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CASE NO.: Writ Petition (civil) 388  of  1994.

PETITIONER: S.N.DHINGRA & ORS.

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT:       31/01/2001

BENCH: G.B.Pattanaik, B.N.Agarwal

JUDGMENT:

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     JUDGMENT

     PATTANAIK,J.

     This  petition under Article 32 by the Direct Recruits to  Delhi Higher Judicial Service, assails the inclusion  of the respondents 5 to 8 in the Gradation List drawn up by the High Court of Delhi by order dated 22.8.2000 pursuant to the directions given by this Court in Writ Petition No.  490/87. These  respondents  have been continuously working in  Delhi Higher  Judicial  Service w.e.f.  18th of January, 1986  but had been posted as Chief Metropolitan Magistrates on account of  the Government decision of up-gradation of the said post of  Chief Metropolitan Magistrates.  The petitioners on  the other  hand are directly recruited officers to Delhi  Higher Judicial  Service in the year 1988 pursuant to the selection made  in accordance with the Recruitment Rules.  The bone of contention  of the petitioners is that the respondents,  who were  continuing as Chief Metropolitan Magistrates, must  be held  to  be  juniors to the petitioners inasmuch  as  their decision  was  subject  to challenge in  appeal  before  the petitioners,  who were appointed as Additional District  and Sessions  Judge,  and  the  High Court  committed  error  in including  the  names of these respondents in the  gradation list  pursuant to the directions given by this Court in  the Constitution  Bench  by  not   properly  understanding   the directions in question.

     This  Court in O.P.Singlas case, 1984(4) SCC 450 took into   consideration   the  relevant   provisions   of   the Recruitment  Rules  and  came  to   hold  that  the  quota principle  contemplated in the Recruitment Rules has totally broken  down  and as such seniority of the officers  in  the

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Delhi Higher Judicial Service cannot be determined by taking recourse to the quota and rota provided in Rule 8(2).  The Court  on the other hand indicated that the seniority has to be  determined on the basis of continuous length of  service provided   the  promotees  have   been  promoted  after  due consultation  with  the High Court and they did  posses  the requisite  qualification  for promotion in  accordance  with Rule  7  of  the Recruitment Rules.  The Court  had  further indicated in Singlas that the ad hoc, fortuitous and stop- gap  appointees will not be entitled to the benefit of  the aforesaid  principle  namely  the   continuous  length   of service  as the basis of their seniority in the cadre.   As the High Court failed to implement the aforesaid judgment of this  Court in its proper perspective and drew up  seniority list contrary to the letter and spirit of the judgment, writ petitions  were filed in this Court which stood disposed  of by  a Constitution Bench in the case of Rudra Kumar Sain and Ors.  Vs.  Union of India and Ors., reported in 2000 (8) SCC 25.   The Constitution Bench came to the conclusion that the provisional  and final gradation list had not been drawn  up in  accordance  with the principles enunciated  in  Singlas case  and accordingly the said gradation lists were quashed. The  Constitution  Bench  also  further  directed  that  the appointees to the Delhi Higher Judicial Service prior to the amendment of the Recruitment Rules in the year 1987, whether by  direct recruitment or by promotion, are entitled to  get their  seniority  re-determined on the basis  of  continuous length  of  service in the cadre, as indicated  in  Singlas case  and the High Court, therefore should draw up the  same within  a specified period.  The Constitution Bench  further elaborated the meaning of the expression ad hoc, fortuitous and stop gap and having said so, it was further observed:

     It  is  not possible to lay down any  strait-  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.

