O.P. SINGLA & ANR. ETC v. UNION OF INDIA & ORS.

O.P. stNGLA v. UNION (S. Mukharfi, J.) 389 not fores;; ~·: c need for expanding administration and the personnel necessary fJ:· this expansion, as a result in making appointments and even in granting promotions, there has been a good deal of ad-hoc arrangements with the result that it has created in practically every branch of our administration feeling of discontent and misunder- standing between promotees and direct recruits. This has, to a very large extent, damaged the friendly atmosphere which should prevail among the members of the administration, if the .administration has to remain a vehicle of social progress and transformation which the Indian administration must, in view of the very great possibility and the transitory nature through which it is passing in spite of the severe personal and economic hardships that the members of the administration go through. c ' The decision in the case of S. B. Patwardhan & Ors. Etc. Etc. v. State of Maharashrra & Others\1) may be noted, in resolving the present controversy though the decision in that case was rendered in the context of the controversy of the Engineering Service. Rule 8 (I) of the relevant rules in that case before this Court dealt with the various categories which manned the Class II sub-divisional D posts which were compiled in two lists, one list of Bombay Service of Engineers, Class II cadre of permanent Deputy Engineers and the other list of officiating Deputy Engineers. 1t is not necessary for the present controversy to set out the details of the same. The controversial provision was rule 8 (iii) which was as follows: E "The probationers recruited directly to the Bombay Service of Engineers, Class II cadre in any year shall, in a

- bunch, be placed senior to promotees confirmed during that year." Learned Chief Justice observed that this rule was highly discriminatory against the promotees and gave preferential treatment to direct recruits. Its main justification was said to be that persons who were promoted as officiating Deputy Engineers did not belong to cadre so long as they were not confirmed as Deputy Engineers whereas direct recruits appointed on probation as Deputy Engineers either from that class or cadre on the very date of their appointment since after a satisfactory completion of probation, confirmation was guaranteed to them. Learned Chief Justice felt that this needed careful examination. More or less similar submissions were made in the present writ petitions. This Court further noted that there was no universal rule, either that a cadre consisted of both per·

(L) it977] J S.C.R. 775. . H

390 SUPREME COURT l\EPOTRTS [198S] i S,C, R,

manent or tamporary employees or that it must consist of both, A That is primarily a matter of rules and regulations governing the particular service in relation to which the question regarding the composition of the cadre arises, The Court noted several decisions on this point At page 800 of the report, learned Chief Justice observed as follows:

"We are not unmindful of the administrative difficul- ties in evolving a code of seniority which will satisfy all conflicting claims, But care ought to be taken to avoid a clear transgression of the equality clauses of the Constitu- tion, The rules framed by the State Governments were constitutionally so vulnerable that the administration was c compelled to adopt inconsistent postures from time· to time leaving the employees no option save to resort to courts for vindication of their rights, In this process, courts, high and low, had to discharge functions which are best left to the expertise of the appropriate departments of the Government Having struck down certain rules, we do not want to take upon ourselves the task of framing rules of seniority, That is not the function of this Court and frankly it lacks the expertise and the data to do so, We· however hope that the Government will bear in mind the basic principles that if a cadre consists of both permanent and temporary employees, the accident of confirmatio1 cannot be an intelligible criterion for determining seniority as between direct recruits and promotees, All other Sectors

F being equal continuos officiation in a non~fortuitous vacancy ought to receive due recognition in detern1ining rules o~f senio- rity as between persons recruited fro1n different sources, so long as they belong to the same cadre, dis similar func- tions and bear similar responsibilities. Saying anything boyond - this will be trespassing on a field which does not belong to the courts!' (Emphasis supplied) The aforesaid observations have to be borne in mind in deci- ding the present controversy. G In the case of Rajendra Narain Singh and Others v, State of Bihar and Others (1 ) the question was about the interpretation of the Bihar Police Service (Recruitment) Rules 1953. In that case Rule 3 of the relevant rules was thus :

