Holding

A judicial officer on deputation cannot be superseded by junior officers placed on probation; he is deemed to have been on probation from the date his turn arose and must retain his seniority.

Summary

Shri R.L. Gupta, a member of the Delhi Higher Judicial Service, was sent on deputation as Secretary to a Supreme Court‑led Commission of Inquiry in 1985. While on deputation, the Delhi High Court placed seventeen junior officers on probation, effectively superseding Gupta, and later placed Gupta himself on probation in 1987. Gupta challenged the validity of this supersession, arguing that his deputation, taken at his own risk, should not affect his seniority or expose him to probationary treatment. The Supreme Court, finding no specific rule governing such deputations, applied principles of justice, equity, and precedent, holding that an officer on deputation is entitled to retain seniority and cannot be penalised absent a specific rule. The Court deemed Gupta to have been on probation from 22 Nov 1985 and ordered that his seniority be restored above the junior officers. The writ petition was allowed.

Issues considered

The validity of superseding a judicial officer on deputation by placing junior officers on probation before the officer's own probation.
Whether an officer on deputation, who has taken the posting at his own risk, loses seniority and can be placed on probation in the parent cadre.
Whether any rule or statutory provision permits the High Court to deprive the petitioner of seniority during deputation.

Legislation cited

Commissions of Inquiry Act, 1952s. 3

Subjects

judicial servicedeputationprobationsenioritysupersessionpublic interestservice rulesseniority cum meritcourt administrationcase backlog

Judgment

R.L. GUPTA & ANR.
A
v.
UNION OF INDIA & ORS.

MARCH 16, 1988

[E.S. VENKATARAMIAH & K.N. SINGH, JJ.J B

Service matter-Whether supersession of a judicial officer by
junior officers placed on probation when that officer is on deputation to
another office and is not relieved from there in public interest to revert to
A the judicial service to be placed on probation, is valid-Determination
\ of the question on principles of justice, equity and relevant judicial C
~· precedents.
This writ petition was originally filed in this ·Court by two mem-
bers of the Delhi Higher Judicial Service, namely, Shrl R.L. Gupta and
Shri S.B. Aggarwal, but as the Court was of the view that the case of
Shri S.B. Aggarwal should be considered independently, he was asked D
to file a separate petition, and this petition was confined to Shri R.L.
Gupta only.

The petitioner, Shri R.L. Gupta, who had become a member of
the Delhi Judicial Service on its initial constitution on August 2, 1971
and was confirmed in the said service as a sub-judge on August 6, 1971, E
was working as an Additional District and Sessions Judge, Delhi; when
on 14.5.1981, on the establishment of the Delhi Legal Aid and Advice
Board, he was sent on deputation as the first Member-Secretary of that
Board. Thereafter, when the Government of India on April 26, 1985
appointed a Commission of Inquiry presided over by Shri Justice Ran-
ganath Misra, Judge, Supreme Court of India, to enquire into the alle- F
gations in regard to the incidents of organised violence following the
assassination of Smt. Indira Gandhi, the late Prime Minister of India,
the Central Government by letter dt. May 27, 1985, requested the Delhi
.High Court to spare the services of the petitioner for being appointed as
Secretary to the Commission above-mentioned and upon the petition-
er's expressing his willingness to work as Secretary to the said Commis- G
sion, he was permitted by the High Court to go on deputation to the
.l Commission with effect from 1st June, 1985 at his own risk. Within
three months from the date on which the petitioner had joined the
Commission as its Secretary, the Chief Justice of the Delhi High Court
wrote to Shri Justice Ranganath Misra, that it had·been decided by the
High Court to place the petitioner on probation on the Delhi Higher H
255
-~

