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PETITIONER: R.L.GUPTA & ANR.

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT16/03/1988

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) SINGH, K.N. (J)

CITATION:  1988 AIR  968            1988 SCR  (3) 255  1988 SCC  (2) 250        JT 1988 (1)   556  1988 SCALE  (1)517

ACT:      Service  matter-Whether   supersession  of  a  judicial officer by  junior officers  placed on  probation when  that officer is  on deputation  to  another  office  and  Is  not relieved from  there in  public interest  to revert  to  the judicial service  to  be  placed  on  probation,  is  valid- Determination of  the question  on  principles  of  justice, equity and relevant judicial precedents.

HEADNOTE: %      This writ  petition was  originally filed in this Court by two members of the Delhi Higher Judicial Service, namely, Shri R.L. Gupta and Shri S.B. Aggarwal, but as the Court was of the  view that  the case  of Shri S.B. Aggarwal should be considered independently,  he was  asked to  file a separate petition, and  this petition was confined to Shri R.L. Gupta only.      The petitioner,  Shri R.L.  Gupta,  who  had  become  a member  of   the  Delhi  Judicial  Service  on  its  initial constitution on August 2, 1971 and was confirmed in the said service as  a sub-judge on August 6, 1971, was working as an Additional District  and  Sessions  Judge,  Delhi,  when  on 14.5.1981, on  the establishment  of the Delhi Legal Aid and Advice Board, he was sent on deputation as the first Member- Secretary of  that Board. Thereafter, when the Government of India on  April 26,  1985 appointed  a Commission of Inquiry presided  over  by  Shri  Justice  Ranganath  Misra,  Judge, Supreme Court  of India,  to enquire into the allegations in regard to  the incidents of organised violence following the assassination of Smt. Indira Gandhi, the late Prime Minister of India, the Central Government by letter dt. May 27, 1985, requested the  Delhi High Court to spare the services of the petitioner  for   being  appointed   as  Secretary   to  the Commission  above-mentioned   and  upon   the   petitioner’s expressing his  willingness to work as Secretary to the said Commission, he  was permitted  by the  High Court  to go  on deputation to the Commission with effect from 1st June, 1985 at his  own risk. Within three months from the date on which the petitioner  had joined  the Commission as its Secretary, the Chief  Justice of  the Delhi  High Court  wrote to  Shri

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Justice Ranganath  Misra, that  it had  been decided  by the High Court to place the petitioner on probation on the Delhi Higher 256 Judicial Service  as his  turn had  come for  the same  and, therefore, he  might be  relieved  from  the  Commission  to enable him  to report to the High Court as soon as possible- not  later   than  ten   days  from   the  receipt  of  that communication. Shri  Justice Ranganath Misra thereupon wrote to the  Chief Justice  of the  Delhi  High  Court  that  the petitioner had  got himself  acquainted with  the working of the Commission  and it  was difficult  at that  juncture  to relieve him in public interest. The letter of Shri Ranganath Misra was  considered by  the High Court at its meeting held on 22.11.1985,  when a  resolution was  passed to the effect that Shri  R.L. Gupta,  who had  been on deputation with the Delhi Legal  Aid & Advice Board, was asked to revert back to his parent  cadre for  being  considered  to  be  placed  on probation, but  he, instead  of reverting  back, went  on  a second deputation  as Secretary  to R.N. Misra Commission of Inquiry at  his own request and risk; he was asked vide High Court’s endt.  dated 26.8.85  to come  back to  parent cadre within ten days otherwise the next person would be placed on probation, and  Mr. R.L.  Gupta refused to come back and got it intimated  through Justice  R.N. Misra  vide  letter  dt. 19.8.85 that  he had  come at  his own  risk. The Resolution further said  that the  case of  Shri R.L.  Gupta for  being placed on probation was considered and as he had declined to be available  to be placed on probation at his own risk, the same had  been rejected  and that  the officers  next to him were then considered and five officers-Shri Jaspal Singh and four others-were  selected for  being  placed  on  probation against regular vacancies.      By the  above-said resolution,  Shri Jaspal  Singh  and four  others  were  allowed  to  supersede  the  petitioner. Further, twelve  more officers  were  placed  on  probation. Thus, in  all seventeen  judicial officers  were allowed  to supersede the petitioner.      On completion  of the work of the Commission of Inquiry on October 31, 1986, the petitioner was posted as Additional District &  Sessions Judge,  and placed  on probation  for a period  of  two  years  with  effect  from  April  4,  1987. Aggrieved by  the supersession,  the petitioner  filed  this writ petition before this Court, questioning the validity of the supersession  on several  grounds, some  of  them  being common to the petitioner and SHRI S.B. Aggarwal who had been impleaded as  petitioner  No.  2.  Since  the  case  of  the petitioner could be disposed of on a short ground, the Court did not  express its  opinion on  the grounds  common to the petitioner  and   Shri  S.B.  Aggarwal  and  other  judicial officers working  in the  Delhi Higher Judicial Service, and the contentions on those grounds were left open. 257      Allowing the writ petition, the Court, ^      HELD: The  short question which arose for consideration in this  case was whether the supersession of the petitioner made by the High Court by placing seventeen officers, junior to him,  on probation  before he was placed on probation was valid or  not. No  rules  governing  the  deputation  of  an officer working  in the  judicial department  were  produced before the  Court. The case, therefore, had to be determined on the  principles of  justice, equity and relevant judicial precedents. [265F; 266A-B]      It was not disputed that the petitioner would have been

