequately represented class/group in
G
the next vacancy year, even while applying the quota
as between the two groups, to the extent feasible.
-r The guideline neither favours "continuous officiation"
nor blanket rotation of vacancies and instead
suggests a middle path. For the period 1987 to 1~91,
H
454 SUPREME COURT REPORTS [2008] 14 S.C.R.

A the rule or principle applied thereto was different; it,
however, was certainly not a strict application of the
r
quota/rota rule. Equally, application of the continuous
officiation principle, an option suggested by some of
the promotees, is unfeasible, more so, after the 1987
B amendment. The 1986 memorandum fits the
description. In the above premises, all the writ
petitions are without merit and the same deserve to
be dismissed.
t-
4. In the reply filed by the petitioners, they once again reit- ""II

c erated the stand taken in the writ petition. Apart from the Delhi
High Court, the promotee officers shown as respondents. were
also filed rejoinder highlighting their stand. They also reiterated
the stand taken by the Delhi High Court.
5. In the light of the pleadings of the parties, we heard Mr.
D
Harish Salve, Mr. Rakesh K. Khanna, Mr. P.S. Patwalia, Mr. A.K.
Ganguli, learned senior counsel for the petitioners and Mr. G.E.
Vahanvati, learned Solicitor General, Mr. Gopal Subramaniam,
learned Addi . Solicitor General, Mr. Arun Jaitley, Mr. R.
Venkataramani and Mr. P.P. Rao, learned senior counsel for
E the respondents. ;

6. All the counsel appearing for the petitioners mainly con-
tended that,
(i) seniority has to be determined in terms of Rule 8(2)
F read with Rule 7 of 1970 Rules;
\
(ii) the course adopted by the High Court in passing the
resolution based on an administrative instruction i.e.
O.M. dated 03.07.1986 instead of Rules 7 and 8(2)
is ultra vires of the provisions of Article 14 read with
G
Article 309 of the Constitution of India;
(iii) Applying the O.M. is totally unjustified, uncalled for, '"-\-
unconstitutional and liable to be set aside;

(iv) Upon the promulgation of DHJS Rules, 1970 the O.M.
H
B.S. MATHUR & ANR. v. UNION OF INDIA 455
& ORS. [P. SATHASIVAM, J.]

--I or its modification or amendment will cease to have A
\
applicability to the service;
(v) The said O.M. has failed to bring in any equity.
7. On the other hand, learned counsel appearing for the
respondents including learned senior counsel appearing for the B
High Court submitted that,
-~· (i) there is no challenge to the rule of seniority, in such
case, the writ petition under Article 32 will not be
4
maintainable;
c
(ii) the tentative seniority list was circulated to all the
members and representations were made by the
direct recruits as well as the promotees. The
Committee of five Judges, after affording personal
hearing, considered the same and submitted their
D
reports. Having regard to the various circumstances
including the fact that the appointment from both
sources was not followed regularly and there exists
disparity between the direct recruits and the
promotees, the- Full Court by applying O.M. dated
,, 3. 7 .1986, accepted the majority report of the E
Committee, hence, the course adopted by the High
Court and its ultimate decision cannot be faulted with
and all the writ petitions are liable to be dismissed.
8. We have carefully perused the pleadings of both the F
• parties, Committee reports, deliberation of the Full Court and
:/-
considered the rival contentions. The Lieutenant Governor of
Delhi in consultation with the High Court of Delhi by exercising
the power conferred by the proviso to Article 309 of the Consti-
tution read with the Government of India, Ministry of Home Affair's
G
Notification dated 29.05.1970 and 25.07.1970 made the Rules
called Delhi Higher Judicial Service Rules, 1970. In order to
~

' appreciate the above contentions, it is useful to refer the rel-
evant Rules/provisions from DHJS Rules, 1979 as amended
by Notification issued on 17.3.1987-:
H
456 SUPREME COURT REPORTS [2008] 14 S.C.R.

