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PETITIONER: RUDRA KUMAR SAIN & ORS.

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT:       22/08/2000

BENCH: D.P.Mohapatro, Doraswami Raju, G.B.Pattanaik, Shivaray V.Patil,S.R.Babu

JUDGMENT:

L.....I.........T.......T.......T.......T.......T.......T..J       JUDGMENT

     PATTANAIK,J.

     These  writ  petitions filed under Article 32  of  the Constitution  by  the  officers  of  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 & Anr.etc.  vs.  Union  of India  &  Ors., reported in 1985(1) SCR 351, have been  duly followed  or  not?   It  is rather unfortunate  that  on  an erroneous  impression that the judgment in Singlas 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 Singlas  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 Singlas 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 Session Judges, against  temporary posts  created  by the Delhi Administration in the cadre  of Additional District & 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 & 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 disagreement on  the

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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,  Jusitce 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 mis-conception 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 & 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 Singlas case, the Court came to the conclusion:

     These  charts show, indisputably, that promotees  who have  been functioning as temporary Additional District  and Sessions Judges for an unbroken period between 8 to 12 years are regarded as juniors to the direct recruits who have been appointed  as  Additional District and Sessions Judges  much later.

     The Court further held:

     The  process  of  reading  the Rules as  parts  of  a connected  whole does not end with Rules 7 and 8.  Rules  16 and  17 are also relevant for the present purpose and  have, indeed,  an important bearing on the question of reservation of  vacancies for direct recruits to the extent of one-third of the substantive posts in the Service.

     Adverting to Rules 16 and 17 it was held:

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     The  position  which  emerges   from  the  provisions contained  in  Rules 16 and 17 is that it is permissible  to create  temporary posts in the Service and, even substantive vacancies  in the Service can be filled by making  temporary appointments.

     Interpreting  Rules  2(b) and 2(d), it was  held  that according to the scheme of the Rules in this case, Service is  a narrower body than the cadre.  In interpreting Rules 2(b)  and 2(d), Their Lordships held that by the  definition contained in Rule 2(d), membership of the Service is limited to  persons, who are appointed in a substantive capacity  to the  Service, but by reading the second part of Rule 2(b) in an  extended  sense, every temporary post which carries  the same  designation  as that of any of the posts specified  in the Schedule is a Cadre Post, whether such post is comprised in  the Service or not.  Such posts and the posts  specified in  the  Schedule will together constitute the  Cadre  under Rule  2(b),  if an extended meaning is given to  the  second part  of  the  rule.   Having  given  such  meaning  to  the provisions  of Rules 2(b), 2(d), 7, 8, 16 and 17, the  Court proceeds  to  determine  the question of  seniority  between direct recruits and promotees.  It was then observed:

     Care  has,  therefore,  to  be  taken  to  apply  the provisions  of Rule 8(2) in such a manner as not to lead  to the  violation  of  the  guarantee  of  equality  and  equal opportunity  contained  in  Articles  14   and  16  of   the Constitution.    For  that  purpose,  it  is  necessary   to ascertain  as  to which of the promotees can be regarded  as belonging to the same class as the direct recruits.

     In  its  pursuit  to  ascertain as  to  which  of  the promotees  can be regarded as belonging to the same class as direct recruits, the Court observed:  that in the matter of seniority,   it   is  difficult  to  appreciate,   how   any distinction  can  be  made between direct recruits  who  are appointed  to  substantive vacancies in the Service  on  the recommendation  of  the High Court under Rule 5(2)  and  the promotees,  who are appointed in consultation with the  High Court to posts in the Service under Rules 16 and 17.

     While  coming to the aforesaid conclusion, it was also indicated  that the persons belonging to the Delhi  Judicial Service,  who are appointed to temporary posts of Additional District  and  Sessions  Judges on an ad hoc  basis  or  for fortuitous  reasons  or  by way of a  stop-gap  arrangement, constitute a class which is separate and distinct from those who  are  appointed  to  posts  in  the  Service  in  strict conformity  with the rules of recruitment.  The Court,  then noted  a  representative order of appointment under Rule  16 and  held  that such appointments were neither ad  hoc,  nor fortuitous,  nor in the nature of a stop-gap arrangement and persons  promoted  under  such orders  have  been  factually officiating  continuously  without  a  break  as  Additional District  and  Sessions Judges for a long number  of  years. Their Lordships noticed the difficulties in evolving a rule, which  will  cause no hardship of any kind to any member  of the Service and yet attempted to minimise the same as far as possible,  so  that  inequities and  disparities  which  are inherent  in a system which provides for recruitment to  the

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Service  from more than one source.  It would be appropriate to   extract  the  following   observations  made  by  Their Lordships in the majority judgment:

     It  may bear emphasis that promotees appointed  under Rules  16 and 17 to the Higher Judicial Service can rank for seniority  along  with  direct  recruits only  if  they  are appointed in consultation with the High Court as required by those Rules and if they satisfy the requirement laid down in Rule  7(a)  that they must have completed not less than  ten years of service in the Delhi Judicial Service."

