S.N.Dhingra
& Ors Vs. Union of India & Ors [2001] Insc 46 (31 January 2001)
G.B.Pattanaik,
B.N.Agarwal Pattanaik,J.
L.J
This
petition under Article 32 by the Direct Recruits to Delhi Higher Judicial
Service, assails the inclusion of the respondents 5 to 8 in the Gradation List
drawn up by the High Court of Delhi by order dated 22.8.2000 pursuant to the
directions given by this Court in Writ Petition No. 490/87.
These
respondents have been continuously working in Delhi Higher Judicial Service w.e.f.
18th of January, 1986 but had been posted as Chief Metropolitan Magistrates on
account of the Government decision of up-gradation of the said post of Chief
Metropolitan Magistrates. The petitioners on the other hand are directly
recruited officers to Delhi Higher Judicial Service in the year 1988 pursuant
to the selection made in accordance with the Recruitment Rules. The bone of
contention of the petitioners is that the respondents, who were continuing as Chief
Metropolitan Magistrates, must be held to be juniors to the petitioners
inasmuch as their decision was subject to challenge in appeal before the
petitioners, who were appointed as Additional District and Sessions Judge, and
the High Court committed error in including the names of these respondents in
the gradation list pursuant to the directions given by this Court in the
Constitution Bench by not properly understanding the directions in question.
This
Court in O.P.Singlas case, 1984(4) SCC 450 took into consideration the relevant
provisions of the Recruitment Rules and came to hold that the quota principle
contemplated in the Recruitment Rules has totally broken down and as such
seniority of the officers in the Delhi Higher Judicial Service cannot be determined
by taking recourse to the quota and rota provided in Rule 8(2). The Court on
the other hand indicated that the seniority has to be determined on the basis
of continuous length of service provided the promotees have been promoted after
due consultation with the High Court and they did posses the requisite
qualification for promotion in accordance with Rule 7 of the Recruitment Rules.
The Court had further indicated in Singlas that the ad hoc, fortuitous and
stop- gap appointees will not be entitled to the benefit of the aforesaid
principle namely the continuous length of service as the basis of their
seniority in the cadre. As the High Court failed to implement the aforesaid
judgment of this Court in its proper perspective and drew up seniority list
contrary to the letter and spirit of the judgment, writ petitions were filed in
this Court which stood disposed of by a Constitution Bench in the case of Rudra
Kumar Sain and
25.
The Constitution Bench came to the conclusion that the provisional and final
gradation list had not been drawn up in accordance with the principles
enunciated in Singlas case and accordingly the said gradation lists were
quashed.
The
Constitution Bench also further directed that the appointees to the Delhi
Higher Judicial Service prior to the amendment of the Recruitment Rules in the
year 1987, whether by direct recruitment or by promotion, are entitled to get
their seniority re-determined on the basis of continuous length of service in
the cadre, as indicated in Singlas case and the High Court, therefore should
draw up the same within a specified period. The Constitution Bench further
elaborated the meaning of the expression ad hoc, fortuitous and stop gap and
having said so, it was further observed:
It is
not possible to lay down any strait- 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.
Thus
both in Singlas case as well the Constitution Bench decision in Rudra Kumars
case, this Court has indicated the principle on which the inter se seniority of
the officers of Delhi Higher Judicial Service has to be drawn up, particularly
when the statutory mode contained in Rule 8(2) of quota and rota principle was
found to be broken down and at the same time it was also indicated that for
finding out the period of continuous service in the cadre of Higher Judicial
Service, the ad hoc, fortuitous and stop-gap appointments would not be taken
into account.
Since
respondents 5 to 8 were the promoted officers in Delhi Higher Judicial Service
prior to the amendment of the Recruitment Rules in 1987, their seniority has
been determined on the basis of their continuous length of service in the cadre
pursuant to the observations and directions given by this Court in the
Constitution Bench decision of Rudra Kumars case.
Mr. Shanti
Bhushan, the learned senior counsel, appearing for the present petitioners, who
are the direct recruits to the Delhi Higher Judicial Service in the year 1988,
however contends that the inclusion of these respondents in the gradation list
already drawn up is erroneous inasmuch as their recruitment itself
unequivocally indicates that the same is purely fortuitous and as a stop-gap
arrangement, as it would be apparent from the Notification dated 16.1.1986. Mr.
