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PETITIONER: G. R. LUTHRA

       Vs.

RESPONDENT: LT. GOVERNOR OF DELHI & ORS.

DATE OF JUDGMENT22/08/1979

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA DESAI, D.A.

CITATION:  1979 AIR 1900            1980 SCR  (1) 313  1979 SCC  (4) 406

ACT:      Delhi Higher  Judicial Service  Rules,  1970-Petitioner throughout  senior   to  respondent-Both  were  allotted  to different  States   on  division   of  State-Respondent  got proforma  promotion  in  State  Cadre-Petitioner  given  the benefit of "next below rule" and promoted later in his State Cadre-Respondent if could claim seniority over petitioner.

HEADNOTE:      In  the  competitive  examination  for  recruitment  to Punjab State  Judicial Service,  conducted in  1950  by  the undivided State of Punjab, the petitioner and respondent no. 3 were  placed at  s. nos.  4 and  13 in  the merit list. On August 7,  1950 the  petitioner was appointed as a Sub-Judge against a  permanent post while the respondent was appointed as Sub-Judge against a temporary post on November 23. 1950.      Till the  formation of  the State  of  Delhi,  judicial officers of  Punjab were  posted  as  judicial  officers  in Delhi. Both the petitioner and the respondent were posted as Sub-Judges in  Delhi. Consequent  upon the  division of  the State of  Punjab into  Punjab and Haryana the petitioner was allotted to  Haryana while  the respondent  was retained  in Punjab. But  even thereafter  they continued  as Senior Sub- Judges in  Delhi. The  Chief Justice  of Punjab  and Haryana High Court  and the  Chief Justice of the newly formed Delhi High Court  decided that  in  the  judicial  service  to  be constituted for  Delhi the  petitioner would  rank senior to the respondent  (the petitioner  being placed  at the fourth place and  the respondent  at sixth  place in  the  list  of seniority). In  May, 1967  the petitioner  was appointed  as Assistant  Sessions   Judge,  Delhi;   the  respondent   was appointed as  Assistant Sessions  Judge, Delhi  in February, 1968. In  the meantime  the respondent  was given a proforma promotion in  the State  of Punjab with effect from June 24, 1967 and  giving  the  benefit  of  "next  below  rule"  the petitioner was  promoted as Additional District and Sessions Judge with  effect from  July 28,  1967. The  petitioner was confirmed as District and Sessions Judge in his parent cadre on October  2, 1970,  while the  respondent was appointed as Additional District  and Sessions  Judge at Delhi on June 5, 1968 and continued in that post till May, 1971.      When the  Delhi Higher  Judicial Service  was formed in

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1970  the  petitioner  was  placed  at  s.  no.  7  and  the respondent at s. no. 8 in the list of judicial officers.      The respondent’s representation claiming seniority over the petitioner  was accepted  by the Delhi High Court on the ground that  in view  of  Rule  6(3)  of  the  Delhi  Higher Judicial Service  Rules 1970 as interpreted by this Court in G. R.  Luthra v.  Lt. Governor, Delhi (AIR 1974 SC 1908) the respondent was senior to the petitioner.      In a  petition under  Art. 32  of the  Constitution the petitioner impugned  the order of the Lt. Governor passed on the recommendation  of the  High Court  treating him  to  be junior to respondent no. 3. 314      Allowing the petition, ^      HELD: 1.  The petitioner  was senior  to the respondent and was  rightly placed  above the respondent in the initial constitution of  the Delhi  Higher Judicial  Service in  May 1971 and  the order  of the  Lt.  Governor  was,  therefore, erroneous. [322 D-E]      2. Rule  6(3) of  the Rules provides that the seniority of candidates appointed at the initial constitution shall be in accordance with the length of service rendered by them in the cadres  to which  they belonged  at the  time  of  their initial recruitment  to the  service provided that the inter se seniority  as already  fixed in  such cadres shall not be altered. The  petitioner was throughout treated as senior to the respondent  and even  in the  initial recruitment to the Delhi Higher  Judicial Service he was shown as senior to the respondent. Since  the inter  se seniority  had  been  fixed initially the  petitioner was  senior to  the respondent and this position cannot be altered. [320 B-C]      3. Although  the respondent  was promoted  to a  higher post before  the petitioner  was promoted  in the respective parent State cadres, since the appointment of the petitioner was made  subject to the next below rule, his seniority over the respondent was fully protected. If the respondent was to be given  seniority over  the  petitioner  the  question  of giving benefit  of the  next below  rule to  the  petitioner would  not   have  arisen.  Therefore,  merely  because  the respondent got  a proforma  promotion  and  was  temporarily promoted six months before the petitioner would not make him senior to the petitioner. [317 E-G]      4.  Even   r.  6(1)  (a)  envisages  that  for  initial recruitment to the service appointments were to be made from District Judges  and Additional  District Judges functioning as such  in the  Union Territory of Delhi on deputation from other States.  On the  date of  formation of the service the respondent was  not functioning  either as District Judge or as Additional  District Judge but was on deputation with the Income Tax Appellate Tribunal. [322 A-B]      5. The  case of G. R. Luthra v. Lt. Governor Delhi, was clearly distinguishable  in that  the respondent  was not  a party  to   that  case   and  his  case  did  not  fall  for consideration by  the Court.  It was  laid down in that case that length  of service  rendered by  a candidate during the period when  he was  rendering service  either  as  District Judge or  Additional District Judge against a permanent or a temporary post  was the  criterion for  the determination of seniority under the Rules. [320 G]      In  the   instant  case  although  the  petitioner  and respondent  were  drawn  from  different  sources  and  from different States at the time of the initial formation of the cadre  the  former  was  shown  above  the  respondent  and, therefore, the respondent could not claim seniority over the

