# RUDRA KUMAR SAIN AND ORS. ETC v. UNION OF INDIA AND ORS

- **Citation:** [2000] Supp. 2 S.C.R. 573
- **Court:** Supreme Court of India
- **Decided:** 2000-08-22
- **Bench:** G.B. Pattanaik, S. Rajendra Babu, D.P. Mohapatra, B Doraiswamy Raju, Shivaraj V. Patil
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rudra-kumar-sain-and-ors-etc-v-union-of-india-and-ors-17537
- **Pages:** 25

## Headnote

Delhi Higher Judicial Service Rules, 1970-Rules 8(2), 16 and 17Seniority-Determination of-Direct recruits and .promotees-Appointment of
promotees on temporary posts or on temporary basis on substantive basis
C
under Rules 16 and 17 after due consultation and/or approval of High CourtPromotees officiating on promoted posts for long duration-Held, seniority
should be determined including the period of their continuous officiation in
the promoted post-Such promotions are not fortuitous/ad hoc/stop gapService law-Promotions.
Delhi Higher Judicial Service Rules, 1970-Rules 2(b)(d)(e) and 16-
'Members of the service'-Meaning o.f-'Cadre' and 'Service'-Ambit o.fHeld, 'cadre' is a larger concept than 'service' -Promotees appointed under
Rule 16 are 'members o.f the service'-Service Law-Promotions.
Words and Phrases-' Fortuitous', 'ad hoc' and 'stop gap appointment' -
Meaning o.f-Service law.
Under the provisions of the Delhi Higher Judicial Service Rules,
1970, recruitment in the service is to be made either by promotion on the
basis of selection from members of the Delhi Judicial Service or by direct
recruitment from the Bar. As per the provisions of Rule 8(2) the seniority
of direct recruits vis-a-vis promotees should be determined in the order of
rotation of vacancies between the direct recruits and promotees based on
the quota of vacancies reserved for both categories. Rule 16 permits creation of temporary posts in the Delhi Higher Judicial Service and such posts
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are to be filled in consultation with the High Court from amongst the
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members of the Delhi Judicial Service. Rule 17 of the Delhi Higher Judicial
Service Rules, 1970 permit the filling of, in consultation with the High
Court, even substantive vacancies in the Delhi Higher Judicial Service by
making temporary appointment from amongst members of the Delhi Judicial Service.
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573
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SUPREME COURT REPORTS
(2000] SUPP. 2 S.C.R.
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A three Judge Bench of this Court in O.P. Sing/a & Anr. etc. v. Union of
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India & Ors., [1985] 1 SCR 351 while interpreting the provisions of Delhi
Higher Judicial Service Rules, 1970, took notice of the long periods of
officiation by the promotees on temporary posts created in the cadre of
Additional District and Sessions Judge and evolved an equitable rule for
determining the inter se seniority between the direct recruits and promotees.
This Court delivered two judgments; Chief Justice Y.V. Chandrachud, on
behalf of himself and Justice R.S. Pathak delivered one judgment whereas
Justice Sabyasachi Mukharji delivered a separate (partly dissenting) judgment. This Court directed that the seniority of the direct recruits must be
determined according to the dates on which direct recruits were appointed
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to their respective posts and the seniority of the promotees must be determined from dates from which the promotees have been officiating continuously either in temporary posts or in substantive vacancies in a temporary
capacity. This Court held that no distinction could be made between the
direct recruits who are appointed to substantive vacancies in the service on
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the recommendation of the High Court under Rule 5(2) pf the Delhi Higher
Judicial Service Rules, 1970 and the promotees who are appointed in consultation with the High Court to posts in the service under Rules 16 and 17 of
the Delhi Higher Judicial Service Rules, 1970. However, this Court indicated that the persons belonging to the Delhi Judicial Service who are apE
pointed to temporary posts of Additional District and Sessions Judge on an
ad hoc basis or for fortuitous reasons or by way of stop gap arrangement
would not be entitled for seniority on the basis of their continuous length of
service as they form a separate class.