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placed on  probation as a matter of course on 22.11.85 if he had been  serving as  an Additional  District  and  Sessions Judge and  would have  continued to be senior to Shri Jaspal Singh who was placed on probation on that date. [268C-D]      In regard  to the  quality of  the work rendered by the petitioner  in   the  capacity   of  the  Secretary  to  the Commission of  Inquiry  headed  by  Shri  Justice  Ranganath Misra, the  certificate issued  by  Shri  Justice  Ranganath Misra on  29.11.86 inter  alia said: "Shri Gupta handled his job with  ability and  efficiency.  He  impressed  me  as  a brilliant judicial officer. I found him to be well-versed in law. He  exhibited character,  courage and  sagacity. I  was impressed by  his sense  of social  vision, legal acumen and capacity to comprehend human problems." [268D-G]      On his  return to  the Delhi  Judicial Service from the Commission of  Inquiry, his being placed on probation by the High Court  with effect from 4.4.87, raised the question for consideration whether  it was just and reasonable to deprive the petitioner  of his  seniority only  because he  was  not working in  the Delhi  Higher Judicial  Service  during  the period when  his juniors  were  allowed  to  supersede  him. [268G-H; 269A]      The Court  was not  impressed by the submission made on behalf of  the High  Court that  the petitioner  having been informed by  the High  Court that he was going on deputation at his  own risk, he could not retain his seniority over his juniors who  were placed  on probation  during the period of deputation. It is well-settled that many officers have to be sent  on   deputation  in   the  public  interest  to  other departments in  order  to  meet  the  exigencies  of  public service and  that before  sending them  on deputation  their consent is  invariably taken. Merely because they have given their consent  to go on deputation they could not be allowed to suffer unless there is a specific rule to the contrary or other 258 good reason  for it.  That is  the ratio  of the decision in State of  Mysore v.  M.H. Bellary, [1964] 7 SCR 471, and the decision in  State of  Mysore and another v. P.N. Nanjundiah and another,  [1969] S.L.R.  346= (1969)  3 S.C.C.  633. The petitioner was  not even  sent on deputation to a department where his  services could  be absorbed  permanently. He  was sent on  deputation to  a  Commission  which  was  asked  to enquire into a certain matter of public importance which was to be  over in  a short  time. The  Commission itself was to become functus  officio on the submission of its report. The Commission was presided over by a Judge of the Supreme Court of India  and it was not possible for the petitioner to give up his  post as  Secretary of  the  Commission  without  the permission of  the Chairman  of the Commission and return to the Delhi  Judicial Service.  The Chairman of the Commission found it difficult to relieve the petitioner in the midst of the inquiry.  The object  of placing an officer on probation is only  to assess  whether he  is suitable  for the post to which he  is  appointed.  It  is  not  necessary  that  such assessment should always be made by the appointing authority unless there  is any  legal impediment.  Such assessment can also be  made by  the authority under whom the officer works while on  probation. In  this case, the authority under whom the petitioner worked while on deputation was a Judge of the Supreme Court  of India  who had approved the service of the petitioner as could be seen from the certificate issued . by him on  29.11.86, referred  to above.  Even  though  it  was stated that  the petitioner  was sent  on deputation  to the Commission of Inquiry at his own risk, it would be unjust to

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hold that  the High  Court  could  have  on  the  facts  and circumstances of  this case  passed orders  which would have the effect  of superseding  the petitioner.  The Court could not appreciate  the implication  of the  observation made in the resolution  of the  High Court  that the  petitioner had refused to  come back  and got  it intimated through Justice R.N. Misra vide demi-official letter dt. 19.9.85 that he had come on deputation at his own risk’. It was not truly a case of refusal  by the petitioner to go back to the Delhi Higher Judicial  Service,   nor  could  it  be  said  that  he  was responsible for  what Shri  Justice R.N.  Misra had written, and the same could not be used against him for depriving him of his  seniority. The stand taken by the High Court in this case  could  not,  therefore,  be  upheld.  Shri  B.  Dutta, Additional Solicitor-General of India appearing on behalf of the Union  of India  supported the  case of  the petitioner. [269A-H; 270F-H]      No innocent officer should be exposed to the grave risk to which  the petitioner  in  this  case  was  exposed.  The petitioner was promoted as an Additional District & Sessions Judge under  rule 16  of the  Delhi Higher  Judicial Service Rules in 1976. The post to which he was prom- 259 oted was called a temporary post although truly it was not a temporary post. There was no chance of its abolition at all. Yet it  was called a temporary post because it was in excess of the  strength of  the posts  in the Delhi Higher Judicial Service which  had been  fixed at 16 by rule 4 read with the Schedule attached to the Delhi Higher Judicial Service Rules in the year 1970. If the schedule had been amended from time to time  by increasing  the number of the posts keeping pace with the  reality of  the situation,  perhaps, the  strength should  have   been  increased   to  50   by  now.   In  the circumstances, by  appointing the  Judicial officers  of the Higher  Judicial  Service  to  temporary  posts  instead  of appointing them to permanent posts, the Delhi Administration has virtually made a mockery of the rules of recruitment. To place a  Judicial officer,  promoted to  the Higher Judicial Service,  on  probation  nearly  after  9  years  after  his promotion, as in this case, was a mere farce. Ordinarily, an officer  should  be  on  probation  from  the  date  of  his appointment. Is  it just  and reasonable to place an officer on probation  nearly 9  years after his appointment and then turn him  out of service if his services are found to be not satisfactory during  the period  of probation,  which  would fall in the 10th and 11th year of his service in that cadre? [270H; 271A-F]      The petitioner  in this case should have been placed on probation on  22.11.85 even  though he  was on deputation on that date and on his confirmation he is entitled to maintain his seniority  above Shri  Jaspal Singh.  The Court directed that  the  petitioner  would  be  deemed  to  have  been  on probation from  22.11.85 and his services would be regulated accordingly. The petitioner would also be deemed to be above Shri Jaspal  Singh in  the seniority list of officers in the Delhi Higher Judicial Service. [273C-D]      OBSERVATlONS:      The Administration  should know  that the  work in  the Courts has  increased by  two or three times during the last decade, but the number of judges has remained constant. This has led  to frustration  amongst the  litigants, lawyers and judges. This  frustration gives  rise to  tensions including the tension  prevailing in  the city  of Delhi  now.  It  is reported that the Delhi High Court has been pressing for the appointment of more judges. It has urged for the sanction of