     The best solution to the situation that confronted the Court  in Singlas case was to adopt the rule enunciated  in S.B.   Patwa  rdhan vs.  State of Maharashtra, 1977 (3)  SCR 775,  to  have continuous officiation in a  non-  fortuitous vacancy ought to receive due recognition in fixing seniority between persons who are recruited from different sources, so long  as  they belong to the same cadre,  discharge  similar functions  and bear the same responsibilities.  It was  also held  that  since rule of quota and rota ceases  to  apply when  appointments  are  made  under Rules 16  and  17,  the seniority  of direct recruits and promotees appointed  under those  Rules  must be determined according to the  dates  on which  direct  recruits were appointed to  their  respective posts  and  the  dates from which the  promotees  have  been officiating  continuously either in temporary posts  created in  the  Service or in substantive vacancies to  which  they were appointed in a temporary capacity.  Justice Mukharji in the  separate judgment also came to the same conclusion  for determining the inter-se seniority between the promotees and direct  recruits.   It  may  be   noticed  that  the   Court ultimately  quashed  the  seniority   list  which  had  been prepared by the High Court and observed that a new seniority list  be  prepared  on the basis of the view  taken  in  the judgment  and the said new seniority list would include  the direct  recruits and promotees appointed under Rules 16  and 17.   While  quashing the seniority list, the  seniority  of Shri G.S.Dakha was protected, since he had been appointed as Additional  and Sessions Judge in a vacancy reserved for the members of Scheduled Caste.

     Subsequent  to  the judgment of this Court in  Singla, 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 Singlas 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

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the promotees in 1987 and then the present writ petition was filed which was registered as Writ Petition No.  490/87.

     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 Singlas case  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 Singlas case has been duly given effect to.

     Mr.    Kapil  Sibal,  the   learned  senior   counsel, appearing  for the petitioners in Writ Petition No.  490/87, who  are  the  promotees,  contended that  even  though  the recruitment   to  the  Higher   Judicial  Service  of  these petitioners  have  been made either under Rule 16  or  under Rule  17 of the Recruitment Rules after due consultation and / or approval of the High Court and the incumbents were duly qualified for being promoted under Rule 7 of the Recruitment Rules  and  had  continuously held the posts  of  Additional District  and Sessions Judge, yet the High Court erroneously was  of  the opinion that they are ad hoc or  fortuitous  or stop- gap appointees and, therefore they were made junior to the direct recruits and the continuous length of service was not  taken into account for the purpose of determination  of the  inter-se seniority.  According to Mr.  Sibal, there was no ambiguity in the judgment of this Court in Singlas case, but  since  the  Court  had  not indicated  as  to  when  an appointment  can  be  said  to be ad hoc  or  fortuitous  or stop-gap  arrangement, the High Court went on examining  the number  of posts that were available on 22.4.1980, the  date on  which  Smt.  Usha Mehra was directly appointed and  then after  giving  her the 30th position in the seniority  list, the  promotees  seniority  were   adjusted  and  all  other promotees who even though have been recruited under Rules 16 or  17  after due consultation with the High Court and  also satisfied  the  qualification required under Rule 7 and  had continuously  held  the  post  of  Additional  District  and Sessions  Judge,  much prior to Smt.  Usha Mehra,  yet  such appointments  of  the  promotees was held to be  ad  hoc  or fortuitous  and  by adopting such procedure, the High  Court acted  contrary to the judgment and directions of this Court in  Singlas case.  According to Mr.  Sibal, it is only when an  appointment is made to the Higher Judicial Service of  a person,  belonging to the Delhi Judicial Service without due consultation  or  approval  of the High Court or  when  such appointee  did  not have the prescribed qualification  under Rule  7 for being promoted or any short term appointment  is made  in  exigency  of any particular  situation,  requiring immediate  recruitment  or an appointment is made purely  by way  of  stop-gap arrangement, which can obviously be for  a very  short period, then only the appointment can be held to be  on ad hoc basis or for fortuitous reasons or by way of a stop-gap arrangement and in such a contingency, the Services