Shanti Bhushan further contends that the appointment of these respondents by
letter dated 16.1.86 was fortuitous and as a stop-gap arrangement is
re-enforced by the fact that a fresh appointment to the service on temporary
basis was made in their favour under Rule 16(2) of the Recruitment Rules by the
Administrator by Notification of 24th of February, 1989 and as such the
services of these respondents from 16.1.86 till 24.2.89 being purely a
fortuitous and stop- gap arrangement, the said period could not have been
reckoned as continuous service for determination of their seniority in the
cadre of Delhi Higher Judicial Service and the High Court, therefore was not
justified in including their names in the gradation list drawn up on 22nd
August, 2000, pursuant to the directions given by this Court in the
Constitution Bench decision of Rudra Kumars case. Mr. Shanti Bhushan further
contends that by mere up-gradation of the post of Chief Metropolitan
Magistrate, those posts did not form a part of cadre until amendment in
question and inclusion of the post in the schedule, and adjudged from that
angle also, the appointees to those posts could not have been held to be
regular appointees in Delhi Higher Judicial Service.
The
schedule having been amended only in 1991 and these respondents having been
continued as Chief Metropolitan Magistrates till February, 1989, could not have
been made senior to the direct recruits-petitioners who were recruited to the
Delhi Higher Judicial Service in the year 1988. Mr. Shanti Bhushan, the learned
senior counsel, relying upon the provisions of the Criminal Procedure Code also
strenuously contended that against the orders of the Chief Metropolitan
Magistrates, appeal being maintainable to the District and Sessions Judge and
the respondents having continued as Chief Metropolitan Magistrates till 1989
and against their orders, appeal being maintainable to the District and
Sessions Judge, which post was held by the petitioners since in the year 1988,
those respondents could not have been made senior to the petitioners in any
view of the matter. According to Mr. Shanti Bhushan, both in Singlas case
1984(4) SCC 450 as well as in Patwardhans case, 1977 (3) S.C.R. 775, on which
reliance was placed in Singlas case, the Court while evolving the principle of
continuous length of service as the criterion for determination of the inter se
seniority in the cadre, has hastened to add that the post in question must
belong to the same cadre and the incumbents discharge similar functions and
bear the same responsibility, but applying the aforesaid principle to the case
in hand, it cannot be said that the Chief Metropolitan Magistrates discharge
the similar function and bear the same responsibility as the Additional
District and Sessions Judge and, therefore, the respondents could not have been
given their seniority on the basis of continuous length of service for the
period they are continued as Chief Metropolitan Magistrates. Mr. Shanti Bhushan
further contends that an examination of the scheme of the Criminal Procedure
Code, more particularly, Sections 17, 19, 28 and 29 unequivocally indicate that
a Chief Metropolitan Magistrate is subordinate to the Sessions Judge and,
therefore notwithstanding the up- gradation of the post of Chief Metropolitan
Magistrate, the statutory subordination under the Criminal Procedure Code
remains and consequently, the respondents who continued as Chief Metropolitan
Magistrates till February, 1989, cannot be held to be senior to the
petitioners, who are recruited as Additional District and Sessions Judge in the
year 1988 and in this view of the matter, the inclusion of the name of the
respondents in the gradation list drawn up is erroneous.
Mr.
P.P. Rao, the learned senior counsel, appearing for the High Court of Delhi, on
the other hand contended that the order of the Administrator in upgrading five
posts of Chief Metropolitan Magistrates and including them in Delhi Higher
Judicial Service tantamounts to creation of temporary posts in the service
under sub-rule (2) of Rule 16 of the Rules. According to the learned counsel
the definition of cadre post in Rule 2((b) of the Rules, clearly conceives any
other temporary post declared as cadre post by the Administrator and,
therefore, when the Administrator upgraded the post of Chief Metropolitan
Magistrate and included those posts in Delhi Higher Judicial Service, then the
holder of those posts cannot be denied the benefit of such continuation of
service. The learned counsel further contended that under Rule 4(2) of the
Recruitment Rules, the Administrator is empowered to create from time to time
as many cadre posts as may be necessary and in the absence of any embargo on
the aforesaid power of the Administrator, the so-called upgradation of the post
of Chief Metropolitan Magistrate and inclusion of those upgraded posts in the
Delhi Higher Judicial Service, undoubtedly entitles the incumbents of those
posts to claim seniority on the basis of their continuous service, as has been
held in Singlas case and upheld by the Constitution Bench in Rudra Kumars case.
