Rudra
Kumar Sain & Ors Vs. Union of India & Ors [2000] INSC 439
(22 August 2000)
D.P.Mohapatro,
Doraswami Raju, Shivaraj V. Patil
PATTANAIK,J.
These
writ petitions filed under Article 32 of the Constitution by the officers of
Delhi Higher Judicial Service, some by the promotees and others by direct
recruits, in-fact, raise the question as to whether in determining inter-se
seniority between the promotees and the direct recruits, the guidelines and
directions given by this Court in the case of O.P.Singla & Anr.etc. vs.
Union of India & Ors., reported in 1985(1) SCR 351, have been duly followed
or not? It is rather unfortunate that on an erroneous impression that the
judgment in Singlas case is under consideration before a Constitution Bench,
these writ petitions were directed to be placed before a Constitution Bench,
resulting thereby inordinate delay in disposal of the matters, which in turn,
must have adversely affected the career of several persons. At the beginning of
the hearing of these writ petitions, on being asked, the counsel appearing for
all the parties, could not indicate any decision where the correctness of
judgment of this Court in Singlas case was under consideration, though in one
of these writ petitions filed by a direct recruit, namely Writ Petition No.
1252/90, Mr. Gopal Subramanium, the learned senior counsel for the petitioner,
challenged the correctness of decision of this Court in Singlas case to which,
we will advert at the appropriate time. Suffice it to say for the present that
O.P.Singla, who was also a promotee to the Delhi Higher Judicial Service, filed
the writ petition, claiming that since they have been working as Additional
District and Session Judges, against temporary posts created by the Delhi
Administration in the cadre of Additional District & Sessions Judge, they
should be treated as Members of Delhi Higher Judicial Service and the seniority
should be decided on the basis of continuous length of service. The three Judge
Bench, which heard the case delivered two judgments, Chief Justice
Y.V.Chandrachud, as he then was, speaking for himself & on behalf of
Justice R.S. Pathak and Justice Sabyasachi Mukharji, giving a separate
judgment. Chief Justice Chandrachud in the majority judgment also indicated
that the conclusion which the majority has arrived at, is not different from
the one, reached by Justice Mukharji, but because of the general importance of
the case and because of disagreement on the interpretation of one of the
provisions of the Recruitment Rules, it was thought fit that the separate
judgment should be written. The disagreement between the two judgments was on
the question as to whether the Recruitment Rules, provided for any quota in the
Delhi Higher Judicial Service and whether the principle of quota and rota was
required to be followed for determining the inter-se seniority.
Interpreting
the proviso to Rule 7 of the Rules, Jusitce Mukharji came to the conclusion
that Rule 7 only provides for ceiling of direct recruits by providing that in
case, there were recruitment from the Bar as well as by promotion, in such a
case, Bar recruits would not be more than one third of the substantive posts in
the service and there is no quota as such. Justice Mukharji was of the view
that Rule 8(2) proceeds on the mis-conception that there is quota fixed for
direct recruits, which Rule 7 does not and Rule 8(2) cannot on plain literal
meaning also be construed or interpreted to mean that it was deemed by the
legislature and the rule-making body to engraft any quota. Chief Justice Chandrachud,
on the other hand, speaking for himself as well as on behalf of Justice Pathak,
on a construction of Rule 7 and Rule 8(2), came to hold that the proviso to
Rule 7 has to be read along with Rule 8(2), since the two provisions are inter-
related and their combined reading yields but one result, that the proviso
prescribes a quota of one third for direct recruits. It was also held that Rule
8(2) cannot be held to be unconstitutional, merely because it reserves one
third of the vacancies in the service for direct recruits and provides that the
first available vacancy in the service will be filled in by a direct recruit,
the next two by promotees and so on. In the majority judgment, Their Lordships
also came to the conclusion that though the proviso to Rule 7 prescribes a
quota of one third for direct recruits and provides for rotation of vacancies
between them and the promotees, who are appointed to the service, that rule
must inevitably break down when appointments to promotees are made to the Service
under Rules 16 and 17. Having interpreted the provisions of Rules 7 & 8 of
the Recruitment Rules, as aforesaid, their Lordships examined the different
provisions of the Recruitment Rules and recorded their findings, which would be
appropriate for us to enumerate for resolving the controversy in these writ
petitions. On going through the detailed charts, which were filed by the
promotees in Singlas case, the Court came to the conclusion:
These
charts show, indisputably, that promotees who have been functioning as
temporary Additional District and Sessions Judges for an unbroken period
between 8 to 12 years are regarded as juniors to the direct recruits who have
been appointed as Additional District and Sessions Judges much later.
The
Court further held:
The
process of reading the Rules as parts of a connected whole does not end with
Rules 7 and 8. Rules 16 and 17 are also relevant for the present purpose and
have, indeed, an important bearing on the question of reservation of vacancies
for direct recruits to the extent of one-third of the substantive posts in the
Service.
Adverting
to Rules 16 and 17 it was held:
The
position which emerges from the provisions contained in Rules 16 and 17 is that
it is permissible to create temporary posts in the Service and, even
substantive vacancies in the Service can be filled by making temporary
appointments.