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169 additional  posts in  the Delhi Judicial Service. In the courts manned  by the officers of the Delhi Judicial Service (who on  promotion will  be  members  of  the  Delhi  Higher Judicial Service),  there were  pending as on 1.9.87, 51,173 Regular Suits,  1210 Small  Cause Suits,  974 Civil Appeals, 10,592 Rent  Cases. There  were 97,943  cases pending before the courts of Chief and Addi- 260 tional Chief  Metropolitan Magistrates,  and 2,35,033  cases pending before  other magistrates  as on  1.9.87. The  Delhi Administration appears  to have not taken any serious notice of the  appalling situation  prevailing in the Delhi Courts. The Administration  should look at the recommendation of the High Court  as one  intended to give relief to the suffering litigants who  waste their valuable time near the courts for years waiting for justice. This is a problem which should be solved on  a war-footing.  The Delhi  Administration  should straightaway increase  the strength  of the  Delhi  Judicial Service at  least by  150, the  number of posts in the Delhi Higher Judicial  Service, at  least by  40, should establish court premises in different parts of Delhi, and see that the pending  cases,  in  the  order  of  lakhs,  many  of  which lingering for  the last  ten years and more, are disposed of within two  years. If the total strength is increased at all levels, the  farce  of  placing  the  judicial  officers  on probation after  nearly ten  years  will  also  end.[271G-H; 272A-E]      The  Government   should  not  consider  finance  as  a constraint because  by not  appointing sufficient  number of judges, the  Government is  suffering more  financially. The Government itself  being a  big  litigant  is  subjected  to several orders  of  stay,  prohibitation,  injunction  etc., leading lo  delay in  completion  of  several  projects  and works. The  indirect  effects  of  frustration  amongst  the people lead  to a  greater financial drain. If by any chance the arrears  of cases  come down,  then the vacancies in the Judicial posts may not be filled up. The Court expressed the hope that  the Union of India and Delhi Administration would sanction at  least 150  more posts  in  the  Delhi  Judicial Service and  about 40  posts in  the Delhi  Higher  Judicial Service  and   also  take   immediate  steps   to  establish additional   courts.    The    expenditure    on    judicial administration should not be subjected to the constraints of non-plan expenditure.  The judicial  department  is  not  an unproductive department.  Peace and  tranquillity that  will result from  quick disposal  of cases  is much more valuable than the  economic goods  produced by  factories.  Delay  in disposal  of   cases  affects  the  gross  national  product adversely. Quick  disposal of  cases will save millions man- hours now  being wasted  near the  courts. It  is imperative that  every  State  should  increase  the  strength  of  the Judicial officers  at least  by thirty per cent immediately; otherwise, there  would be  a catastrophe in about a year or two. The  Court expressed  the hope  that this warning would not go unheeded. [272F-H; 273A-C]      The State  of Mysore  v. M.H.  Bellary, [1964] 7 S.C.R. 471, State of Mysore & Anr. v. P.N. Nanjudiah & Anr., [1969] S.L.R. 346 [1969] 3 S.C.C. 633, and O.P Singla & Anr., etc., v. Union of India & Ors., [1985] 1 S.C.R. 351 261