'H (I} [19801 3 S.CR. 450,

O.I>. SiNGLA v. !INION (S. Mukharji, J.) 391 "The Governor shall decide in each year to numbe~ of vacancies to be filled in that year. . Provided that the number of vacancies to be filled by promo- tion in the service in any one year shall not, unless the Governor is satisfied that there is not a sufficient number of officers fit for promotion, be less than half the total number of vacancies to be 8 filled in any such year." The Court further observed that Rule 3 of Bihar Police Service (Recruitment) Rules was not really a quota rule and it did not lay down any proportion, all it did was lo insist that the number of vacancies to be filled in by promotion should not be less than half of the total number of vacancies to be filled in any year. Adding c J to the number of vacancies and filling them by promotion did not certainly violate the rule requiring, that no less than half of the vacancies must be filled by promotecs. The observations of this Court in the case of A. Janardhana v. Union of India and Others (lJ may be referred to. This Court. said .o thus after pointing out anomalies similar to the facts of the instant case. "It is therefore, time to clearly. initiate a proposition that a direct recruit who comes into service after the pro- motee was already unconditionally and without reservation promoted and whose promotion is not shown to be invalid or illegal according to relevant statutory or nonstatutory rules should not be permitted by any principle of seni- ority to score a march over a promotee because that itself being arbitrary would be violative of Articles 14 and

16. Mr. Ramamurthi, learned counsel for some of the fl direct recruits, in this connection urged that if at the time when the promotee was recruited by promotion. his appointment/promotion was irregular or illegal and which • is required to be regularised, any subsequent direct recurit coming in at a later date can seek relief and score a march G ov_er such irregular or illegal entrant. We find it difficult to subscribe to this view. Though we have dwelt at some • legth on this aspect any enunciation of general principle on the lines indicated by us would require a reconsideration of some of the decisions of this court. We say no more save that we have solved the riddle in this case in accordance (I) [1983] 3 S.C.R. p. 601 at page. 627 I'

392 SUPREME COURT REPORTS [1985] 1 s.c.R.

with the decisions of this conrt and interpretation of rele- A vant rules." The decision in the case of Baleshwar Dass & Ors. Etc. v. State of U. P. & Ors. Etc,(') was also referred to. There in the context of different rules namely U.P. Service of Engineers (Junior and Senior Scales) Irrigation Branch Rules, this Court observed that officiating service in a post is for all practical purposes. of senio- rity as good as service on a regular basis. It may be permissible within limits, for government to ignore officiating service and count only regular service when claims of seniority arise before it, provided the rules in that regard are clear and categeric and do not admit of any ambiguity and an arbitrary cut of long years of service does c not take place. While rules regulating conditions of service are within the executive power of the State or its legislative power under proviso to Article 309, such rules have to be reasonable, fair and not grossly unjust if they are to survive the test of articles 14 and 16 of the Constitution. This Court further noted that for purposes of seniority, one has to go normally by the order of appointment to the Service in a substantive capacity. But no fixed connotations can be attributed to expressions like 'substantive capacity', 'service', 'cadre' and the like because probation even for temporary appoint- ments is provided for in the rules may mean that even temporary appointments can be substrntive. For there cannot be probation for g wernment servant who is not be absorbed substantively in the service on completion thereof. Permanency carries with it other rights than mere seniority and promotion. Permanent posts and tem- porapry posts are in official terminology sharply different, but in that case the Court further noted that from this alone, there was no diference, in the historical context of U.P. Service of Engineers. F The Court noted in that even the case of temporary engineers required consultation with the Public Service Commission. In the context Ruic 16 of the Rules in the instant case requiring consultation with the High Court may be noted. • In the aforesaid decision this Court noted that a person is said G to hold a post in a substantive capacity when he holds it for an inde- finite period, especially of long Juration in contradistinfaion to .a person who holds it for a definite ~r a temporary penod or holds 1t on probation subject to confirmat10n. If the appomtment was to a post and capacity in which the appomtment was to be made was of indefinite duration, if the proper authonty had been consul-

H \I) [198ll 1 s.c. R· p. 449.

O.P. S!NGLA v. llN!ON (S. Mukharji, J.) 393 ted and had approved, if the tests prescribed have been taken and A passed, if probation has. been prescribed and has boen approved, one may well say that the post was held by the incumbont in a subi- tantive capacity. Applying these tests to the facts and circumstances of this case dealing with the officers holding the post for a long time, there is no doubt that the petitioners officers have held the positions ·in substantive capacities. B This can be looked at from another point of view. Most of the petitioners are holders of temporary posts in substantive capacities. These posts have been created by the Administrator under rule 16. See also rule '17 which begins with the non-obstante clause. By reason J of rule 2(b) and rule 2(d), the petitioners being .holders of temporary posts in substantive capacities are holding 'cadre posts' and are also () members of the service. Appointment in a substantive capacity is different from appointment to a substantive post. This has been held in the case of Baleshwar Dass (supra) (pages 449, 467-469)= A.LR. 1983 S.C. 769 at paragraph 23, page 779, though, as was contended on behalf of the High Court the context of the relevant ·rule was somewhat different from the present one but that differ- D ence is not of much significant distinction in principle. It is, there· • fore, erroneous to contend that the holders of substantive posts, i.e. the 12 posts originally at the inception .of the service and 22 posts now, alone are members of the service. All incumbents hold- ing either substantive posts or temporary posts in substantive capaci· E ties are members of the service, in the context of the present rule.

