Case: O.P. Singla &amp; Anr. Etc Vs. Union Of India &amp; Ors

precedents namely, that a person already rendering service as a promotee ha s to go down below a person who comes into service decades after the promotee enters the service and who may be a schoolian, if not in embryo, when the promotee on being promoted on account of the exigencies of service as required by the Government started rendering service. A time has come to recast service jurisprudence on more just and equitable foundation by examining all precedents on the subject to retrieve this situation." No two cases are alike and. therefore an attempt has been made in this judgment to consider the language and implication of the Rules which govern appointments to the Delhi Higher Judicial Service. But, the observations which we have extracted above are not without relevance to the decision of the case before us. They lend considerable support to the conclusion which has been recorded in this judgment.The decision of this Court in Joginder Nath v. Union of India(1), does not afford any assistance on the question which is in issue before us. That case arose out of a controversy between the promotees inter se and not between promotees and direct recruits. 23. The seniority list which is impugned in this case has been prepared on the basis that the rule of `quota and rota will continue to apply notwithstanding the fact that appointments are made to the Service under Rule 16 and 17. As pointed out earlier, the rule of `quota and rota which is prescribed by the proviso to Rule 7 would cease to apply when appointments are made to the Service under Rules 16 and 17. The seniority list has therefore to be quashed. A new seniority list shall have to be prepared by the authorities on the basis of the view taken in this judgment. The new seniority list will include (i) direct recruits and (ii) promotees appointed under Rules 16 and 17. They will rank for seniority as explained above. The question of the seniority of respondent 4, Shri G.S. Dakha has to be dealt with on a different basis. He was appointed as an Additional District and Sessions Judge in a vacancy reserved for members of the scheduled castes. He will retain his position in the seniority list since that position is due to him as a member of a scheduled caste. The case of Miss Usha Mehra has caused us some anguish. She was appointed as a direct recruit on April 22, 1980. The rule of `quota and rota was in operation since the inception of the Delhi Higher Judicial Ser vice and she must have joined the Service on the basis of certain reasonable expectations flowing out of a senior position. Though comparatively young, she had a fairly large practice at the Bar when she was appointed as an Additional District and Sessions Judge. A strong plea has been made on her behalf that her place in the seniority list should not disturbed. We wish that were possible. It would be incongruous to do so because, if the rule of `quota and rota ceased to apply when appointments were made to the Service under Rules 16 and 17, her present position in the seniority list which has been accorded to her on the basis of that rule cannot be maintained. For this consequence the promotees are not to blame, and cert ainly, not any of the direct recruits. The promotees had made a representation to the High Court as long back as in the year 1977 but, for a reason not easy to understand, the High Court did not dispose of that representation for over three years , Indeed, one of the contentions of the High Court before us is that those writ petitions are premature because the representation of the promotees is still pending before it. Miss Mehra was appointed three years after the promotees had made their representation to the High Court, which was the most appropriate authority for them to approach. A timely disposal of the representation by the High Court would have saved the predicament in which some of the direct recruits like Miss Mehra will now find themselves. It was urged that the promotees ought not to grudge one little exception in favour of Miss Mehra since they have derived quite some benefits from the operation of Rules 16 and 17. It is true that the promotees have derived a substantial benefit by the operation of Rules 16 and 17. They monopolised all the appointments to temporary posts as also temporary appointments to substantive vacancies in the Service. Simultaneously, they also derived benefit from the rule of `quota and rota. For example, though N.L. Kakkar and Shri R.K. Sinha were promoted to the Service in 1972, they were placed in the seniority list above Shri N.C. Kochar who was recruited directly in 1971. That was done in conformity with the quota and rota rule of 1: 2. If, at least some of the temporary posts had been converted into permanent ones as they ought to have been, one out of every three posts would have gone to a direct recruit. But as pointed out by us, the difficulty in the way of maintaining Miss Mehras present position in the seniority list is that doing so would be inconsistent with the view which we have taken in this judgment. We cannot, therefore, make an exception in the case of any particular direct recruit.It is patent that this judgment will upset the balance between direct recruits and promotees in the Delhi Higher Judicial Service. If the authorities desire to restore that balance, appropriate rules shall have to be framed for future application. But, more than merely framing the rules, care shall have to be taken to implement the rules both in letter and in spirit. That will call for greater concern and understanding on the part of the authorities for the future of a system, which one believes, has stood the people well. 24.