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rendered  by an appointee cannot be counted for the  purpose of  seniority in the Higher Judicial Service.  But when  the appointment  is made by the Administrator either under  Rule 16  or  Rule 17, after due consultation with or getting  the approval  of the High Court and the appointee satisfies  the qualification  required under Rule 7 and continuously  holds the  post  of Additional District and Sessions Judge  for  a fairly  long period, as in the case in hand, it is difficult to  import the concept of ad hoc or fortuitous or  stop-gap, which  is  well known in the Service Jurisprudence  to  such appointments.   In  this view of the matter, the High  Court committed serious error in coming to the conclusion that the appointment     of     the        petitioners     was     ad hoc/fortuitous/stop-gap and consequently, the seniority list thus  prepared  is contrary to the directions given by  this Court  in  Singlas  case.    The  second  Committee,  which examined  the  objections  filed to  the  provisional  list, approved  by  the  Full  Court of Delhi High  Court  in  its Meeting  held  on 15th of May, 1985 also committed the  same mistake  as the earlier Committee and went on examining  the question  of lien under the fundamental rules, and as to how many  of the incumbents of the Delhi Higher Judicial Service were  on  deputation to different posts for the  purpose  of finding  out  as  to whether the appointments made  in  that chain  would be ad hoc or fortuitous or stop-gap.  According to Mr.  Sibal, the second Committee, even went to the extent of  holding  that if a quota post meant for  direct  recruit according  to the quota, remains unfilled, then the promotee occupying the last post must be taken to be holding the post on  ad  hoc  basis or for fortuitous reasons or  by  way  of stop-gap  arrangement and the promotee holding the last post must  be made to surrender it, and applying this theory  one Shri  Sagar Chand Jain, who had worked for about four  years as  Additional District & Sessions Judge was made junior  to Smt.  Usha Mehra but according to the Committee that was the best  solution,  and, therefore, the  provisional  seniority list  already approved by the Full Court was recommended  to be  accepted  as the final list.  From the  final  seniority list,  it  transpires  that Shri Sagar Chand Jain  had  been appointed  as  Additional  District and  Sessions  Judge  on 27.7.76,   whereas  Smt.   Usha   Mehra  was  appointed   as Additional  District and Sessions Judge as a direct  recruit on  22.4.1980,  but yet she was shown senior to  Shri  Jain. Mr.   Sibal also pointed out that even the officers who  had been  appointed in December, 1980 and had been continuing as Additional District & Sessions Judge, yet their appointments were  held  to  be  fortuitous as  three  posts  for  direct recruitment  had been advertised.  According to Mr.   Sibal, the High Court of Delhi had failed to implement the positive mandate of this Court in Singlas case and the spirit of the same  in  drawing up the seniority list and gross  injustice has  been  meted out to the promotee officers.  The  learned counsel points out that Shri M.A.Khan, Shri Ravi Kumar, Shri O.P.Dwivedi,  Shri  R.C.Jain and Shri J.D.Kapoor though  had been  duly appointed in the year 1980 under Rules 16 and  17 and  had  continuously held the post of Additional  District and  Sessions  Judge,  they  were   shown  junior  to   Shri B.S.Chaudhary,  a  direct  recruit,  who  was  appointed  on 10.11.1982.    Similarly,  Shri   B.N.Chaturvedi  and   Shri R.C.Chopra, though had been appointed as Additional District and  Sessions Judge in August, 1984 under Rule 16, after due consultation with the High Court of Delhi and also were duly qualified  under  Rule 7 and continuously held the  post  of Additional  District and Sessions Judge, yet they were  made junior  to  the direct recruits of the year 1985 namely  Ms.

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Sharda  Aggarwal,  Shri H.R.Malhotra and Shri  J.P.   Singh. This  determination of inter-se seniority, according to  Mr. Sibal  is in contravention of the principles evolved by this Court  in Singlas case and, therefore, such seniority  list cannot  be sustained.  Mr.  Sibal also pointed out that even though,  this Court in O.P.Singlas case categorically  held that the controversy regarding the fixation of the seniority list  between  the promotees and direct recruits  cannot  be resolved  following  the  earlier decision in  the  case  of Joginder  Nath,  yet  the High Court while  drawing  up  the seniority  list,  followed the principle of  Joginder  Nath. According  to  Mr.   Sibal, there cannot be a  more  blatant contravention  of  the  directions given by  this  Court  in Singlas  case  than the one committed by the High Court  in the case in hand.

     Mr.   Dipankar  Gupta,  the  learned  senior  counsel, appearing for the petitioners in Writ Petition No.  1252/90, on  the  other  hand contended with force that  since  there cannot  be  any  appointment more than the number  of  posts available  in  the Service and this Court  having  indicated that  stop-gap/fortuitous/ad hoc appointments will not enure to  the benefit of such appointees for the purpose of  their seniority,  it  was incumbent on the High Court to  identify the  posts  available  in the Service  for  being  regularly filled  up and any appointments made in excess of the  posts available  must be held to be either stop-gap or  fortuitous or  ad hoc and, consequently, the High court did not  commit any illegality in drawing up the seniority list.  Mr.  Gupta also  contended that the Member of the Service having been defined  in  Rule  2(d)  to mean a person,  appointed  in  a substantive  capacity to the Service under the provisions of the  Rules,  and  Rule 16 having provided  for  creation  of temporary  posts  in  the Service by the  Administrator  and filling  up of the same, such appointments cannot be held to be  appointments in the Service in substantive capacity  and such  appointees  cannot  be  held to  be  Members  of  the Service within the meaning of Rule 2(d) and on this ground, the Judgment in Singla’ case requires re- consideration.

     Mr.   Gopal  Subramanium, the learned senior  counsel, appearing  for the direct recruits, seriously contended that the  judgment of this Court in Singla’s case is contrary  to the  law laid down by this Court in Chandramouleshwar Prasad vs.   Patna High Court & Ors.  , 1970(2) S.C.R., 666 ,  and, therefore,  the said judgment must be reconsidered.  He also contended  that  the statutory rules having provided  for  a quota  for the direct recruits, as apparent from a  combined reading  of Rules 7 and 8, if no such quota is fixed for the direct  recruits in case of appointments made under Rules 16 and  17,  then the rule will be grossly  discriminatory  and would be liable to be struck down and, therefore, until such quota  is  provided  in respect of appointments  made  under Rules  16  and 17, it would only be meet and proper to  hold that  the  seniority must be determined in  accordance  with Rule  8(2), which would necessarily mean that the appointees under  Rules  16  and 17 cannot claim  parity  with  regular appointees  under  Rule  7   and,  therefore,  cannot  claim seniority  in the Cadre.  The learned counsel also contended that  the  decision  in Joginder Nath’s case being  one,  in relation to the very Service, the principles evolved therein must  be made applicable and, High Court, therefore, rightly relied  upon the same in determining the inter-se seniority. According  to Mr.  Subramanium, only the genuine  appointees under  Rules 16 and 17 may, at best, get the benefit of  the

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decision of this Court in Singlas case and appointment made against  temporary post, because the temporary appointee has gone  elsewhere,  cannot be held to be an appointment  under Rule  16,  even though, he might have been nomenclatured  as such.