Interpreting
Rules 2(b) and 2(d), it was held that according to the scheme of the Rules in
this case, Service is a narrower body than the cadre. In interpreting Rules
2(b) and 2(d), Their Lordships held that by the definition contained in Rule
2(d), membership of the Service is limited to persons, who are appointed in a
substantive capacity to the Service, but by reading the second part of Rule
2(b) in an extended sense, every temporary post which carries the same
designation as that of any of the posts specified in the Schedule is a Cadre
Post, whether such post is comprised in the Service or not. Such posts and the
posts specified in the Schedule will together constitute the Cadre under Rule
2(b), if an extended meaning is given to the second part of the rule. Having
given such meaning to the provisions of Rules 2(b), 2(d), 7, 8, 16 and 17, the
Court proceeds to determine the question of seniority between direct recruits
and promotees. It was then observed:
Care
has, therefore, to be taken to apply the provisions of Rule 8(2) in such a
manner as not to lead to the violation of the guarantee of equality and equal
opportunity contained in Articles 14 and 16 of the Constitution. For that
purpose, it is necessary to ascertain as to which of the promotees can be
regarded as belonging to the same class as the direct recruits.
In its
pursuit to ascertain as to which of the promotees can be regarded as belonging
to the same class as direct recruits, the Court observed: that in the matter of
seniority, it is difficult to appreciate, how any distinction can be made
between direct recruits who are appointed to substantive vacancies in the
Service on the recommendation of the High Court under Rule 5(2) and the
promotees, who are appointed in consultation with the High Court to posts in
the Service under Rules 16 and 17.
While
coming to the aforesaid conclusion, it was also indicated that the persons
belonging to the Delhi Judicial Service, who are appointed to temporary posts
of Additional District and Sessions Judges on an ad hoc basis or for fortuitous
reasons or by way of a stop-gap arrangement, constitute a class which is
separate and distinct from those who are appointed to posts in the Service in
strict conformity with the rules of recruitment. The Court, then noted a
representative order of appointment under Rule 16 and held that such
appointments were neither ad hoc, nor fortuitous, nor in the nature of a
stop-gap arrangement and persons promoted under such orders have been factually
officiating continuously without a break as Additional District and Sessions
Judges for a long number of years.
Their
Lordships noticed the difficulties in evolving a rule, which will cause no
hardship of any kind to any member of the Service and yet attempted to minimise
the same as far as possible, so that inequities and disparities which are
inherent in a system which provides for recruitment to the Service from more
than one source. It would be appropriate to extract the following observations
made by Their Lordships in the majority judgment:
It may
bear emphasis that promotees appointed under Rules 16 and 17 to the Higher
Judicial Service can rank for seniority along with direct recruits only if they
are appointed in consultation with the High Court as required by those Rules
and if they satisfy the requirement laid down in Rule 7(a) that they must have
completed not less than ten years of service in the Delhi Judicial
Service." The best solution to the situation that confronted the Court in
Singlas case was to adopt the rule enunciated in S.B. Patwa rdhan vs. State of
Maharashtra, 1977 (3) SCR 775, to have continuous officiation in a non-
fortuitous vacancy ought to receive due recognition in fixing seniority between
persons who are recruited from different sources, so long as they belong to the
same cadre, discharge similar functions and bear the same responsibilities. It
was also held that since rule of quota and rota ceases to apply when appointments
are made under Rules 16 and 17, the seniority of direct recruits and promotees
appointed under those Rules must be determined according to the dates on which
direct recruits were appointed to their respective posts and the dates from
which the promotees have been officiating continuously either in temporary
posts created in the Service or in substantive vacancies to which they were
appointed in a temporary capacity. Justice Mukharji in the separate judgment
also came to the same conclusion for determining the inter-se seniority between
the promotees and direct recruits. It may be noticed that the Court ultimately
quashed the seniority list which had been prepared by the High Court and
observed that a new seniority list be prepared on the basis of the view taken
in the judgment and the said new seniority list would include the direct
recruits and promotees appointed under Rules 16 and
17.
While quashing the seniority list, the seniority of Shri G.S.Dakha was
protected, since he had been appointed as Additional and Sessions Judge in a
vacancy reserved for the members of Scheduled Caste.
Subsequent
to the judgment of this Court in Singla, the High Court of Delhi redrew up a
seniority list on 26th of March, 1985 and in drawing up the said list, the
principle that was evolved is the subject matter of challenge in the writ
petitions filed by the promotees. It may be stated that a fresh look was also
given to the earlier seniority list that had been prepared on 26th of March,
1985 and a Committee of Judges submitted the report on 5th of March, 1986,
which was approved by the Full Court in its Meeting on 25th of October, 1986
and the final seniority list thus emanated on 11th of November, 1986.
According
to the promotee officers, while preparing the final seniority list, the High
Court of Delhi has not followed the directions given by this Court in Singlas
case and erroneously did not take into consideration the continuous appointment
of the officers as Additional District and Sessions Judge, notwithstanding the fact
that the appointments had been made after due consultation with the High Court
and the appointees fulfilled the requirements of Rule 7(1) of the Recruitment
Rules, on an erroneous conclusion that the appointment was ad hoc or fortuitous
or stop-gap. A representation appears to have been filed by the promotees in
1987 and then the present writ petition was filed which was registered as Writ
Petition No. 490/87.