256 SUPREME COURT REPORTS 11988] 3 S.C.R.

A Judicial Service as his turn had come for the same and, therefore, he
might be relieved from the Commission to enable him to report to the
High Co_urt as soon as possible-not later than ten days from the receipt
of that communication. Shri Justice Ranganath Misra thereupon wrote
to the Chief Justice of the Delhi High Court that the petitioner had got
B himself acquaintoo with the working of the Commission and it was
diffi_cult at that juncture to relieve him in public interest. The letter of
Shri Ranganath Misra was considered by the High Court at its meeting
held on 22. l t. 1985, when a resolution was passed to the effect that Shri
R.L. Gupta, who had been on deputation with the Delhi Legal Aid &
Advice Board, was asked to revert back to his parent cadre for being
considered to be placed on probation, but he, instead of reverting back,
c went on a second deputation as Secretary to R.N. Misra Commission of
Inquiry at his own request and risk; he was asked vide High Court's
endt. dated 26.8.85 to come back to parent cadre within ten days
otherwise the next person would be placed on probation, and Mr. R.L.
Gupta refused to come back and got it intimated through Justice R.N.
Misra vide letter dt. 19.8.85 that he had come at his own risk. The
D
Resolution further said that the case of Shri R.L. Gupta for being placed
on probation was considered and as he had declined to be available to be
placed on probation at his own risk, the same had been rejected and
that the officers next to him were then considered and five officers--
Shri Jaspal Singh and four others--were selected for being placed on
probation against regular vacancies.
E
By the above-said resolution, Shri Jaspal Singh and four others
were allowed to supersede the petitioner. Further, twelve more officers
were placed on probation. Thus, in all seventeen judicial officers were
allowed to supersede the petitioner.
F
On completion of the work of the Commission of Inquiry on
October 3 l, 1986, the petitioner was posted as Additional District &
+
Sessions Judge, and phced on probation for a period of two years with
effect from· April 4, 1987. Aggrieved by the supersession, the petitioner
filed this writ petition before this Court, questioning the validity of the
supersession on several grounds, some of them being common to the
G
petitioner and Shri S.B. Aggarwal who had been impleaded as
petitioner No. 2. Since the case of the petitioner could be disposed of on
a short ground, the Court did not express its opinion on the grounds )...
common to the petitioner and Shri S.B. Aggarwal and other judicial
officers working in the Delhi Higher Judicial Service, and the contentions
H on those grounds were left open.
R.L. GUPTA v. U.0.1. 257

Allowing the writ petition, the Court,
A
HELD: The short question which arose for consideration in
this case was whether the supersession of the petitioner made hy the
High Court by placing seventeen officers, junior to him, on probation
before he was placed on probation was valid or not. No rules govern-
' . ing the deputation of an officer working in the judicial department B
)-,. were produced before the Court. The case, therefore, had to be deter-
mined on the principles of justice, equity and relevant judicial prece-
dents. l265F; 266A-B]

~'
'
It was not disputed that the petitioner would have been placed
on probation as a matter of course on 22.11.85 if he had been serving
as an Additional District and Sessions Judge and would have continued
c
to be senior to Shri Jaspal Singh who was placed on probation on that
date. [268C-D]

In regard to the quality of the work rendered by the petitioner in
the capacity of the Secretary to the Coiumission of Inquiry headed by D
Shri Justice Ranganath Misra, the certificate issued by Shri Justice
Rangauath Misra on 29.11.86 inter alia said: "Shri Gupta handled his
job with ability and efficiency. He impressed me as a brilliant judicial
officer. I found him to be well-versed in law. He exhibited character,
courage and sagacity. I was impressed by his sense of social vision, legal
acumen and capacity to comprehend human problems." l268D-G I E

Ou his return to the Delhi Judicial Service from the Commission
of Inquiry, his being placed on probation by the High Court with effect
from 4.4.87, raised the question for consideration whether it was just
and reasonable to deprive the petitioner of his seniority only because he
was not working in the Delhi Higher Judicial Service during the period F
when his juniors were allowed to supersede him. l268G-H; 269AJ

The Court was not impressed by the submission made on behalf of
the High Cou~t that the petitioner having been informed by the High
Court that he was going on deputation at his own risk, he could not
retain his seniority over his juniors who were placed on probation dur- G
ing the period of deputation. It is well-settled that many officers have to
be sent on deputation in the public interest to other departments in
order to meet the exigencies of public service and that before sending
them on deputation their consent is invariably taken. Merely because
they have given their consent to go on deputation they could not be
allowed to suffer unless there is a specific rule to the contrary or other H
!"
!