The learned counsel further contends that notwithstanding the amendment of the
schedule in the year 1991, the position being that five posts of Chief
Metropolitan Magistrates were upgraded and were included in the Delhi Higher
Judicial Service and private respondents having been continuing against those
posts, the High Court was justified in taking the entire length of continuous
service in the Higher Judicial Service for the purpose of determination of
their seniority in the cadre and no error can be found therein in the matter of
preparation of gradation list on 22nd August, 2000, pursuant to the
Constitution Bench judgment of this Court. In support of this contention, he
placed reliance on a decision of this Govt. of India, Ministry of Information
and Broadcasting, New Delhi & Ors., 1989 Supp.(1) SCC 147. Mr. Rao also
contended that the very appointment of the respondents on 16th of January, 1986
was to Delhi Higher Judicial Service and not against any particular post. On
being so appointed, the High Court which is the authority to make posting,
posted them as Chief Metropolitan Magistrates or Additional Chief Metropolitan
Magistrates against the five upgraded posts of the Chief Metropolitan
Magistrates. This being the position, the fact that against their order while
they were continuing as Chief Metropolitan Magistrates, an appeal lay to the
District and Sessions Judge under the provisions of Criminal Procedure Code,
will not take away the benefits of their continuous service in the cadre, as
contended by Mr. Shanti Bhushan, and, therefore, the impugned gradation list
has rightly been drawn up. According to Mr. Rao, it is no doubt true that in
the appointment order dated 16.1.86, it has been indicated that the
appointments are fortuitous and stop-gap, but this labelling is of no
consequence and would not deny the respondents of their valuable rights of
continuing in the Delhi Higher Judicial Service and would not deprive them of
their seniority being determined according to the principles evolved in Singlas
case and affirmed in the Constitution Bench judgment of this Court in Rudra Kumars
case, particularly, when the Court has tried to resolve the impasse created by
directing that continuous length of service should be the principle for
determining the seniority.
Mr.
G.L. Sanghi, the leaned senior counsel, appearing for some of the promotee-respondents,
in the context of the facts of the present case, contended that appointment to
service and thereafter posting to a particular post are two different concepts.
Once the respondents were appointed to Delhi Higher Judicial Service by order
dated 16th of January, 1986 and continued to hold the post in the said service,
the continuous period of officiation is the only guiding factor for determining
their seniority in the cadre. This principle having been evolved by this Court
in Singlas case and upheld in Rudra Kumars case, cannot be given a go-bye,
merely because the initial letter of appointment indicated that the appointment
is fortuitous or stop-gap. Mr. Sanghi contended that the use of the expression
fortuitous and stop- gap by the High Court is because of the fact indicated in
the Registrars letter dated 4th of January, 1986, namely the sanctioned
strength of Delhi Higher Judicial Service, as it stood then and the fact that
the advertisement had been issued separately for the direct recruits as per
Rule 7(b) of the Recruitment Rules. This letter was considered in Rudra Kumars
case by the Constitution Bench and the Court had observed as to how the High
Court was obsessed for use of the word fortuitous and stop-gap. This being the
position, and in the light of the directions and observations in Rudra Kumar'
case, the High Court rightly included the names of these respondents in the
gradation list drawn up, and there is no infirmity in the same. Mr. Sanghi
contends that in concluding paragraph of the judgment of the Constitution Bench
in Rudra Kumars case, the High Court was called upon to draw up the seniority
of all the officers, direct recruits and promotees, appointed to Delhi Higher
Judicial Service prior to the amendment of the Recruitment Rules of 1987 and in
view of the aforesaid directions and the respondents having been appointed to
the Delhi Higher Judicial Service with effect from 16.1.1986 and having
continued in the said service without interruption, it was only logical for the
High Court to include them in the gradation list drawn up and the petitioners
who came to be recruited in the year 1988, cannot make any complaint of the
same. According to Mr. Sanghi, though the order of appointment dated 16.1.86
indicate the appointment to be fortuitous or stop-gap, but the substance being
looked at and the principles enunciated in Rudra Kumars case being applied for,
such appointment cannot be held to be fortuitous or stop-gap, so as to deprive
the benefit of the continuous length of service for the purpose of seniority of
the appointees, and consequently, the gradation list drawn up does not require
any interference.