At the
outset, it may be stated that the Delhi Higher Judicial Service Rules 1970 were
amended in the year 1987 by Notification dated 17th of March, 1987, subsequent
to and pursuant to the observations made by this Court in Singlas case and by
virtue of explanation added to Rules 16 and 17, Rules 5 and 7 to 11 became
applicable to such appointments also. We are not concerned in this batch of
cases with the effect of such amended provisions or the inter-se seniority to
be determined subsequent to the year 1987, though we are told that a fresh
seniority list has been prepared in March, 1995 and the Full Court of Delhi
High Court has taken a decision thereof in the year 1998. For the present, we
are only concerned with the question whether in preparing the seniority list of
the officers recruited to the Higher Judicial Service from both the sources viz.
as direct recruits as well as by promotion, prior to the amendment of 1987, the
directions and conclusions of this Court in Singlas case has been duly given
effect to.
Mr.
Kapil Sibal, the learned senior counsel, appearing for the petitioners in Writ
Petition No. 490/87, who are the promotees, contended that even though the
recruitment to the Higher Judicial Service of these petitioners have been made
either under Rule 16 or under Rule 17 of the Recruitment Rules after due
consultation and / or approval of the High Court and the incumbents were duly
qualified for being promoted under Rule 7 of the Recruitment Rules and had
continuously held the posts of Additional District and Sessions Judge, yet the
High Court erroneously was of the opinion that they are ad hoc or fortuitous or
stop- gap appointees and, therefore they were made junior to the direct
recruits and the continuous length of service was not taken into account for
the purpose of determination of the inter-se seniority. According to Mr. Sibal,
there was no ambiguity in the judgment of this Court in Singlas case, but since
the Court had not indicated as to when an appointment can be said to be ad hoc
or fortuitous or stop-gap arrangement, the High Court went on examining the
number of posts that were available on 22.4.1980, the date on which Smt. Usha
Mehra was directly appointed and then after giving her the 30th position in the
seniority list, the promotees seniority were adjusted and all other promotees
who even though have been recruited under Rules 16 or 17 after due consultation
with the High Court and also satisfied the qualification required under Rule 7
and had continuously held the post of Additional District and Sessions Judge,
much prior to Smt. Usha Mehra, yet such appointments of the promotees was held
to be ad hoc or fortuitous and by adopting such procedure, the High Court acted
contrary to the judgment and directions of this Court in Singlas case.
According to Mr. Sibal, it is only when an appointment is made to the Higher
Judicial Service of a person, belonging to the Delhi Judicial Service without
due consultation or approval of the High Court or when such appointee did not
have the prescribed qualification under Rule 7 for being promoted or any short
term appointment is made in exigency of any particular situation, requiring
immediate recruitment or an appointment is made purely by way of stop-gap
arrangement, which can obviously be for a very short period, then only the
appointment can be held to be on ad hoc basis or for fortuitous reasons or by
way of a stop-gap arrangement and in such a contingency, the Services rendered
by an appointee cannot be counted for the purpose of seniority in the Higher
Judicial Service. But when the appointment is made by the Administrator either
under Rule 16 or Rule 17, after due consultation with or getting the approval
of the High Court and the appointee satisfies the qualification required under
Rule 7 and continuously holds the post of Additional District and Sessions
Judge for a fairly long period, as in the case in hand, it is difficult to
import the concept of ad hoc or fortuitous or stop-gap, which is well known in
the Service Jurisprudence to such appointments. In this view of the matter, the
High Court committed serious error in coming to the conclusion that the
appointment of the petitioners was ad hoc/fortuitous/stop-gap and consequently,
the seniority list thus prepared is contrary to the directions given by this
Court in Singlas case. The second Committee, which examined the objections
filed to the provisional list, approved by the Full Court of Delhi High Court
in its Meeting held on 15th of May, 1985 also committed the same mistake as the
earlier Committee and went on examining the question of lien under the
fundamental rules, and as to how many of the incumbents of the Delhi Higher
Judicial Service were on deputation to different posts for the purpose of
finding out as to whether the appointments made in that chain would be ad hoc
or fortuitous or stop-gap. According to Mr. Sibal, the second Committee, even
went to the extent of holding that if a quota post meant for direct recruit
according to the quota, remains unfilled, then the promotee occupying the last
post must be taken to be holding the post on ad hoc basis or for fortuitous
reasons or by way of stop-gap arrangement and the promotee holding the last
post must be made to surrender it, and applying this theory one Shri Sagar
Chand Jain, who had worked for about four years as Additional District &
Sessions Judge was made junior to Smt. Usha Mehra but according to the
Committee that was the best solution, and, therefore, the provisional seniority
list already approved by the Full Court was recommended to be accepted as the
final list. From the final seniority list, it transpires that Shri Sagar Chand
Jain had been appointed as Additional District and Sessions Judge on 27.7.76,
whereas Smt. Usha Mehra was appointed as Additional District and Sessions Judge
as a direct recruit on 22.4.1980, but yet she was shown senior to Shri Jain.
Mr.
Sibal also pointed out that even the officers who had been appointed in
December, 1980 and had been continuing as Additional District & Sessions
Judge, yet their appointments were held to be fortuitous as three posts for
direct recruitment had been advertised. According to Mr. Sibal, the High Court
of Delhi had failed to implement the positive mandate of this Court in Singlas
case and the spirit of the same in drawing up the seniority list and gross
injustice has been meted out to the promotee officers. The learned counsel
points out that Shri M.A.Khan, Shri Ravi Kumar, Shri O.P.Dwivedi, Shri R.C.Jain
and Shri J.D.Kapoor though had been duly appointed in the year 1980 under Rules
16 and 17 and had continuously held the post of Additional District and
Sessions Judge, they were shown junior to Shri B.S.Chaudhary, a direct recruit,
who was appointed on 10.11.1982. Similarly, Shri B.N.Chaturvedi and Shri
R.C.Chopra, though had been appointed as Additional District and Sessions Judge
in August, 1984 under Rule 16, after due consultation with the High Court of
Delhi and also were duly qualified under Rule 7 and continuously held the post
of Additional District and Sessions Judge, yet they were made junior to the
direct recruits of the year 1985 namely Ms.