258 SUPREME COURT REPORTS [1988] 3 S.C.R.

good reason for it. That is the ratio of the decision in State of Mysore v.
A
M.H. Bellary, [1964] 7 SCR 471, and the decision in State of Mysore
and another v. P.N. Nanjundiah and another, [1959] S.L.R. 346~
(1969) 3 S.C.C. 633. The petitioner was not even sent on deputation to a
department where his services could be absorbed permanently. He was
sent on deputation to a Commission which was asked to enquire into a
B certain matter of public importance which was to be over in a short
time. The Commission itself was to become functus officio on the sub-
mission of its report. The Commission was presided over by a Judge of
the Supreme Court of India and it was not possible for the petitioner to
give up his post as Secretary of the Commission without the permission
of the ;Chairman of the Commission and return to the Delhi Judicial
Service. The Chairman of the Commission found it di1fficult to relieve
c the petitioner in the midst of the inquiry. The object of placing an
officer, on probation i• only to assess whether he is suitable for the post
to which he is appointed. It is not necessary that such assessment should
always be made by the appointing authority unless there is any legal
impediment. Such assessment can also he made by the authority under
D whom the officer works while on probation. In this case, the authority
under whom the petitioner worked while on deputation was a Judge of
the Supreme Court of India who had approved the service of the
petitioner as could be seen from the certificate issued · hy him on
29. l l.86, referred to above. Even though it was stated that the
petitioner was sent on deputation to the Commission of Inquiry at his
E own risk, it would be unjust to hold that the High Court could have on
the facts and circumstances of this case passed orders which would have
the effect of superseding the petitioner. The Court could not appreciate
the implication of the observation made in the resolution of the High
Court that the petitioner had refused to come back and got it intimated
through Justice R.N. Misra vide demi--<1fficial letter di. 19.9.85 that he
F had come on deputation at his own risk'. It was not truly· a case. of
refusal by the petitioner to go back to the Delhi Higher Judicial Service,
nor could it be said that he was responsible for what Shri Justice R.N.
Misra had written, and the same could not be used against him for
depriving him of his seniority. The stand taken by the High Court in
this case could not, therefore, be upheld. Shri B. Dutta, Additional
G Solicitor-General of India appearing on behalf of the Union of India
supported the case of the petitioner. [269A-H; 270F-H]

No innocent officer should be exposed to the grave risk to which
the petitioner in this case was exposed. The petitioner was promoted as
an Additional .District & Sessions Judge under rule 16 of the Delhi
H Higher Judicial Service Rules in 1976. The post to which he was prom-
j
R.L. GUPTA v. U.0.1. 259
)<
oted was called a temporary post although truly it was not a temporary
A
post. There was no chance of its abolition at all. Yet it was called a
temporary post because if was in excess of the ,strength of the posts in
the Delhi Higher Judicial Service which had been iixed at 16 by rule 4
read with the Schedule attached to the Delhi Highef Judicial Service
Rules in the year 1970. If the schedule had been amended from time to
time by increasing the number of the posts keeping pace with the reality B
) of the situation, perhaps, the strength should have been increased to SO
by .now. In the circumstances, by appointing the _Judicial Officers of the

-~ Higher Judicial Service to temporary posts instead of appointing them
to permanent postS, the Delhi Administration has. virtually made a
mockery of the rules of recruitment. To ·place a.Judicial Officer, prom-
oted to .the Higher Judicial Service, on .probation nearly afte.r ·9 years
after his promotion, as in this case, was a mere farce. Ordinarily, an c
'
i'
officer should be on probation from the date of his appointment. Is it
just and reasonable to place an officer on probation nearly 9 years after
his appointment and then turn him oui of service if his services are
found to be not satisfactory during the period of probation, which would
fall in the 10th and I Ith year of his service in that cadre? l270H; 271A-F] D

The petitioner in this case should have been placed on probation
on 22.ll.85 even though he was on deputation on that date and on his
confirmation he is entitled to maintain his seniority above Shri Jaspal
_,J. Singh. The Court directed that the petitioner would be deemed to have
been on probation from 22. l l.85 and his services would be regulated E
accordingly. The petitioner would also be deemed to be above Shri
Jaspal Singh in the seniority list of officers in the Delhi Higher Judicial
Service. l273C-D I