Pursuant to the direction of this Court in O.P. Sing/a, the High Court
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of Delhi prepared a provisional seniority list allocating seniority according
to the length of continuous officiation, regardless of whether an appointee
held a temporary post or a perma

## Text

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RUDRA KUMAR SAIN AND ORS. ETC.
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v.
UNION OF INDIA AND ORS.
AUGUST 22, 2000
[G.B. PATTANAIK, S. RAJENDRA BABU, D.P. MOHAPATRA,
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DORAISWAMY RAJU AND SHIVARAJ V. PATIL, JJ.]
Delhi Higher Judicial Service Rules, 1970-Rules 8(2), 16 and 17Seniority-Determination of-Direct recruits and .promotees-Appointment of
promotees on temporary posts or on temporary basis on substantive basis
C
under Rules 16 and 17 after due consultation and/or approval of High CourtPromotees officiating on promoted posts for long duration-Held, seniority
should be determined including the period of their continuous officiation in
the promoted post-Such promotions are not fortuitous/ad hoc/stop gapService law-Promotions.
Delhi Higher Judicial Service Rules, 1970-Rules 2(b)(d)(e) and 16-
'Members of the service'-Meaning o.f-'Cadre' and 'Service'-Ambit o.fHeld, 'cadre' is a larger concept than 'service' -Promotees appointed under
Rule 16 are 'members o.f the service'-Service Law-Promotions.
Words and Phrases-' Fortuitous', 'ad hoc' and 'stop gap appointment' -
Meaning o.f-Service law.
Under the provisions of the Delhi Higher Judicial Service Rules,
1970, recruitment in the service is to be made either by promotion on the
basis of selection from members of the Delhi Judicial Service or by direct
recruitment from the Bar. As per the provisions of Rule 8(2) the seniority
of direct recruits vis-a-vis promotees should be determined in the order of
rotation of vacancies between the direct recruits and promotees based on
the quota of vacancies reserved for both categories. Rule 16 permits creation of temporary posts in the Delhi Higher Judicial Service and such posts
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are to be filled in consultation with the High Court from amongst the
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members of the Delhi Judicial Service. Rule 17 of the Delhi Higher Judicial
Service Rules, 1970 permit the filling of, in consultation with the High
Court, even substantive vacancies in the Delhi Higher Judicial Service by
making temporary appointment from amongst members of the Delhi Judicial Service.
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SUPREME COURT REPORTS
(2000] SUPP. 2 S.C.R.
A
A three Judge Bench of this Court in O.P. Sing/a & Anr. etc. v. Union of
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India & Ors., [1985] 1 SCR 351 while interpreting the provisions of Delhi
Higher Judicial Service Rules, 1970, took notice of the long periods of
officiation by the promotees on temporary posts created in the cadre of
Additional District and Sessions Judge and evolved an equitable rule for
determining the inter se seniority between the direct recruits and promotees.
This Court delivered two judgments; Chief Justice Y.V. Chandrachud, on
behalf of himself and Justice R.S. Pathak delivered one judgment whereas
Justice Sabyasachi Mukharji delivered a separate (partly dissenting) judgment. This Court directed that the seniority of the direct recruits must be
determined according to the dates on which direct recruits were appointed
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to their respective posts and the seniority of the promotees must be determined from dates from which the promotees have been officiating continuously either in temporary posts or in substantive vacancies in a temporary
capacity. This Court held that no distinction could be made between the
direct recruits who are appointed to substantive vacancies in the service on
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the recommendation of the High Court under Rule 5(2) pf the Delhi Higher
Judicial Service Rules, 1970 and the promotees who are appointed in consultation with the High Court to posts in the service under Rules 16 and 17 of
the Delhi Higher Judicial Service Rules, 1970. However, this Court indicated that the persons belonging to the Delhi Judicial Service who are apE
pointed to temporary posts of Additional District and Sessions Judge on an
ad hoc basis or for fortuitous reasons or by way of stop gap arrangement
would not be entitled for seniority on the basis of their continuous length of
service as they form a separate class.
