Case: G. R. Luthra, Additional District Judge, Delhi Vs. Lt. Governor, Delhi &amp; Ors

the Delhi Higher Judicial Service it appears that the respondents and the appellant were all rendering service as Additional District and Sessions Judge. The fallacy of the appellant is that the appellant wants to equate cadre with substantive appointment to a permanent post. This construction totally overlooks the fact that the Delhi higher Judicial Service was constituted with persons who rendered service as Additional District and Sessions Judges in temporary posts or in temporary capacity against permanent posts. There were altogether five permanent and six temporary posts of District and Sessions Judges and Additional District and Sessions Judges. The respondents and the appellants were all recruited as temporary Additional District and Sessions Judges. The important yardstick in the determination of seniority is the length of service rendered by them in the cadre. "Cadre post in the Fundamental Rules means a post as specified in the Schedule and includes a temporary post. The Delhi Higher Judicial Service Rules does not define "cadre but defines cadre post to include a temporary post. The words in the cadre to which they belong in Rule 6 (3) cover the cases of permanent as well as temporary Additional District and Sessions Judges at the time of initial recruitment.27. In Fundamental Rule 9 (22) "permanent post means a post carrying a definite rate of pay sanctioned without limit of time. Fundamental Rule 9 (30) defines "temporary post as a post carrying a definite rate of pay sanctioned for a limited time. Temporary posts may be posts created to perform the ordinary work for which permanent posts already exist. Temporary posts may also be temporary addition to the cadre of a service. "Cadre in Fundamental Rule 9 (4) means the strength of a service or part of a service sanctioned as a separate unit. In the case of temporary addition to the cadre of a service the power of the authorities to create such a post will depend on the provisions of the Rules. Isolated posts may be created for the performance of special tasks unconnected with the ordinary work which a service is called upon to perform. Such temporary posts are treated as unclassified and isolated ex-cadre posts. Here again the power to create the post depends on the provisions contained in the Rules. Where however temporary posts are considered as temporary additions to the cadre of a service the incumbents of those posts will draw their time scale pay.28. The Punjab Superior Judicial Service rules 1983 define "cadre post to mean a permanent post in the service and "ex-cadre post means a post of the same rank as a cadre post. The aforesaid Punjab Rules show that cadre mean incumbents of both permanent and temporary posts. Rule 12 of those Punjab rules states that the seniority of the substantive members of the service, whether permanent or temporary, shall be determined with reference to the respective dates of their confirmation. These Punjab Rules are referred to only for the purpose of showing that where confirmation is the decisive factor to determine the seniority the Rule states so.29. The appellant was appointed a temporary Additional District and Sessions Judge on 25 November, 1967 against one of the temporary posts created by the Government of India. The respondents Sidhu, Vohra and Jain had all been appointed temporary Additional Judges on 15 January, 1966; 24 April, 1967; and 11 August, 1967 respectively earlier than the appointment of the appellant.30. It is apparent that the respondents Sidhu, Vohra and Jain were rendering longer service as Additional District and Sessions Judge than the appellant in the cadre of District and Additional District and Sessions Judge to which they belonged.31. The appellant was confirmed on 2 October, 1970 as District Judge in the Haryana Judicial Service and the respondent Sudhu was confirmed as District Judge on 22 February, 1971 in the Punjab Judicial Service. The confirmation of the appellant and the respondent Sidhu was against permanent posts in Haryana and Punjab Judicial Service because of the accident of permanent posts falling vacant at that time in their home States from which they came on deputation. To determine seniority according to confirmation in permanent posts is to wipe out the length of service rendered by the candidates appointed at the initial constitution of the Delhi Higher Judicial Service. The respondents are in fact senior to the appellant in regard to appointment as Additional District and Sessions Judges.32. The criterion for the determination of seniority under the Delhi Rules is the length of service rendered by the candidates during the period when they were rendering service either as District Judge or as Additional District and Sessions Judge in permanent or temporary capacities.33. Rule 6 (4) of the Delhi Rules shows that the respondents and the appellant were absorbed in the Delhi Higher Judicial Service from the States of Punjab and Haryana. The length of service