     Mr.  Govind Das, the learned senior counsel, appearing for  the  respondents in Writ Petition No.   490/87,  fairly stated  that this Court having not indicated the true import and  meaning of the expression stop- gap/fortuitous/ad hoc ,  the High Court had to give meaning to the same and in  so doing,  the High Court has taken into account the number  of posts  available  in the Service and has tried to  implement the  directions  given  by  this  Court  in  Singlas  case. According  to  Mr.  Das, this Court should now  indicate  or clarify     the     meaning        of     the     expression stop-gap/fortuitous/ad  hoc in which event, there will not be any further controversy in implementing the directions of this Court for drawing up the seniority list.

     Mr.  Rakesh Kumar also appearing for respondent No.  8 in  Writ  Petition No.  490/87, who happens to be  a  direct recruit,  contended  that in Singlas case, this  Court  has tried  to work out the equity and for working out equity, it will  not  be appropriate to take into account the  Services rendered  by an appointee against a temporary post when  the original  appointee  against the said temporary post  is  on deputation  to some other Service.  According to Mr.  Rakesh Kumar,  by  not  following  the   quota,  meant  for  direct recruits,  gross  inequity has already been met out to  such direct  recruits and over and above that, if the  continuous service  of such an appointee under Rule 16, as stated above is  taken into account for determination of their seniority, then the aspiration with which a Member of the Bar joins the post  in  the Higher Judicial Service will be marred and  it will  work out gross inequity, so far as the direct  recruit is concerned.

     Shri J.P.Singh, respondent no.  9 in Writ Petition No. 490/87,  who is also a direct recruit, argued in- person and reiterated the stand taken by Mr.  Dipankar Gupta, appearing for  some  of  the  direct  recruits  and  Mr.   P.P.   Rao, appearing  for  the  High  Court.    Mr.   R.C.   Chopra,  a promotee,  also  appeared  in-person and adopted  the  stand taken by Mr.  Sibal.

     Mr.   P.P.  Rao, the learned senior counsel, appearing for  the Delhi High Court, on the other hand contended  that prior  to  the judgment in Singlas case, the  High  Courts understanding  of the rule was that appointments made  under Rules  16 and 17 will not count for the purpose of seniority and  inter-se  seniority has to be determined  only  between direct  recruits and promotees made under Rule 7,  following the  principle  engrafted  in  Rule  8(2).   But  after  the judgment  in  Singlas case, when the Court  was  confronted with  a  situation  that  there  has  been  more  number  of appointments  than the posts available and even in  Singlas case,  this Court had indicated that the fortuitous, ad  hoc and  stop-gap appointees, cannot claim their seniority,  the Full  Court  of Delhi High Court took the decision that  all appointments made beyond the number of posts available, must assume the character of fortuitous, ad hoc or stop-gap, and, therefore,  cannot claim seniority in the Cadre.   According to  Mr.   Rao,  though in Singlas case, the Court  has  not indicated  the meaning of the expression ad hoc, fortuitous

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or  stop-gap  but  those expressions have  been  given  due meaning  in Parshotam Lal Dhingra vs.  Union of India,  1958 SCR,  828, and, therefore, those meanings should be imported and  given  effect to.  According to Mr.  Rao, even  though, the   appointment   letters  might    have   indicated   the appointments  to  be one under Rules 16 or 17, but  that  by itself will not create any right in favour of the appointees on  the  basis of the Singlas judgment inasmuch as a  wrong leveling  will  not create a right as such.  In  support  of this  contention  Mr.   Rao, relied upon decisions  of  this Court  in  the case of Afzal Ullah vs.  The State  of  Uttar Pradesh,  1964(4)  SCR  991  ,  and  N.B.Sanjana,  Assistant Collector of Central Excise, Bombay & Ors.  Vs.  Elphinstone Spinning  &  Weaving Mills Co.  LTD., 1971(3) SCR, 506.   Mr Rao  with  reference to the seniority list, which  had  been drawn  up,  contended that when the appointments  have  been shown  to be out of turn such appointment must be held  to be fortuitous within the meaning of the said expression used in  Singla’s  case  and, therefore, such  appointees  cannot claim a parity or equality with the regular appointees under Rule  7 and, therefore, cannot claim their seniority on  the basis  of mere continuous length of Service, as contended by Mr.  Sibal, appearing for the promotees.