Pursuant to the direction of this Court in O.P. Sing/a, the High Court
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of Delhi prepared a provisional seniority list allocating 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. However, the High Court excluded officers who satisfied the
qualification prescribed under Rule 7 of the Delhi Higher Judicial Service
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Rules, 1970 but had beeg,.appointed under Rules 16 and 17 of the Delhi
Higher Judicial Service Rules, 1970 with the approval of the High Court on
the ground that they held posts on ad hoc basis or for fortuitous reasons or
by way of stop-gap arrangement.
The aggrieved officers filed their objections to the provisional seniorH
ity list. The High Court, while considering t.he objections, examined the
R.K. SAIN v. U.O.l.
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question of lien against a post and then, recorded a finding that anyone who
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comes to hold one of the posts subject to a lien, must be held to be holding it
as an ad hoc arrangement or for fortuitous reasons or as a stop gap arrange·
ment. The High Court 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 Service, then also his appointment must necessarily fall within the
description of ad hoc/fortuitous/stop gap appointment.
The persons aggrieved by the final seniority list prepared by the
High Court of Delhi filed a writ petition in this Court under Article 32 of
the Constitution of India. Before this Court, reconsideration of the judg·
ment of this Court in O.P. Singla & Am: etc. v. Union of India & Ors., [1985]
1 SCR 351 was sought for on the ground that it is contrary to the law laid
down by this Court in Chandramouleshwar Prasad v. Patna High Court &
Ors., [1970] 2 SCR 666.
Disposing the writ petitions, the Court
HELD : 1.1. The High Court committed an error by excluding the
promotees on the ground that they held posts on ad hoc basis or for
fortuitous reasons or by way of stop-gap arrangement, even though their
appointments had been made under Rules 16 and 17 of the Delhi Higher
Judicial Service Rules, 1970 after due consultation with and/or approval of
the High Court and the appointees satisfied the qualification under Rule 7
of the Delhi Higher Judicial Service Rules, 1970. [584-H; 585-A·B]
1.2. This Court had categorically directed in 0.P. Sing la & Am: etc. v.
Union of India & Ors., [1985] 1 SCR 351 that if appointments are made
under Rule 16 or 17 of the Delhi Higher Judicial Service Rules, 1970 after
due consultation and/or approval of the High Court and if the appointee
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did qualify to hold the promotional post as required under Rule 7 of the
Delhi Higher Judicial Service Rules, 1970, then such appointment of the
appointee will not be ignored for the purpose of determining the inter-se
seniority in the cadre and the continuous length of Service should be the
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basis though Rule 8(2) of the Delhi Higher Judicial Service Rules, 1970
provides otherwise. The High Court erred in taking shelter under the
expression ad hoc/fortuitous/stop gap and in ignoring continuous length of
service of such appointees, while determining the inter se seniority between
the direct recruits and promotees. [590-A-B-C]
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1.3. The conclusion of the High Court that a person, promoted to the
Higher Judicial Service under Rules 16 or 17 of the Delhi Higher Judicial
Service Rules, 1970, to a post against which some person has a lien, would
ipso facto make such appointment ad hoc/fortuitous/stop gap, is contrary
to the conclusion of this court in O.P. Sing/a & Anr. etc. v. Union of India &
Ors., [1985] l SCR 351. [589-H; 590-A]
1.4. The promotees, who were appointed under Rule 16(2) of the Delhi
Higher Judicial Service Rules, 1970, 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
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of the Delhi Higher Judicial Service Rules, 1970, their appointments cannot
be held to be either ad hoc or fortuitous or stop-gap. [592-A-B]
0.P. Sing/a & Anr. etc. v. Union of India & Ors., [1985] 1SCR351 and
S.B. Patwardhan v. State of Maharashtra, [1977] 3 SCR 775, referred to.
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Afzal Ullah v. The State of Uttar Pradesh, [1964] 4 SCR 991 and N.B.
Sa11jana, Assistant Collector of Central Excise, Bombay & Ors. v. Elphinstone
Spinning and Weavi11g Mills Co. Ltd., [1971] 3 SCR 506, cited.
