K.K. Sharma Vs. High Court of Delhi & Ors.
[Civil Appeal No. 5838 of 2012]
[Civil Appeal No. 5839 of 2012]
[Civil Appeal No. 11197 of 2014 arising out of SLP (C) No.3202 of 2014]
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 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 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 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 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, 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.
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 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 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.
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 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--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."
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 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. 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 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.
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.
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 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". If constitutionality of a service Rules itself cannot be judged "on the touchstone of 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. , 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 of AOJ/CM. Any other view would be inconsistent with the view expressed in Union of India & Ors. vs. K.B. Rajoria , 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. 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
18. 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 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]
DECEMBER 15, 2014.
 (1980) 3 SCC 97 (Para 18) [Tamil Nadu Education Department Ministerial and General Subordinate Services Association & Ors. vs. State of Tamil Nadu & Ors.]
 (1980) 4 SCC 38
 (2000) 3 SCC 562