     Having  examined the rival submissions at the Bar  and having  scrutinized the two seniority lists drawn up by  the Delhi  High Court, the provisional as well as the final, the provisional  made on 26th of March, 1985 and the final  list which  was  approved by the Full Court on 25th  of  October, 1986,  we  find sufficient force in the contentions made  by Mr.  Sibal, appearing for the promotees.  We are also of the considered  opinion that the High Court of Delhi, in drawing up   the  seniority  list,   though  proceeded  to  allocate seniority according to the length of continuous officiation, regardless  of whether an appointee held a temporary post or a  permanent  post or whether he was a promotee or a  direct recruit,  as  directed by this Court in Singlas  case,  but committed error by excluding the persons, on the ground that they held posts on ad hoc basis or for fortuitous reasons or by way of stop-gap arrangement, even though appointments had been  made under Rules 16 and 17 after due consultation with and  or  approval  of  the High  Court  and  the  appointees satisfied  the  qualification required under Rule 7  of  the Rules.   It  is on this score, the ultimate seniority  list, drawn  up,  stands vitiated.  When the report of  the  first Committee,  on  the  basis of which  ultimately  provisional seniority  list  was drawn up is examined, it  would  appear that  the Committee went on examining the question of a lien against  a post and then, recorded a finding that anyone who comes  to  hold  one of those posts, which is subject  to  a lien, must be held to be holding as an ad hoc arrangement or for  fortuitous  reasons or as a stop-gap arrangement.   The Committee  also  recorded  a  further finding  that  if  the position   of   the  person,   whose  seniority   is   under consideration  is  beyond the total number of posts  in  the Service,  then  also his appointment must  necessarily  fall within  the description of ad hoc/fortuitous/stop-gap  and having  said so, the Committee assigned Ms.  Usha Mehra, the 30th  post and then adjusted the seniority accordingly.  The conclusion  of the Committee that a person, promoted to  the Higher Judicial Service under Rules 16 or 17 of the Rules to a  post  against which some other person has a  lien,  would ipso facto make such appointment ad hoc/fortuitous/stop-gap, is  contrary  to  the conclusion of this Court  in  Singlas case.   Then again, this Court having categorically directed

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in Singlas case, that appointments made under Rule16 or 17, after  due  consultation and/or approval of the High  Court, and  the appointee did qualify to hold the promotional post, as required under Rule 7 of the Recruitment Rules, then such appointment  of  the appointee will not be ignored  for  the purpose  of determining the inter-se seniority in the  cadre and  on the other hand, continuous length of Service  should be  the  basis,  though  Rule 8(2)  of  the  Rules  provides otherwise.   Yet  the  High  Court took  shelter  under  the expression  ad  hoc/fortuitous/stop- gap and  ignored  the continuous  length  of  Service of  such  appointees,  while determining  the  inter-se seniority.  In fact, in  Singlas case,  the  Court  on  being   confronted  with  a  peculiar situation,  had  given the direction as to in what  way,  it will  be  equitable  for  all  concerned  to  determine  the inter-se  seniority, but notwithstanding the same, the  High Court  appears  to have stuck to the idea of the  principles engrafted  in  Rule 8(2) of the Rules and then  decided  the question  of  seniority  on the basis of  number  of  posts, available  in  the Service.  While doing so, the High  Court obviously  missed the findings of this Court that under  the scheme  of the Rules, Service is a narrower body than  the cadre  and  every  temporary post, which  carries  the  same designation as that of any of the posts in the schedule is a cadre  post, whether such post is comprised in the Service or  not.  It is also apparent from the report that the  High Court  followed  Joginder  Naths  case in  drawing  up  the seniority,  on  the  ground that the judgment  (in  Singlas case)  does not indicate whether the earlier decision of the High  Court in Joginder Naths case is still to be  followed in  preparing the seniority list or not, but obviously,  the High  Court has failed to appreciate, what was stated in the concurrent judgment of Mukharji J, in Singlas case, wherein in  no  uncertain  terms,  it was stated  that  so  far  as, controversy  regarding  the fixation of the  seniority  list between the promotees and direct recruits, the same will not be  guided  by Joginder Naths case inasmuch as in  Joginder Naths  case, the Court construed the Delhi Judicial Service Rules, 1970 in the context of seniority and confirmation and not  in  the  context  of  inter-se  seniority  between  the promotees  and direct recruits.  The entire reasoning  given by  the  High  Court in the first report, on  the  basis  of which, provisional seniority list has been drawn up, cannot, but  be held to be contrary to the directions given by  this Court  in Singlas case, and accordingly, must be held to be erroneous.   The  reasoning  of  the High  Court,  in  fact, nullifies  the  ratio in Singla’s case, wherein  Chandrachud CJ,  had observed, after noticing a representative order  of appointment under Rule 16:-

     The appointments were neither ad hoc, nor fortuitous, nor  in  the nature of a stop-gap arrangement.   Indeed,  no further  orders  have  ever been passed recalling  the  four promotees  and, others similarly situated, to their original posts  in the subordinate Delhi Judicial Service.  Promotees who  were under Rule 16 have been officiating  continuously, without  a break, as Additional District and Sessions Judges for  a  long  number of years.  It is both  unrealistic  and unjust to treat them as aliens to the Service merely because the  authorities  did  not  take  up  to  the  necessity  of converting  the  temporary posts into permanent  ones,  even after  some of the promotees had worked in those posts  from five to twelve years."