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petitioner. [321 E]      G. R.  Luthra, Additional  District Judge, Delhi v. Lt. Governor, Delhi & Ors., AIR 1974 SC 1908 distinguished.

JUDGMENT:      ORIGINAL JURISDICTION : Writ Petition No. 402 of 1977.      Under Article 32 of the Constitution.      (Dr.) L.  M. Singhvi, Raj Punjvani and G. S. Chatterjee for the Petitioner. 315      Soli J.  Sorabjee, Addl.  Sol. Genl. E. C. Agarwala and R. N. Sachthey for Respondent No. 2 (Delhi High Court).      A. K.  Sen, U.  R. Lalit, P. H. Parekh, C. B. Singh, M. Mudgal and B. L. Verma for Respondent No. 3.      The Judgment of the Court was delivered by      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 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 for us to give any finding on the scope and ambit of Rule 6(3) of the Rules.      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.      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 the  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. 316      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 3 1/2 months later. Thus, even regarding the           time of  appointment, the  petitioner entered  the           service prior to respondent No. 3 both having been

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         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.      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, 1956.  But  this  gap  is  of  no consequences 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.      On the 9th March, 1963 the petitioner Luthra was posted at Delhi  as Sub-Judge.  On 1st  November, 1966 by virtue of re-organisation 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 the same date, namely, 1st November,  1966 Delhi  High Court  was created  and came into existence. Shortly thereafter, on 5th November, 1966 in a meeting  of the  Chief Justices  of the Punjab and Haryana and Delhi  High Courts  a list  of Judicial  Officers to  be absorbed in  the Judicial Service to be constituted at Delhi was finalised  and in the list of the Lower Judicial Service which appears  at page  393 of the Paper Book the petitioner Luthra was placed at S. No. 4 whereas respondent No. 3 D. R. Khanna was  placed at  S. No.  6. Thus,  the two High Courts clearly decided  that in  the new Service the petitioner was to rank  senior to  respondent No.  3. This  decision was  a logical corollary  of the  history of  the services  of  the petitioner  and  respondent  No.  3,  discussed  above.  The proceedings of the meeting are contained 317 at pages  392-395 of  the Paper  Book in  which  the  Courts decided to  allocate one  District and  Sessions  Judge  for Delhi and  8 Additional  District and Sessions Judges in the Higher Judicial  Service and  39  Sub-Judges  in  the  Lower Judicial Service.  Both the  petitioner and respondent No. 3 at that  time fell  in the third category. Thus, even though the petitioner  and respondent  No. 3  had for a short while been allocated  to two  different States,  namely,  one  was allotted to  Punjab and  the other  to Haryana, but with the coming into  existence of  the Delhi High Court both of them again joined  the same  service and their rank and seniority was throughout maintained.      On 9th May, 1967 the petitioner Luthra was appointed as Assistant  Sessions  Judge,  Delhi,  Respondent  No.  3  was appointed as  Assistant Sessions  Judge  on  21st  February, 1968, but it appears that by a letter dated 22nd March, 1971 written by  the Registrar  of the  Punjab and  Haryana  High Court addressed  to the  Accountant General,  Punjab,  Simla respondent No.  3 was  given proforma  promotion with effect from 24th  June, 1967.  The proforma promotion is related to