Sharda
Aggarwal, Shri H.R.Malhotra and Shri J.P. Singh.
This
determination of inter-se seniority, according to Mr.
Sibal
is in contravention of the principles evolved by this Court in Singlas case
and, therefore, such seniority list cannot be sustained. Mr. Sibal also pointed
out that even though, this Court in O.P.Singlas case categorically held that
the controversy regarding the fixation of the seniority list between the
promotees and direct recruits cannot be resolved following the earlier decision
in the case of Joginder Nath, yet the High Court while drawing up the seniority
list, followed the principle of Joginder Nath.
According
to Mr. Sibal, there cannot be a more blatant contravention of the directions
given by this Court in Singlas case than the one committed by the High Court in
the case in hand.
Mr.
Dipankar Gupta, the learned senior counsel, appearing for the petitioners in
Writ Petition No. 1252/90, on the other hand contended with force that since
there cannot be any appointment more than the number of posts available in the
Service and this Court having indicated that stop-gap/fortuitous/ad hoc
appointments will not enure to the benefit of such appointees for the purpose
of their seniority, it was incumbent on the High Court to identify the posts
available in the Service for being regularly filled up and any appointments
made in excess of the posts available must be held to be either stop-gap or
fortuitous or ad hoc and, consequently, the High court did not commit any
illegality in drawing up the seniority list. Mr. Gupta also contended that the
Member of the Service having been defined in Rule 2(d) to mean a person,
appointed in a substantive capacity to the Service under the provisions of the
Rules, and Rule 16 having provided for creation of temporary posts in the
Service by the Administrator and filling up of the same, such appointments
cannot be held to be appointments in the Service in substantive capacity and
such appointees cannot be held to be Members of the Service within the meaning
of Rule 2(d) and on this ground, the Judgment in Singla' case requires re-
consideration.
Mr.
Gopal Subramanium, the learned senior counsel, appearing for the direct
recruits, seriously contended that the judgment of this Court in Singla's case
is contrary to the law laid down by this Court in Chandramouleshwar Prasad vs.
Patna High Court & Ors. , 1970(2) S.C.R., 666 , and, therefore, the said
judgment must be reconsidered. He also contended that the statutory rules
having provided for a quota for the direct recruits, as apparent from a
combined reading of Rules 7 and 8, if no such quota is fixed for the direct
recruits in case of appointments made under Rules 16 and 17, then the rule will
be grossly discriminatory and would be liable to be struck down and, therefore,
until such quota is provided in respect of appointments made under Rules 16 and
17, it would only be meet and proper to hold that the seniority must be
determined in accordance with Rule 8(2), which would necessarily mean that the
appointees under Rules 16 and 17 cannot claim parity with regular appointees
under Rule 7 and, therefore, cannot claim seniority in the Cadre. The learned
counsel also contended that the decision in Joginder Nath's case being one, in
relation to the very Service, the principles evolved therein must be made
applicable and, High Court, therefore, rightly relied upon the same in
determining the inter-se seniority.
According
to Mr. Subramanium, only the genuine appointees under Rules 16 and 17 may, at
best, get the benefit of the decision of this Court in Singlas case and
appointment made against temporary post, because the temporary appointee has
gone elsewhere, cannot be held to be an appointment under Rule 16, even though,
he might have been nomenclatured as such.
Mr.
Govind Das, the learned senior counsel, appearing for the respondents in Writ
Petition No. 490/87, fairly stated that this Court having not indicated the
true import and meaning of the expression stop- gap/fortuitous/ad hoc , the
High Court had to give meaning to the same and in so doing, the High Court has
taken into account the number of posts available in the Service and has tried
to implement the directions given by this Court in Singlas case.
According
to Mr. Das, this Court should now indicate or clarify the meaning of the expression
stop-gap/fortuitous/ad hoc in which event, there will not be any further
controversy in implementing the directions of this Court for drawing up the
seniority list.
Mr.
Rakesh Kumar also appearing for respondent No. 8 in Writ Petition No. 490/87,
who happens to be a direct recruit, contended that in Singlas case, this Court
has tried to work out the equity and for working out equity, it will not be
appropriate to take into account the Services rendered by an appointee against
a temporary post when the original appointee against the said temporary post is
on deputation to some other Service. According to Mr. Rakesh Kumar, by not
following the quota, meant for direct recruits, gross inequity has already been
met out to such direct recruits and over and above that, if the continuous
service of such an appointee under Rule 16, as stated above is taken into
account for determination of their seniority, then the aspiration with which a
Member of the Bar joins the post in the Higher Judicial Service will be marred
and it will work out gross inequity, so far as the direct recruit is concerned.
Shri
J.P.Singh, respondent no. 9 in Writ Petition No.
490/87,
who is also a direct recruit, argued in- person and reiterated the stand taken
by Mr. Dipankar Gupta, appearing for some of the direct recruits and Mr. P.P.
