TMI Blog2000 (8) TMI 1143X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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, givi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se 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) tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicial 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 appointme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounsel 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 recr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ta 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 st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailable 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 Collector of Central Excise, B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nate 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etween 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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