A 2 (b) "Cadre Post" means any post specified in schedule \----
and includes a temporary post carrying the same
designation as that of any of the posts specified in that
schedule and any other temporary post declared as cadre
post by the Administrator.
B (d) "Member of the Service" means a person appointed to
the service under the provisions of these rules.
(e) "Service" means the Delhi High Judicial Service. ·>-
(g) "Initial recruitment" means the first recruitment and
c appointment made to the service after the commencement
of these rules.
(h) "Promoted Officer" means a person who is appointed
to the service by promotion from Delhi Judicial Service.
D (i) "Direct recruit" means a person who is appointed to
service from the Bar.
-..;-
7. Regular Recruitment:- Recruitment after the initial
recruitment shall be made:-
(a) by promotion on the basis of selection from members
E
of the Delhi Judicial Service who have completed not less
.
~

than 10 years of service in the Delhi Judicial Service;
(b) by direct recruitment from the Bar. ·

F Provided that not more than 113rd of the posts in the service
I
shall be held by direct recruits; \:
Provided further 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
G considered, irrespective of the fact whether or not they
fulfil the requirement as to the minimum of 10 years service.
~
Explanation.- For calculating the period of 10 years of
service for the purpose of clause (a) with respect to officer
appointed to the Delhi Judicial Service at the time to its
H
S.S. MATHUR & ANR v. UNION OF INDIA 457
& ORS. [P. SATHASIVAM, J.]
---J
\ initial constitution, service rendered by them in the cadre A
to which they belonged at the time of the initial recruitment
to that service which was counted for determining the
seniority under rule 11 of the Delhi Judicial Service Rules,
shall also be counted.
8. (1) The inter-se seniority of members of the Delhi B
--1·
Judicial promoted to the service shall be the same as in
\
the Delhi Judicial Service.

- (2) The seniority of direct recruits vis-a-vis promotees shall
be determined in the order of rotation ofvacanCies between c
the direct recruits and promotees based on the quotas
the 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.
D
16.(1) Administrator may create temporary posts in the
service.
(2) Such posts shall be filled by Administrator, in consultation
,. with the High Court, from amongst the members of the
Delhi Judicial Service and by direct recruitment from the E
Bar
Explanation: Rule 5 and rules 7,8,9, 10, and 11 shal1 apply
to appointments made under this rule.

-- -f 17. Notwithstanding anything contained in these rules, the
Administrator may, in consultation with the high Court, fill
F

substantive vacancies in the service by making temporary
appointments thereto from persons appointed under rule
16."
G
27. Residuary matters
In respect of all such matters regarding the conditions of
seNice for which no provision or insufficient provision has
been made in these rules, the rules, directions or order for
the time being in force, and applicable to officers of H
458 SUPREME COURT REPORTS [2_008] 14 S.C.R.

A comparable status in the Indian Administrative Service ~
and serving in connection with the affairs of the Union of
India shall regulate the conditions of such service. "
9. The validity of Rule 7 or 8 of the Rules is not in dispute.
On the other hand, the main prayer of the petitioners is that the
B resolution dated 22.05.2007 of the Full Court approving the
majority report determining the seniority of the members of DHJS -)---
in terms of O.M. dated 03.07.1986 is bad and the seniority of
member of DHJS should be determined strictly in accordance ,..
with Rule 8(2) read with Rule 7 of 1970 Rules. In the year 1970,
c DHJS was constituted under the said Rules. We have already
referred to the relevant provisions of the Rules in the earlier part ,.-

of our judgment. Rule 5 provides for method of recruitment to
the service i.e. by way of promotion from amongst the officers
of Delhi Judicial Service and also by direct recruitment from
D amongst the eligible members of the Bar. Rule 7 provides that
after initial recruitment regular recruitment would be made on
~
the basis of selection from the members of Delhi Judicial Ser- '
vice who have completed not less than 10 years in DJS and by
direct recruitment from the Bar. The proviso to Rule 7 provides
that minimum 1/3rd of the posts shall be held by direct recruits. ...
E
Rule 8 provides for inter-se seniority. Rule 8(2) provides that
inter se seniority of the direct recruits vis-a-vis the promotees
is to be determined in order of revision of vacancies between
the direct recruits and the promotees based on "quotas of va-
F cancies" reserved for both categories by Rule 7. The said Rule I

further provides that first available vacancy will be filled by the \-
direct recruits and the next two vacancies by the promotees
and so on.
10. As originally framed, Rule 16 of the Rules provided for
'G creation of temporary posts in the service and filling up of the
same only by way of promotion from amongst the members of
--:"',
DJS. Rule 17 provides for filling up of the vacancies by making
1'-
temporary appointments from amongst the members of DJS. .-
According to the petitioners, till 1980 no problem arose in the
H operation of the rules as till that time only the substantive ap-
.