Mr. D.N.Goburdhan,
the learned counsel appearing for some other respondents, while supporting the
contentions raised by Mr. Sanghi, further urged that the notification,
appointing the petitioners to Delhi Higher Judicial Service on probation,
itself unequivocally indicates that the same is subject to the final result in
pending writ petitions and that the seniority vis-a-vis the promotees in Delhi
Higher Judicial Service would be determined and fixed in accordance with the
judgment of the Supreme Court in O.P.Singlas case as well as the other writ
petitions pending in the Supreme Court and in view of such appointment letters
and in view of the Constitution Bench decision in Rudra Kumars case, the High
Court rightly determined the seniority and the same should not be interfered
with.
Mr. Raju
Ramachandran, the learned senior counsel, appearing for respondent No. 6, emphasised
that the expression discharging similar functions in O.P.Singlas case, must be
understood to mean capable of discharging similar functions inasmuch as an
appointee discharges the functions of the post to which he is appointed by the
employer. In this view of the matter once respondents are appointed to Delhi
Higher Judicial Service, their mere posting as Chief Metropolitan Magistrate as
against the upgraded post in the said cadre of Delhi Higher Judicial Service
will not deprive them of their right to have their continuous length of service
as the basis for seniority in the cadre and, therefore, the impugned gradation
list does not suffer from any infirmity.
In
view of the submissions made at the Bar and in view of the two earlier
decisions of this Court, O.P.Singla and Rudra Kumar, the first question that
arises for our consideration is whether it was open for the Administrator to
upgrade the post of Chief Metropolitan Magistrate and include those upgraded
posts in Delhi Higher Judicial Service, so as to form a part of the cadre post.
The definition of cadre post in Rule 2(b) of the Recruitment Rules, stipulates
that any other temporary post declared as cadre post by the Administrator would
be a cadre post apart from those which have been specified in the schedule.
The
definition of service in Rule 2(e) means the Delhi Higher Judicial Service and
the expression promoted officer in Rule 2(h) of the Rules means a person who is
appointed to the service by promotion from Delhi Judicial Service. Rule 4(2)
speaks of the power of the Administrator to create cadre post from time to time
as may be necessary.
Rule
16 authorises the Administrator to create temporary post in the service and to
fill up such posts in consultation with the High Court from amongst the members
of the Delhi Judicial Service. In view of the aforesaid provisions of the Rules
and in view of the earlier decisions of this Court in Singla and Rudra Kumar,
the conclusion is irresistible that the Administrator by upgrading five posts
of Chief Metropolitan Magistrates to the rank of Delhi Higher Judicial Service
and by including them in the service has merely exercised his power under Rule
16, and therefore, the appointees like the respondents to those posts in the
service from Delhi Judicial Service must be held to be born in the service from
the date of their appointment by virtue of order dated 16th of January, 1986.
This conclusion of ours is further strengthened from the fact that even the
schedule has been amended later, by indicating the authorised strength of the
service to include the five posts of Chief Metropolitan Magistrates/Additional
Chief Metropolitan Magistrates. In the aforesaid premises and in the light of
the two earlier judgments of this Court in Singla and Rudra Kumar, we have no
hesitation to come to the conclusion that the upgraded posts of Chief Metropolitan
Magistrates were born in the cadre of Delhi Higher Judicial Service and,
necessarily, therefore, the incumbents appointed against those posts would not
ordinarily be deprived of their benefit accruing from such appointment unless
in their true nature and spirit the appointments can at all be termed to be
fortuitous or stop gap.
