S N DHINGRA Vs. UNION OF INDIA

JUDGEMENT

(1.) 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 case, (1984) 4 SCC 450 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 possess 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 vs. Union of India, reported in (2000) 8 SCC 25. 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 (AIR 1984 SC 1595 : 1984 Lab IC 1659) 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 :

(3.) Mr. Shanti Bhushan, the learned senior counsel, appearing for the present petitioners, who are the direct recruits to the Delhi Higher Judicial Service in the year 1988, however contends that the inclusion of these respondents in the gradation list already drawn up is erroneous inasmuch as their recruitment itself inequivocally indicates that the same is purely fortuitous and as a stop-gap arrangement, as it would be apparent from the Notification dated 16-1-1986. Mr. Shanti Bhushan further contends that the appointment of these respondents by letter dated 16-1-86 was fortuitous and as a stop-gap arrangement is re-enforced by the fact that a fresh appointment to the service on temporary basis was made in their favour under Rule 16(2) of the Recruitment Rules by the Administrator by Notification of 24th of February, 1989 and as such the services of these respondents from 16-1-86 till 24-2-89 being purely a fortuitous and stop-gap arrangement, the said period could not have been reckoned as continuous service for determination of their seniority in the cadre of Delhi Higher Judicial Service and the High Court, therefore was not justified in including their names in the gradation list drawn up on 22nd August, 2000, pursuant to the directions given by this Court in the Constitution Bench decision of Rudra Kumar's case (supra). Mr. Shanti Bhushan further contends that by mere up-gradation of the post of Chief Metropolitan Magistrate, those posts did not form a part of cadre until amendment in question and inclusion of the post in the schedule, and adjudged from the angle also, the appointees to those posts could not have been held to be regular appointees in Delhi Higher Judicial Service. The schedule having been amended only in 1991 and these respondents having been continued as Chief Metropolitan Magistrates till February, 1989, could not have been made senior to the direct recruits-petitioners who were recruited to the Delhi Higher Judicial Service in the year 1988. Mr. Shanti Bhushan, the learned senior counsel, relying upon the provisions of the Criminal Procedure Code also strenuously contended that against the orders of the Chief Metropolitan Magistrates, appeal being maintainable to the District and Sessions Judge and the respondents having continued as Chief Metropolitan Magistrates till 1989 and against their orders, appeal being maintainable to the District and Sessions Judge, which post was held by the petitioners since in the year 1988, those respondents could not have been made senior to the petitioners in any view of the matter. According to Mr. Shanti Bhushan, both in Singla's case (1984) 4 SCC 450 as well as in Patwardhan's case (1977) 3 SCR 775, on which reliance was placed in Singla's case, the Court while evolving the principle of 'continuous length of service' as the criterion for determination of the inter se seniority in the cadre, has hastened to add that the post in question must belong to the same cadre and the incumbents discharge similar functions and bear the same responsibility, but applying the aforesaid principle to the case in hand, it cannot be said that the Chief Metropolitan Magistrates discharge the similar function and bear the same responsibility as the Additional District and Sessions Judge and, therefore, the respondents could not have been given their seniority on the basis of 'continuous length of service' for the period they are continued as Chief Metropolitan Magistrates. Mr. Shanti Bhushan further contends that an examination of the scheme of the Criminal Procedure Code, more particularly, Sections 17, 19, 28 and 29 unequivocally indicate that a Chief Metropolitan Magistrates is subordinate to the Sessions Judge and, therefore notwithstanding the up-gradation of the post of Chief Metropolitan Magistrate, the statutory subordination under the Criminal Procedure Code remains and consequently, the respondents who continued as Chief Metropolitan Magistrates till February, 1989, cannot be held to be senior to the petitioners, who are recruited as Additional District and Sessions Judge in the year 1988 and in this view of the matter, the inclusion of the name of the respondents in the gradation list drawn up is erroneous.