B.S. MATHUR & ANR. v. UNION OF INDIA 459
& ORS. [P. SATHASIVAM, J.]
~I
pointees to the service from the Bar as also the appointees by A
promotion were being given seniority u.nder Rule 8(2). In the
year 1980, a writ petition was filed before this Court by the
promotee officers challenging Rule 7 and 8 of the Rules which
provide rota-quota. The promotee officers claimed that even
appointment to the temporary posts/vacancies under Rules 16 B
and 17 of the Rules, is similar to the substantive appointment to
\' the service and the incumbents under those Rules are also en-
titled to get seniority from the date of their appointment. In O.P
Sing/a's case (supra) this Court held that appointments made
under Rules 16 and 17 to temporary post/vacancies are similar c
to those of the substantive appointments. With the said equa-
tion by legal fiction, distinction between the two types of ap-
pointments i.e. temporary and substantive, having been extin-
guished, this Court reached to the conclusion that since no ap-
pointments of direct recruits under Rule 16 or 17 were possible D
in accordance with the rule as then existed, the inevitable con-
-4-
' clusion is that rota/quota had broken down. However, this Court
upheld the Constitutional validity of Rule 7 and held that there is
a quota of 113rd vacancies for the direct recruits in the service.
The Court also upheld Constitutional validity of Rule 8(2) which E
provides for the rotation of vacancies under Rule 7.

It is relevant to point out that though this Court had equated
temporary post with permanent post it also noticed that this judg-
~
_, ment will upset the balance between the direct recruits and the
-j promotees in the DHJS. In those circumstances, it directed to
F
frame appropriate rules to remove the imbalances for future
application.

11. After the judgment in O.P Singla's case, in the year
1985, the High Court undertook the exercise of amendment of G
the Rules to provide for filling up of temporary posts/vacancies
::1 .~
under Rules 16 and 17 also by the direct recruitment as per the
quota prescribed under Rule 7. Simultaneously, the High Court
also decided that in order to restore the balance between the
number of the direct recruit appointees and the promotee ap- H
460 SUPREME COURT REPORTS [2008] 14 S. C.R.

A pointees in the service, 14 existing vacancies be filled up by
direct recruitment. The promotee officers again filed a writ peti-
tion before this Court challenging the decision of the High Court.
This Court, by order dated 18.12.1986, and by consent of all
the parties set a time-frame for finalization and publication of
B the amendment to DHJS Rules and directed that thereafter all
the vacancies are to be filled up. Accordingly, in March, 1987,
the DHJS Rules were amended and disparity in the matter of
regular appointments as well as appointments against tempo-
rary posts and temporary vacancies under Rules 16 and 17 of
C the Rules were removed. It was provided that even under these
Rules, appointments of the direct recruits could be made. While
implementing the judgment of this Court in O.P. Singla's case,
the High Court granted seniority to the DHJS officers. However,
the.said final seniority list was again challenged before this Court
D by way of Writ Petition No. 490 of 1987. The dispute so raised
was finally settled by a Constitution Bench of this Court in Rudra
Kumar Sain (supra). The Constitution Bench, in its judgment,
upheld the principles laid down in O.P. Singla's case and held
that in DHJS, for appointees of the pre-amended rules senior-
E ity had to be assigned on the basis of length of service only.
12. It is the grievance of the petitioners that since 1992 till
their selection in the year 1997 vacancies were available; yet
despite of the availability of new vacancies for the direct re-
F cruits as also for the promotees, the recruitment process was
commenced only for the promotees and the direct recruits were
consistently held back. The Full Court, in its meeting held on -\-
20.07.2002, considered the issues concerning inter-se senior-
ity of the direct recruits and the promotees of DHJS appointed
after amendment of DHJS Rules. It approved the tentative se-
G niority list for circulation to the officers. The Full Court, after its
meeting held on 30.08.2000, directed that the seniority list of
the officers is to be circulated amongst the officers of DHJS to ::-"\
invite their objections, if any. Accordingly, by letter dated
12.08.2002, the tentative seniority list of 130 officers of DHJS
H
B.S. MATHUR & ANR. v. UNION OF INDIA 461
& ORS. [P. SATHASIVAM, J.]