The
next question that arises for consideration, therefore, is whether such
appointments though nomenclatured as stop- gap and fortuitous can at all be
held to be such in the light of the enunciation of those terminology in Rudra Kumars
case. There is no dispute that the Constitution Bench in Rudra Kumars case has
clearly indicated that whether a particular appointment is really fortuitous or
stop-gap has to be decided in the facts and circumstances of the case and any
universal principle cannot be made for the purpose. In the case in hand, the
Administrator had upgraded those posts of Chief Metropolitan Magistrates to be
in Delhi Higher Judicial Service, the posts have been filled up by these
respondents belonging to Delhi Judicial Service in consultation with the High
Court.
These
respondents did possess the requisite qualification and experience for being
appointed to Delhi Higher Judicial Service and they have been continuing in the
said Higher Judicial Service from January, 1986. In this premises, it would be
a travesty of justice if their continuous appointment in the service is not
taken into account for the purpose of their seniority, merely because of the
use of the expression stop-gap and fortuitous in the order dated 16th of
January, 1986. It may be stated that the order had emanated from the High Court
and in Rudra Kumars case, the Constitution Bench has already dealt with the
obsession of the High Court for use of such expression and how for inaction on
the part of the High Court, the promotees have suffered in the matter of their
seniority and how in Singlas case the Court resolved the impasse by directing
continuous length of service to be the guiding principle for determination of
the seniority in the cadre. Having examined the entire facts and circumstances
of the case in hand, particularly, the upgradation of the post of Chief
Metropolitan Magistrate to the post in Delhi Higher Judicial Service and
filling up of those posts in consultation with the High Court by the
Administrator, we find it difficult to hold that such appointment of the
respondents from 16.1.86 till 1989 were in fact really fortuitous or stop-gap.
To hold such appointments to be fortuitous or stop-gap, would be against the
spirit of the judgment of this Court in Singla and re- affirmed in Rudra Kumars
case. We, therefore, are not persuaded to agree with the submissions of Mr. Shanti
Bhushan that the appointment of respondents from 16.1.1986 till 1989 must be
held to be fortuitous or stop-gap and on that score ought not to be counted for
the purpose of their seniority in the cadre.
The
next question that arises for consideration is whether the fact that the
respondents though were appointed to Delhi Higher Judicial Service, but having
been posted as Chief Metropolitan Magistrates against whose orders, appeal lay
to the Court of District and Sessions Judge would make any difference? In this
connection we find sufficient force in the argument of Mr. Sanghi that
appointment to a service and posting thereafter are of two different concepts.
Once the appointment is made to the Higher Judicial Service, as in the case in
hand, then the subsequent posting against some posts born in the Higher
Judicial Service will not deprive the appointees from the benefits of
continuous appointment against the post merely because at a given point of time
against their order an appeal lay to the District and Sessions Judge, which
might have been occupied by the petitioners on being directly recruited in the
year 1988.
It is
in this context, the very recruitment of the petitioners and the terms and
conditions mentioned therein is of great significance as pointed out by Mr. Goburdhan,
appearing for some of the respondents. It has been unequivocally stated that
the question of their seniority would be subject to and in accordance with the
decision of the Supreme Court in the pending cases. In view of the Constitution
Bench Judgment in Rudra Kumar and in view of the earlier directions contained
in OP Singla and in view of our conclusion already arrived at, the ultimate
conclusion is inescapable that the continuous length of service of these
respondents right from their appointment to the Higher Judicial Service in
January, 1986 should be the basis on which their seniority has to be determined
and the High Court therefore, was fully justified in including the names of
these respondents in the gradation list that had been drawn up on 22nd of
August, 2000.
The
submission of Mr. Shanti Bhushan, on the basis of the provisions of the
Criminal Procedure Code and the subordination of the Chief Metropolitan
Magistrates, as provided in Section 19 of the Criminal Procedure Code is of
little consequence for the determination of the seniority in the service, once
it is held that the upgraded post of Chief Metropolitan Magistrate stood
included in the Delhi Higher Judicial Service.
In the
aforesaid premises, we do not find any merit in the writ petition, which
accordingly fails and is dismissed.
But in
the circumstances there would be no order as to costs.
Back