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vacancies in  his parent  State and  has nothing  to do with vacancies or  seniority where both were at the relevant time serving. This  letter is  annexed as Annexure 2 appearing at pages 288-89  of the  Paper Book.  The petitioner Luthra was however given  benefit of  the next below rule as Additional District and  Sessions Judge  with effect  from  28th  July, 1967. This  unfortunate episode seems to be the sheet anchor of the  argument of  respondent No.  3 in claiming seniority over the petitioner. It is true that by virtue of the letter referred  to   above  respondent  No.  3  was  appointed  as Additional  District   and  Sessions   Judge  prior  to  the petitioner but  since this  appointment was  made subject to the next below rule it is manifest that the seniority of the petitioner  over   respondent  No.  3  was  fully  protected otherwise if  in fact  the respondent  No. 3 was to be given seniority  over  the  petitioner,  the  question  of  giving benefit of  the next  below rule to the petitioner would not have arisen.  The letter referred to above was passed by the order of the Chief Justice and the Judges of the High Court. In these circumstances, therefore, merely because respondent No. 3 got a proforma promotion and was temporarily appointed as Additional  District and Sessions Judge six months before the  petitioner  that  will  not  make  him  senior  to  the petitioner. This  fact is borne out by another circumstance. The petitioner was also appointed as Additional District and Sessions Judge  on 25th  November, 1967  and while  both the petitioner and  respondent No.  3 were holding the same post at Delhi.  The petitioner  was  confirmed  as  District  and Sessions Judge  in  his  parent  State  of  Haryana  on  2nd October, 1970. 318 On the  other hand,  respondent No. 3 was appointed as Addl. District & Sessions Judge Delhi on 5-6-1968 and continued as Addl. District  and Sessions  Judge till 17-5-71. Respondent No. 3,  however, was  confirmed as Sub Judge on 5-6-1968 but was confirmed  as District  and Sessions Judge Delhi several years after.      On 27-8-1970  Delhi Higher  Judicial Service  and Delhi Judicial Service  Rules were  framed by  the Lt. Governor in consultation with  the Delhi  High Court.  On 22-3-1971 Shri Khanna respondent  No. 3 was appointed as Member, Income Tax Tribunal at  Jaipur. About two months thereafter i.e. on 17- 5-1971 there  was  a  regular  notification  initiating  the constitution of  the  Delhi  Higher  Judicial  Service  with effect from  17-5-1971 by  which in  the Higher  Service the petitioner was  put at  S. No.  7 and respondent No. 3 at S. No. 8. This notification may be extracted thus:-           "In pursuance  of the  provisions of rule 6 of the      Delhi  Higher   Judicial   Service   Rules   1970   the      Administrator  of   Delhi   is   pleased   to   appoint      substantively in  consultation with the High Court, the      following persons  from the  States noted against each,      to the  Delhi Higher  Judicial Service  at its  initial      constitution with  effect from  17-5-71 and in order of      seniority indicated: ------------------------------------------------------------ Sl. Name  of the Officer    Post held at Present    State to No.                                                    which                                                    belongs ------------------------------------------------------------ 1.   Shri Rajinder Nath     Registrar, Delhi High   Himachal A319      Aggarwal              Court, New Delhi.       Pradesh. 2.   Shri Fauja Singh Gill Addl. District &        Punjab                            Sessions Judge, Delhi