JUDGMENT:      ORlGlNAL JURISDICTION: Writ Petition (Civil) No. 619 of

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1987      (Under Article 32 of the Constitution of India).      Dr. Y.S.  Chitale, Brij  Bhushan,  S.K.  Dhingra,  Anil Kumar Gupta and B.N. Singhvi for the Petitioners.      B. Datta,  Additional Solicitor General, P.P. Rao, C.M. Nayyar and Girish Chandra for the Respondents.      The Judgment of the Court was delivered by      VENKATARAMIAH, J.  The above  petition  was  originally filed by  two members  of the Delhi Higher Judicial Service, by name S/Shri R.L. Gupta and S.M. Aggarwal. Since the Court was of  the view  that the  petition of  Shri S.M.  Aggarwal should be  considered independently,  he was asked to file a separate petition.  The  present  petition  was,  therefore, confined to Shri R.L. Gupta, who is hereafter referred to as ’the petitioner’.      Shri R.L.  Gupta, the  petitioner joined  the  Judicial Service of Punjab on January 23, 1962 and became a member of the Delhi  Judicial Service  on its  initial constitution on August 2,  197l. He  was confirmed  in the said service as a Sub-Judge on  August 6,  1971. He  was sent on deputation as the first  District &  Sessions Judge,  Sikkim at Gangtok on August 19,  1976. While  he was  on such  deputation he  was promoted as  Additional District  & Sessions  Judge  in  the Delhi Higher  Judicial Service  under rule  16 of  the Delhi Higher Judicial  Service Rules,  1970. At  the  end  of  his period of  deputation the  petitioner came back to Delhi and joined as  an Additional District & Sessions Judge. In June, 1979 the  petitioner was  sent on  deputation as  Registrar, Special Courts,  New Delhi  and he  remained  on  deputation until March.  1980. Between  March, 1980  and June, 1981 the petitioner again worked as an Additional District & Sessions Judge, Delhi. On 14.6.1981 on the establishment of the Delhi Legal Aid  and Advice  Board  the  petitioner  was  sent  on deputation as the first Member Secretary of that Board. When he was  still working  as the  Member Secretary of the Delhi Legal Aid and Advice Board, on April 26, 1985 the Government of India  appointed a Commission of Inquiry presided over by Shri Justice  Ranganath Misra, Judge, Supreme Court of India under the  provisions of  section 3  of the  Commissions  of Inquiry Act, 1952 for the purpose of making enquiries into a matter of public 262 importance  namely,   the  allegations   in  regard  to  the incidents of  organised  violence  in  Delhi  following  the assassination of Smt. Indira Gandhi, the late Prime Minister of India. On May 27, 1985 the Central Government addressed a letter to  the Registrar  of the Delhi High Court requesting the High  Court to  spare the services of the petitioner for being appointed as the Secretary of the Commission, referred to above. The said letter reads thus:                "CONFIDENTIAL/MOST  IMMEDIATE              D.O.NO.II. 14013/28/84-IS(US:D.V.)                     GOVERNMENT OF INDIA                   MINISTRY OF HOME AFFAIRS                         North Block                       New Delhi-110001      27th May, 1985.           DR. S.K. PACHAURI           DIRECTOR (IC-II)           Dear Miss Mehra,                The  Central   Government  vide  Notification           dated 26.4.1985,  has appointed  a  Commission  of           Inquiry under  the Chairmanship  of Shri Ranganath           Misra, a  sitting Judge  of the  Supreme Court  of           India for  the purposes  of making an enquiry into

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         the allegations  in regard  to  the  incidents  of           organised  violence  which  took  place  in  Delhi           following the  assassination of  the former  Prime           Minister  (copy   enclosed).  One   of  the  posts           sanctioned for  the functioning of this Commission           is Secretary to the Commission in the scale of Rs.           2500-2750. With the approval of Shri Justice Ranga           Nath Misra,  it has  been proposed to appoint Shri           Ramesh war  Lal  Gupta,  Additional  District  and           Sessions Judge  and Member-Secretary  of the Delhi           Legal Aid  and Advice  Board as  Secretary of  the           Commission. The post of Secretary has been created           from the date it is filled in and upto 26. 10.1985           for the present but likely to continue.                We shall  be grateful  if  you  could  kindly           spare the  service of  Shri Rameshwar Lal Gupta to           act  as   Secretary  of  the  Commission  for  the           aforesaid period. This may be treated as Urgent. 263                Regards,                                             Yours sincerely,                                                         Sd/-                                          (Dr. S.K. Pachauri)           Miss Usha Mehra           Registrar,           Delhi High Court,           New Delhi.           Encl: As above."      On receipt  of the said letter the petitioner was asked by the  High Court  whether he  was willing  to work  as the Secretary of  the Commission.  The petitioner  expressed his willingness to  do so  by his  letter dated May 30, 1985. On 31.5.85/ 1.6.85  the Registrar  addressed a  letter  to  the petitioner which reads thus:           "Usha Mehra                                           D.O. No. 279/Gaz.                                       Dated:31st May, 1985/                                                      1.6.85           Dear Shri R.L. Gupta,                In  pursuance   to  the  requisition  of  the           Central Govt.  contained in  the Ministry  of Home           Affairs demi-official letter No. II-14013/28/84-IS           (US.D.V.) dated  27th May,  1985 and as desired by           you and  agreed to  by the  High  Court,  you  are           hereby permitted  to go on deputation as Secretary           to the Commission of Inquiry headed by Hon’ble Mr.           Justice Ranganath  Misra, a  Judge of  the Supreme           Court of  India with effect from 1st June, 1985 at           your  own  risk.  Deputation  will  be  upto  26th           October, 1985  or till  the date  of your  recall,           whichever is earlier.                                             Yours sincerely,                                                         Sd/-                                                 (USHA MEHRA) 264           Shri R.L. Gupta,           Member-Secretary,           Delhi Legal Aid & Advice Board,           New Delhi."      Accordingly, the  petitioner got  himself relieved from the Delhi Legal Aid and Advice Board and joined as Secretary of the  Commission of  Inquiry. Within three months from the date on  which the  petitioner joined  the  Commission,  the Chief Justice of the Delhi High Court wrote a letter to Shri Justice Ranganath  Misra stating that it had been decided by