     Thus  both  in Singlas case as well the  Constitution Bench  decision  in  Rudra  Kumars  case,  this  Court  has indicated  the principle on which the inter se seniority  of the  officers  of  Delhi Higher Judicial Service has  to  be drawn  up, particularly when the statutory mode contained in Rule  8(2)  of  quota and rota principle was found  to  be broken  down and at the same time it was also indicated that for  finding  out  the period of continuous service  in  the cadre  of  Higher Judicial Service, the ad hoc,  fortuitous and  stop-gap appointments would not be taken into account. Since respondents 5 to 8 were the promoted officers in Delhi Higher  Judicial  Service  prior  to the  amendment  of  the Recruitment   Rules  in  1987,   their  seniority  has  been determined  on  the  basis  of their  continuous  length  of service  in  the  cadre  pursuant to  the  observations  and directions  given  by this Court in the  Constitution  Bench decision of Rudra Kumars case.

     Mr.   Shanti  Bhushan,  the  learned  senior  counsel, appearing  for  the present petitioners, who are the  direct recruits  to  the Delhi Higher Judicial Service in the  year

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1988,   however  contends  that   the  inclusion  of   these respondents  in  the  gradation  list already  drawn  up  is erroneous inasmuch as their recruitment itself unequivocally indicates  that  the  same  is purely fortuitous  and  as  a stop-gap  arrangement,  as  it would be  apparent  from  the Notification  dated 16.1.1986.  Mr.  Shanti Bhushan  further contends that the appointment of these respondents by letter dated  16.1.86 was fortuitous and as a stop-gap  arrangement is  re-enforced by the fact that a fresh appointment to  the service  on  temporary basis was made in their favour  under Rule  16(2) of the Recruitment Rules by the Administrator by Notification  of  24th  of February, 1989 and  as  such  the services  of  these  respondents from 16.1.86  till  24.2.89 being  purely  a fortuitous and stop- gap  arrangement,  the said  period  could  not have been  reckoned  as  continuous service for determination of their seniority in the cadre of Delhi  Higher Judicial Service and the High Court, therefore was  not justified in including their names in the gradation list  drawn  up  on  22nd  August,  2000,  pursuant  to  the directions  given  by this Court in the  Constitution  Bench decision of Rudra Kumars case.  Mr.  Shanti Bhushan further contends  that  by  mere up-gradation of the post  of  Chief Metropolitan  Magistrate, those posts did not form a part of cadre  until amendment in question and inclusion of the post in  the  schedule,  and adjudged from that angle  also,  the appointees  to  those posts could not have been held  to  be regular  appointees  in Delhi Higher Judicial Service.   The schedule  having  been  amended  only   in  1991  and  these respondents  having  been  continued as  Chief  Metropolitan Magistrates  till  February, 1989, could not have been  made senior to the direct recruits-petitioners who were recruited to  the Delhi Higher Judicial Service in the year 1988.  Mr. Shanti Bhushan, the learned senior counsel, relying upon the provisions  of the Criminal Procedure Code also  strenuously contended  that against the orders of the Chief Metropolitan Magistrates,  appeal being maintainable to the District  and Sessions Judge and the respondents having continued as Chief Metropolitan Magistrates till 1989 and against their orders, appeal  being  maintainable  to the  District  and  Sessions Judge,  which post was held by the petitioners since in  the year 1988, those respondents could not have been made senior to  the petitioners in any view of the matter.  According to Mr.   Shanti Bhushan, both in Singlas case 1984(4) SCC  450 as  well  as in Patwardhans case, 1977 (3) S.C.R.  775,  on which  reliance was placed in Singlas case, the Court while evolving  the principle of continuous length of service as the criterion for determination of the inter se seniority in the  cadre,  has hastened to add that the post  in  question must  belong to the same cadre and the incumbents  discharge similar  functions  and  bear the same  responsibility,  but applying  the  aforesaid principle to the case in  hand,  it cannot  be  said  that the  Chief  Metropolitan  Magistrates discharge   the   similar  function   and  bear   the   same responsibility as the Additional District and Sessions Judge and,  therefore,  the respondents could not have been  given their  seniority  on  the  basis of  continuous  length  of service  for  the  period  they   are  continued  as  Chief Metropolitan  Magistrates.   Mr.    Shanti  Bhushan  further contends  that an examination of the scheme of the  Criminal Procedure  Code, more particularly, Sections 17, 19, 28  and 29   unequivocally  indicate  that   a  Chief   Metropolitan Magistrate  is  subordinate  to   the  Sessions  Judge  and, therefore  notwithstanding the up- gradation of the post  of Chief  Metropolitan Magistrate, the statutory  subordination under  the Criminal Procedure Code remains and consequently,

