IMPORTANT POINTs
1. Prior to the amendment of the Delhi Higher Judicial Service Rules in 1987, inter se seniority among direct recruits and promotees to post of additional District and Sessions Judge must be determined on the basis of continuous length of Service in the cadre as indicated in O.P. Singla’s case, 1985 (1) SCR 351.
2. In the Service Jurisprudence, a person who possesses the requisite qualification for being appointed to a particular post and then he is appointed with the approval and consultation of the appropriate authority and continues in the post for a fairly long period, then such appointment cannot be held to be "stop-gap or fortuitous or purely ad hoc".
3. An appointment made either under Rule 16 or 17 of the Recruitment Rules, after due consultation with the High Court and the appointee possesses the prescribed qualification for such appointment provided in Rule 7 and continues as such for a fairly long period, then the same cannot be held to "fortuitous".

Headnote:Delhi Higher Judicial Service Rules, 1970—Rules 7(1), 16 and 17 —Additional District and Sessions Judges — Seniority—Inter se seniority among promotees and direct recruits—Determination of inter se seniority prior to 1987 amendment to Service Rules—Direction in O.P. Singla’s case, 1985(1) SCR 351 appointment under Rules 16 and 17 neither ad hoc, fortuitous not temporary and promotees who were appointed after due consultation with High Court and possessing qualification in Rule 7(a) and completed 10 years in judicial service rank for seniority along with direct recruits—High Court not taking into consideration continuous service of promotees appointed under Rules 16 and 17—Not justified—Prior to amendment of Recruitment Rules in the year 1987 inter se seniority among direct recruits under Rule 7 and promotees under Rules 16 and 17 must be determined on the basis of continuous length of service in the cadre as indicated in Singla’s case.
       Held : The High Court of Delhi, in drawing up the seniority list, though proceeded to allocate seniority according to the length of continuous officiation, regardless of whether an appointee held a temporary post or a permanent post or whether he was a promotee or a direct recruit, as directed by this Court in Singla’s case, but committed error by excluding the persons, on the ground that they held posts on ad hoc basis or for fortuitous reasons or by way of stop-gap arrangement, even though appointments had been made under Rules 16 and 17 after due consultation with and or approval of the High Court and the appointees satisfied the qualification required under Rule 7 of the Rules. It is on this score, the ultimate seniority list, drawn up, stands vitiated. When the report of the first Committee, on the basis of which ultimately provisional seniority list was drawn up is examined, it would appear that the Committee went on examining the question of a lien against a post and then, recorded a finding that anyone who comes to hold one of those posts, which is subject to a lien, must be held to be holding as an ad hoc arrangement or for fortuitous reasons or as a stop-gap arrangement. The Committee also recorded a further finding that if the position of the person, whose seniority is under consideration is beyond the total number of posts in the Service, then also his appointment must necessarily fall within the description of ad hoc/fortuitous/stop-gap’ and having said so, the Committee assigned Ms. Usha Mehra, the 30th post and then adjusted the seniority accordingly. The conclusion of the Committee that a person, promoted to the Higher Judicial Service under Rules 16 or 17 of the Rules to a post against which some other person has a lien, would ipso facto make such appointment ad hoc/fortuitous/stop-gap, is contrary to the conclusion of this Court in Singla’s case. Then again, this Court having categorically directed in Singla’s case, that appointments made under Rule 16 or 17, after due consultation and/or approval of the High Court, and the appointee did qualify to hold the promotional post, as required under Rule 7 of the Recruitment Rules, then such appointment of the appointee will not be ignored for the purpose of determining the inter-se seniority in the cadre and on the other hand, continuous length of Service should be the basis, though Rule 8(2) of the Rules provides otherwise. Yet the High Court took shelter under the expression ‘ad hoc/fortuitous/stop-gap’ and ignored the continuous length of Service of such appointees, while determining the inter-se seniority. In fact, in Singla’s case, the Court on being confronted with a peculiar situation, had given the direction as to in what way, it will be equitable for all concerned to determine the inter-se seniority, but notwithstanding the same, the High Court appears to have stuck to the idea of the principles engrafted in Rule 8(2) of the Rules and then decided the question of seniority on the basis of number of posts, available in the Service. While doing so, the High Court obviously