Rao, appearing for the High Court. Mr. R.C. Chopra, a promotee, also appeared
in-person and adopted the stand taken by Mr. Sibal.
Mr.
P.P. Rao, the learned senior counsel, appearing for the Delhi High Court, on
the other hand contended that prior to the judgment in Singlas case, the High
Courts understanding of the rule was that appointments made under Rules 16 and
17 will not count for the purpose of seniority and inter-se seniority has to be
determined only between direct recruits and promotees made under Rule 7,
following the principle engrafted in Rule 8(2). But after the judgment in
Singlas case, when the Court was confronted with a situation that there has
been more number of appointments than the posts available and even in Singlas
case, this Court had indicated that the fortuitous, ad hoc and stop-gap
appointees, cannot claim their seniority, the Full Court of Delhi High Court
took the decision that all appointments made beyond the number of posts available,
must assume the character of fortuitous, ad hoc or stop-gap, and, therefore,
cannot claim seniority in the Cadre. According to Mr. Rao, though in Singlas
case, the Court has not indicated the meaning of the expression ad hoc,
fortuitous or stop-gap but those expressions have been given due meaning in
Parshotam Lal Dhingra vs. Union of India, 1958 SCR, 828, and, therefore, those
meanings should be imported and given effect to. According to Mr. Rao, even
though, the appointment letters might have indicated the appointments to be one
under Rules 16 or 17, but that by itself will not create any right in favour of
the appointees on the basis of the Singlas judgment inasmuch as a wrong
leveling will not create a right as such. In support of this contention Mr.
Rao, relied upon decisions of this Court in the case of Afzal Ullah vs. The
State of Uttar Pradesh, 1964(4) SCR 991 , and N.B.Sanjana, Assistant Spinning
& Weaving Mills Co. LTD., 1971(3) SCR, 506. Mr Rao with reference to the
seniority list, which had been drawn up, contended that when the appointments
have been shown to be out of turn such appointment must be held to be
fortuitous within the meaning of the said expression used in Singla's case and,
therefore, such appointees cannot claim a parity or equality with the regular
appointees under Rule 7 and, therefore, cannot claim their seniority on the
basis of mere continuous length of Service, as contended by Mr. Sibal,
appearing for the promotees.
Having
examined the rival submissions at the Bar and having scrutinized the two
seniority lists drawn up by the Delhi High Court, the provisional as well as
the final, the provisional made on 26th of March, 1985 and the final list which
was approved by the Full Court on 25th of October, 1986, we find sufficient
force in the contentions made by Mr. Sibal, appearing for the promotees. We are
also of the considered opinion that the High Court of Delhi, in drawing up the
seniority list, though proceeded to allocate seniority according to the length
of continuous officiation, regardless of whether an appointee held a temporary
post or a permanent post or whether he was a promotee or a direct recruit, as
directed by this Court in Singlas case, but committed error by excluding the
persons, on the ground that they held posts on ad hoc basis or for fortuitous
reasons or by way of stop-gap arrangement, even though appointments had been
made under Rules 16 and 17 after due consultation with and or approval of the
High Court and the appointees satisfied the qualification required under Rule 7
of the Rules. It is on this score, the ultimate seniority list, drawn up,
stands vitiated. When the report of the first Committee, on the basis of which
ultimately provisional seniority list was drawn up is examined, it would appear
that the Committee went on examining the question of a lien against a post and
then, recorded a finding that anyone who comes to hold one of those posts,
which is subject to a lien, must be held to be holding as an ad hoc arrangement
or for fortuitous reasons or as a stop-gap arrangement. The Committee also
recorded a further finding that if the position of the person, whose seniority
is under consideration is beyond the total number of posts in the Service, then
also his appointment must necessarily fall within the description of ad
hoc/fortuitous/stop-gap and having said so, the Committee assigned Ms. Usha
Mehra, the 30th post and then adjusted the seniority accordingly. The
conclusion of the Committee that a person, promoted to the Higher Judicial
Service under Rules 16 or 17 of the Rules to a post against which some other
person has a lien, would ipso facto make such appointment ad
hoc/fortuitous/stop-gap, is contrary to the conclusion of this Court in Singlas
case. Then again, this Court having categorically directed in Singlas case,
that appointments made under Rule16 or 17, after due consultation and/or
approval of the High Court, and the appointee did qualify to hold the
promotional post, as required under Rule 7 of the Recruitment Rules, then such
appointment of the appointee will not be ignored for the purpose of determining
the inter-se seniority in the cadre and on the other hand, continuous length of
Service should be the basis, though Rule 8(2) of the Rules provides otherwise.