--J, appointed up to the year 2000 was circulated amongst the con- A
cerned officers for inviting their objections. After receipt of ob-
jections, the matter regarding finalization of seniority list of of-
ficers of DHJS was considered in the Full Court held on
25.10.2002. A Committee of Hon'ble Judges of the High Court
was constituted to go through the objections and submit a re- B
port for consideration of the Full Court. Accordingly, the Com-
-1·
I
mittee considered the objections and submitted reports. The
Full Court accepted the recommendations of the Committee
dated 13.10.2004 in respect of seniority of Mr. S.L. Bhayana.
The Full Court also accepted the majority view in respect of c
seniority of three more officers. After due approval by the Full
Court, the same was circulated amongst the concerned offic-
ers and objections of the remaining officers directed to be con-
sidered in the next meeting of the Committee. The Full Court,
by decision dated 20.05.2006, reconstituted a Committee. D
~ Pursuant to the communication of the High Court dated
-+ 02.06.2006, 24 direct recruit officers and 15 promotee officers
of DHJS submitted their written statement. The reconstituted
Committee heard the officers on several occasions. Apart from
-' the Committee, two Hon'ble Judges gave their views which were E
also circulated among the. Judges. The Full Court, in its meet-
ing dated 18.05.2007, considered two different reports and
views received from the two Hon'ble Judges. Finally, the Full
Court approved the majority view for settling inter-se seniority

- -f
of the officers of DHJS. By letter dated.18.08.2007, the final F
_ seniority list of officers of DHJS as on 01.01.2007 supplied by
the High Court was forwarded to District and Session Judges,
Delhi for circulation among the concerned officers.
13. The Committee constituted by the High Court had re-
ceived objections both from the direct recruits as well as from G
the promotee officers. All the direct recruits who have filed their
,-
objections against the tentative seniority list have claimed de-
termination of their inter se seniority by applying the rule of Rota
Quota laid down in the statutory rules, i.e. Rule 8(2) read with
H
.~
462 SUPREME COURT REPORTS [2008] 14 S.C.R.

A Rule 7 of the DHJS Rules, 1970. The promotee officers were
,__
l

divided in their stand. Some of the promotee officers want their
seniority to be decided by applying the principle of Rota Quota
as claimed by the direct recruits. Some promotee officers want
their seniority to be decided on the principle of continuous length
B of service as laid down in O.P Sing/a and Rudra Kumar Sain's
cases and a handful of the promotee officers have stated in
their objections that the High Court should apply the principle ·t-
contained in the O.M. dated 3.7.1986 for determining their inter
se seniority.
c 14. In view of the objections of the officers against tenta-
tive seniority list, three options available before us for deciding
the inter se seniority dispute amongst the officers of DHJS are
as follows:

D (i) Principle of Rota Quota as laid down in Rule 8(2)
read with Rule 7 of DHJS Rules.
(ii) Principle as laid down in the O.M. of DOPT dated
+-
3.7.1986.

E (iii) Principle of "c;;ontinuous length of service", i.e., date
of appointment.
15. Let us consider the applicability of the above norms in
Delhi Higher Judicial Service for ascertaining as to which of
these n~xms would be most equitable, reasonable and justi-
F ciable for determining the inter se seniority of the officers in the \_
said service. In our view, an equitable rule for determining the
inter se seniority would be one that satisfy the competing claims
of both the groups.

G 16. The cadre strength of DHJS as on 31.12.1991 was of
60 officers. The said strength, later on, stood increased by ad-
dition of more and more new posts from time to time. As on the -"'
date of considerations, cadre strength was of 174 officers. The
details of recruitment by promotion and direct recruitment'made
H to the service from 1992 to 2006 are as under:-
B.S. MATHUR & ANR. v. UNION OF INDIA , 463
& ORS. [P. SATHASIVAM, J.]

Appointments under Promotion quota A
No. of Date of
Year
promotees Promotion
1992 7 17.12.92

1994 7 28.04.94 B

1995 9 (4 ON 25.02.95 & 5 on
24.08.95)
1996 21 (5 on 24.08.95, 5 on
6.01.96, 10 on 24.07.96, 5 c
on 16.11.96 & 1 on
20.11.97)
1997 14 20.11.97
2000 23 (8 on 26.05.2000 & 15 on D
16.08.2000)
2003 24 06.08.2003
2006 28+15 (Fast Track 0.4.01.2006
promotion on ad-
hoc basis) E

Appointments under direct recruitment quota

No. of Direct Date of promotion
Year
Recruitees
F
1992 1 09.12.1992

1995 9 7/9.03.1995
1997 8 21.04.1997
2000 7 26.05.2000 G
2002-03 12 26.11.2002

17. Rule 5 of DHJS Rules provides recruitment from two
sources, namely, by'direct recruitment from amongst eligible
Advocates and also by promotion from the feeder cadre i.e., H
464 SUPREME COURT REPORTS [2008] 14 S.C.R.