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     Yet,  the High Court in drawing up the seniority list, have treated such promotees, who are appointed under Rule 16 as aliens to the Service and thus, the High Court was wholly in  error  in preparing the provisional seniority  list,  as already  stated.  If we examine the second Committee report, which  had considered the objections filed by the  promotees and  ultimately,  on the basis of which the final  seniority list  was approved by the Full Court in its Meeting on  25th of  October,  1986  and  the list was prepared  on  11th  of November,  1986,  we  also find, the  High  Court  committed similar error in accepting the provisional seniority list as final.   In  the second Report, the Committee, again was  of the  view  that  if  a  post meant  for  a  direct  recruit, according  to the quota, remains unfilled, then the promotee occupying  the  last post, must be taken to be holding  that post on ad hoc basis or for fortuitous reasons or by way of a  stop-gap arrangement.  This indicates that the Committee was  still obsessed with the provisions of Rule 8(2) of  the Recruitment Rules, even though in Singlas case, it has been categorically  held by this Court that quota principle has broken  down and as such, seniority cannot be determined  by taking  recourse to the quota and rota provided under Rule 8(2)  but  on  the basis of continuous  length  of  Service, provided   the  promotees  have   been  promoted  after  due consultation  with  and/or approval of the High Court  under Rule   16  or  17  and   they  did  possess  the   requisite qualification  for promotion, as provided under Rule 7.   At this  stage, it would be appropriate to notice the letter of appointment  of  Shri M.A.  Khan, Shri O.P.   Dwivedi,  Shri R.C.Jain  and  Shri  J.D.   Kapoor  by  the  order  of   the Administrator  dated  19th  of   December,  1980,  which  is identical  with  the  representative order, this  Court  had taken  note of, in Singlas case.  It is not the case of the High  Court  or any of the direct recruits-respondents  that these  promotees,  on  being promoted on 19th  of  December, 1980,  have  at  any  point  of  time,  reverted  to   their substantive  post before Shri B.S.  Chaudhary was  appointed as  a  direct  recruit on 10.11.1982.  In this view  of  the matter,  these promotees, who are appointed under Rule 16(2) of  the  Recruitment Rules on 19.12.1980,  and  continuously held  the said post and further, such appointments have been made  in consultation with the High Court of Delhi and  they had  the  requisite  qualifications  under  Rule  7  of  the Recruitment  Rules, their appointments cannot be held to  be either  ad  hoc or fortuitous or stop-gap, and  necessarily, therefore,   they  must  be  held  to  be  senior  to   Shri B.S.Chaudhary,  a  direct recruit of the year 1982,  on  the basis  of  continuous length of Service, in accordance  with the  directions  given  by  this  Court  in  Singlas  case. Similarly,   the   two    other    promotees   namely   Shri B.N.Chaturvedi  and Shri R.C.Chopra, who had been  appointed since  August,  1984 and also continuously held the post  of Additional  District and Sessions Judge for all these years, must  be held to be senior to the direct recruits namely Ms. Sharda Aggarwal, who was directly recruited on 07.6.1985 and Shri  H.R.   Malhotra and Shri J.P.Singh, who were  directly recruited on 26.11.1985.

     It  would  be worthwhile to notice that  the  promotee officers,  in their rejoinder affidavit, have indicated that in  course of arguments in Singlas case, the Supreme  Court had  directed  the  Delhi  High Court  to  submit  a  chart, indicating   under  which  rule,   the  promotees  had  been appointed  and  pursuant  to the said directions,  the  High Court  had  submitted  a chart and all  the  petitioners(the

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promotees)  were  shown to have been appointed either  under Rule  16  or Rule 17.  A chart, also purported to have  been filed  in  the  earlier  case,  has  been  enclosed  to  the rejoinder  affidavit,  which clearly indicates  the  factual matrix, which were there before this Court in Singlas case. Even, the High Court in its counter affidavit in the present proceedings,  has submitted that all the petitioners  herein were  appointed  under  Rule 16 or 17 of the Rules  and  the respective dates of appointments are matters of record.

     So  far  as the argument of Mr.  Dipankar  Gupta,  the learned  senior counsel, appearing for the direct  recruits, to the effect that in view of the definition of Service in Rule 2(d), the appointees under Rule 16 cannot be held to be Members  of  the Service, it may be stated that  the  said question  was  duly  considered in Singlas case and  on  an analysis  of the scheme of the Rules, this Court came to the conclusion  that the Rule is peculiar in nature and  Cadre is  a  larger concept than Service under  the  Recruitment Rules.   The  Court  recorded  a finding  that  all  persons recruited  under  Rule  17  to the  posts  having  the  same designation,  as per the post in the schedule, must be  held to  be  Members  of  the   Cadre  and,  therefore,   while determining  the  inter  se seniority in the  ’Cadre’,  they cannot be ignored from consideration nor can they be held to be  alien to the Cadre.  The said contention of Mr.   Gupta, accordingly, cannot be sustained.