Yet the High Court took shelter under the expression ad hoc/fortuitous/stop-
gap and ignored the continuous length of Service of such appointees, while
determining the inter-se seniority. In fact, in Singlas case, the Court on
being confronted with a peculiar situation, had given the direction as to in
what way, it will be equitable for all concerned to determine the inter-se
seniority, but notwithstanding the same, the High Court appears to have stuck
to the idea of the principles engrafted in Rule 8(2) of the Rules and then decided
the question of seniority on the basis of number of posts, available in the
Service. While doing so, the High Court obviously missed the findings of this
Court that under the scheme of the Rules, Service is a narrower body than the
cadre and every temporary post, which carries the same designation as that of
any of the posts in the schedule is a cadre post, whether such post is
comprised in the Service or not. It is also apparent from the report that the
High Court followed Joginder Naths case in drawing up the seniority, on the
ground that the judgment (in Singlas case) does not indicate whether the
earlier decision of the High Court in Joginder Naths case is still to be
followed in preparing the seniority list or not, but obviously, the High Court
has failed to appreciate, what was stated in the concurrent judgment of
Mukharji J, in Singlas case, wherein in no uncertain terms, it was stated that
so far as, controversy regarding the fixation of the seniority list between the
promotees and direct recruits, the same will not be guided by Joginder Naths
case inasmuch as in Joginder Naths case, the Court construed the Delhi Judicial
Service Rules, 1970 in the context of seniority and confirmation and not in the
context of inter-se seniority between the promotees and direct recruits. The
entire reasoning given by the High Court in the first report, on the basis of
which, provisional seniority list has been drawn up, cannot, but be held to be
contrary to the directions given by this Court in Singlas case, and
accordingly, must be held to be erroneous. The reasoning of the High Court, in
fact, nullifies the ratio in Singla's case, wherein Chandrachud CJ, had
observed, after noticing a representative order of appointment under Rule 16:-
The appointments were neither ad hoc, nor fortuitous, nor in the nature of a
stop-gap arrangement. Indeed, no further orders have ever been passed recalling
the four promotees and, others similarly situated, to their original posts in
the subordinate Delhi Judicial Service. Promotees who were under Rule 16 have
been officiating continuously, without a break, as Additional District and
Sessions Judges for a long number of years. It is both unrealistic and unjust
to treat them as aliens to the Service merely because the authorities did not
take up to the necessity of converting the temporary posts into permanent ones,
even after some of the promotees had worked in those posts from five to twelve
years." Yet, the High Court in drawing up the seniority list, have treated
such promotees, who are appointed under Rule 16 as aliens to the Service and
thus, the High Court was wholly in error in preparing the provisional seniority
list, as already stated. If we examine the second Committee report, which had
considered the objections filed by the promotees and ultimately, on the basis
of which the final seniority list was approved by the Full Court in its Meeting
on 25th of October, 1986 and the list was prepared on 11th of November, 1986,
we also find, the High Court committed similar error in accepting the
provisional seniority list as final. In the second Report, the Committee, again
was of the view that if a post meant for a direct recruit, according to the
quota, remains unfilled, then the promotee occupying the last post, must be
taken to be holding that post on ad hoc basis or for fortuitous reasons or by
way of a stop-gap arrangement. This indicates that the Committee was still
obsessed with the provisions of Rule 8(2) of the Recruitment Rules, even though
in Singlas case, it has been categorically held by this Court that quota
principle has broken down and as such, seniority cannot be determined by taking
recourse to the quota and rota provided under Rule 8(2) but on the basis of
continuous length of Service, provided the promotees have been promoted after
due consultation with and/or approval of the High Court under Rule 16 or 17 and
they did possess the requisite qualification for promotion, as provided under
Rule 7. At this stage, it would be appropriate to notice the letter of appointment
of Shri M.A. Khan, Shri O.P. Dwivedi, Shri R.C.Jain and Shri J.D. Kapoor by the
order of the Administrator dated 19th of December, 1980, which is identical
with the representative order, this Court had taken note of, in Singlas case.
It is not the case of the High Court or any of the direct recruits-respondents
that these promotees, on being promoted on 19th of December, 1980, have at any
point of time, reverted to their substantive post before Shri B.S. Chaudhary
was appointed as a direct recruit on 10.11.1982. In this view of the matter,
these promotees, who are appointed under Rule 16(2) of the Recruitment Rules on
19.12.1980, and continuously held the said post and further, such appointments
have been made in consultation with the High Court of Delhi and they had the
requisite qualifications under Rule 7 of the Recruitment Rules, their
appointments cannot be held to be either ad hoc or fortuitous or stop-gap, and
necessarily, therefore, they must be held to be senior to Shri B.S.Chaudhary, a
direct recruit of the year 1982, on the basis of continuous length of Service,
in accordance with the directions given by this Court in Singlas case.
Similarly,
the two other promotees namely Shri B.N.Chaturvedi and Shri R.C.Chopra, who had
been appointed since August, 1984 and also continuously held the post of
Additional District and Sessions Judge for all these years, must be held to be
senior to the direct recruits namely Ms.
Sharda
Aggarwal, who was directly recruited on 07.6.1985 and Shri H.R. Malhotra and
Shri J.P.Singh, who were directly recruited on 26.11.1985.
It
would be worthwhile to notice that the promotee officers, in their rejoinder
affidavit, have indicated that in course of arguments in Singlas case, the
Supreme Court had directed the Delhi High Court to submit a chart, indicating
under which rule, the promotees had been appointed and pursuant to the said
directions, the High Court had submitted a chart and all the petitioners(the
promotees) were shown to have been appointed either under Rule 16 or Rule 17. A
chart, also purported to have been filed in the earlier case, has been enclosed
to the rejoinder affidavit, which clearly indicates the factual matrix, which
were there before this Court in Singlas case.
Even,
the High Court in its counter affidavit in the present proceedings, has
submitted that all the petitioners herein were appointed under Rule 16 or 17 of
the Rules and the respective dates of appointments are matters of record.