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3.   Shri Mohinder Singh   Members(Punjab)Official Punjab                            Language (Legislative)                            Commission, Ministry of                            Law, Government of India. 4.   Shri Kashmir Singh    Addl. District & Sessi- Punjab                            ons Judge, Delhi. 5.   Shri Om Nath Verma       DO                    DO 6.   Shri Jagmaner Das Jain   DO                    DO 7.   Shri Gulshan Rai Luthra  DO                    Haryana 8.   Shri Dev Raj Khanna      DO                    Punjab ------------------------------------------------------------ 319      Thus, this  notification would  show that  whatever may have been the position prior to the coming into force of the new Service,  the petitioner  was treated  to be  senior  to respondent No.  3. As  we have  already stated that both the petitioner and  respondent No.  3 were practically recruited through the same source and were members of the same Service though for  a short  period the  petitioner was  allotted to Haryana and  respondent No.  3 to  Punjab but that would not introduce any  break in  the service  of either  of them  or bring about  a change  in  their  seniority.  Unfortunately, however, it  appears that the confusion was worse confounded by  a   decision  taken   by  the  Delhi  High  Court  on  a representation filed  by respondent  No. 3.  It appears that after the final list under the Delhi Higher Judicial Service was  notified   and  approved   respondent  No.  3  filed  a representation on  the 21st January, 1972 claiming seniority over the  petitioner. This  representation appears  to  have been accepted  by the  High Court  on 10th  June, 1976 which runs thus:           "I am  desired to  say that  Shri D.  R. Khanna  a      member of the Delhi Higher Judicial Service, at present      on deputation  as Judicial Member, Income Tax Appellate      Tribunal made  a representation dated the 25th January,      1972 (copy  enclosed) requesting  that for  the reasons      stated therein he may be placed above Shri G. R. Luthra      in the  Gradation List  of the  officers of  the  Delhi      Higher Judicial Service. The comments of Shri Luthra on      the  aforesaid   representation  of  Shri  Khanna  were      obtained.  Subsequently,   both  the   officers   filed      counters, copy  of each  one of which is enclosed. Both      Shri Khanna  and Shri  Luthra were heard by a Committee      of two  Hon’ble Judges who submitted a report which was      considered on the Administrative Side by the Full Court      in its  meeting held  on 20th  May,  1976  and  it  was      decided that  in view  of Rule 6(3) of the Delhi Higher      Judicial Service  Rules, 1970,  as interpreted  by  the      Supreme Court  in A.I.R. 1974 S.C. 1908. Shri Khanna is      senior to  Shri Luthra.  I am  directed to request that      orders of  the Administrator  may be  obtained in  this      behalf    and     necessary    amendment    in    Delhi      Administration’s Notification No. 1(740)/76-Judl. dated      the 15th May, 1971 be made". Thus, the  basis of  the order  of the  High Court  was  the interpretation of  Rule 6(3)  of the  Delhi Higher  Judicial Service Rules, 1970. Section 6(3) runs thus:-           "6(3). The  seniority of  the candidates appointed      at the initial constitution shall be in accordance with      the length of 320      service rendered  by them  in the  cadres to which they      belong at  the time of their initial recruitment to the      service provided that the inter-se seniority as already      fixed in such cadres shall not be altered".