     So  far  as the contention of Mr.  Gopal  Subramanium, the  learned  senior  counsel,   appearing  for  the  direct recruits,  is concerned, in praying for re- consideration of the  judgment of this Court in Singlas case, the same  also cannot  be sustained inasmuch as the Court in Singlas  case did  consider  the  earlier  decision   of  this  Court   in Chandramouleshwars  case,  and recorded a finding  that  in that  case, it was only a matter of adjustment of  seniority between the promotees inter-se and not between the promotees and  direct recruits and, therefore, the ratio therein is of no   application.   Further,  Justice   Mukharji,   in   his concurring  judgment  did consider Joginder naths case  and held that the principle evolved therein cannot be applied to the  case  in  hand, where inter-se  seniority  between  the promotees  and  direct recruits are going to be  decided  on equitable  consideration.  We are also unable to accept  the contention  of Mr.  Subramanium that until the principle  of quota   provided   in  Rule  8  is  made   applicable   to appointments  under Rules 16 and 17, such appointees,  under Rules  16  and 17 cannot claim continuous length of  service for their seniority.  Such a contention appears to have been considered  and negatived in Singlas case.  The Judgment of this  Court in Singlas case is obviously intended to evolve some  equitable  principle  for  determination  of  inter-se seniority of a group of officers, when the rule of seniority contained  in  Rule 8(2) has been held to be  not  operative because  of breaking down of quota and rota rule.  To meet the peculiar situation, the Court evolved the principle that continuous  length  of  service should be the  criteria  for inter-se  seniority  between  the direct  recruits  and  the promotees,  provided, the promotees did possess the required qualification  as  per Rule 7 and the appointments had  been made  under  Rules 16 and 17, after due consultation  and/or approval  of  the High Court, which in our view also is  the most appropriate basis, evolved in the fact situation.  This being   the   position,   we   see  no   justification   for re-considering  the decision of this Court in Singlas case.

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That  apart, the Recruitment Rules have been amended in  the year  1987  and  the  aforesaid principle,  which  had  been evolved  in  Singlas case, would apply for determining  the inter-se   seniority  between  the   promotees  and   direct recruits,  all  of  whom had been appointed  to  the  Higher Judicial  Service,  prior to the amendment of the  Rules  in question,  which  was made in the year 1987.  We  have  also considered  the  arguments  advanced by  Mr.   P.P.Rao,  the learned  senior counsel, appearing for Delhi High Court  and we  are  unable  to persuade ourselves to  accept  the  same inasmuch  as it is not a mere question of leveling, as urged by  Mr.   Rao,  but,  it is a question  which  was  directly considered  by  this  Court  in  Singlas  case  and,  after examining  the  representative order, the  Court  positively recorded  a conclusion that the appointments made under Rule 16  or 17 cannot be held to be alien to the Cadre.  In  fact the Court was persuaded to come to the aforesaid conclusion, as  it  was found that the persons appointed under Rules  16 and  17  having all the necessary qualifications and  having been  appointed after due consultation with the High  Court, though  they  had served for more than five to seven  years, but  yet have been shown junior to the direct recruits,  who had  come  to  the  Service much later than  them.   It  is, therefore,  not  possible  for  us   to  accept  Mr.   Raos contention  and  permit  any   further  scrutiny  into  such appointments  made either under Rule 16 or under Rule 17  of the Recruitment Rules.  It is in fact, interesting to notice that  the schedule to the Recruitment Rules, which came into existence  in  1971, was amended for the first time only  in the  year 1991, 20 years, after and if a strict construction to  the  different provisions of the Rules would  be  given, then  all the temporary appointees under Rule 16, who  might have  rendered  5 to 10 years of Service would be denied  of their  right  for  the  purpose of seniority.   It  is  this impasse,  created on account of inaction of the  authorities and  on  account of non- adherence to the provisions of  the Rules  strictly, which persuaded the Court in Singlas  case to  evolve the principles for working out equities and  that principle has to be followed by the High Court in drawing up the  seniority  list.  It is not necessary to deal with  the contention,  raised by Mr.  Rakesh Kumar, appearing for  the direct recruits and Shri J.P.Singh, appearing in person, who is  a  direct  recruit  also, as well  as  Mr.   R.C.Chopra, appearing in person, who is a promotee, as essentially, they adopted  the arguments of either Mr.  Dipankar Gupta or  Mr. Gopal Subramanium and Mr.  Kapil Sibal.

     So  far  as  the terminology used  in  Singlas  case, namely  ad  hoc, fortuitous and stop-gap, the same  is quite  familiar  in  the Service Jurisprudence.   Mr.   Rao, appearing  for  the High Court of Delhi,  however  contended before us that the said terminology should be given the same meaning, as was given in Parshotam Lal Dhingra vs.  Union of India,  1958 S.C.R.  Page 828.  In Dhingras case, the Court was  examining whether removal of an employee can be held to be  a  penal and whether Article 311(2) of the  Constitution can  at  all be attracted and the Court also  observed  that certain   amount   of  confusion   arises  because  of   the indiscriminate use of the words provisional, officiating and  on  probation.  We do not think that the  concept  or meaning  given  to those terminology in Dhingras case  will have any application to the case in hand, where the Court is trying  to  work- out an equitable remedy in a manner  which will  not disentitle an appointee, the benefit of his fairly long  period  of Service for the purpose of seniority,  even

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though  he  possesses the requisite qualification  and  even though  his appointment has been made after due consultation and/or approval of the High Court.