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the   respondents  who  continued   as  Chief   Metropolitan Magistrates till February, 1989, cannot be held to be senior to the petitioners, who are recruited as Additional District and  Sessions Judge in the year 1988 and in this view of the matter,  the inclusion of the name of the respondents in the gradation list drawn up is erroneous.

     Mr.   P.P.  Rao, the learned senior counsel, appearing for  the  High Court of Delhi, on the other  hand  contended that  the order of the Administrator in upgrading five posts of  Chief  Metropolitan  Magistrates and including  them  in Delhi  Higher  Judicial Service tantamounts to  creation  of temporary posts in the service under sub-rule (2) of Rule 16 of  the  Rules.   According  to   the  learned  counsel  the definition  of  cadre  post in Rule 2((b)  of  the  Rules, clearly  conceives  any other temporary post  declared  as cadre  post  by the Administrator and, therefore,  when  the Administrator  upgraded  the  post   of  Chief  Metropolitan Magistrate and included those posts in Delhi Higher Judicial Service, then the holder of those posts cannot be denied the benefit  of  such  continuation  of  service.   The  learned counsel  further  contended  that  under Rule  4(2)  of  the Recruitment  Rules, the Administrator is empowered to create from  time  to time as many cadre posts as may be  necessary and  in the absence of any embargo on the aforesaid power of the  Administrator, the so-called upgradation of the post of Chief  Metropolitan  Magistrate  and   inclusion  of   those upgraded  posts  in  the   Delhi  Higher  Judicial  Service, undoubtedly  entitles the incumbents of those posts to claim seniority  on the basis of their continuous service, as  has been  held  in Singlas case and upheld by the  Constitution Bench  in  Rudra Kumars case.  The learned counsel  further contends  that notwithstanding the amendment of the schedule in  the  year  1991, the position being that five  posts  of Chief  Metropolitan  Magistrates  were   upgraded  and  were included  in  the Delhi Higher Judicial Service and  private respondents  having been continuing against those posts, the High  Court  was  justified in taking the entire  length  of continuous  service  in the Higher Judicial Service for  the purpose of determination of their seniority in the cadre and no  error can be found therein in the matter of  preparation of  gradation  list  on 22nd August, 2000, pursuant  to  the Constitution  Bench  judgment of this Court.  In support  of this  contention,  he placed reliance on a decision of  this Court  in  the case of S.L.Kaul and Ors.  Vs.  Secretary  to Govt.   of India, Ministry of Information and  Broadcasting, New  Delhi  &  Ors., 1989 Supp.(1) SCC 147.  Mr.   Rao  also contended  that  the very appointment of the respondents  on 16th  of January, 1986 was to Delhi Higher Judicial  Service and not against any particular post.  On being so appointed, the  High  Court  which is the authority  to  make  posting, posted  them as Chief Metropolitan Magistrates or Additional Chief  Metropolitan  Magistrates against the  five  upgraded posts of the Chief Metropolitan Magistrates.  This being the position,  the fact that against their order while they were continuing  as Chief Metropolitan Magistrates, an appeal lay to  the District and Sessions Judge under the provisions  of Criminal  Procedure Code, will not take away the benefits of their  continuous service in the cadre, as contended by  Mr. Shanti  Bhushan, and, therefore, the impugned gradation list has  rightly been drawn up.  According to Mr.  Rao, it is no doubt  true that in the appointment order dated 16.1.86,  it has  been indicated that the appointments are fortuitous and stop-gap,  but this labelling is of no consequence and would

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not  deny  the  respondents  of  their  valuable  rights  of continuing  in  the Delhi Higher Judicial Service and  would not  deprive  them  of   their  seniority  being  determined according  to  the principles evolved in Singlas  case  and affirmed in the Constitution Bench judgment of this Court in Rudra  Kumars case, particularly, when the Court has  tried to resolve the impasse created by directing that continuous length  of service should be the principle for  determining the seniority.