+ OBSERVATIONS:

The Administration should know that the work in the Courts has
F

increased by two or three times during the Iasi decade, but the number
of1judges has remained constant. This has led to frustration amongst
the litigants, lawyers an.d judges. This frustration gives rise to tensions
including the tension prevailing in the city of Delhi now. It is reported
that the Delhi High Court has been pressing for the appointment of G
more judges. It has urged for the sanction of 169 additional posts in the
,1, Delhi Judicial Service; In the courts manned by the officers of the Delhi
Judicial Service (who on promotion will be members of the Delhi Higher
Judicial Service), there were pending as on 1.9.87, 51,173 Regular
Suits, ·l2 l0 Small Cause Suits, 974 Civil Appeals, l0,592 Rent Cases.
There were 97 ,943 cases pending before the courts of Chief and Addi- H,
(_
260 SUPREME COURT REPORTS [1988) 3 S.C.R.

A tional Chief Metropolitan Magistrates, and 2,35,033 cases pending
before other magistrates as on 1.9.87. The .Delhi Administration
appears to have not taken any serious notice of the appalling situation
prevailing in the Delhi Courts. The Administration should look at the
recommendation of the High Court as one intended to give relief to the
suffering litigants who waste their valuable time near the courts for
B years waiting for justice. This is a problem which should be solved on a
war-footing. The Delhi Admfoistration should straightaway increase
the strength of the D~lhi Judicial Service at least by 150, the number of
posts in the Delhi Higher Judicial Service, at least by 40, !lhould
establish court premises in different parts of Delhi, and see that the
pending cases, in the order of lakhs, many of which lingering for the
last ten years an·d more, are disposed of within two years. If the total
c strength is increased at all levels, the farce of placing the judicial offic-
ers on probation after nearly ten years will also end. [27 JG-H; 272A-E)

The Government should not consider finance as a constraint be-
cause by not appointing sufficient number of judges, the Government is
D suffering more financially. The Government itself being a big litigant is
subjected to several orders of stay, prohibitation, injunction etc., leading
to delay in completion of several projects and works; The indirect
effects of frustration amongst the ·people lead to a greater financial
drain. If by any chance the arrears of cases come down, then the vacan-
cies in the Judicial posts may not be filled up. The Court expressed the
E hope that the Un,ion of India and Delhi Administration would sanction
at least 150 more posts in the Delhi Judicial Service and about 40 posts
in the Delhi Higher Judicial Service and also take immediate steps to
establish additional courts. The expenditure on judicial administration
should not be subjected to the constraints of non-plan expenditure. The
judicial department is not an unproductive department. Peace and
F tranquillity that will result from quick disposal of cases is much more
valuable than the economic goods produced by factories. Delay in dis-
posal of cases affects the gross national product adversely. Quick dis-
posal of cases will save millions man-hours now being wasted near the
courts. It is imperative that every State should increase the strength of
the Judicial Officers at least by thirty per cen.t immediately; otherwise,
G there would be a catastrophe in about a year or two. The Court expres-
sed the hope that this warning would not go unheeded. [272F-H; 273A-C)
/ ..-
The State of Mysore v. M.H. Bellary, [1964) 7 S.C.R. 471, State
of Mysore & Anr. v. P.N. Nanjudiah & Anr., [1969) S.L.R. 346 [1969)
3 S.C.C. 633, and O.P. Sing/a & Anr., etc., v. Union of India & Ors.,
H [1985] l S.C.R. 351 '
,

R.L. GUPTA v. U.0.1. [VENKATARAMIAH, l.[ 261

ORIGINAL JURISDICTION.: Writ Petition (Civil) No. 619 of A
1987.

(Under Article 32 of the Constitution oflndia).