A Delhi Judicial Service. Rule 7 provides 113rd quota for direct t-
recruitment and 213rd quota for promotee officers. As per Rule
8, the first vacancy goes to the direct recruits while the next two
are to be given to the promotee officers and so on.
18. The DHJS Rules were amended in March, 1987. Be-
B fore amendment of the Rules, direct recruits could not have been
appointed against the temporary posts created in the service
from time to time but after amendment of the Rules, they also
}-
became entitled to get their quota for appointment even against '
the temporary posts. Rule 8(2) of the Rules provides for follow- ~
c ing the rule of Rota Quota in the ratio of 1 :2 for fixing the inter se
seniority between the direct recruits and the promotee officers.
As prior to amendment of the Rules, there was no quota for
-direct recruits against the temporary posts, the Rota Quota rule
either in the matter of appointment or for fixing of inter se se-
D niority could not be followed as there was a breakdown of this
rule. On taking stock of the situation, this Court in O.P singla's
case (supra) while upholding the constitutional validity of Rule -}-
8(2) found a workable solution for fixing the inter se seniority of
the officers of DHJS and directed the High Court to fix their
'
E inter se seniority by applying the principle of continuous officia-
tion, i.e: length of service. This principle was reiterated by this
Court ~n its constitution Bench judgment in Rudra Kumar Sain's
case (supra) which is also a case regarding dispute in senior-
ity of the officers of DHJS. Since the requisite balance between
F the direct recruits and the promotee officers in terms of rule
8(2) could not be achieved till date, the High Court has consis-
,.._ -.
tently applied the principle of continuous length of service for
determining the inter se seniority of the officers of DHJS up to
Mr. K.G. Lohia. The seniority up to Mr. K.C. Lohia has not been
disputed either by the direct recruits or by the promotee offic-
G
ers.
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
, H is foilowed, then it would cause a serious injustice to the
·_/

S.S. MATHUR & ANR. v. UNION OF INDIA 465
& ORS. [P. SATHASIVAM, J.]

promotee officers inasmuch as, the direct recruits who have A
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 8
contained in the statutory Rule 8(2) read with Rule 7 of DHJS
-f 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 c
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 in-
terse 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 D
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 E
strength or creation of temporary post.
b) The process for direct recruitment was started many
months before the promotions of th-e promotee
.... officers in the cadre of DHJS. The delay that F
~· occasioned in the appointment was only in the case
of direct recruits and not of the promotee officers.
c) The vacancies against which direct recru.its were
appointed became available to them many months
before the promotions of the promotee officers G
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
H
466 SUPREME COURT REPORTS [2008] 14 S.C.R.

A 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
B reasons, it would be necessary to discuss the adverse conse-
quences 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:
c
"GOVERNMENT OF INDIA
DEPARTMENT OF PERSONNEL AND TRAINING
OFFICE MEMORANDUM No. 22011/7/86-Estt.(D)
Dated 3rd July, 1986
D
''2.4.1 The relative seniority of direct recruits and of
promotees shall be determined according to the
rotation of vacancies between direct recruits and
promotees which shall be based c;m the quota of
E 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
F ""I
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
G 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
H
B.S. MATHUR & ANR. v. UNION OF INDIA 467
& ORS. [P. SATHASIVAM, J.]

next year (and to subsequent years where necessary) for A
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 8
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 c
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 D
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 E
1995 9
1997 8

.
I
2000
2003-03
7
12
In the batch of 1992, only one direct recruit, Ms. Veena
F

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) G
read with Rule 7 of DHJS Rules, principle as contained in the
O.M. referred above or the principle of continuous ler:igth of ser-
vice. The seniority of the Officers of other three batches of direct
recruits appointed in 1995, 1997 and in th~ year 2000 is ad-
versely affected to their detriment, if the seniority is decided on H
468 SUPREME COURT REPORTS [2008] 14 S.C.R.

A the basis of principle contained in the above referred O.M. It r
may be seen from the seniority list which is based on the prin-
ciple contained in the O.M. that the six direct recruits of 1995
batch, namely, Ms. l.K. Kochhar, Mr. A.K. Pathak, Mr. S.S. Mathur,
Mr. P.S. Teji, Mr. l.S. Mehta and Mr. Lal Singh who all were ap-
.. pointed against the substantive vacancies in their quota on 71
B
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 t-
I
and Mr. Prem Kumar who were promoted from DJS to DHJS
on 24.8.1995 against vacancies that became available to them
c 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 substa11tive vacancies in the quota of direct recruits on
21.4.1997 would become junior to the promotee officers Mr.
D
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
E 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 sub-
stantive vacancies on 26.5.2000 would become junior to the j-

promotee officers, Mr. N.P. Kaushik, Ms. Asha Menon, Mr.
F Pradeep Chaddah and Mr. Narender Kr. Sharma promoted to
DHJS on 16.8.2000. None of the abovenamed promotee of- ~-
ficers 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 substan-
G tive 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 ap-
pointed as Additional District Judges in the cadre of DHJS. We
are of the view that by no stretch of imagination or legal fiction,
H a promotee officer working in the lower cadre can be made
B.S. MATHUR & ANR. v. UNION OF INDIA 469
& ORS. [P. SATHASIVAM, J.]