missed the findings of this Court that under the scheme of the Rules, ‘Service’ is a narrower body than the cadre and every temporary post, which carries the same designation as that of any of the posts in the schedule is a cadre post, whether such post is comprised in the ‘Service’ or not. It is also apparent from the report that the High Court followed Joginder Nath’s case in drawing up the seniority, on the ground that the judgment (in Singla’s case) does not indicate whether the earlier decision of the High Court in Joginder Nath’s case is still to be followed in preparing the seniority list or not, but obviously, the High Court has failed to appreciate, what was stated in the concurrent judgment of Mukharji J. in Singla’s case, wherein in no uncertain terms, it was stated that so far as, controversy regarding the fixation of the seniority list between the promotees and direct recruits, the same will not be guided by Joginder Nath’s case inasmuch as in Joginder Nath’s case, the Court construed the Delhi Judicial Service Rules, 1970 in the context of seniority and confirmation and not in the context inter-se seniority between the promotees and direct recruits. The entire reasoning given by the High Court in the fist report, on the basis of which, provisional seniority list has been drawn up, cannot, but be held to be contrary to the directions given by this Court in Singla’s case, and accordingly, must be held to be erroneous. The reasoning of the High Court, in fact, nullifies the ratio in Singla’s case. The High Court in drawing up the seniority list, have treated such promotees, who are appointed under Rule 16 as aliens to the Service and thus, the High Court was wholly in error in preparing the provisional seniority list, as already stated. If we examine the second Committee report, which had considered the objections filed by the promotees and ultimately, on the basis of which the final seniority list was approved by the Full Court in its Meeting on 25th of October, 1986 and the list was prepared on 11th of November, 1986, we also find, the High Court committed similar error in accepting the provisional seniority list as final. In the second Report, the Committee, again was of the view that if a post meant for a direct recruit, according to the quota, remains unfilled, then the promotee occupying the last post, must be taken to be holding that post "on ad hoc basis or for fortuitous reasons or by way of a stop-gap arrangement." This indicates that the Committee was still obsessed with the provisions of Rule 8(2) of the Recruitment Rules, even though in Singla’s case, it has been categorically held by this Court that ‘quota’ principle has broken down and as such, seniority cannot be determined by taking recourse to the ‘quota and rota’ provided under Rule 8(2) but on the basis of continuous length of Service, provided the promotees have been promoted after due consultation with and/or approval of the High Court under Rule 16 or 17 and they did possess the requisite qualification for promotion, as provided under Rule 7. (Para 11)
       The judgment of this Court in Singla’s case is obviously intended to evolve some equitable principle for determination of inter-se seniority of a group of officers, when the rule of seniority contained in Rule 8(2) has been held to be not operative because of breaking down of ‘quota and rota’ rule. To meet the peculiar situation, the Court evolved the principle that continuous length of service should be the criteria for inter-se seniority between the direct recruits and the promotees, provided, the promotees did possess the required qualification as per Rule 7 and the appointments had been made under Rules 16 and 17, after due consultation and/or approval of the High Court, which in our view also is the most appropriate basis, evolved in the fact situation. This being the position, we see no justification for re-considering the decision of this Court in Singla’s case. That apart, the Recruitment Rules have been amended in the year 1987 and the aforesaid principle, which had been evolved in Singla’s 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. (Para 14)
       The schedule to the Recruitment Rules, which came into existence in 1971, was amended for the first time only in the year 1991, 20 years, after and if a strict construction to the different provisions of the Rules would be given, then all the temporary appointees under Rule 16, who might have rendered 5 to 10 years of Service would be denied of their right for the purpose of seniority. It is this impasse, created on account of inaction of the authorities and on account of non-adherence to the provisions of the Rules strictly, which persuaded the Court in Singla’s case to evolve the principles for working out equities and that principle has to be followed by the High Court in drawing up the seniority list. (Para 14)
