CHANDERBHAN Vs. HOTILALGUPTA

JUDGEMENT

(1.) On the retirement of one Jagan Nath Kohli, who was holding the post of Clerk of court (Upper Division Clerk) in the grade of Rs. 130-300 (old scale Rs. 75-5-125, one post of Upper Division Clerk (UDC) /english Clerk fell vacant in the office of the Judge, Small Causes court, Delhi. Five officials of that court, namely, the appellant and respondents 1, 5, 6 and 7 asserted their claim to the said post. The appellant, Chander Bhan, made his claim on the footing that he was a graduate and on the basis of the rule of rotation as embodied in Rule VI in Ch. XVIII-A of the High court Rules and Orders, Volume I referred to more particularly hereinafter. Respondent 1, Hotilal Gupta, claimed the said post on the basis of his seniority. We are not concerned with the claims of the other claimants because the contest before us is between the claims of the appellant and respondent 1. The Judge, Small Causes court in his order dated 10/08/1971, took the view that the appellant who is a graduate and has got 2 1/2 years office experience as Lower Division Clerk (LDC) , was an honest and efficient worker andwas entitled to promotion in preference to respondent 1 because of the rule of rotation. The aggrieved parties filed an administrative appeal before the District and Sessions Judge, Delhi who passed his order dated a 17/07/1973 and held that the rule of rotation did not apply to the establishment of the Judge, Small Causes court. He held that respondent 1 being the seniormost official as Lower Division Clerk was entitled to the post of Upper Division Clerk and accordingly appointed respondent 1 as Upper Division Clerk against the said vacancy. Being aggrieved, the appellant filed a departmental appeal against the said order to the High court of Delhi which was heard by a learned Judge on the administrative side of that court who, by his order dated 7/08/1974, accepted the appeal of the appellant and set aside the appointment of respondent 1. He took the view that promotion in the office of the Judge, Small Causes court, Delhi could only be made by the District and Sessions Judge, Delhi and that the said vacancy should be Filled in accordance with Rule VI of the Rules framed by the erstwhile Punjab High court, under Section 35 (3 of the Punjab courts Act, 1918, for subordinate services attached to civil courts other than the High court (hereinafter referred to as 'the said Rules').

(2.) Respondent 1, Hotilal Gupta challenged the correctness of the view taken by the learned Judge on the administrative side by filing a writ petition being C. W. No. 1003 of 1974 in the Delhi High court. By an order dated 7/08/1981, the division bench of the Delhi High court allowed the said writ petition, quashed the order dated 7/08/1974, passed by the learned Single Judge and upheld the order of the District and Sessions Judge, Delhi appointing respondent 1 to the said post. The division bench took the view that not only the initial appointments but also the appointments by promotion to the post of Upper Division Clerk in the office of the Judge, Small Causes court were to be made by the Judge, Small Causes court and not by the District and Sessions Judge, and held that the rule of rotation on the basis of which the appellant had been appointed to the said post by the order of the Single Judge on the administrative side was not applicable to the said appointment. It is submitted by learned counsel for the appellant that the division bench of the High court was in error in coming to the said conclusion. It was submitted by him that although the first appointment to the post of Upper Division Clerk in the office of the Judge, Small Causes court, Delhi is to be made by a Judge of Small Causes court, promotion to that post could only be made by the District and Sessions Judge and the rule of rotation contained in the first proviso to Rule VI of the said Rules was applicable to the appointment by promotion.

(3.) In order to consider the merit of the submission of learned counsel for the appellant, it is necessary to bear in mind the relevant provisions of law.