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the High  Court to  place the petitioner on probation on the Delhi Higher  Judicial Service  as his turn had come for the same and,  therefore, he  might be relieved from his post of the Secretary  of the  Commission to enable him to report to the High Court as soon as possible but in any case not later than ten days from the receipt of the said communication. On receipt of  the said  letter Shri  Justice  Ranganath  Misra wrote to  the Chief  Justice of the Delhi High Court stating that the  petitioner had  got himself  acquainted  with  the working of  the Commission  and  at  that  juncture  it  was difficult  to   relieve  him   in   the   public   interest. Accordingly, he was not relieved by the Commission to revert to  the   Judicial  Service.  The  letter  of  Shri  Justice Ranganath Misra was considered by the Full Court of the High Court at  its meeting  held on  22.11.85 and  the  following resolution was passed:                "Shri R.L.  Gupta had been on deputation with           Delhi Legal  Aid & Advice Board. Vide this Court’s           demi-official letter  No.  293/Gaz./VI.E.l0  dated           23.8.84  and   D.O.  No.   269/Gaz./VI.E.l0  dated           18.5.1985 he  was asked  to  revert  back  to  his           parent cadre  for being considered to be placed on           probation. Mr.  R.L. Gupta  instead  of  reverting           back, went  on second  deputation as  Secretary to           R.N.  Misra  Commission  of  Enquiry  at  his  own           request and  risk. Shri  R.L. Gupta was asked vide           this Court’s  endt. No.  457 dated 26.8.85 to come           back to  parent cadre within l0 days otherwise the           next person shall be placed on probation. Mr. R.L.           Gupta refused  to come  back and  got it intimated           through  Justice  R.N.  Misra  vide  demi-official           letter  dated   19  8.85   that  he  had  come  on           deputation at his own risk. Hence the case of Shri           R.L. Gupta  for  being  placed  on  probation  was           considered and  as he has declined to be available           to be  placed on  probation at  his own  risk, the           same has  been rejected. Then the officers next to           him were  considered and  the  following  officers           were selected for 265           being  placed   on   probation   against   regular           vacancies:                1. Shri Jaspal Singh                2. Shri S.C. Jain                3. Shri R.K. Sain                4. Shri Mohd. Shamim                5. Shri P.K. Jain."      By the above resolution S/Shri Jaspal Singh, S.C. Jain, R.K. Sain,  Mohd. Shamim  and  P.K.  Jain  were  allowed  to supersede  the   petitioner.  During   the  period   of  his deputation as  Secretary to the Commission of Inquiry twelve more officers were placed on probation by 22.8.1986. Thus in all seventeen  Judicial officers  were allowed  to supersede the petitioner.  On  the  completion  of  the  work  of  the Commission of Inquiry on October 31, 1986 the petitioner was posted again as Additional District & Sessions Judge and was placed on  probation for  a period  of two years with effect from April  4, 1987. Aggrieved by the aforesaid supersession the petitioner  filed the  above petition  before this Court questioning the  validity of  the  supersession  on  several grounds, some  of them  being common  to the  petitioner and Shri S.M.  Aggarwal who had been impleaded as Petitioner No. 2. Since  the case of the petitioner can be disposed of on a short ground we do not propose to express our opinion on the grounds which  are common  to the  petitioner, S.M. Aggarwal

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and other  Judicial officers  working in  the  Delhi  Higher Judicial Service.  The contentions  of the  parties on those grounds are left open.      The short  question which  arises for  consideration in this case is whether the supersession of the petitioner made by the  High Court  by placing  seventeen officers, who were junior  to  him,  on  probation  before  he  was  placed  on probation is valid or not. While the petitioner’s contention is that  no officer who is sent on deputation can be made to suffer from  any evil consequences and that on his return to his parent  department he  should  be  placed  in  the  same position in  seniority which  he would  have occupied had he not gone on deputation, the submission made on behalf of the High Court  is that the petitioner having gone on deputation at his  own risk,  he could not be placed on probation as an Additional District  & Sessions  Judge till  4.4.1987 and he was bound  to lose  his seniority.  It was  further urged on behalf of  the High  Court that  those Judicial officers who were junior  to him  in the  seniority list but who had been placed on  probation as  Additional  District  and  Sessions Judge before  4.4 1987  were entitled  to be  treated as his seniors. 266      At the  hearing of  this  case  we  asked  the  learned counsel appearing for both the parties to show whether there were any  rules governing   the  deputation  of  an  officer working in  the judicial  department.  No  such  rules  were produced  before   us.  This  case  has,  therefore,  to  be determined on the principles of justice, equity and relevant judicial precedents.       In  the State  of Mysore  v. M.H.  Bellary,  [1964]  7 S.C.R. 471  the facts of the case were these. The respondent in that  case, M.H. Bellary, was a Government servant in one of the  departments of the Bombay Government. He was sent on deputation to another department and after serving there for a long  period and  getting a  number of  promotions he  was reverted back  to his  parent department  and ordered  to be posted  at   a  considerably   lower  grade,  while  another Government servant  who was below his rank had been promoted as Assistant  Secretary. Thereupon  the  respondent  therein filed a petition before the High Court of Mysore (Karnataka) under Article  226 of  the Constitution of India challenging the order  of his  posting. There  was a rule, rule 50(b) in the Bombay Civil Services Rules which read as follows:           "50(b). Services  in another  post, other  than  a           post carrying  less pay  referred to in clause (a)           of rule 22 whether in a substantive or officiating           capacity, service  on deputation  and leave  other           than extra  ordinary leave count for increments in           the time scale applicable to the post on which the           Government servant holds a lien as well as in time           scale applicable  to the post or posts, if any, on           which he  would hold  a lien had his lien not been           suspended:                Provided that  Government may, in any case in           which they  are satisfied that the leave was taken           on account  of illness  or  for  any  other  cause           beyond the  Government servant’s  control,  direct           that extra-ordinary  leave shall  be  counted  for           increment under this clause."      That rule  referred to  the  right  of  the  Government servant who goes on deputation to earn increments in the pay scale applicable  to the post on which he held a lien on his return to the parent department from the department to which he had  been deputed.  One of  the questions which arose for