That actual terms of rule 7 have been noted but is manifest r that in the context of the present circumstances, Rule 7 can have only application to recruitments to the substantive posts in the service. It provides two different sources of recruitment. and without fixing any actual quota, but a ceiling of not more than 1/3 of the substan- • tive posts to be held by direct recruitments. Rules 7 and 8 do not exist in isolation. These have to be read with the other rules, parti- cularly Rule 16. The principles of harmonious construction must be accepted so that all the rules are rendered operative and one does not make the other nugatory. Rule 16 is a rule of relaxation or an additional rule of recruitment providing for temporary posts being filled up in addition to the substantive posts. The effect of the creation of temporary posts is to expand the area of membership of 'the service'. As the filling up of the temporary posts under Rule 16 is confined to recruitment from the members of Delhi Judicial Service, Rule 7 cannot be made applicable for the H

394 SUPREME COURT REP9RtS (1985] 1 S.C.R. A recruitment to temporary posts. Therefore, there is no quota rule applicable with regard to temporary posts. In the aforesaid view of the matter, it appears that by defini- tion, temporary posts of District and Sessions Judges are 'cadre posts'. See in this connection Rule 2(b) of the said rules. Holders B of such temporary posts become members of the Delhi High er Judicial Service if they are appointed to such posts in substantive capacity under rule 2(dJ and rule 2(e) of the said rules. A person can be said to hold a post, permanent or temporary, in a substantive capacity only if his appointment to that post is not fortuitous or adhoc. A person appointed to a post as a stop-gap arrangement c cannot be said to hold that post in substantive' capacity. In addition to the requirement that the appointment should not be fortuitous stop-gap or ad hoc nature, no appointment to a temporary post can be regarded as substantive unless it is made in compliance with the rules and regulations which have to be complied with while making appointments· to permanent posts. In the instant case for example, an appointee to a temporary post of Additional District and Sessions Judge can only hold that post in a substantive capacity if he has completed not less than ten years of service in the Delhi Judicial Service as required by Rule 7(a) and if he was appointed on the basis of selectionJrom amongst the members of , the Delhi Judicial Service in consultation with the High Court as enjoined by Rule 5(1) of.the said rules. The proviso to Rule 7(b) does not prescribe any quota of I /3rd for direct recruits. As has been noted, it merely indicates a ceiling i.e. that not more than I/3rd of the~substantive posts of service shall be held by direct recruits. F Even if one assumes that proviso to rule 7(b) provides for a quota of I/3rd for direct recruits, rule 16(1) which empowers the Adminis trator to create temporary ~posts ·in the service, read with rule 16(2) which provides that temporary posts shall b~ filled in, in consultation with the High Court from amongst the members of the Delhi Judicial ' G Service either constitutes an exception to the quoto rule or in the alternative proceeds on the basis of relaxation or abrogation of quota rule. By rule 16(2) a direct recruit cannot be appointed to a temporary posts. Jn other words, only promotees can be appoint- ed posts. If the source of recruitment to temporary posts is one and one only namely, the members of the Delhi Judicial Service, uo question of applying the quota rule can possibily arise. The quota rulecan have application only if there is more H than one, source of recruitment. If temporary posts in the service

- O.P. SINGLA v. UNION (S. Mitkha~ii, !.)

are created as has been done in this case by the Administrator as 395

A envisaged by rule 16(1) and if such posts have been filled in as it appears to have been done here ill consultation with the High Court from amongst members of Delhi iudieiai Service as required lindet Rule i6(2) of the Rules, <tuota rule assuming that there is any, cannot apply to such appointments. the validity of such appoint· ments is not open to the exception that these violate the quota rule, if any. As has been mentioned herein before it is impossible to find in Rule 7 any quota rule simply because Rule 8 assumes, that quota rule is tl\efe ih Rule 7, and then proceeds to make a rotational .\ system. It would not be proper to accept the position that there is

