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1979 Supreme(SC) 364
SUPREME COURT OF INDIA
S. MURTAZA FAZAL ALI AND D.A. DESAI, JJ.
G. R. Luthra, Petitioner
Versus
Lt. Governor of Delhi and others, Respondents.
Writ Petn. No. 402 of 1977,
D/- 22-8-1979.
Advocates appeared
Dr. L. M. Singhvi, Sr. Advocate (M/s. Raj Punjvani and G. S. Chatterjee, Advocates with him), for Petitioner; Mr. Soli J. Sorabjee, Addl. Sol. Genl. (Delhi High Court) (M/s. E. C. Agrawal and R. N. Sachthey, Advocates with him) (for No. 2) and M/s. A. K. Sen and U. R. Lalit, Sr. Advocates (M/s. P. H. Parekh, C. B. Singh, M. Mudgal and B. L. Verma, Advocates with them) (for No. 3, for Respondents.
A.K.SEN GUPTA, B.L.VARMA, C.B.SINGH, E.C.AGARWAL, G.S.CHATTERJEE, L.M.SINGHVI, M.MUDGAL, P.H.Parekh, R.N.SACH, RAJ PANJWANI, SOLI J.SORABJI, U.R.Lalit
Headnote:
Seniority – Appointment - Claim of seniority - This writ petition has had a chequered career and involves a competition regarding seniority between petitioner and respondent who were simultaneously recruited as members of Punjab Judicial Service - Case appears to have travelled through various stages both in High Court and in this court on different aspects - After hearing counsel for parties in the view that court propose to take in this petition 1901 and also because respondent No. 3 has filed an affidavit that he would not press this Court for giving any decision regarding his seniority over petitioner if submission of respondent No. 3 regarding his appointment under Delhi Higher Judicial Service is decided against him, it is not necessary of court to give any finding on the scope and ambit of Rule 6 (3) of Rules - In view of these facts controversy in this case has been very much narrowed down and point for decision falls within a very narrow compass - In order however to understand the question involved, it may be necessary to give a short history and a brief resume of manner in which petitioner and respondent No. 3 were appointed and their vertical mobility in hierarchy through which they had moved up - Petitioner was appointed whereas respondent No. 3 was appointed - Thus, even regarding time of appointment, petitioner entered service prior to respondent No. 3 both having been appointed to same service and having been recruited through same competitive examination - Whether or not respondent No. 3 was validly appointed because respondent No. 3 had conceded in his affidavit that he would not press his claim of seniority over the petitioner – Held, thus, on an overall consideration of various aspects of matter discussed above, court are satisfied that petitioner was senior to respondent No. 3 and was rightly placed above respondent No. 3 in initial constitution of Delhi Higher Judicial Service by virtue of notification, and is entitled to such right as he may have and shall be deemed to be senior to respondent No. 3 - Order of Lt. Governor (respondent No. 1) 1905 based on recommendation of High Court treating the petitioner to be junior to respondent No. 3 is legally erroneous and is quashed as by making respondent No. 3 senior to petitioner the right of petitioner under Art. 16 is clearly violated - Petition allowed.
Judgment
FAZAL ALI, J. :- This writ petition has had a chequered career and involves a competition regarding seniority between the petitioner G. R. Luthra and respondent No. 3 D. R. Khanna who were simultaneously recruited as members of the Punjab Judicial Service. The case appears to have travelled through various stages both in the High Court and in this court on different aspects. After hearing counsel for the parties in the view that we propose to take in this petition 1901 and also because respondent No. 3 has filed an affidavit that he would not press this Court for giving any decision regarding his seniority over the petitioner if the submission of respondent No. 3 regarding his appointment under the Delhi Higher Judicial Service is decided against him, it is not necessary of us to give any finding on the scope and ambit of Rule 6 (3) of the Rules.
2. In view of these facts the controversy in this case has been very much narrowed down and the point for decision falls within a very narrow compass. In order however to understand the question involved, it may be necessary to give a short history and a brief resume of the manner in which the petitioner and respondent No. 3 were appointed and their vertical mobility in the hierarchy through which they had moved up.
3. To begin with, both the petitioner and respondent No. 3 competed for entrance to the State Judicial Service of the undivided Punjab. The petitioner Luthra was appointed as far back as 7th August, 1950 having obtained 4th position in the competitive examination and was appointed as Sub-Judge against a permanent post. Respondent No. 3 had also taken the same competitive examination but obtained a lower position (13th) and was appointed as Sub-Judge against a temporary post. Thus from inception three important facts are established :
1. That the petitioner had obtained a higher position in the competitive examination held for entrance to State Judicial Service whereas respondent No. 3 had obtained a lower position. This is important because under the Rules and the conventions the seniority of new recruits is normally governed by the place which they occupy in the competitive examination.
2. The petitioner Luthra was appointed on the 7th August, 1950 whereas respondent No. 3 D. R. Khanna was appointed on the 23rd November, 1950 i.e. about 31/2 months later. Thus, even regarding the time of appointment, the petitioner entered the service prior to respondent No. 3 both having been appointed to the same service and having been recruited through the same competitive examination.
3. That while the petitioner Luthra was appointed against a permanent vacancy respondent No. 3 was appointed in the State Judicial Service only against a temporary post. This was also an important factor which has to be taken into consideration in order to determine the inter se seniority of the petitioner and respondent No. 3.
4. Both the petitioner and respondent No. 3 were thus appointed as members of the Punjab Judicial Service in the undivided Punjab. So far as Delhi was concerned before the birth of the Haryana State it used to be a Judicial District of Punjab. Unfortunately, the services of the respondent No. 3 remained terminated due to medical unfitness between 13th March 1952 to 23rd May, 1965. But this gap is of no consequence because subsequently his medical unfitness was set aside in appeal and respondent No. 3 was reinstated with effect from the date of his appointment, namely, 23rd November, 1950.
5. On the 9th March, 1963 the petitioner Luthra was posted at Delhi as Sub-Judge. On 1st November, 1966 by virtue of reorganisation of Punjab, Punjab and Haryana became two separate States and some areas were transferred to Himachal Pradesh. As a result of the aforesaid reorganisation the services of the petitioner Luthra were allocated to the State of Haryana and that of respondent No. 3 Khanna to Punjab, but both the officers continued to be posted at Delhi and were Senior Sub-Judges. On th