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A perusal  of this  rule  would  manifestly  show  that  the petitioner  was  treated  as  senior  to  respondent  No.  3 throughout  his   whole  career  and  even  in  the  initial recruitment by  which the Delhi Higher Judicial Service came into  existence,   the  petitioner   was  shown   senior  to respondent No. 3, and, therefore, on a plain reading of rule 6(3) there  was no merit in the representation of respondent No. 3  and according  to the  second part  of the rule since inter-se seniority  had already  been fixed  initially,  the petitioner would  be deemed  to be  senior to the respondent No. 3  and this  seniority could  not be  altered. With  due respect to  the Hon’ble Judges we feel that the construction placed by  the High  Court on rule 6(3) was not correct. The High Court  appears to  have relied  on a  decision of  this Court in  G. R.  Luthra, Additional District Judge, Delhi v. Lt. Governor,  Delhi & Ors. which is clearly distinguishable from the  facts and circumstances of the present case and in which the  history of  the services  of the two officers had not been  placed or  argued nor was respondent No. 3 a party to that  petition and, therefore, his case never came up for consideration before  this Court.  Therefore, this Court had no occasion  to consider the various aspects of the question which  ex-hypothesi,   did  not   arise.   The   facts   and circumstances under  which the  petitioner’s  seniority  was maintained by  giving a proforma promotion to respondent No. 3 and  protecting the seniority of the petitioner by concept of next below rule was also not brought to the notice of the Court.      In fact,  in the  case of G. R. Luthra v. Lt. Governor, Delhi &  Ors. (supra)  this Court clearly laid down that the criterion for the determination of seniority under the Delhi Rules was  the length  of service rendered by the candidates during the period when they were rendering service either as District Judge  or as Additional District and Sessions Judge against permanent  or temporary posts. From the notification dated 19th May, 1971 which has been extracted above it would be seen that Mr. Sidhu, Mr. Vohra and Mr. Jain over whom the petitioner Luthra  was claiming  seniority were  shown at S. No. 4,  5 and 6, that is to say above the petitioner Luthra. This Court  therefore obviously  held that length of service of these officers being more than the petitioner 321 Luthra, the  claim  of  the  petitioner  Luthra  was  wholly untenable.  In  this  connection,  this  Court  observed  as follows:-           "Rule 6(4)  of the  Delhi  Rules  shows  that  the      respondents and  the appellant  were  absorbed  in  the      Delhi Higher Judicial Service from the States of Punjab      and Haryana.  The length of service rendered by them as      Additional  District   and  Sessions   Judges  is   the      criterion  to  fix  the  seniority.  The  word  ’cadre’      includes both permanent and temporary posts. To confine      cadre to permanent posts under the Delhi Rules would be      to   render    the   Rules   totally   unworkable   and      impracticable  because   at   the   time   of   initial      recruitment the  persons came on deputation from States      mostly  in   their  temporary  capacity  as  Additional      District and Sessions Judges.           For these  reasons we  are  of  opinion  that  the      respondents Sidhu,  Vohra and  Jain  had  been  rightly      treated as  senior to  the appellant on the ground that      the length  of service  rendered by  the respondents in      the cadre  of  District  and  Additional  District  and      Sessions Judges  to which  they belonged at the time of      initial  recruitment   is  longer   than  that  of  the

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    appellant". In the instant case also the petitioner and respondent No. 3 have been  drawn from different sources and different States before they  were absorbed  in  the  Delhi  Higher  Judicial Service and  it would appear from the notification mentioned above that  while the  petitioner Luthra was shown at S. No. 7, respondent No. 3 was placed at S. No. 8. There-fore, on a parity of  reasoning adopted by this Court in the case cited above the  case of  respondent No. 3 claiming seniority over the petitioner  Luthra cannot  be accepted.  Thus, the  High Court in  recommending  that  respondent  No.  3  should  be treated as senior to the petitioner Luthra acted against the express decision  of this  Court cited  above and  that  the order of  the High  Court, therefore,  was legally erroneous and if  given effect it would have been violative of Article 16 of the Constitution.      Moreover, Rule 6(1) of the Delhi Judicial Service Rules runs thus:-           "6(1). For initial recruitment to the service, the      Administrator shall,  in  consultation  with  the  High      Court, appoint  persons to  the  service  substantively      from amongst the following:-      (a)  District Judges  and  Additional  District  Judges           functioning as  such in  the  Union  Territory  of           Delhi on deputation from other States". 322 Clause (a)  makes it  absolutely clear  that persons  to the Higher Service  would be  recruited only from those District and Additional District Judges who were actually functioning in the  Union Territory  of Delhi  on deputation  from other States. It  is common  ground  that  on  this  crucial  date respondent No.  3 was  not functioning  either  as  District Judge or  as Additional District Judge but was on deputation with the  Income  Tax  Tribunal.  In  view  however  of  the affidavit given  by the  respondent No.  3 we  refrain  from giving any finding as to 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 and,  therefore, we  need not take into consideration the provisions of rule 6(1) (a) of the Rules.      Thus,  on  an  overall  consideration  of  the  various aspects of the matter discussed above, we are satisfied that the petitioner Luthra was senior to respondent No. 3 and was rightly  placed  above  respondent  No.  3  in  the  initial constitution of  the Delhi Higher Judicial Service by virtue of the notification dated 19th May, 1971, and is, therefore, entitled to such right as he may have and shall be deemed to be senior to respondent No. 3. The order of the Lt. Governor (Respondent No.  1) based  on the recommendation of the 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 the petitioner the right of the petitioner under Article 16 is clearly violated.      The  petition   is  accordingly  allowed,  but  in  the circumstances of  the case  there will  be no  order  as  to costs. P.B.R.                                     Petition allowed. 323