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consideration in  that case  also was whether the respondent who had  gone  on  deputation  was  entitled  to  claim  the promotion which  he would  have got in his parent department had he 267 not been  sent on  deputation. The  High Court  accepted the case of  the respondent  therein  who  had  filed  the  writ petition and granted him the relief sought by him. Aggrieved by the  decision of  the High  Court the appellant, State of Mysore, filed  an appeal  before this  Court. In that appeal this Court observed thus:           The other submission of learned counsel was that a           Government  servant  though  he  had  a  right  to           increments in  a time scale applicable to the post           that he  held on  the  date  of  his  transfer  on           deputation and  on which  he had  a lien,  had  no           legal right  to be  promoted to  a higher post and           that the  construction adopted  by the  High Court           virtually conceded  or guaranteed  to officers  on           deputation a right to an automatic promotion which           they would  not have  had if  they  had  not  been           posted on  deputation. We  see no  force  in  this           contention either.  Learned Counsel  is right only           in so  far as  the promotion involved relates to a           selection  post.   But  where   it  is   based  on           seniority-cum-merit, those  considerations are not           relevant. The  service of an officer on deputation           in another  department is  treated by  the rule as           equivalent to service in the parent department and           it is  this equation  between the  services in the           two departments  that  forms  the  basis  of  Rule           50(b). So  long therefore  as the  service of  the           employee in the new department is satisfactory and           he is  obtaining the  increments and promotions in           that department,  it stands  to reason  that  that           satisfactory  service   and  the   manner  of  its           discharge in the post he actually fills, should be           deemed to  be rendered  in the  parent  department           also so as to entitle him to promotions, which are           often  on   seniority-cum-merit  basis.   What  is           indicated here  is precisely  what  is  termed  in           official language  the  ’next  below  rule’  under           which F an officer on deputation is given a paper-           promotion and  shown as  holding a  higher post in           the parent  department if  the officer  next below           him there  is being promoted. If there are adverse           remarks  against  him  in  the  new  department  o           punishments  inflicted  on  him  there,  different           considerations  would   arise  and  these  adverse           remarks etc.  would and  could certainly  be taken           into account  in the  parent department  also, but           that is  not the  position here.  In view  of  the           facts of  the case  it is not necessary to discuss           this aspect in any detail or any further."                                          (underlining by us) 268      The above  decision was  followed by  this Court in the State of  Mysore and Another v. P.N. Nanjundiah and Another, [1969] S.L.R.  346=(1969) 3  S.C.C. 633.  In that  case this Court observed thus:                "So long  as the  service of  the employee in           the new  department  is  satisfactory  and  he  is           obtaining the  increments and  promotions in  that           department,  it   stands  to   reason   that   the           satisfactory  service   and  the   manner  of  its

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         discharge in the post he actually fills, should be           deemed to  be rendered  in the  parent  department           also so  as to  entitle him to promotion which are           open on seniority-cum-merit basis."      It is  not disputed  in this  case that  the petitioner would have been placed on probation as a matter of course on 22.11.1985 if  he had been serving as an Additional District and Sessions  Judge and would have continued to be senior to Shri Jaspal  Singh who was placed on probation on that date. In regard  to the  quality  of  the  work  rendered  by  the petitioner  in   the  capacity   of  the  Secretary  to  the Commission of  Inquiry  headed  by  Shri  Justice  Ranganath Misra, we  may quote  the certificate issued by Shri Justice Ranganath Misra on 29.11.1986. It reads thus:                "Shri R.L.  Gupta,  a  Member  of  the  Delhi           Superior Judicial Service, worked as the Secretary           of the  Commission of  Inquiry  set  up  under  my           Chairmanship to  inquire into  the  atrocities  in           Delhi,   Kanpur    and   Bokaro    following   the           assassination of  the  late  Prime  Minister  Mrs.           Indira Gandhi. He worked in the Commission in that           capacity from  the beginning  of June,  1985  till           October, 1986.                Shri Gupta  handled his  job with ability and           efficiency.  He   impressed  me   as  a  brilliant           judicial officer. I found him to be well versed in           law. He exhibited character, courage and sagacity.           I was  impressed by  his sense  of social  vision,           legal acumen  and  capacity  to  comprehend  human           problems."      On his  return to  the Delhi  Judicial Service from the Commission of Inquiry the High Court placed him on probation with effect  from 4.4.1987.  The question for consideration, therefore, is  whether it  is just and reasonable to deprive the petitioner  of his  seniority only  because he  was  not working in the Delhi Higher Judicial Service dur- 269 ing the  period when  his juniors  were allowed to supersede him.      We are  not impressed  by the submission made on behalf of the  High Court  that the petitioner having been informed by the High Court that he was going on deputation at his own risk he  could not retain his seniority over his juniors who were placed on probation during the period of deputation. It is  well-known  that  many  officers  have  to  be  sent  on deputation in  the public  interest to  other departments in order to  meat the  exigencies of  public service  and  that before  sending   them  on   deputation  their   consent  is invariably taken.  Merely  because  they  have  given  their consent to  go on  deputation they  should not be allowed to suffer unless  there is  a specific  rule to the contrary or other good  reason for it. That is the ratio of the decision in State  of Mysore  v. M.H.  Bellary  (supra)  and  of  the decision in  State of  Mysore and  Anr. v.  P.N.  Nanjundiah (supra).  These   decisions  declare   that  an  officer  on deputation is  entitled to  get increments  in the pay scale attached to  the post in their parent department and also to get promotion when it is based on seniority cum merit as and when his  junior in the parent department is promoted by the application of  the ’next  below rule’.  When increments and promotion can  be earned,  there is  no reason why he should not be  treated as  being on probation also in the post held by him  in  the  parent  department  even  while  he  is  on deputation. In this case the petitioner was not even sent on deputation to  a department  where  his  services  could  be

