K.K.Sharma vs High Court Of Delhi & Ors

2. The Delhi High Court Establishment (Appointment & Conditions of Service) Rules, 1972 (hereinafter for short 'the Rules') came into effect from 1.9.1972. The Rules provided for 100% selection to fill up the post of Assistants [later designated as 'Senior Judicial Assistants' (SJA)]. The selection was to be made on the basis of a test from members of the High Court establishment with minimum 5 years of service. In 1978 i.e. from 20.9.1978 the Rules were amended by providing avenues of promotion to fill up the post of SJA to the extent of 50%. Such promotion was to be made on the basis of seniority-cum-suitability from the cadre of Treasurers/UDCs with minimum 5 years service; the remaining 50% of the cadre was to be filled by selection, as earlier. A decade later i.e. with effect from 16.3.1988 the Rules were once again amended to provide for 100% promotion to the post of SJA, from Treasurers/UDCs having 5 years service. The criteria of promotion remained the same i.e. seniority-cum-suitability.

6. What happened during the interregnum has been elaborately recited in the order dated 23.10.2009 of the Division Bench of the High Court disposing of the aforesaid writ petitions i.e. W.P. (C) No.4077-84 of 2004. The said facts need not be recited once again but in so far as the issues raised in the present appeal is concerned the following facts and events will have to be noticed.

7. Taking note of all the aforesaid facts, W.P. (C) Nos.4077-84/2004 was answered by a Division Bench of the High Court by its order dated 23.10.2009. While rendering the said order, the Division Bench acknowledged the fact that the order dated 16.10.1998 disposing of C.W.P. No.1218 of 1989 called for large scale reversion of incumbents. Though it was further acknowledged that such an exercise may have been appropriate and proper at the relevant point of time, with passage of time the same became impractical in view of the deleterious effect that such an exercise, at a belated stage, was bound to have on the High Court administration. At the same time recognising the rights of the Junior Translators and its duty to implement the order dated 16.10.1998, the High Court evolved a framework to deal with the situation by conceiving of a limited review of the inter-se seniority and consequential promotions. Taking note of the fact that it is only the Junior Translators who had moved the High Court in both sets of writ petitions, the High Court limited the exercise in respect of Junior Translators and directed, instead of a whole scale review, a limited review to the extent of 20% of the 81 posts (20 posts) which had been exclusively filled up by promotion on the criterion of seniority-cum-suitability. Accordingly, the following directions came to be issued by the order dated 23.10.2009 :-

42. While giving effect to the above directions, the respondents shall endeavor that there are no reversions. The incumbent SJA's appointment shall be notionally pushed down, to later dates, if there is any need to revert those promoted the basis of seniority-cum-suitability, in the cadre of Junior Assistants/UDCs or other cadres promoted as SJA, in excess of the 50% quota. Also, there shall be no recovery of pay or allowances made to them. In case any such SJAs have been promoted on selection basis, every endeavour shall be made that they do not face reversion and instead, their date(s) of promotion are postponed. In case of undue hardship, the Registry shall make appropriate orders, by seeking recourse to the establishment's residuary powers under the Rules.

45. In view of the above, the respondents are hereby directed to review the petitioners promotions to the cadre of AOJs/CMs and reconsider the issue, on each of the previous dates, when the DPCs were held prior to their actual promotions. It is clarified that this direction is confined to reviewing the petitioners' promotional dates, since they have already been promoted, and the exercise will be limited to considering their cases, along with those who were promoted on those concerned dates. An endeavour shall be made to see that no reversions follow, and that if anyone in position is deemed not up to the mark, his or her promotion shall be postponed to a later date, and such promotion shall be accommodated against a later vacancy.

46. The writ petitions therefore, are entitled to succeed; they are allowed in terms of the directions contained in Paras 40 - 44 of this judgment. There shall however, be no order on costs."

16. In view of the above, the appeal is dismissed with the observations and directions contained in the present order but without any order as to costs.

17. The appellant in the present appeal (applicant who had instituted C.M. No. 7841/2011) seeks implementation of the order dated 23.10.2009 passed in W.P. (C) Nos. 4077-84/2004 and is aggrieved by the modifications made to the said order by the impugned order dated 01.06.2012.

18. By separate orders passed today in Civil Appeal No. 5838/2012, the impugned order dated 01.06.2012 has been affirmed. The appellant has also retired from service in the meantime. In these circumstances this appeal is closed in terms of the order passed in Civil Appeal No. 5838/2012.

Civil Appeal No. of 2014 (Arising out of SLP(C) No.3202/2014

19. Leave granted.

This appeal is filed by two individuals claiming parity with the writ petitioners (Atul Kumar Sharma and others) which had been initially granted by the High Court by order dated 6.5.2011 which has now been recalled by the order dated 1.6.2012.

20. The order dated 16.1.2012 passed by the High Court is based on a detailed consideration of the facts and circumstances surrounding the claims made by the appellants. The High Court has held that the two appellants were not eligible for being placed at par with the writ petitioners (Atul Kumar Sharma and Others). The said conclusions of the High Court have been made on consideration of the dates of appointments of the incumbents; their consequential promotion to the cadre of SJA; and further more their success/results in the selection to the post of AO(J)/CM. We, therefore, do not find any error in the relevant part of the order of the High Court dated 010.6.2012 so as to justify interference. We accordingly dismiss the appeal.