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REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL  NO. 5838 OF 2012

K.K. Sharma ...    Appellant

Versus

High Court of Delhi & Ors.                           ...  Respondents

        WITH        Civil Appeal No. 5839 of 2012

                             Civil Appeal No. 11197 of 2014

       (Arising out of SLP (C ) No.3202 of  2014)

J U D G M E N T

RANJAN GOGOI, J.

1.   What should  be  the right  balance  between  equitable  

claims and the demands of the law is the constant quest of  

the judicial system. Delicate and complex by itself, the task  

becomes  even  more  formidable  and  challenging  if  a

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resolution  is  postponed.  Time,  often,  has  the  effect  of  

strengthening  equitable  claims  and  blurring  the  

corresponding legal entitlements. This is precisely what had  

happened in the present case wherein we have been called  

upon to decide on the correctness of the answer provided by  

the  High  Court  of  Delhi  in  a  situation  involving  its  own  

employees.

Civil Appeal No. 5838 of 2012

2. The  Delhi  High  Court  Establishment  (Appointment  &  

Conditions of Service) Rules, 1972 (hereinafter for short ‘the  

Rules’) came into effect from 1.9.1972.  The Rules provided  

for  100% selection  to  fill  up  the  post  of  Assistants  [later  

designated  as  ‘Senior  Judicial  Assistants’  (SJA)].   The  

selection  was  to  be  made  on  the  basis  of  a  test  from  

members of the High Court establishment with minimum 5  

years of service.  In 1978 i.e. from 20.9.1978 the Rules were  

amended by providing avenues of promotion to fill  up the  

post of SJA to the extent of 50%.  Such promotion was to be  

made on the basis of seniority-cum-suitability from the cadre

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of  Treasurers/UDCs  with  minimum  5  years  service;  the  

remaining 50% of the cadre was to be filled by selection, as  

earlier.  A decade later i.e. with effect from 16.3.1988 the  

Rules  were  once  again  amended  to  provide  for  100%  

promotion to the post of SJA, from Treasurers/UDCs having 5  

years service.  The criteria of promotion remained the same  

i.e. seniority-cum-suitability.

3. Two Junior  Translators,  Atul  Kumar  Sharma and M.M.  

Beg challenged the amendment of the Rules made in the  

year 1998 by filing a writ petition i.e. C.W.P. No. 1218/1989.  

The short ground urged was that the promotional avenue for  

Junior  Translators to the cadre of Senior Translators being  

extremely limited in view of the limited number of posts in  

the  promotional  cadre,  the  amendment  of  the  Rules  

providing for filling up all the posts in the cadre of SJA by  

promotion from the cadre of Treasurers/UDCs offended the  

rights of the writ petitioners under Articles 14 and 16 of the  

Constitution as the said amendment had deprived the Junior

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Translators of an avenue of advancing to a higher equivalent  

post i.e. SJA.     

4. The writ petition was disposed of on 16.10.1998 in the  

following terms.

“We find no difficulty in coming to the conclusion   that  the  amendment  brought  into  force  on  16.03.1988,  in  so  far  as  it  affected  the  service  conditions of the Junior Translator, is void in law   offending Articles 14 and 16 of the Constitution of   India and accordingly it is declared void. The High   Court  shall  follow  the  rule  which  provided  promotional avenues to the Junior Translators also  to the post of Assistant/Jr. Reader/Caretaker prior   to  the  date  of  the  amendment, namely,  16.03.1988.”

5. As there  was an interim order  in  the writ  petition i.e.  

C.W.P. No.1218 of 1989 to the effect that promotions made  

during  the  pendency  thereof  would  be  subject  to  the  final  

orders as may be passed in the writ petition, the question of  

consequential  relief  and  adjustment  of  seniority  including  

review  of  the  promotions  made  arose  for  decision.   The  

attempts made to implement the judgment, evidently, did not  

satisfy  the  writ  petitioners  (hereinafter  referred  to  as  “the

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Junior  Translators”)  which led to  a second approach to  the  

High Court by means of another set of writ petitions i.e. W.P.

(C)  Nos.4077-84 of  2004.  The core  relief  prayed for  in  the  

aforesaid  writ  petitions  was  due  implementation  of  the  

judgment dated 16.10.1998 in C.W.P. No.1218 of 1989 in so  

far  as  seniority  and  promotion  of  Junior  Translators  is  

concerned.