• any quota rule specially in view of the fact that working of the said rules ovet all these years indicate that the rule was not adbered to and the fulfilment of the rule cannot be adhered to if the appoint• ments Under Rule 16 is given effect to and aim in view of the fact that if the quota rule is adhered to in conjnction with rule 8(2), it will result in manifest injustice. As between direct recruits, on the one hand, and the members of the Delhi Judicial Service who were appointed in substantive capacity to temporary posts of Additional District & Sessions Judges on the other hand, the seniority must be D governed by the rules of continuous offication in the cadre post i.e. a direct recruit who is appointed after a member of the Delhi Judicial Service is appointed in a substantive capacity to a temporary post of Additional District & Sessions Judge, cannot and should not rank higher than the latter in the list of seniority ; if a direct recruit is appointed after a member of the Delhi Judicial Service E thus promoted, he would rank lower in seniority than the latter. The following conclusions follow : (1) Rule 7(b) is not in the nature of a quota rule; (2) The temporary posts can be held in substantive • capacity ; F (3) The holders of such temporary posts are members of the Delhi Higher Judicial Service. (4) Rule 8(2) which provides for a rotation of vacancies between direct recruits and promotees "based on the quota of vacancies reserved for both categories by G Rule 7", must be read so as to restrict its application to simultaneous appointments of direct recruits and promotees or in the c'ase of first and init al appoint- ment. Any other construction will make the rule incongruous as well as invaild offending articles 14 and ! 6 of the Coµstitutio!!· H

396 SUPREME COURT .REPORTS [1985] 1 S.C.R.

A The history of Delhi Judicial Service shows that placement of the promotees on probation is a matter of idle curiosity. Promotees were placed on probation retrospectively as is shown by the recent instances which occurred during the pendency of these writ petitions. By an order dated 6th September, 1983, the Secretary (Law and Judicial), Delhi Administration, notified that five promotees were B placed on probation with effect from various dates ranging from 1.10.1981 to 10.5.83. The promotee at Serial No. 1, Smt. Santosh Duggal was placed on probation retrospectively from 1st October, 1981, that means her probationary period of 2 years would be over within three weeks of the letter dated 6th September, 1983, it is also interesting to note that Shrimati Duggal had been working as c a Judicial member of the Customs and Excise Gold Control Appel- late Board since October, 1982. Such probations are meaningless formalities. Therefore, promotees who were appointed in substan- tive capacities in the sense indicated above can be placed on proba- tion now if that has not been done so far. D As has been noted in the decision of A. Janardlzana v. Union of India and Ors. at 608 of the Report, if proviso to rule 7(b) is read with rule 8(2) and in the manner contended by the respondents, it might so happen that a candidate's position may be placed in such a way that by legal fiction, he will be placed as senior to a person as a District and Sessions Judge by national placement at a time when he di<l not even reach the age at which he or she would have become eligible for appointm cnt. That would be unfortunate and would produce incongrous result. Indeed such a result had happen- ed in A. Janardhana's case (supra).

An argument was advanced on beha If of the respondents that there is no provision for probat10n for the appointments under rules 16 & 17 of the said rules, but sub-rule (2) of rule 12 required that all candidates shall be on probation for a period of two years. • An appoictment on probation is not a jurisprudential sine qua non for absorption into the services, thdugh normally and generally various rules of different services make such provisions as rule 12(2) 'here. But as has been noted in the working out the practice of Delhi Judicial Service placement of promotees on probation has not been very strictly followed. The promotees cannot suffer for this. It was, then, urged that there was no process of selection. It may be mentioned that Rule 7(a) provides for recruitment to the ff Delhi Higher Judicial Service alia inter by promotion on the basis

O.P. SINGLA v. UNION (S, Muklzurji, J.) 397 of selection from the members of Delhi Judicial Service, who A have completed not Jess than ten years of Service in the Judicial Service. It m'Y be mentioned that in actual practice all appoint- ments have been made by selecting people from Delhi Judicial Service and sometimes officers have been passed over on the basis of assessment of comparitive merits. B It may he appropriate here to note on the question whether the petitioners were appointed regularly that all the promotees were appointed to temporary posts in accordance with qualifications laid down under Rule 7(a1, namely, by selection and after completion of I a minin1UITI often years judici::tl service, rfhe selections \\'CfC JTI:tde by the Full Court of the High Court and appointments were made c on merit-cum-seniority basis so much so that persons found not fit for promotions were ignored as in the case of Shri C.D. Vashist and Shri S.P. Singh Chowdhary.