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

Explanation:
1[ds]The seniority list which is impugned in this case has been prepared on the basis that the rule of `quota and rota will continue to apply notwithstanding the fact that appointments are made to the Service under Rule 16 and 17. As pointed out earlier, the rule of `quota and rota which is prescribed by the proviso to Rule 7 would cease to apply when appointments are made to the Service under Rules 16 and 17. The seniority list has therefore to be quashedA new seniority list shall have to be prepared by the authorities on the basis of the view taken in this judgment. The new seniority list will include (i) direct recruits and (ii) promotees appointed under Rules 16 and 17. They will rank for seniority as explained aboveThe question of the seniority of respondent 4, Shri G.S. Dakha has to be dealt with on a different basis. He was appointed as an Additional District and Sessions Judge in a vacancy reserved for members of the scheduled castes. He will retain his position in the seniority list since that position is due to him as a member of a scheduled casteThe case of Miss Usha Mehra has caused us some anguish. She was appointed as a direct recruit on April 22, 1980. The rule of `quota and rota was in operation since the inception of the Delhi Higher Judicial Ser vice and she must have joined the Service on the basis of certain reasonable expectations flowing out of a senior position. Though comparatively young, she had a fairly large practice at the Bar when she was appointed as an Additional District and Sessions Judge. A strong plea has been made on her behalf that her place in the seniority list should not disturbed. We wish that were possible. It would be incongruous to do so because, if the rule of `quota and rota ceased to apply when appointments were made to the Service under Rules 16 and 17, her present position in the seniority list which has been accorded to her on the basis of that rule cannot be maintained. For this consequence the promotees are not to blame, and cert ainly, not any of the direct recruits. The promotees had made a representation to the High Court as long back as in the year 1977 but, for a reason not easy to understand, the High Court did not dispose of that representation for over three years , Indeed, one of the contentions of the High Court before us is that those writ petitions are premature because the representation of the promotees is still pending before it. Miss Mehra was appointed three years after the promotees had made their representation to the High Court, which was the most appropriate authority for them to approach. A timely disposal of the representation by the High Court would have saved the predicament in which some of the direct recruits like Miss Mehra will now find themselves. It was urged that the promotees ought not to grudge one little exception in favour of Miss Mehra since they have derived quite some benefits from the operation of Rules 16 and 17. It is true that the promotees have derived a substantial benefit by the operation of Rules 16 and 17. They monopolised all the appointments to temporary posts as also temporary appointments to substantive vacancies in the Service. Simultaneously, they also derived benefit from the rule of `quota and rota. For example, though N.L. Kakkar and Shri R.K. Sinha were promoted to the Service in 1972, they were placed in the seniority list above Shri N.C. Kochar who was recruited directly in 1971. That was done in conformity with the quota and rota rule of 1: 2. If, at least some of the temporary posts had been converted into permanent ones as they ought to have been, one out of every three posts would have gone to a direct recruit. But as pointed out by us, the difficulty in the way of maintaining Miss Mehras present position in the seniority list is that doing so would be inconsistent with the view which we have taken in this judgment. We cannot, therefore, make an exception in the case of any particular direct recruit.It is patent that this judgment will upset the balance between direct recruits and promotees in the Delhi Higher Judicial Service. If the authorities desire to restore that balance, appropriate rules shall have to be framed for future application. But, more than merely framing the rules, care shall have to be taken to implement the rules both in letter and in spirit. That will call for greater concern and understanding on the part of the authorities for the future of a system, which one believes, has stood the people well.