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absorbed permanently. He was sent on deputation as Secretary to a  Commission which  was asked  to enquire into a certain matter of  public importance which was to be over in a short time. The Commission itself was to become functus officio on the submission  of its  report. The  Commission was presided over by a Judge of the Supreme Court of India and it was not possible for  him to  give up  his post  as Secretary of the Commission without  the permission  of the  Chairman of  the Commission and  to return  to the Delhi Judicial Service. He continued in  the post of the Secretary to the Commission of Inquiry as the Chairman of the Commission found it difficult to relieve  him in  the midst  of the inquiry. The object of placing an officer on probation is only to assess whether he is suitable for the post to which he is appointed. It is not necessary that  such assessment should always be made by the appointing authority  unless there  is any legal impediment. Such assessment can also be made by the authority under whom the officer  is required  to  work  on  deputation.  In  the instant case  the authority  under whom  the petitioner  was asked to work while on deputation was a Judge of the Supreme Court  of   India  who  had  approved  the  service  of  the petitioner as  can be  seen from  the certificate  issued on 29.11.1986 which is extracted above. It may also 270 be seen  from the  decision of  this Court  in O.P. Singla & Anr. etc. v. Union of India & Ors., [1985] 1 S.C.R. 351 that the High  Court had placed some of the officers of the Delhi Higher Judicial  Service on  probation for  the  purpose  of confirming them  in the  Delhi Higher Judicial Service while they were  on deputation  in other  departments.  Shri  D.C. Aggarwal was  placed on  probation while he was working as a Member of  the Sales  Tax Tribunal,  Shri Mahesh Chandra was placed on  probation while  he was  a Member  of the Central Government Industrial  Tribunal and  Ms. Santosh  Duggal had been placed  on  probation  during  her  tenure  as  Member, Customs, Excise  and Gold  Control Appellate Tribunal. It is stated that  the High Court declined to place the petitioner on probation  when he  was working  as the  Secretary of the Commission on  account of  the observation  made by  Justice Mukharjee in  O.P. Singla’s  case (supra) at page 396 of the Reports that  such probations  while the  officers  were  on deputation were  meaningless formalities. But the High Court overlooked that  the same  learned Judge had observed little lower down  in the  said judgment  that "an  appointment  on probation  is   not  a  jurisprudential  sine  qua  non  for absorption into  the services, though normally and generally various rules  of different services make such provisions as rule 12(2)  here. But  as has  been noted in the working out the  practice   of  Delhi   Judicial  Service  placement  of promotees on  probation has not been very strictly followed. The promotees  cannot suffer  for this."  Even though it had been stated  that the  petitioner was  sent on deputation at his own risk to the Commission of Inquiry it would be unjust to hold  that the  High Court  could have  on the  facts and circumstances of  this case  passed orders  which would have the effect  of superseding  the petitioner.  We also fail to appreciate the  implication of  the observation  made in the course  of  the  resolution  of  the  High  Court  that  the petitioner had  ’refused to  come back  and got it intimated through Justice  R.N. Misra  vide demi-official letter dated 19.8.85 that  he had come on deputation at his own risk.’ It was not  truly  a  case  of  refusal  on  the  part  of  the petitioner to  go back  to the Delhi Higher Judicial Service nor can  it be  said that  he was  responsible for what Shri Justice R.N.  Misra had  written. Shri  Justice  R.N.  Misra

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found it difficult to relieve the petitioner in the midst of the inquiry  for obvious  reasons and that could not be used against the  petitioner for  depriving him of his seniority. The stand  taken by  the High  Court in  this  case  cannot, therefore, be  upheld. We  may, however, state at this stage that Shri  P. Dutta,  Additional Solicitor-General  of India appearing on  behalf of  the Union  of India has very fairly supported the case of the petitioner.      At this  stage we  have to  observe  that  no  innocent officer should 271 be exposed  to the  grave risk  to which  the petitioner has been  exposed  in  this  case.  In  the  instant  case,  the petitioner  was  promoted  as  an  Additional  District  and Sessions Judge  under rule  16 of  the Delhi Higher Judicial Service Rules in 1976. The post to which he was promoted was called  a  temporary  post  although  truly  it  was  not  a temporary  post.  Neither  the  High  Court  nor  the  Delhi Administration ever  believed that  the post  to  which  the petitioner was promoted would ever cease to exist. There was no chance  of its  abolition at  all. Yet  it was  called  a temporary because  it was  in excess  of the strength of the posts in  the Delhi  Higher Judicial  Service which had been fixed at 16 by rule 4 read with the Schedule attached to the Delhi Higher Judicial Service Rules in the year 1970. If the Schedule had  been amended  from time  to time by increasing the number  of posts  keeping pace  with the  reality of the situation perhaps the strength should have been increased to 50 by  now. Rule  12(2) of  the said  Rules states  that all candidates,  other  than  those  appointed  at  the  initial constitution of  the Service  on appointment  to the Service shall be  on probation  for a  period of  two years.  In the circumstances by  appointing the  Judicial officers  of  the Higher  Judicial  Service  to  temporary  posts  instead  of appointing them  to permanent posts the Delhi Administration has virtually made a mockery of the rules of recruitment. To place a  Judicial officer,  promoted to  the Higher Judicial Service, on  probation nearly 9 years after his promotion as in this  case is  a mere farce. Ordinarily an officer should be on  probation from  the date of his appointment and if he is found unsuitable within the period of probation he should be weeded  out of  service. We  are told that the reason for not  placing   a  judicial   officer  on  probation  on  his appointment is  that the  strength of  the cadre is fixed at 16. Is  it just  and  reasonable  to  place  an  officer  on probation nearly 9 years after his appointment and then turn him out  of service  if his  services are  found to  be  not satisfactory during the period of probation which would fall in the 10th and 11th year of his service in that cadre?      The Administrators  should know that the work in courts has increased  by two  or three  times in almost every court during the  last decade.  The population has increased by 20 crores   during   this   period.   Laws   have   multiplied, transactions have increased and people are becoming more and more conscious of their rights. But the number of Judges has remained constant.  This  has  led  to  frustration  amongst litigants, lawyers  and Judges.  This frustration gives rise to different  kinds of  tensions including the tension which is now prevailing in the city of Delhi. We are told that the Delhi High  Court has  been pressing  for the appointment of more number of Judges. The High Court 272 addressed a letter to the Delhi Administration requesting it to sanction  169 additional  posts  in  the  Delhi  Judicial Service on  16.1.1983. The  Delhi Administration sought some

