JUDGMENT

Pattanaik, J.-This petition under Article 32 by the Direct Recruits to Delhi Higher Judicial Service, assails the inclusion of the respondents 5 to 8 in the Gradation List drawn up by the High Court of Delhi by order dated 22.8.2000 pursuant to the directions given by this Court in Writ Petition No. 490/87. These respondents have been continuously working in Delhi Higher Judicial Service w.e.f. 18th of January, 1986 but had been posted as Chief Metropolitan Magistrates on account of the Government decision of up-gradation of the said post of Chief Metropolitan Magistrates. The petitioners on the other hand are directly recruited officers to Delhi Higher Judicial Service in the year 1988 pursuant to the selection made in accordance with the Recruitment Rules.  The bone of contention of the petitioners is that the respondents, who were continuing as Chief Metropolitan Magistrates, must be held to be juniors to the petitioners inasmuch as their decision was subject to challenge in appeal before the petitioners, who were appointed as Additional District and Sessions Judge, and the High Court committed error in including the names of these respondents in the gradation list pursuant to the directions given by this Court in the Constitution Bench by not properly understanding the directions in question.

2.This Court in O.P. Singla s case1, took into consideration the relevant provisions of the Recruitment Rules and came to hold that the "quota" principle contemplated in the Recruitment Rules has totally broken down and as such seniority of the officers in the Delhi Higher Judicial Service cannot be determined by taking recourse to the "quota and rota" provided in Rule 8 (2). The Court on the other hand indicated that the seniority has to be determined on the basis of continuous length of service provided the promotees have been promoted after due consultation with the High Court and they did posses the requisite qualification for promotion in accordance with Rule 7 of the Recruitment Rules. The Court had further indicated in Singla s that the "ad hoc, fortuitous and stop-gap" appointees will not be entitled to the benefit of the aforesaid principle namely the continuous length of service as the basis of their seniority in the cadre. As the High Court failed to implement the aforesaid judgment of this Court in its proper perspective and drew up seniority list contrary to the letter and spirit of the judgment, writ petitions were filed in this Court which stood disposed of by a Constitution Bench in the case of Rudra Kumar Sain and Ors. v. Union of India and Ors.2. The Constitution Bench came to the conclusion that the provisional and final gradation list had not been drawn up in accordance with the principles enunciated in Singla s case and accordingly the said gradation lists were quashed. The Constitution Bench also further directed that the appointees to the Delhi Higher Judicial Service prior to the amendment of the Recruitment Rules in the year 1987, whether by direct recruitment or by promotion, are entitled to get their seniority re-determined on the basis of continuous-length of service in the cadre, as indicated in Singla s case and the High Court, therefore should draw up the same within a specified period. The Constitution Bench further elaborated the meaning of the expression "ad hoc, fortuitous and stop gap" and having said so, it was further observed:

"It is not possible to lay down any strait-jacket formula nor give an exhaustive list of circumstances and situation in which such an appointment (ad hoc, fortuitous or stop gap) can be made. As such. this discussion is not intended to enumerate the circumstances or situations in which appointments of officers can be said to come within the scope of any of these terms. It is only to indicate how the matter should be approached while dealing with the question of inter se seniority of officers in the cadre."

Thus both in Singla s case as well the Constitution Be