6. What  happened  during  the  interregnum  has  been  

elaborately  recited  in  the  order  dated  23.10.2009  of  the  

Division Bench of the High Court disposing of the aforesaid  

writ petitions i.e. W.P. (C) No.4077-84 of 2004.  The said facts  

need not be recited once again but in so far  as the issues  

raised in the present appeal is concerned the following facts  

and events will have to be noticed.

(i)  A few promotions (2 or 3 in number) from the  cadre of Junior Translator to SJA were made on the  basis  of  a  departmental  test  (selection)  held  on  16.08.2000.

(ii) Though  some  other  Junior  Translators,  after  they were notionally promoted to the cadre of SJA,

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had participated in a process for promotion to the  cadre  of  AOJ/CM  held  on  09.09.2000  and  25.08.2001  (pursuant  to  the  decision  taken  by  a  Committee  of  Judges  for  implementation  of  the  order dated 16.10.1998 in C.W.P. No.1218 of 1989),  the  selection  in  so  far  as  the  aforesaid  Junior  Translators is concerned was not finalised as they  were not interviewed.

(iii Consequent to the above, while the aforesaid  Junior Translators were not promoted, 8 others who  had  participated  in  the  same  selection  were  promoted to the cadre of AOJ/CM in the year 2002.  The overlooked Junior Translators were promoted to  the same cadre subsequently.

(iv) In between 1988-2000, 81 posts in the cadre  of  SJA were filled up exclusively by promotion on  the basis of the criteria of seniority-cum-suitability.  No  promotion  was  made  on  the  basis  of  departmental tests (selection).

(v) Though after 2000, 94 promotions were made  on  the  basis  of  departmental  tests,  the  total  number  of  promotions  on  the  basis  of  seniority- cum-suitability stood at 115.

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7. Taking note of all the aforesaid facts, W.P. (C) Nos.4077-

84/2004 was answered by a Division Bench of the High Court  

by its order dated 23.10.2009. While rendering the said order,  

the  Division  Bench  acknowledged  the  fact  that  the  order  

dated 16.10.1998 disposing of C.W.P. No.1218 of 1989 called  

for large scale reversion of incumbents.  Though it was further  

acknowledged  that  such  an  exercise  may  have  been  

appropriate  and  proper  at  the  relevant  point  of  time,  with  

passage of time the same became impractical in view of the  

deleterious effect that such an exercise, at a belated stage,  

was bound to have on the High Court administration. At the  

same time recognising the rights of the Junior Translators and  

its duty to implement the order dated 16.10.1998, the High  

Court  evolved  a  framework  to  deal  with  the  situation  by  

conceiving of  a  limited review of  the inter-se seniority  and  

consequential  promotions.  Taking note of the fact that it  is  

only the Junior Translators who had moved the High Court in  

both sets of writ petitions, the High Court limited the exercise  

in  respect  of  Junior  Translators  and  directed,  instead  of  a  

whole scale review, a limited review to the extent of 20% of

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the 81 posts (20 posts) which had been exclusively filled up  

by  promotion  on  the  criterion  of  seniority-cum-suitability.  

Accordingly, the following directions came to be issued by the  

order dated 23.10.2009 :-

“(1) 81  vacancies  having  been  filled  to  the  SJA   cadre, during 1988-2000, of which 40 posts ought   to have been filled through departmental exams;

(2) A  total  115  vacancies  being  filled  through  application of seniority cum suitability criteria, and   94  through  departmental  exams  (ignoring  the  correctness  of  promotions  given  in  2004,  to  20   candidates, who had competed in the year 2000,   and in the absence of any provision for a waiting   list  –  an  irregularity  serious  in  itself,  but  not   meriting  an  adverse  order,  as  that  is  not  the   subject matter of this petition), thus implying that  at least 20 vacancies should have been fallen to   the share of the 50% departmental exam quota;

(3) All  the  petitioners,  concededly  qualified  in   the departmental test for promotion to the higher   cadre  of  Senior  Translator,  long  back,  between  1987 and 1996;

(4) The  petitioners  have  put  in  long  years  of   service,  and  most  of  them  being  concededly   senior  to  those  in  equivalent  grades,  in  the   combined seniority list.