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clarifications. In  reply the  High Court  has again  by its letter  dated   7th/  11th   January,  1988  urged  for  the sanctioning of  169 posts.  This letter  shows  that  as  on 1.9.1987 in  the courts  manned by the officers of the Delhi Judicial Service  (who on  promotion will  be members of the Delhi Higher  Judicial Service)  there were  51,173  Regular Suits, 1210  Small Cause  Suits, 974  Civil Appeals,  10,592 Rent cases,  pending before  courts dealing with such cases. There were  97,943 cases  pending before the courts of Chief and Additional  Chief Metropolitan  Magistrates and 2,35,033 cases pending  before other  Magistrates as on 1.9.1987. The Delhi Administration  appears to  have not taken any serious notice of  the appalling  situation prevailing  in the Delhi courts.  The   Administrators  should   not  look   at   the recommendation as one which is intended to provide some jobs to lawyers.  They should  look at  the recommendation of the High Court  as one  intended to give relief to the suffering litigants who  waste their  valuable time  near  courts  for years waiting for justice. This is a problem which should be solved on  a war-footing.  The Delhi  Administration  should straightaway increase  the strength  of the  Delhi  Judicial Service at least by 150, increase the number of posts in the Delhi Higher  Judicial Service  at least  by  40,  establish court premises  in different parts of the Union Territory of Delhi and  see that the pending cases which are in the order of lakhs, many of which are lingering for the last ten years and more,  are disposed  of within  two years.  If the total strength is  increased at  all levels, this farce of placing the Judicial  officers on  probation after  nearly ten years will also  end. We  must also  observe that  the  Government should not  consider finance  as a constraint because by not appointing sufficient  number of  Judges the  Government  is suffering more  financially. The  Government itself  being a big  litigant  is  subjected  to  several  orders  of  stay, prohibitory orders,  injunctions etc.  leading to  delay  in completion of  several  projects  and  works.  The  indirect effects of  frustration amongst the people lead to a greater financial drain.  We may  add here that if by any chance the arrears of  cases come  down, then the vacancies in judicial posts may  not be  filled up.  The expenditure  on  judicial department will  thus automatically  come down. We hope that the Union of India and Delhi Administration will sanction at least 150 more posts in the Delhi Judicial Service and about 40 posts  in the Delhi Higher Judicial Service and also take immediate steps  to establish  additional  courts.  We  also suggest that  the  expenditure  on  judicial  administration should not  be subjected  to  the  constraints  of  non-plan expenditure. The  judicial department is not an unproductive department. Peace and tran- 273 quility that  will result  from quick  disposal of  cases is much more  valuable than  the  economic  goods  produced  by factories. Delay  in disposal  of cases  affects  the  gross national product  adversely. In  fact peace  and tranquility will help  in greater  production of  economic goods.  Quick disposal of cases will also save millions of man-hours which are now being wasted near the courts in India. There must be a change  of attitude on the part of the Governments and the administrators at  the secretariats.  It is  imperative that every  State   should  increase  the  strength  of  Judicial officers at  least by thirty per cent immediately. Otherwise there would  be a  catastrophe in about a year or two. It is hoped that this warning will not go unheeded.      We are  of the  view that  the petitioner  in this case should have  been placed  on probation  on  22.11.1985  even

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though he  was  on  deputation  on  that  date  and  on  his confirmation he  is entitled to maintain his seniority above Shri Jaspal Singh. We, therefore, direct that the petitioner shall be deemed to have been on probation from 22.1.1985 and his services  shall be regulated accordingly. The petitioner shall also  be deemed  to be  above Shri Jaspal Singh in the seniority list  of officers  in the  Delhi  Higher  Judicial Service.      In making  this order,  as already  stated, we have not considered the  other contentions  raised  in  the  petition including the  contention  that  the  petitioner  should  be deemed to  have been  on probation  from  the  date  of  his promotion to  the cadre  of Additional District Judge or any other date  prior to  22.11.1985. All  those contentions are left open.  The Writ  Petition is allowed accordingly. There is no order as to costs. S.L.                                  Petition allowed. 274