Dr. Y.S. Chitale, Brij Bhushan, S.K. Dhingra, Anil Kumar
Gupta and B.N. Singhvi for the Petitioners. B

B. Datta, Additional Solicitor General, P.P. Rao, C.M. Nayyar
and Girish Chandra for the Respondents .

.A, The Judgment of the Court was delivered by

VENKATARAMIAH, J. The above petition was originally filed
c
by two members of the Delhi Higher Judicial Service, by name S/Shri
R.L. Gupta and S.M. Aggarwal. Since the Court was of the view that

I the petition of Shri S.M. Aggarwal should be considered independen-
tly, he was asked to file a separate petition. The present petition was,
therefore, confined to Shri R.L. Gupta, who is hereafter referred to as
'the petitioner'.
D

Shri R.L. ·Gupta, the petitioner joined the Judicial Service of
Punjab on January 23, 1962 and became a member of the Delhi Judi-
I
.~ cial Service on its initial constitution on August 2, 1971. He was con-
firmed iri the said service as a Sub-Judge on August 6, 1971. He was E
sent on deputation as the first District & Sessions Judge, Sikkim at
Gangtok on August 19, 1976. While he was on such deputation he was
promoted as Additional District & Sessions Judge in the Delhi Higher
Judicial Service under rule 16 of the Delhi Higher Judicial Service
Rules, 1970. At the end of his period of deputation the petitioner came
back to Delhi and joined as an Additional District & Sessions Judge. F
In June, 1979 the petitioner was sent on deputation as Registrar,
Special Courts, New Delhi and he remained on deputation until
March. 1980. Between March, 1980 and June, 1981 the petitioner
again worked as an Additional District & Sessions Judge, Delhi. On
14. 6. 1981 on the establishment of the Delhi Legal Aid and Advice
Board the petitioner was sent on deputation as the first Member- G
Secretary of that Board. When he was still working as the Member-
Secretary of the Delhi Legal Aid and.Advice Board, on April 26, 1985
the Government of India appointed a Commission of Inquiry presided
over by Shri Justice Ranganath Misra, Judge, Supreme Court of India
under the provisions of section 3 of the Commissions of Inquiry Act,
1952 for the purpose of making enquiries into a matter of public H
262 SUPREME COURT REPORTS [1988] 3 S.C.R.

importance namely, the allegations in regard to the incidents of
A organised violence in Delhi following the assassination of Smi. Indira
Gandhi, the late Prime Minister of India. On May 27, 1985 the Central
Government addressed a letter to the Registrar of the Delhi High
Court requesting the· High Court to spare the services of the petitioner
for being appointed as the Secretary of the Commission, referred to
B above. The said letter reads thus:

"CONFIDENTIAL/MOST IMMEDTATE
D.O. NO. II. 14013/28/84~IS (US:D.V.)

GOVERNMENT OF INDIA
MINISTRY OF HOME AFFAIRS
c North Block
New Delhi-110001

27th May, 1985.

D DR. S.K. PACHAURI
DIRECTOR (JC-II)

Dear Miss Mehra,

The Central Government vide Notification dated ~
E 26.4.1985, has appointed a Commission of Inquiry under
the Chairmanship of Shri Ranganath Misra, a sitting Judge
of the Supreme Court of India for the purposes of making
an enquiry into the allegations in regard to the incidents of
organised violence which took place in Delhi following the
assassination of the former Prime Minister (copy enclos-
F ed). One of the posts sanctioned for the functioning of this
Commission is Secretary to the Commission in the scale of
Rs. 2500-2750. With the approval of Shri Justice Ranga-
nath Misra, it has been proposed to appoint Shri Ramesh-
war Lal Gupta, Additional District and Sessions Judge and
Member-Secretary of the Delhi Legal Aid and Advice
G Board as Secretary of the Commission. The post of Secret-
ary has been created from the date it'is filled in and upto
26.10.1985 for the present but likely to continue.