2. The High Court has failed to appreciate what was stated in the
concurrent judgment of Sabyasachi Mukharji, J. in O.P. Sing/a & Am: etc.
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v. Union of India & Ors., [1985] 1 SCR 351 wherein in no uncertain terms,
it was stated that so far as controversy regarding the fixation of the
seniority between the promotees and direct recruits is concerned, the same
will not be guided by Joginder Nath & Ors. v. Unio11 of India & Ors., [1975]
2 SCR 553 in as much as in Joginder Nath' s case, the court construed the
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Delhi Judicial Service Rules, 1970 in the context ofseniority and confirmation and not in the context of inter se seniority between the promotees and
direct recruits. [590-E-F -G]
Joginder Nalh & Ors. v. Union of India & Ors., (1975] 2 SCR 553 and
O.P. Si11gla & A11r. elc. v. Unio11 of !11dia & Ors., (1985] 1 SCR 351, referred
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to.
3. On an analysis of the scheme of the Delhi Higher Judicial Service
Rules, 1970, it appears that 'Cadre' is a larger concept than 'Service'
under the Delhi Higher Judicial Service Rules, 1970, and the appointees
under Rule 16 of the Delhi Higher Judicial Service Rules, 1970 can be held
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to be "Members of the Service". (592-G-H]
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R.K. SAIN v. U.0.1.
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4. The judgment of this Court in O.P. Sing/a & Am: etc. v. Union of A
India & Ors., [1985] 1 SCR 351 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) of the Delhi
Higher Judicial Service Rules, 1970 has been held to be not operative
because of breaking down of 'quota and rota' rule. To meet the peculiar
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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 of the Delhi Higher Judicial Service Rules, 1970 and the
appointments had been made under Rules 16 and 17 of the Delhi Higher
Judicial Service Rules, 1970, after due consultation and/or approval of the
High Court, which is the most appropriate basis evolved in the fact situation. This being the position, there is no justification for re-considering the
decision of this Court in 0.P. Singla & Am: etc. v. Union of India & Ors.,
[1985] l SCR 351. [593-D-E-F-G]
Chandramollleshwar Prasad v. Patna High Court & Ors., [1970] 2 SCR
666 and 0.P. Sing/a & An~ etc. v. Union of India Ors., [1985] 1 SCR 351,
referred to.
5.1. The meaning to be assigned to the terms 'fortuitous', 'ad hoc,
and 'stop gap' 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. [595-G-H]
5.2. The meaning of the terms 'fortuitous', 'ad hoc' and 'stop gap' 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 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 'stop-gap arrangement' and appointment in the post as 'ad hoc' appointment. It is not
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[2000] SUPP. 2 S.C.R.
possible to lay down any straight jacket formula nor give an exhaustive list
of circumstances and situation in which such ad hoc, fortuitous or stop-gap
appointments can be made. [595-G-H; 596-A-B-C-D]
5.3. In 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'. [598-E-F]
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5.4. An appointment made either under Rule 16 or 17 of the Delhi
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Higher Judicial Service Rules, 1970, after due consultation with the High
Court and when the appointee possesses the prescribed qualification for
such appointment provided in Rule 7 of the Delhi Higher Judicial Service
Rules, 1970 and continues as such for a fairly long period, then the same
cannot be held to "fortuitous". The reasoning and basis on which the
appointment of the promotees in the Delhi Higher Judicial Service 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. [595-C-D; 598-F]
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Parshottam Lal Dhingra v. Union of India, [1958] SCR 328; Stroud's
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Judicial Dictionary; Black's Law Dictionwy; O.~ford Dictionary; P. Ramanatha
Aiyer's Law lexicon 2nd Edn., referred to.
CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 490 of 1987.
Under Article 32 of the Constitution of India.
