- (1.) These writ petitions filed under Article 32 of the Constitution by the officers of the 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 v. Union of India, reported in (1985) 1 SCR 351 : AIR 1984 SC 1595 : (1984 Lab IC 1659), have been duly followed or not It is rather unfortunate that on an erroneous impression that the judgment in Singha's 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 Singla's 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 Singla's 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 Sessions Judges, against temporary posts created by the Delhi Administration in the cadre of Additional District and 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 and 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 dis-agreement 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, Justice 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 misconception 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 and 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 Singla's 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 of 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 fortuitotus, 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 Singla's case was to adopt the rule enunciated in S. B. Patwardhan v. State of Maharashtra, (1977) 3 SCR 775 : (AIR 1977 SC 2051 : 1977 Lab IC 1367), 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 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.
(2.) Subsequent to the judgment of this Court in Singl,, (AIR 1984 SC 1595 : 1984 Lab IC 1659), 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 Singla's 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.
(3.) 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 Singla's case (AIR 1984 SC 1595 : 1984 Lab IC 1659), 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 Singla's case has been duly given effect to.;