RUDRA KUMAR SAIN Vs. UNION OF INDIA

JUDGEMENT

(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 :

(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.