     Mr.    G.L.   Sanghi,  the   leaned  senior   counsel, appearing  for  some  of the  promotee-respondents,  in  the context  of  the facts of the present case,  contended  that appointment   to  service  and   thereafter  posting  to   a particular  post  are  two  different  concepts.   Once  the respondents  were appointed to Delhi Higher Judicial Service by  order dated 16th of January, 1986 and continued to  hold the  post  in  the said service, the  continuous  period  of officiation is the only guiding factor for determining their seniority  in the cadre.  This principle having been evolved by  this Court in Singlas case and upheld in Rudra  Kumars case,  cannot be given a go-bye, merely because the  initial letter  of  appointment  indicated that the  appointment  is fortuitous  or stop-gap.  Mr.  Sanghi contended that the use of  the  expression fortuitous and stop- gap by  the  High Court  is  because of the fact indicated in the  Registrars letter  dated  4th of January, 1986, namely  the  sanctioned strength  of Delhi Higher Judicial Service, as it stood then and  the  fact  that  the   advertisement  had  been  issued separately  for the direct recruits as per Rule 7(b) of  the Recruitment  Rules.   This  letter was considered  in  Rudra Kumars  case  by the Constitution Bench and the  Court  had observed  as  to how the High Court was obsessed for use  of the   word  fortuitous  and   stop-gap.   This  being  the position,   and  in  the  light   of  the   directions   and observations  in Rudra Kumar’ case, the High Court  rightly included  the  names of these respondents in  the  gradation list  drawn up, and there is no infirmity in the same.   Mr. Sanghi contends that in concluding paragraph of the judgment of  the  Constitution Bench in Rudra Kumars case, the  High Court  was  called upon to draw up the seniority of all  the officers,  direct recruits and promotees, appointed to Delhi Higher  Judicial  Service  prior  to the  amendment  of  the Recruitment  Rules  of  1987 and in view  of  the  aforesaid directions  and the respondents having been appointed to the Delhi Higher Judicial Service with effect from 16.1.1986 and having  continued in the said service without  interruption, it  was  only logical for the High Court to include them  in the  gradation list drawn up and the petitioners who came to be  recruited in the year 1988, cannot make any complaint of the  same.   According to Mr.  Sanghi, though the  order  of appointment  dated  16.1.86 indicate the appointment  to  be fortuitous  or  stop-gap, but the substance being looked  at and  the  principles enunciated in Rudra Kumars case  being applied  for,  such  appointment  cannot   be  held  to   be fortuitous  or stop-gap, so as to deprive the benefit of the continuous length of service for the purpose of seniority of the  appointees, and consequently, the gradation list  drawn up does not require any interference.

     Mr.   D.N.Goburdhan, the learned counsel appearing for some  other  respondents, while supporting  the  contentions raised  by Mr.  Sanghi, further urged that the notification,

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appointing  the petitioners to Delhi Higher Judicial Service on  probation, itself unequivocally indicates that the  same is subject to the final result in pending writ petitions and that  the seniority vis-a-vis the promotees in Delhi  Higher Judicial Service would be determined and fixed in accordance with  the judgment of the Supreme Court in O.P.Singlas case as  well as the other writ petitions pending in the  Supreme Court and in view of such appointment letters and in view of the  Constitution Bench decision in Rudra Kumars case,  the High  Court  rightly determined the seniority and  the  same should not be interfered with.