     The  three terms ad hoc, stop gap and fortuitous are  in  frequent  use  in service  jurisprudence.   In  the absence  of  definition  of  these terms  in  the  rules  in question  we  have to look to the dictionary meaning of  the words  and the meaning commonly assigned to them in  service matters.   The meaning given to the expression  fortuitous in  Strouds Judicial Dictionary is accident or  fortuitous casualty.   This  should  obviously   connote  that  if  an appointment  is  made accidentally, because of a  particular emergent  situation and such appointment obviously would not continue  for a fairly long period.  But an appointment made either  under Rule 16 or 17 of the Recruitment Rules,  after due  consultation  with  the High Court  and  the  appointee possesses  the prescribed qualification for such appointment provided  in Rule 7 and continues as such for a fairly  long period,  then  the same cannot be held to fortuitous.   In Blacks  Law  dictionary, the expression fortuitous  means occurring  by  chance, a fortuitous event may  be  highly unfortunate.   It  thus, indicates that it occurs  only  by chance  or  accident, which could not have  been  reasonably foreseen.    The   expression  ad   hoc  in  Blacks   Law Dictionary,   means  something  which  is  formed   for   a particular  purpose.   The  expression  stop-gap  as  per Oxford  Dictionary, means a temporary way of dealing with a problem or satisfying a need.

     In  Oxford  Dictionary, the word ad hoc means for  a particular purpose;  specially.  In the same Dictionary, the word  fortuitous  means  happening by accident  or  chance rather than design.

     In P.  Ramanatha Aiyers Law Lexicon (2nd Edition) the word ad hoc is described as for particular purpose, Made, established,  acting  or concerned with a particular and  or purpose.   The meaning of word fortuitous event is  given as  an  event  which  happens by a cause  which  we  cannot resist;   one  which  is unforeseen and caused  by  superior force,  which it is impossible to resist;  a term synonymous with Act of God.

     The  meaning  to  be  assigned to  these  terms  while interpreting provisions of a Service Rule will depend on the provisions  of that Rule and the context in and the  purpose for  which the expressions are used.  The meaning of any  of these  terms  in  the  context of  computation  of  inter-se seniority  of officers holding cadre post will depend on the facts  and circumstances in which the appointment came to be made.   For  that purpose it will be necessary to look  into the purpose for which the post was created and the nature of the  appointment of the officer as stated in the appointment order.   If the appointment order itself indicates that  the post  is created to meet a particular temporary  contingency and   for  a  period  specified  in  the  order,  then   the appointment  to  such a post can be aptly described  as  ad hoc  or  stop-gap.   If  a  post is  created  to  meet  a situation  which has suddenly arisen on account of happening of  some event of a temporary nature then the appointment of such  a  post  can  aptly be described  as  fortuitous  in nature.   If an appointment is made to meet the  contingency

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arising  on  account of delay in completing the  process  of regular  recruitment to the post due to any reason and it is not possible to leave the post vacant till then, and to meet this  contingency  an  appointment  is   made  then  it  can appropriately  be  called  as a stop-gap  arrangement  and appointment  in the post as ad hoc appointment.  It is not possible to lay down any straight-jacket formula nor give an exhaustive list of circumstances and situation in which such an appointment (ad hoc, fortuitous or stop-gap) can be made. As  such,  this discussion is not intended to enumerate  the circumstances  or  situations  in   which  appointments   of officers  can  be  said to come within the scope of  any  of these  terms.  It is only to indicate how the matter  should be  approached  while dealing with the question of inter  se seniority of officers in the cadre.

     In  the Service Jurisprudence, a person who  possesses the  requisite  qualification  for   being  appointed  to  a particular  post and then he is appointed with the  approval and  consultation of the appropriate authority and continues in  the post for a fairly long period, then such appointment cannot  be  held to be stop-gap or fortuitous or purely  ad hoc.   In this view of the matter, the reasoning and  basis on  which,  the  appointment of the promotees in  the  Delhi Higher  Judicial Service in the case in hand was held by the High  Court  to be fortuitous/ad hoc/stop-gap  are  wholly erroneous  and, therefore, exclusion of those appointees  to have  their  continuous length of service for  seniority  is erroneous.

     In view of our conclusions, as aforesaid, we quash the seniority  list  both provisional and final, so far  as,  it relates to the appointees either by direct recruitment or by promotion in the Delhi Higher Judicial Service, prior to the amendment  of  the Recruitment Rules in the year  1987,  and their inter-se seniority must be re- determined on the basis of  continuous length of service in the Cadre, as  indicated in  Singlas  case  and explained by us  in  this  judgment. Since the future of these officers to a great extent depends upon  seniority  and  many of these officers may be  on  the verge  of  superannuation, the High Court would do  well  in finalising  the seniority within a period of six weeks  from the date of receipt of this judgment.

     Writ  Petition  No.   490/87 is  accordingly  allowed. Writ  Petition  Nos.  1252/90 and 14114/84  are  accordingly dismissed.   Writ  Petition Nos.  707/88, 856/88 and  764/88 stand  disposed  of  in  terms   of  the  directions   given herein-above.   Application  for  impleadment filed  by  Mr. R.C.Chopra  in  Writ Petition(Civil) No.490/87  is  allowed. Application  for impleadment filed by one Ms.Rekha Sharma in Writ Petition(Civil) No.1252 of 1990, stands rejected, since in  this batch of cases, we are concerned with the  inter-se seniority between the direct recruits and the promotees, who are  appointed  prior to the amendment of the Rules in  1987 and  the  applicant  Ms.   Rekha  Sharma  was  appointed  in January, 1988.

     The  application for impleadment by Shri J.B.  Goel in Writ Petition(Civil) No.  14114 of 1984 stands allowed.