LexJOGINDER NATH AND ORS. versus UNION OF INDIA AND ORS.
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A B c D E F G H 553 JOGINDER NATH AND ORS. v. UNION OF INDIA AND ORS. October 31, 1974 [K. K. MATHEW AND N. L. UNTWALIA, Jf.] Cons1i1u11'on of India-Art. 14:-Tre~ling unequals as equal,._Length of ser- vice-Art. 309-Laches-Whether rule of law or rule of practice-Civil Service· . -Delhi Higher Judicial Service Rules, l91~Delhi Judicial Service Rules 197()1 -Seniority and confirmati'on-Substantiv~fficiating-Probation appointments. Interpretation of Statutes-Whether Constitutionality of a rule can be. saved by interpreting it in a reasonable sensible and Just. manner. The petitioners originally belonged to the Punjab Civil Service (Judicial) in the· time scale of Rs. 400-1250. They had been ~ut in the scale of Rs. 1300-1500 .. On the other hand, respondents 3 to 5 were Judicial officers in the U.P. in the lower scale of Rs. 300-900. The next higher scale on being appointed to the post of Additional District Magistrate was Rs. 400-1000. Prior to 1966, the Union Territory of Delhi for the purposes. of administration of justice was included with- · in the territorial jurisdiction of the erstwhile Punjab High Court and the Presid- ing Officers of the courts at Delhi were posted by transfer from the State of Pun- jab. There was no separation of executive· and judiciary. . In 1970, Delhi Higher Judicial Service Rules, 19io and Delhi Judicial Service Rules 1970 were framed under Art. 309 of the Constitution. .I\ selection Com- mittee was constituted in accordance with rule 7 of the Delhi Judicial Service Rules. On the basis of the refommendation of the Selection Committee, appoint- ments of officers by way of initial recruitment to the Delhi Judicial Service were made. Petitioners l ·and 2 were workiil~ as Assistant Sessions Judges at the time of initial constitution of the Delhi Judicial Service while none of the respondents. 3 to 5 was appointed as Assistant Sessions Judge in spite of their longer service· in the cadre of U.P. Judicial Officers Service. The petitioners were .l'romoted to· the post of Additional District Judges in January and March, 1972. Respondents. 3 to 5 were not considered to have qualified for being promoted as Additional District Judges. Respondents 3 to 5 were promoted as Additional District Judges in June, 1972 and respondent No. 6 was promoted in June, 1973. Thus respon· dents 3 to 6 were promoted to the higher judicial service later on, yet they were made to rank senior to petitioners under rule 8 of the Delhi liigher .Judicial Ser- vice Rules. Rule 9 of Delhi Judicial Service Rules provides that initial recruit· ment.to the service would be made from amongst the subordinate Judges and Law Graduate Judicial Magistrates working in the Union Territory of Delhi on de· putation from other States as well as members of Civil Judicial Cadres of States whose names might be recommended by their respective State Governments for appointment and members of Delhi, Himachal Pradesh and Andaman & Nicobar Islands who were law graduates. Rule 11 of Delhi Judicial Service Rules pro- vides that the Selection Committee should arrange the seniority of the candidates recommended by it in accordance with the length of ser-vice rendered by them in the cadre to which they belonged at the time of their initial recruitment the service provided that the interse seniority as already fixed in such cagre shall not be al- tered. Rule 7 of Delhi Uigher Judicial Service Rules provides that recruitment after the initial recruitment shall be made by promotion from tlie Delhi Judicial Service and by direct recruitment from the Bar. It f11rther provides that not more than one third of the substantive posts in the service should be held by direct re· cruits. Rules 8 further provides that the interse seniority of members of Delhi Higher Judicial Service promoted to the service shall be the same as in Delhi Judicial Service and that the seniority of Direct Recruits vis-a-vis Promotees shall' be determined on the bas.is of roaster following the quota system. The petitioner's contention was that they should be treated as senior to res- pondents 3 to 6. The petitioners contended that rule 9 of the Delhi Judicial Ser· vice Rules was bad as it was not framed in accordance with Article 234 of the· .554 SUPREME COURT REPORTS (1975] 2 S.C.R • Constitution and also because it permitted the initial appointment to the Delhi A Judicial Service of persons who were not in any judicial serv
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