-1 senior to an officer working on a higher post as an Additional A
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 8
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 c
the following reasons, (i) The principle of inter se seniority con-
tained 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 prin- D
ciple 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, E
(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 ap-
plicable to the IAS officers. As specific provisions for determin-

- ing the inter se seniority of the officers of DHJS have been made F
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 Se-
niority Rules, 1987 prescribed principle that is altogether differ-
ent from the kind of Rota Quota principle embodied in DHJS
Rules, 1970. The majority report has also noted that though the
G
O.M. of 1986 does not apply by recourse to Rule 27 of the DHJS
Rules 1970, yet has recommended its applicability for deter-
J. mining the inter se seniority of the officers of DHJS on the as-
sumption that the Central Government would be within its right
to apply the said Memorandum or make similar principle for
H
470 SUPREME COURT REPORTS [2008] 14 S.C.R.

A application to the members of the All India Service in future. ).-
The inter se seniority of IAS Officers is determined by refer-
ence to the year of allotment as provided in Rule 4 of IAS (Regu-
lation of Seniority) Rules, 1987. The principle of bunching of
officers appointed against carry forward vacancies and then
B putting them below the last officer appointed against the cur-
rent vacancy of that year is not applicable to the IAS officers for
determining their inter se seniority but in DHJS, the circum- ~
stances are entirely different. The appointments from 1992 to
2006 were never made from either source on yearly basis. No
c record was maintained regarding the unfilled vacancies avail-
able 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
D 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
E 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 fol-
F lowed the principle of "continuous length of service" as directed
to be applied to the officers of DHJS by this Court in O.P Sing/a
and Rudra Kumar Sain's cases (supra). When O.P Sing/a and
Rudra Kilmar Sain's cases were decided by this Court, this
Court had noticed breakdown of Rota Quota in the service and
G 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 prin-
ciple of Rota Quota would show that the Rota Quota remains
H
B.S. MATHUR & ANR. v. UNION OF INDIA 471
& ORS. [P. SATHASIVAM, J.]
--.\
broken down even today. It may be pertinent to mention here A
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 con-
siderable delay. Though as per law the direct recruits cannot be
faulted with for the delay caused in their appointments, the fact B
remains that delay in appointments should not cause any dis-
~- advantage 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 c
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 Sing/a and Rudra Kumar
Sain's cases. There is no reason to depart from the said prin-
D
/
ciple and take a shelter under the O.M. of DOPT dated 3.7.1986
' -4 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 deter- E
mined 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 deter- F
mining 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 injus-
tice which its application is bound to produce and since this
G
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 deter-
mined on the basis of continuous length of service as.was done
H
472 SUPREME COURT REPORTS [2008] 14 S.C.R.

A 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 senior-
s ity 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 lim-
ited number of higher posts or his becoming age barred by the
C 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
D days. It, therefore, cannot be disputed that the application of
O.M. dated 3.7.1986 which does not ipso facto apply to offic-
ers 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
E can be applied.
27. As observed earlier, perusal of the seniority list pre-
pared on the basis of the principle of "continuous length of ser-
vice" clearly demonstrates that in case the seniority of the offic-
ers of DHJS is fixed by reference to their date of appointment,
F 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.
G 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 ~006.
In case of officers appointed on the same date, whether direct
appointees or promotees, the seniority should be fixed on the
H principles as stated in O.M. dated 3.7.1986 since it cannot be
B.S. MATHUR & ANR. v. UNION OF INDIA 473
& ORS. [P. SATHASIVAM, J.]

-~ determined on the basis of length of service alone in case of A
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 B
-t make necessary amendment in the Rules providing for deter-
mining 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 amend-
ment relating to inter se seniority for future be made in the DHJS C
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. D
--+ 29. For the aforestated reasons, we allow all the writ peti-
tions. 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 E
as possible. No order as to costs.
R.P. Writ Petitions allowed.