WITH
Writ Petitions (Civil) Nos. 1252/90, 14114/84, 707/88, 856/88 and
764/88
Kapil Sibal, Gopal Subramanium, Dipankar Gupta, P.P. Rao, Govind
Dass, R. Venkataramani, M. Chandrashekharan, M.S. Ganesh, Ms. Kamini
Jaiswal, Ranjit Kumar, Rakesh K. Khanna, Surya Kant, Ms. Pallavi Choudhary,
A. Mariarputham, Ms. Aruna Mathur, B.K. Pal, Amit Dhingra, P.H. Parekh,
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T.C. Sharma, K.L. Janjani, Rajiv Sharma, Rupesh Kumar, Ms. Neelam Sharma,
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R.K. SAIN v. U.0.1. [PAITANAIK, J.]
579
Ms. P. Shrivastava, Randhir Singh Jain, Vimal Chandra, S. Dave, C.V. Subba
Rao, Rajiv Nanda, B.K. Prasad, Anil Kumar Gupta, Ms. J.S. Wad, Om Prakash
Verma, T.L. Garg, Urmila Sirur, Dr. M.P. Raju, John Thomas, S.P. Sharma,
M.M. Kashyap, Jaspal Singh and Padam Singh Respondents-in-person., Ms.
Bina Madhvan, Ms. Indoo Verma, Sunil Dogra, Manu Nair and Ms. A.
Subhashini for the appearing parties.
The Judgment of the Court was delivered by
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 0.P. Sing/a &
Anr. etc. v. Union of India & Ors., reported in [1985) l SCR 351, have been
duly followed or not? It is rather unfortunate that on an erroneous impression
that the judgment in Singla'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 Sing/a '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 Sing/a~· 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 promotce 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 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 disagreement on the interpretation of one of tqe provisions
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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 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 Sing/a' 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."
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R.K. SAIN v. U.0.1. [PATIANAIK, J.]
The Court further held:
581
"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 po!!ls and the
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posts specified in the Schedule will together constitute the Cadre under Rule
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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:
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"that in the matter of seniority, it is difficult to appreciate, how any
distinction can be made between direct recruits who are appointed to
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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, c.onstitute 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, 1or 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 Singla's case was
to adopt the rule enunciated in S.B. Patwardlum v. 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 continuou9ly either in temporary posts created
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R.K. SAIN v. U.O.I. [PATTANAIK, J.]
583
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 Sing la's case
and erroneously did not take into consideration the continuous appointment of
the officers as Additional District and Sessi~ns 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 Sinf?la 's 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
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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 Sing/a 's 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 eitherunder Rule 16 orunder Rule 17 of the Recruitment Rules after
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due consultation and I 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
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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 Sing la's 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
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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 Rule 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
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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 Sing/a 's
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 quali.fication 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
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or by way of a.stop-gap arrangement and in such a contingency, the Services
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R.K. SAIN v. U.0.1. [PATTANAIK, J.]
585
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 Singla's case. The second Committee, which examined the objections filed
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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
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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 . E
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
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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 p~inted 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 Singla's
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
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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 RC.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 Sing/a's case and, therefore, such seniority list cannot be sustained.
Mr. Sibal also pointed out that even though, this Court in O.P. Singla 's case
categorically held that the controversy regarding the fixation of the seniority
list between the promotecs 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 Singla 's case than the one committed by the High Court in the
case in hand.
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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 ensure to the benefit of such appointees for
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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,
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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
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meaning of Rule 2(d) and on this ground, the Judgment in Sing/a' case requires
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R.K. SAIN v. U.0.1. [PATTANAIK, J.]
587
re- consideration.
Mr. Gopal Subramanium, the learned senior counsel, appearing for the
direct recruits, seriously contended that the judgment of this Court in Sing la's
case is contrary to the law laid down by this Court in Chandramouleshwar
Prasad v. 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 Nmh's case being one, in relation
to the very Service, the principles evolved therein must be made applicable and,
High Court, therefore, ri5htly relied upon the same in determining the interse 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
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in Singla's case and appointment made against temporary post, because the
temporary appoilJtee has gone elsewhere, cannot be held to be an appointment
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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
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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 Sing/a' s 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
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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 Sing la's 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
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