     Mr.   Raju  Ramachandran, the learned senior  counsel, appearing  for  respondent  No.   6,  emphasised  that   the expression  discharging similar functions in  O.P.Singlas case,  must  be  understood to mean capable  of  discharging similar  functions  inasmuch as an appointee discharges  the functions  of  the  post  to which he is  appointed  by  the employer.   In this view of the matter once respondents  are appointed  to  Delhi  Higher Judicial  Service,  their  mere posting  as  Chief  Metropolitan Magistrate as  against  the upgraded  post  in the said cadre of Delhi  Higher  Judicial Service  will not deprive them of their right to have  their continuous  length of service as the basis for seniority  in the  cadre and, therefore, the impugned gradation list  does not suffer from any infirmity.

     In view of the submissions made at the Bar and in view of  the two earlier decisions of this Court, O.P.Singla  and Rudra  Kumar,  the  first  question   that  arises  for  our consideration  is whether it was open for the  Administrator to  upgrade  the post of Chief Metropolitan  Magistrate  and include  those  upgraded  posts  in  Delhi  Higher  Judicial Service,  so  as  to  form a part of the  cadre  post.   The definition  of cadre post in Rule 2(b) of the  Recruitment Rules,  stipulates that any other temporary post declared as cadre  post  by  the Administrator would be a  cadre  post apart  from those which have been specified in the schedule. The  definition  of service in Rule 2(e) means  the  Delhi Higher  Judicial  Service  and   the  expression   promoted officer  in  Rule 2(h) of the Rules means a person  who  is appointed  to  the service by promotion from Delhi  Judicial Service.  Rule 4(2) speaks of the power of the Administrator to  create cadre post from time to time as may be necessary. Rule  16  authorises the Administrator to  create  temporary post  in  the  service  and  to   fill  up  such  posts   in consultation with the High Court from amongst the members of the  Delhi  Judicial  Service.   In view  of  the  aforesaid provisions of the Rules and in view of the earlier decisions of  this Court in Singla and Rudra Kumar, the conclusion  is irresistible  that the Administrator by upgrading five posts of  Chief  Metropolitan  Magistrates to the  rank  of  Delhi Higher Judicial Service and by including them in the service has merely exercised his power under Rule 16, and therefore, the  appointees  like the respondents to those posts in  the service  from Delhi Judicial Service must be held to be born in  the service from the date of their appointment by virtue of  order  dated 16th of January, 1986.  This conclusion  of ours  is  further strengthened from the fact that  even  the schedule   has  been  amended   later,  by  indicating   the authorised strength of the service to include the five posts of   Chief    Metropolitan    Magistrates/Additional   Chief Metropolitan  Magistrates.  In the aforesaid premises and in

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the  light  of  the two earlier judgments of this  Court  in Singla and Rudra Kumar, we have no hesitation to come to the conclusion  that  the upgraded posts of  Chief  Metropolitan Magistrates  were born in the cadre of Delhi Higher Judicial Service   and,   necessarily,   therefore,  the   incumbents appointed  against  those  posts  would  not  ordinarily  be deprived  of  their benefit accruing from  such  appointment unless  in their true nature and spirit the appointments can at all be termed to be fortuitous or stop gap.