41. Today, only Junior Translators (most of them  having  been  subsequently  promoted,  on  later   dates, as Senior Translators, and some, to higher   posts of AOJ/CM) are before the Court.  In view of   the above facts, the Court is of opinion that there  

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should be a review in respect of at least 20% of   the  posts  that  were  filled  up  during  1988-2000  (i.e.  of  81 vacancies  filled up during that  time).   Although a strict implementation of the judgment   would mean review in respect of 50% of the posts,   or 40 such promotions (as recommended by the   later committee of 2002), yet since only the Junior   Translator’s cadre is seeking this review, the court   is  of  the  opinion  that  ends  of  justice  would  be   satisfied if  20% of those vacancies are filled (or   treated  as  filled,  as  the  case  may  be)  in  the   manner  indicated  by  this  judgment.   Therefore,   the Court is of opinion that every fifth slot should   be adjusted against the 50% departmental exam  quota.  These vacancies may be filled, or treated  as filled, in the following manner:

(1) Firstly, from the cadre of Junior Translators,   according to their inter-se seniority, subject to the   individual  concerned  possessing  the  required  5   year  experience,  stipulated  in  the  rules  (in  the  relevant prescribed grade) – without their having   to qualify in any further test.

(2) After  accommodating the junior  translator’s   cadre,  the  balance  vacancies  –  which  would  be   about  eight,  shall  be  filled  through  a  special   review departmental test, where those entitled to   be  considered,  and  eligible,  for  the  purpose,   during the relevant period,  i.e.  1988-2000 alone  shall be permitted to compete.  Those successful   shall be accommodated against the last 8 slots.

(3) The  promotions  by  following  the  above   procedure, shall be notional; the incumbents shall   not  be  entitled  to  arrears  of  pay,  but  shall  be   entitled  only  to  consequential  fixation/fitment  in   the grade.

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42. While giving effect  to  the above directions,   the respondents shall endeavor that there are no   reversions.   The  incumbent  SJA’s  appointment   shall be notionally pushed down, to later dates, if   there is  any need to revert those promoted the   basis of  seniority-cum-suitability,  in the cadre of   Junior  Assistants/UDCs or other cadres promoted   as SJA, in excess of the 50% quota.  Also, there   shall be no recovery of pay or allowances made to   them.  In case any such SJAs have been promoted   on selection basis, every endeavour shall be made   that they do not face reversion and instead, their   date(s)  of  promotion are postponed.   In  case of   undue  hardship,  the  Registry  shall  make   appropriate  orders,  by  seeking  recourse  to  the   establishment’s residuary powers under the Rules.

43. The second limb of  the problem – which is   also  a  claim  made  by  the  petitioners  is  their   promotion to the post of AOJ/CM.  Although almost   all  of  them  have  now  been  promoted  to  that   cadre, it cannot be doubted that the decade long   hiatus  or  deadlock  regarding  promotions  to  SJA   and implementation of Atul Kumar-I resulted in the   postponement  of  consideration  of  their  claims.   Crucially,  it  is  a  matter  of  record  that  the   petitioners  were  permitted  to  participate  in  the   selection  process  for  promotion  to  AOJ/CM  on   09.09.2000 (in the case of two of them) and, on   21.08.2001,  in  the  case  of  the  others.   It  is  a   matter  of  record  also,  that  all,  save  petitioner   were declared successful, in the written test, and   were  called  for  interview,  on  19.09.2001.   However,  they  were  not  interviewed,  and  the   others – including those from the SJA cadre, were   appointed against the eight vacancies.  The first   respondent does not explain this aspect.  That the   petitioners were later promoted, as AOJ/CM is no  

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explanation;  they  were  given  what  was  due  to   them.