So far
as the argument of Mr. Dipankar Gupta, the learned senior counsel, appearing
for the direct recruits, to the effect that in view of the definition of
Service in Rule 2(d), the appointees under Rule 16 cannot be held to be Members
of the Service, it may be stated that the said question was duly considered in
Singlas case and on an analysis of the scheme of the Rules, this Court came to
the conclusion that the Rule is peculiar in nature and Cadre is a larger
concept than Service under the Recruitment Rules. The Court recorded a finding
that all persons recruited under Rule 17 to the posts having the same
designation, as per the post in the schedule, must be held to be Members of the
Cadre and, therefore, while determining the inter se seniority in the 'Cadre',
they cannot be ignored from consideration nor can they be held to be alien to
the Cadre. The said contention of Mr. Gupta, accordingly, cannot be sustained.
So far
as the contention of Mr. Gopal Subramanium, the learned senior counsel,
appearing for the direct recruits, is concerned, in praying for re- consideration
of the judgment of this Court in Singlas case, the same also cannot be
sustained inasmuch as the Court in Singlas case did consider the earlier
decision of this Court in Chandramouleshwars case, and recorded a finding that
in that case, it was only a matter of adjustment of seniority between the
promotees inter-se and not between the promotees and direct recruits and,
therefore, the ratio therein is of no application. Further, Justice Mukharji,
in his concurring judgment did consider Joginder naths case and held that the
principle evolved therein cannot be applied to the case in hand, where inter-se
seniority between the promotees and direct recruits are going to be decided on
equitable consideration. We are also unable to accept the contention of Mr. Subramanium
that until the principle of quota provided in Rule 8 is made applicable to
appointments under Rules 16 and 17, such appointees, under Rules 16 and 17
cannot claim continuous length of service for their seniority. Such a
contention appears to have been considered and negatived in Singlas case. The
Judgment of this Court in Singlas case is obviously intended to evolve some
equitable principle for determination of inter-se seniority of a group of
officers, when the rule of seniority contained in Rule 8(2) has been held to be
not operative because of breaking down of quota and rota rule. To meet the
peculiar situation, the Court evolved the principle that continuous length of
service should be the criteria for inter-se seniority between the direct recruits
and the promotees, provided, the promotees did possess the required
qualification as per Rule 7 and the appointments had been made under Rules 16
and 17, after due consultation and/or approval of the High Court, which in our
view also is the most appropriate basis, evolved in the fact situation. This
being the position, we see no justification for re-considering the decision of
this Court in Singlas case.
That
apart, the Recruitment Rules have been amended in the year 1987 and the
aforesaid principle, which had been evolved in Singlas case, would apply for
determining the inter-se seniority between the promotees and direct recruits,
all of whom had been appointed to the Higher Judicial Service, prior to the
amendment of the Rules in question, which was made in the year 1987. We have
also considered the arguments advanced by Mr. P.P.Rao, the learned senior
counsel, appearing for Delhi High Court and we are unable to persuade ourselves
to accept the same inasmuch as it is not a mere question of leveling, as urged
by Mr. Rao, but, it is a question which was directly considered by this Court
in Singlas case and, after examining the representative order, the Court
positively recorded a conclusion that the appointments made under Rule 16 or 17
cannot be held to be alien to the Cadre. In fact the Court was persuaded to
come to the aforesaid conclusion, as it was found that the persons appointed
under Rules 16 and 17 having all the necessary qualifications and having been
appointed after due consultation with the High Court, though they had served
for more than five to seven years, but yet have been shown junior to the direct
recruits, who had come to the Service much later than them. It is, therefore,
not possible for us to accept Mr. Raos contention and permit any further
scrutiny into such appointments made either under Rule 16 or under Rule 17 of
the Recruitment Rules. It is in fact, interesting to notice that the schedule
to the Recruitment Rules, which came into existence in 1971, was amended for
the first time only in the year 1991, 20 years, after and if a strict
construction to the different provisions of the Rules would be given, then all
the temporary appointees under Rule 16, who might have rendered 5 to 10 years
of Service would be denied of their right for the purpose of seniority. It is
this impasse, created on account of inaction of the authorities and on account
of non- adherence to the provisions of the Rules strictly, which persuaded the
Court in Singlas case to evolve the principles for working out equities and
that principle has to be followed by the High Court in drawing up the seniority
list. It is not necessary to deal with the contention, raised by Mr. Rakesh
Kumar, appearing for the direct recruits and Shri J.P.Singh, appearing in
person, who is a direct recruit also, as well as Mr. R.C.Chopra, appearing in
person, who is a promotee, as essentially, they adopted the arguments of either
Mr. Dipankar Gupta or Mr.
Gopal
Subramanium and Mr. Kapil Sibal.
So far
as the terminology used in Singlas case, namely ad hoc, fortuitous and
stop-gap, the same is quite familiar in the Service Jurisprudence. Mr. Rao,
appearing for the High Court of Delhi, however contended before us that the
said terminology should be given the same meaning, as was given in Parshotam
Lal Dhingra vs. Union of India, 1958 S.C.R. Page 828. In Dhingras case, the
Court was examining whether removal of an employee can be held to be a penal
and whether Article 311(2) of the Constitution can at all be attracted and the
Court also observed that certain amount of confusion arises because of the
indiscriminate use of the words provisional, officiating and on probation. We
do not think that the concept or meaning given to those terminology in Dhingras
case will have any application to the case in hand, where the Court is trying
to work- out an equitable remedy in a manner which will not disentitle an
appointee, the benefit of his fairly long period of Service for the purpose of
seniority, even though he possesses the requisite qualification and even though
his appointment has been made after due consultation and/or approval of the
High Court.