     The  next  question  that  arises  for  consideration, therefore, is whether such appointments though nomenclatured as  stop- gap and fortuitous can at all be held to be such in  the  light  of the enunciation of those  terminology  in Rudra   Kumars  case.   There  is   no  dispute  that   the Constitution  Bench  in  Rudra   Kumars  case  has  clearly indicated  that  whether a particular appointment is  really fortuitous  or  stop-gap has to be decided in the facts  and circumstances of the case and any universal principle cannot be  made  for  the  purpose.   In  the  case  in  hand,  the Administrator had upgraded those posts of Chief Metropolitan Magistrates  to  be  in Delhi Higher Judicial  Service,  the posts  have been filled up by these respondents belonging to Delhi  Judicial Service in consultation with the High Court. These  respondents  did possess the requisite  qualification and  experience for being appointed to Delhi Higher Judicial Service  and  they have been continuing in the  said  Higher Judicial  Service from January, 1986.  In this premises,  it would  be  a  travesty  of   justice  if  their   continuous appointment in the service is not taken into account for the purpose of their seniority, merely because of the use of the expression stop-gap and fortuitous in the order dated 16th of  January,  1986.   It may be stated that  the  order  had emanated  from the High Court and in Rudra Kumars case, the Constitution  Bench has already dealt with the obsession  of the  High  Court  for  use of such expression  and  how  for inaction  on the part of the High Court, the promotees  have suffered  in  the  matter  of their  seniority  and  how  in Singlas  case  the Court resolved the impasse by  directing continuous length of service to be the guiding principle for determination  of  the  seniority  in  the  cadre.    Having examined  the entire facts and circumstances of the case  in hand,  particularly,  the upgradation of the post  of  Chief Metropolitan Magistrate to the post in Delhi Higher Judicial Service  and filling up of those posts in consultation  with the High Court by the Administrator, we find it difficult to hold  that such appointment of the respondents from  16.1.86 till  1989  were in fact really fortuitous or stop-gap.   To hold  such appointments to be fortuitous or stop-gap,  would be  against  the  spirit of the judgment of  this  Court  in Singla  and  re-  affirmed  in   Rudra  Kumars  case.   We, therefore,  are not persuaded to agree with the  submissions of  Mr.  Shanti Bhushan that the appointment of  respondents from  16.1.1986  till 1989 must be held to be fortuitous  or stop-gap  and on that score ought not to be counted for  the purpose of their seniority in the cadre.

     The  next  question that arises for  consideration  is whether  the fact that the respondents though were appointed to  Delhi Higher Judicial Service, but having been posted as Chief  Metropolitan Magistrates against whose orders, appeal lay  to the Court of District and Sessions Judge would  make any difference?  In this connection we find sufficient force

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in the argument of Mr.  Sanghi that appointment to a service and  posting thereafter are of two different concepts.  Once the  appointment is made to the Higher Judicial Service,  as in  the  case in hand, then the subsequent  posting  against some  posts  born  in the Higher Judicial Service  will  not deprive  the  appointees  from the  benefits  of  continuous appointment against the post merely because at a given point of  time  against their order an appeal lay to the  District and  Sessions  Judge, which might have been occupied by  the petitioners  on  being directly recruited in the year  1988. It  is  in  this  context,   the  very  recruitment  of  the petitioners  and the terms and conditions mentioned  therein is  of great significance as pointed out by Mr.   Goburdhan, appearing  for  some  of  the   respondents.   It  has  been unequivocally  stated  that the question of their  seniority would  be subject to and in accordance with the decision  of the  Supreme  Court  in the pending cases.  In view  of  the Constitution  Bench  Judgment in Rudra Kumar and in view  of the earlier directions contained in OP Singla and in view of our  conclusion already arrived at, the ultimate  conclusion is  inescapable  that  the continuous length of  service  of these respondents right from their appointment to the Higher Judicial  Service  in January, 1986 should be the  basis  on which  their  seniority  has to be determined and  the  High Court  therefore, was fully justified in including the names of  these  respondents in the gradation list that  had  been drawn up on 22nd of August, 2000.

     The submission of Mr.  Shanti Bhushan, on the basis of the  provisions  of  the  Criminal Procedure  Code  and  the subordination  of  the  Chief Metropolitan  Magistrates,  as provided  in Section 19 of the Criminal Procedure Code is of little consequence for the determination of the seniority in the service, once it is held that the upgraded post of Chief Metropolitan  Magistrate stood included in the Delhi  Higher Judicial Service.

     In the aforesaid premises, we do not find any merit in the writ petition, which accordingly fails and is dismissed. But  in  the  circumstances there would be no  order  as  to costs.