On behalf of the respondents attention was drawn to the deci- D sions of this Court in the case of M. Veeraian Chowdhary & 42 Ors ..... v. The Government o( A. P. & 87 Ors. (Civil Appeal No. 2010 of 1981) as well as the decision of this court in this case of S.P. Gupta etc. v. Union of India and Ors.(1) Inasmuch as the context of the pro- visions involved in those two decisions are entirely different from the context of the rules in the instant case, the respondents cannot have ~ny support from the aforesaid two decisions.

Another argument canvassed was that Bar recruits had joined the services and some of them with a very good practice about which we have no doubt that they had and they had joined the service at great sacrifice, would suffer if any alteration of the gradation list was now made. It was submitted that if necessary at all the same should be done prospectively, if the seniority list is revised, it should be done prospectively without affecting the positions of those Bar recruits where seniority on the old basis in the light of the High Court's understanding before these petitions were filed had been existing.

One should give anxious considerations to this aspect of the matter. One should be l1esitant and loath to upset the just expec-

(l) HR. [1981] Suppl. S-C.C. Page 87. H

398 SUPREME COURT REPORTS ( 1985] I S.C.R.

A tatioqs of the members of the legal profession who have joined the service and one would be very sorry to do that. Judicial appoint- ments are no longer attractive for any lawyer of any kind of success. One would be hesitant to put further disincentives for those with professional experience to join Judicial service, and therefore be reluctant to interfere with the just expectations of professional ent- 8 rents who had entered Judicial service at sacrifice of considerable money and position. But the provisions of the rule as well as of the Constitution must be given effect to. In the instant case members of the Judicial service, the petitioners had made repre- sentations to the High Court in 1977. The two entrants who would G be vitally affected by the re-adjustment of the list would be Shri G.S. Dakha who joined the service on 27th of September, 1978 and Miss Usha Mehra who joined the service on probation on 24th of ' April, 1980. At that time challenge in the form of representation to existing seniority before the High Court was there. Shri J.B. Goel had joined the service on 10th November, 1980 and Shri B.S. D Chaudhary had joined the service on 10th November, 1982. So

- far as Shri Dakha as a member of Scheduled Caste and Tribe, hi• position may not be affected on other grounds. We say no more on this aspect. So far as Miss Mehra is concerned, she was appo- inted on probation in April, 1980 and got her confirmation during the pendency of the present petitions. Miss Mehra is still young E and has a long tenure. It is hoped that she will overcome any temporary or momentary loss of seniority and would continue to render her valuable service to the administration of justice. In judicial careers many just expectations get upset as experiences of recent times would indicate.

fl The interpretation indicated above and the principles men- tioned herein-before in adjusting the rights between the promotees and direct recruits in the background of the rules prevailing in the instant case are appropriate and rational. One should insist that government must abolish this system of making appointments from two different sources in ad-hoc manner. If appointments have to G be made from two different sources, then the authorities should so plan that the recruits come from two different sources in time and officers from one source are not required to function substan- tively and effectively in the jobs which are intended to be per- formed by recruits of other source and face the prospect of being either pushed back or thrown out. Nothing more need to be said,

0.1'. SINGLA v. UNION (S. Mukharji, J.) 399 The rules nisi are made absolute. Current gradation list of A the JudiCial Department of the Delhi Administration specially with reference to respondents Nos. 4 and 5 is quashed with a direction to the respondents Nos. I to 3 prepare the gradation list of the Delhi Higher Judicial Service on the basis of the principles indi- cated in this judgment. This, however, will not in any way preju- dice the claim of seniority of respondent No. 4, Shri G.S. Dakha B on the ground of his being member of Scheduled Caste or Sche- duled Tribe. This direction will also not in any way affect the seniority of the promotee officers of the Delhi Higher Judicial Service amongst themselves. That position would be guided by the· principles laid down by this Court in Joginder Nath and Ors.' ) c case (supra) (indicated hereinbefore).

In the fact and circrmstances of the case, parties will bear their own costs.

S.R. Petitions partly a/lowed E