44. The  respondents’  argument  that  the   petitioners  are  claiming  an  untenable  relief,  as   without their promotion to SJA, and essential five   years’  service,  they  cannot  be  considered  for   further  promotion  seems  facially  to  accord  with   the  rule  position.   However,  this  Court  is  now   called upon to rule in respect of a situation where   the authority, at five different points in time, did   not  follow  the  rules;  at  least  in  two  of  those   instances,  there  really  was  no  excuse  for  not   holding a departmental test for promotion to the   SJA cadre.  Pertinently, in relation to the cadre of   AOJ/CM, the petitioners were successful in seeking  orders – right up to the Supreme Court, permitting   their  appearance  in  the  written  test;  the   respondents  even  held  a  supplementary  test  to   enable their participation.  Yet, inexplicably, they   were not interviewed.  The Court is duty bound to   restitute  their  “lost  opportunity”  as  their   subsequent  promotion  cannot  but  act  to  their   disadvantage vis-à-vis those who were promoted,   in  time,  and  who  had  participated  in  the  said   promotional process.  In this context, it would be  apt to quote the observations in Rajoria (supra):

“The  notional  promotion  was  given  to   Krishnamoorti  to  right  the wrong that  had been   done to him by his supersession on 22-2-1995.  If   Krishnamoorti is denied the right to be considered   for promotion to the post of Director General on   the basis of such notional promotion, particularly   when the relevant provisions so provide, it would   result  in  perpetuating  the  wrong  done  to  him.   That is exactly what the High Court has done.”

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45. In  view of  the  above,  the  respondents  are   hereby  directed  to  review  the  petitioners   promotions  to  the  cadre  of  AOJs/CMs  and  reconsider  the  issue,  on  each  of  the  previous   dates,  when  the  DPCs  were  held  prior  to  their   actual promotions.  It is clarified that this direction   is  confined  to  reviewing  the  petitioners’   promotional dates, since they have already been   promoted,  and  the  exercise  will  be  limited  to   considering  their  cases,  along  with  those  who   were  promoted  on  those  concerned  dates.   An   endeavour shall be made to see that no reversions   follow, and that if  anyone in position is deemed  not up to the mark, his or her promotion shall be   postponed  to  a  later  date,  and  such  promotion   shall be accommodated against a later vacancy.

46. The writ  petitions  therefore,  are entitled to   succeed;  they  are  allowed  in  terms  of  the  directions  contained  in  Paras  40  –  44  of  this   judgment.  There shall  however,  be no order on   costs.”

8. The  attempt  of  the  High  Court  administration  to  

implement the aforesaid directions brought the appellants to  

the forefront to contend that as they belonged to categories  

other  than  SJA  (Senior  Personal  Assistant/Court  

Officers/Accountants)  and  were  promoted  to  the  cadre  of  

AOJ/CM from other feeder categories,  the directions in W.P.  

(C) No.4077-84 of 2004 had the potential of unsettling them  

and that too without hearing them, they not being parties to

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the proceeding. At the point of time when the appellants had  

raised the aforesaid question by instituting C.M. No.22133 of  

2010 they were in the cadre of AOJ/CM or the higher cadre of  

Assistant  Registrar.   The  materials  laid  before  us  would  

indicate that the aforesaid situation has also been altered with  

passage of time by the grant of promotions to the appellants  

to even higher echelons in service.  This would indicate the  

sweep of the issues before us in the present appeal.

9. The appellants  assert  that  their  seniority  in  promotion  

each of the cadres to which they have been promoted from  

time  to  time  remains  unassailed  and  cannot  be  adversely  

affected by the directions in favour of the Junior Translators  

who have come to the cadre of AOJ/CM from the cadre of SJA  

with which cadre the appellants are not in any way concerned  

or connected.

10. The administration of the High Court resisted the claim of  

the appellants by contending that some amount of setback for  

the  incumbents  in  the  cadre  of  AOJ/CM coming from other  

streams is inevitable in a situation where one eligible class i.e.

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Junior Translators had been overlooked for promotion to the  

cadre of SJA which is the feeder cadre for further promotions.  

However, to minimise the impact on the serving incumbents,  

the  High  Court  administration  had  suggested  ‘intermediary  

dates’  for  grant  of  benefits  to  the  Junior  Translators  which  

dates, in its perception, would be a fair implementation of the  

order passed in W.P. (C) No.1218 of 1989.

11. The very same Division Bench of the High Court which  

had rendered the  order  dated 23.10.2009 in  W.P.  (C)  Nos.  

4077-84 of 2004, considered the plea urged on behalf of the  

appellants in C.M. No.22133 of 2010 as well as the stand of  

the  High  Court  administration,  noticed  above.  By  the  

impugned order dated 01.06.2012 the Bench held that Junior  

Translators were required to be considered for promotion to  

the cadre of  SJA  by selection in  accordance with  the 1978  

Rules in terms of the order dated 16.10.1998 passed in C.W.P.  