rendered by them as Additional District and Sessions Judges is the criterion to fix the seniority. The word "cadre includes both permanent and temporary posts. To confine cadre to permanent posts under the Delhi Rules would be to render the Rules totally unworkable and impracticable because at the time of initial recruitment the persons came on deputation from States mostly in their temporary capacity as Additional District and Sessions Judges.34. For these reasons we are of opinion that the respondents Sidhu, Vohra and Jain had been rightly treated as senior to the appellant on the ground that the length of service rendered by the respondents in the cadre of District and Additional District and Sessions Judges to which they belonged at the time of initial recruitment is longer than that of appellant. The respondents and the appellant were all functioning as Additional District Judges on deputation at Delhi at the time of the initial constitution of the Delhi Higher Judicial Service. The respondents were appointed prior to the appellant as Additional district and Sessions Judge. The respondents rendered longer service as Additional district and Sessions Judge vis-a-vis the appellant.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]27. In Fundamental Rule 9 (22) "permanent post means a post carrying a definite rate of pay sanctioned without limit of time. Fundamental Rule 9 (30) defines "temporary post as a post carrying a definite rate of pay sanctioned for a limited time. Temporary posts may be posts created to perform the ordinary work for which permanent posts already exist. Temporary posts may also be temporary addition to the cadre of a service. "Cadre in Fundamental Rule 9 (4) means the strength of a service or part of a service sanctioned as a separate unit. In the case of temporary addition to the cadre of a service the power of the authorities to create such a post will depend on the provisions of the Rules. Isolated posts may be created for the performance of special tasks unconnected with the ordinary work which a service is called upon to perform. Such temporary posts are treated as unclassified and isolated ex-cadre posts. Here again the power to create the post depends on the provisions contained in the Rules. Where however temporary posts are considered as temporary additions to the cadre of a service the incumbents of those posts will draw their time scale pay.28. The Punjab Superior Judicial Service rules 1983 define "cadre post to mean a permanent post in the service and "ex-cadre post means a post of the same rank as a cadre post. The aforesaid Punjab Rules show that cadre mean incumbents of both permanent and temporary posts. Rule 12 of those Punjab rules states that the seniority of the substantive members of the service, whether permanent or temporary, shall be determined with reference to the respective dates of their confirmation. These Punjab Rules are referred to only for the purpose of showing that where confirmation is the decisive factor to determine the seniority the Rule states so.29. The appellant was appointed a temporary Additional District and Sessions Judge on 25 November, 1967 against one of the temporary posts created by the Government of India. The respondents Sidhu, Vohra and Jain had all been appointed temporary Additional Judges on 15 January, 1966; 24 April, 1967; and 11 August, 1967 respectively earlier than the appointment of the appellant.30. It is apparent that the respondents Sidhu, Vohra and Jain were rendering longer service as Additional District and Sessions Judge than the appellant in the cadre of District and Additional District and Sessions Judge to which they belonged.Rule 6 (4) of the Delhi Rules shows that the respondents and the appellant were absorbed in the Delhi Higher Judicial Service from the States of Punjab and Haryana. The length of service rendered by them as Additional District and Sessions Judges is the criterion to fix the seniority. The word "cadre includes both permanent and temporary posts. To confine cadre to permanent posts under the Delhi Rules would be to render the Rules totally unworkable and impracticable because at the time of initial recruitment the persons came on deputation from States mostly in their temporary capacity as Additional District and Sessions Judges.34. For these reasons we are of opinion that the respondents Sidhu, Vohra and Jain had been rightly treated as senior to the appellant on the ground that the length of service rendered by the respondents in the cadre of District and Additional District and Sessions Judges to which they belonged at the time of initial recruitment is longer than that of appellant. The respondents and the appellant were all functioning as Additional District Judges on deputation at Delhi at the time of the initial constitution of the Delhi Higher Judicial Service. The respondents were appointed prior to the appellant as Additional district and Sessions Judge. The respondents rendered longer service as Additional district and Sessions Judge vis-a-vis the appellant.