       Held, consequently, the reasoning and basis on which, the appointment of the promotees in the Delhi Higher Judicial Service in the case in hand was held by the High Court to be ‘fortuitous/ad hoc/stop-gap’ are wholly erroneous and, therefore, exclusion of those appointees to have their continuous length of service for seniority is erroneous. In view of our conclusions, as aforesaid, we quash the seniority list both provisional and final, so far as, it relates to the appointees either by direct recruitment or by promotion in the Delhi Higher Judicial Service, prior to the amendment of the Recruitment Rules in the year 1987, and their inter-se seniority must be re-determined on the basis of continuous length of service in the Cadre, as indicated in Singla’s case and explained by us in this judgment. (Paras 20 & 21).
       (ii) Service Law—’Ad hoc’, ‘stop-gap’, fortuitous appointments — Meaning of terms explained—Meaning of terms in the context of computation of inter se seniority of officers holding cadre post—Depend on facts and circumstances in which appointment came to be made.
       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 Stroud’s Judicial Dictionary is "accident or fortuitous casualty". This should obviously connote that if an appointment is made accidentally, because of a particular emergent situation and such appointment obviously would not continue for a fairly long period. (Para 16)
       The meaning to be assigned to these terms while interpreting provisions of a Service Rule will depend on the provisions of that Rule and the context in and the purpose for which the expressions are used. The meaning of any of these terms in the context of computation of inter-se seniority of officers holding cadre post will depend on the facts and circumstances in which the appointment came to be made. For that purpose it will be necessary to look into the purpose for which the post was created and the nature of the appointment of the officer as stated in the appointment order. If the appointment order itself indicates that the post is created to meet a particular temporary contingency and for a period specified in the order, then the appointment to such a post can be aptly described as ad hoc’ or ‘stop-gap’. If a post is created to meet a situation which has suddenly arisen on account of happening of some event of a temporary nature then the appointment of such a post can aptly the described as ‘fortuitous’ in nature. If an appointment is made to meet the contingency arising on account of delay in completing the process of regular recruitment to the post due to any reason and it is not possible to leave the post vacant till then, and to meet this contingency an appointment is made then it can appropriately be called as a ‘stop-gap’ arrangement and appointment in the post as ‘ad hoc’ appointment. It is not possible to lay down any straight-jacket formula nor give an exhaustive list of circumstances and situation in which such an appointment (ad hoc, fortuitous or stop-gap) can be made. As such, this discussion is not intended to enumerate the circumstances or situations in which appointments of officers can be said to come within the scope of any of these terms. It is only to indicate how the matter should be approached while dealing with the question of inter se seniority of officers in the cadre. (Para 19)
       In the Service Jurisprudence, a person who possesses the requisite qualification for being appointed to a particular post and then he is appointed with the approval and consultation of the appropriate authority and continues in the post for a fairly long period, then such appointment cannot be held to be "stop-gap or fortuitous or purely ad hoc". (Para 20)
       (iii) Delhi Higher Judicial Service Rules, 1970 — Rules 16 and 17— Additional District and Sessions Judge—Appointment by promotion—Appointment made either under Rule 16 or 17 after due consultation with High Court—Cannot be held to be fortuitous.
       An appointment made either under Rule 16 or 17 of the Recruitment Rules, after due consultation with the High Court and the appointee possesses the prescribed qualification for such appointment provided in Rule 7 and continues as such for a fairly long period, then the same cannot be held to "fortuitous". (Para 16)

JUDGMENT

Pattanaik, J.

These writ petitions filed under Article 32 of the Constitution by the officers of Delhi Higher Judicial Service, some by the promotees and others by direct recruits, in fact, raise the question as to whether in determining inter-se seniority between the promotees and the direct recruits, the guidelines and directions given by this Court in the case of O.P. Singla & Anr. etc. v. Union of India & Ors., 1985(1) 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 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 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 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 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 alongwith 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 pr

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2000 Supreme(SC) 1383

Cases Referred (6)