No.1218 of 1989.  As the same was not done at the required  

point of time, the promotion of such Junior Translators to the  

higher cadre of AOJ/CM was delayed.  The Bench further held

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that  to  give  effect  to  the  Court’s  order  dated  16.10.1998  

necessary corrections were required which were so made by  

the order  dated 23.10.2009 passed in  W.P.  Nos.4077-84 of  

2004.  It was also observed that if promotions to the Junior  

Translators under the 1978 Rules had been made at the time  

when such promotions were due, the concerned incumbents  

would  have  been  promoted to  the  higher  cadre  of  AOJ/CM  

much  earlier  than  the  appellants.   Nonetheless,  to  further  

minimise  the  possible  adverse  impact,  it  was directed that  

promotions of the Junior Translators to the cadre of AOJ/CM  

would be made on the basis of the result of the written test as  

well as the marks secured in the interview which marks were  

computed by the High Court on a notional basis on principles  

which were considered to be equitable. As even the aforesaid  

modified direction(s) of the High Court carries the potential of  

causing  some  disequilibrium  among  the  incumbents  in  

service, the present appeal has been lodged on the grounds  

and contentions earlier noticed.

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12. The appellants were, admittedly, not heard prior to the  

order  dated  23.10.2009  in  W.P.(C)  Nos.4077-84  of  2004.  

Undoubtedly,  the  directions  in  the  said  order  would  

prejudicially  affect  all  or  some  of  the  appellants  once  the  

same are implemented.  In the above situation, the High Court  

had two options before it.  The first was to recall the order  

dated 23.10.2009 and start afresh.  The second was to hear  

all  the  affected  parties  while  considering  C.M.  No.22133 of  

2010 itself.  To us, either of the options would have been in  

accord with the requirement of a fair hearing.  The emphasis  

must be on substance and not on form.  The test, always, will  

be whether the affected person has been heard.  There is no  

inevitable need to obliterate the adverse order before hearing  

a person who was mistakenly not heard earlier; the slate can  

always be cleaned if upon hearing the affected person such a  

course of action is required. Until such a decision is taken the  

adverse order is deemed to be in abeyance. This is how the  

course of events in the present case has to be understood.  

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13. In the present case, according to us, the order dated  

23.10.2009 passed in W.P. (C) Nos.4077-84 o 2004 does not  

justify a recall even upon hearing the appellants and after a  

comprehensive  consideration  of  the  case  urged  on  their  

behalf.  The decision of the High Court in C.W.P. No.1218 of  

1989 has attained finality in law.  The said order has the  

effect of putting clock black to the year 1988 and therefore  

should  have  been  implemented  immediately.   Such  

implementation,  to  say  the  least,  was  tardy.   A  modified  

scheme  of  implementation,  taking  note  of  the  facts  and  

events  which  have  occurred  during  the  interregnum,  was  

attempted by the High Court by the order dated 23.10.2009  

in  W.P.  (C)  No.4077-84  of  2004.   Not  only  was  the  

implementation confined to a limited number of posts and  

benefit thereof restricted to the Junior Translators only, even  

the said directions were further diluted to the advantage of  

the incumbents coming from categories other than SJA by  

restricting  the  eligibility  of  the  Junior  Translators  for  

promotions.  In  both  the  orders  i.e.  23.10.1989  and  

16.01.2002,  the  High  Court  had  also  made  it  clear  that

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adjustment of seniority was to be purely notional and if any  

reversion was to result,  the High Court administration was  

free to take necessary administrative measure to minimise  

the impact thereof.  Both the orders dated 23.10.2009 and  

01.06.2012 are attempts made by the High Court to balance  

the situation by taking into account the legal rights that flow  

to  the  Junior  Translators  from the  judgments  of  the  High  

Court  that  require  implementation  and  the  equitable  

considerations by which the cases of the appellants, who are  

not at fault, are required to be judged.  