The
three terms ad hoc, stop gap and fortuitous are in frequent use in service
jurisprudence. In the absence of definition of these terms in the rules in question
we have to look to the dictionary meaning of the words and the meaning commonly
assigned to them in service matters. The meaning given to the expression
fortuitous in Strouds Judicial Dictionary is accident or fortuitous casualty.
This should obviously connote that if an appointment is made accidentally,
because of a particular emergent situation and such appointment obviously would
not continue for a fairly long period. But an appointment made either under
Rule 16 or 17 of the Recruitment Rules, after due consultation with the High
Court and the appointee possesses the prescribed qualification for such
appointment provided in Rule 7 and continues as such for a fairly long period,
then the same cannot be held to fortuitous. In Blacks Law dictionary, the
expression fortuitous means occurring by chance, a fortuitous event may be
highly unfortunate. It thus, indicates that it occurs only by chance or
accident, which could not have been reasonably foreseen. The expression ad hoc
in Blacks Law Dictionary, means something which is formed for a particular
purpose. The expression stop-gap as per Oxford Dictionary, means a temporary
way of dealing with a problem or satisfying a need.
In
Oxford Dictionary, the word ad hoc means for a particular purpose; specially.
In the same Dictionary, the word fortuitous means happening by accident or
chance rather than design.
In P.
Ramanatha Aiyers Law Lexicon (2nd Edition) the word ad hoc is described as for
particular purpose, Made, established, acting or concerned with a particular
and or purpose. The meaning of word fortuitous event is given as an event which
happens by a cause which we cannot resist; one which is unforeseen and caused
by superior force, which it is impossible to resist; a term synonymous with Act
of God.
The
meaning to be assigned to these terms while interpreting provisions of a
Service Rule will depend on the provisions of that Rule and the context in and
the purpose for which the expressions are used. The meaning of any of these
terms in the context of computation of inter-se seniority of officers holding
cadre post will depend on the facts and circumstances in which the appointment
came to be made. For that purpose it will be necessary to look into the purpose
for which the post was created and the nature of the appointment of the officer
as stated in the appointment order. If the appointment order itself indicates
that the post is created to meet a particular temporary contingency and for a
period specified in the order, then the appointment to such a post can be aptly
described as ad hoc or stop-gap. If a post is created to meet a situation which
has suddenly arisen on account of happening of some event of a temporary nature
then the appointment of such a post can aptly be described as fortuitous in nature.
If an appointment is made to meet the contingency arising on account of delay
in completing the process of regular recruitment to the post due to any reason
and it is not possible to leave the post vacant till then, and to meet this
contingency an appointment is made then it can appropriately be called as a
stop-gap arrangement and appointment in the post as ad hoc appointment. It is
not possible to lay down any straight-jacket formula nor give an exhaustive
list of circumstances and situation in which such an appointment (ad hoc,
fortuitous or stop-gap) can be made.
As
such, this discussion is not intended to enumerate the circumstances or
situations in which appointments of officers can be said to come within the
scope of any of these terms. It is only to indicate how the matter should be
approached while dealing with the question of inter se seniority of officers in
the cadre.
In the
Service Jurisprudence, a person who possesses the requisite qualification for
being appointed to a particular post and then he is appointed with the approval
and consultation of the appropriate authority and continues in the post for a
fairly long period, then such appointment cannot be held to be stop-gap or
fortuitous or purely ad hoc. In this view of the matter, the reasoning and
basis on which, the appointment of the promotees in the Delhi Higher Judicial
Service in the case in hand was held by the High Court to be fortuitous/ad
hoc/stop-gap are wholly erroneous and, therefore, exclusion of those appointees
to have their continuous length of service for seniority is erroneous.
In
view of our conclusions, as aforesaid, we quash the seniority list both
provisional and final, so far as, it relates to the appointees either by direct
recruitment or by promotion in the Delhi Higher Judicial Service, prior to the
amendment of the Recruitment Rules in the year 1987, and their inter-se
seniority must be re- determined on the basis of continuous length of service
in the Cadre, as indicated in Singlas case and explained by us in this
judgment.
Since
the future of these officers to a great extent depends upon seniority and many
of these officers may be on the verge of superannuation, the High Court would
do well in finalising the seniority within a period of six weeks from the date
of receipt of this judgment.
Writ
Petition No. 490/87 is accordingly allowed.
Writ
Petition Nos. 1252/90 and 14114/84 are accordingly dismissed. Writ Petition
Nos. 707/88, 856/88 and 764/88 stand disposed of in terms of the directions
given herein-above. Application for impleadment filed by Mr.
R.C.Chopra
in Writ Petition(Civil) No.490/87 is allowed.
Application
for impleadment filed by one Ms.Rekha Sharma in Writ Petition(Civil) No.1252 of
1990, stands rejected, since in this batch of cases, we are concerned with the
inter-se seniority between the direct recruits and the promotees, who are
appointed prior to the amendment of the Rules in 1987 and the applicant Ms.
Rekha Sharma was appointed in January, 1988.
The
application for impleadment by Shri J.B. Goel in Writ Petition(Civil) No. 14114
of 1984 stands allowed.
...............................................J.
(G.B.
PATTANAIK) ...............................................J. (S.
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