14. The balancing of the two sets of claims was a formidable  

task  which  in  our  opinion  the  High  Court  has  done  

commendably.   The  impugned  orders  do  really  strike  a  

balance  between  the  compulsion  of  law  and  equity.  “The  

law, as an instrument of social justice, takes a longer look to  

neutralize  the  sins  of  history”.1  If  constitutionality  of  a  

service Rules itself cannot be judged “on the touchstone of  

1 (1980) 3 SCC 97 (Para 18) [Tamil Nadu Education Department Ministerial and General Subordinate Services Association &  

Ors. vs. State of Tamil Nadu & Ors.]

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fortune of individuals” and the paramount consideration in  

framing the service rule is reconciliation of conflicting claims  

as observed in  Kamal Kanti Dutta & Ors.  Vs.  Union of  

India & Ors.2 , we do not see how an adverse impact on  

equitable  rights  occasioned  by  a  “milder  version”  of  

implementation of judicial orders that have attained finality  

in  law can invite  our  jurisdiction under  Article  136 of  the  

Constitution. We, therefore, will not upset what has already  

been done by the High Court and interfere with the order  

dated 01.06.2012 passed by the High Court.  

15. At what stage the reversal of the process that had been  

erroneously undertaken and the corrections initiated should  

end? It is implicit in the order dated 23.10.2009 (para 45)  

that  the  review should  be  undertaken  at  each  step/stage  

undergone by those who were wrongly/mistakenly promoted.  

The limited review directed in the cadre of AOJ/CM has to be  

continued in all higher cadres to which promotions may have  

been made on the basis of the initial promotion to the cadre  

2 (1980) 4 SCC 38

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of AOJ/CM.  Any other view would be inconsistent  with the  

view expressed in Union of India & Ors. vs. K.B. Rajoria  3, with which we are in respectful agreement.

“The  notional  promotion  was  given  to  Krishnamoorti to right the wrong that had been  done to him by his supersession on 22-2-1995.  If  Krishnamoorti  is  denied  the  right  to  be  considered  for  promotion  to  the  post  of  Director General on the basis of such notional  promotion,  particularly  when  the  relevant  provisions  so  provide,  it  would  result  in  perpetuating the wrong done to him.  That is  exactly what the High Court has done.”

16. In view of the above, the appeal is dismissed with the  

observations and directions contained in the present order  

but without any order as to costs.  

Civil Appeal No. 5839 of 2012  

17. The appellant in the present appeal (applicant who had  

instituted C.M. No. 7841/2011) seeks implementation of the  

order  dated  23.10.2009  passed  in  W.P.  (C)  Nos.  4077-

84/2004 and is aggrieved by the modifications made to the  

said order by the impugned order dated 01.06.2012.   

3 (2000) 3 SCC 562

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18. By  separate  orders  passed  today  in  Civil  Appeal  No.  

5838/2012, the impugned order dated 01.06.2012 has been  

affirmed.  The appellant has also retired from service in the  

meantime.  In these circumstances this appeal is closed in  

terms of the order passed in Civil Appeal No. 5838/2012.

Civil  Appeal  No.     of  2014  (Arising  out  of  SLP(C)  No.3202/2014

19. Leave granted.

This  appeal  is  filed  by  two  individuals  claiming  parity  

with  the  writ  petitioners  (Atul  Kumar  Sharma  and  others)  

which had been initially granted by the High Court by order  

dated 6.5.2011 which  has  now been  recalled  by  the  order  

dated 1.6.2012.  

20. The order dated 16.1.2012 passed by the High Court is  

based  on  a  detailed  consideration  of  the  facts  and  

circumstances  surrounding  the  claims  made  by  the  

appellants.  The High Court has held that the two appellants  

were  not  eligible  for  being  placed  at  par  with  the  writ  

petitioners  (Atul  Kumar  Sharma  and  Others).   The  said

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conclusions  of  the  High  Court  have  been  made  on  

consideration of the dates of appointments of the incumbents;  

their consequential promotion to the cadre of SJA; and further  

more  their  success/results  in  the  selection  to  the  post  of  

AO(J)/CM. We, therefore, do not find any error in the relevant  

part of the order of the High Court dated 010.6.2012 so as to  

justify interference. We accordingly dismiss the appeal.   

..........………………………J. [RANJAN GOGOI]

…..........……………………J. [R.K. AGRAWAL]

NEW DELHI, DECEMBER 15, 2014.