We shall be grateful if you could kindly spare the
service of Shri Rameshwar Lal Gupta to act as Secretary of
H the Commission for the aforesaid period. This may be
treated as Urgent.
R.L. GUPTA v. U.0.1. [VENKATARAMIAH, J.J 263
'y
' Regards,
A
Yours sincerely,

Sd/-

(Dr. S.K. Pachauri) B
)-. Miss Usha Mehra

.. Registrar,
Delhi High Court,
New Delhi.
A ,,
Encl: As above. c
0
On receipt of the said letter the petitioner was asked by the High
~
Court whether he was willing to work as the Secretary of the Commis-
sion. The petitioner expressed his willingness to do so by his letter
dated May 30, 1985. On 31.5.85/1.6.85 the Registrar addressed.a letter
D
to the petitioner which reads thus:

"Usha Mehra
D.O. No. 279/Gaz.
.--4, Dated: 31st May, 1985/
\ 1.6.85 E
(

Dear Shri R.L. Gupta,

In pursuance to the requisition of the Central Govt.
contained in the Ministry of Home Affairs demi---0fficial
letter No. 11-14013/28/84--IS (US.D.V.) dated 27th May, F
1985 and as desired by you and agreed to by the High
Court, you are hereby permitted to go on deputation as
Secretary to the Commission of Inquiry headed by Hon'ble
Mr. Justice Ranganath Misra, a Judge of the Supreme
Court of India with effect from 1st June, 1985 at your own
risk. Deputation will be upto 26th October, 1985 or till the G
date of your recall, whichever is earlier.
Yours sincerely,

Sd/-

(USHAMEHRA) H
264 . ' SUPREME COURT REPORTS [1988] 3 S.C.R.

Shri R.L Gupta,
A
Member-Secretary,
Delhi Legal Aid & Advice Board,
New Delhi."

Accordingly, the petitioner got himself relieved from the Defoi
B Legal Aid and Advice Board and joined as Secretary of the Commis-
sion of Inquiry. Within three months from the date on which the
petitioner joined the Commission, the Chief Justice of the Delhi High
Court wrote a letter to Shri Justice Ranganath Misra stating that it had
been decided by the High Court to place the petitioner on probation
on the Delhi Higher Judicial Service as his tum had come for the same
arid, therefore, he might be relie\'ed from his post of the Secretary of
c the Commission to enable him to report to the High Court as soon as
possible but in any case not later. than ten days from the receipt of the
said communication. On receip! of the said letter Shri Justice Ranganath
Misra wrote to the Chief Justice of the Delhi High Court stating that
_the, peti,tioner had got himself acquainted with the working of the
D Commission and at that juncture it was difficult to relieve, him in the
public interest. Accordingly, he was not relieved by the Commission to
revert to the Judicial Service. The letter of Shri Justice Ranganath
Misra was considered· by the Full Court of the High Court at its meet-
ing held on 22.11.85 and the follmying resolution was passed:

E "Shri R.L. Gupta had been on deputation with Delhi
Legal Aid & Advice Board. Vide this Court's demi-<>fficial
letter No. 293/Gaz.NI.E.10 dated 23.8.84 and D.O. No.
269/Gaz./VLE.10 dated 18.5. 1985 he was asked to revert
back to his parent cadre for being considered to be placed
-j
on probation. Mr. R.L. Gupta instead of reverting back,_ \,,
F went on second deputation as Secretary to R.N. Misra '-
Commission of Enquiry at his own request and risk. Shri
R.L. Gupta was asked. vide this Court's endt. No. 457
. dated 26.8.85 to. come back to parent cadre within 10 days
·otherwise the next person ;hall be placed on probation.
Mr. R.L. Gupta refused to come back and got it intimated
G through Justice R.N. Misra _vide demi-official letter dated
19 .8.85 that he had come on deputation at his own risk.
Hence the case of Shri R.L. Gupta for being placed on
probation was considered and as he has declined to be
available to be. placed on probation at his own risk, the
same has been rejected. Then the officers next to him were
H considered and the following officers were selected for
'
J
R.L. GUPTA v. U.0.1. IVENKATARAMIAH, l.I 265

being placed on probation against regular vacancies:
A
1. Shri J aspal Singh
2. Shri S.C. Jain
3. Shri R.K. Sain
4. Shri Mohd. Shamim
5. ShriP.K.Jain." B
),
By the above resolution S/Shri Jaspal Singh, S.C. Jain, R.K.
Sain, Mohd. Shamim and P.K. Jain were allowed to supersede the
petitioner. During the period of his deputation as Secretary to the
Commission of Inquiry twelve more officers were placed on probation
by 22.8.1986. Thus in all seventeen Judicial Officers were allowed to
supersede the petitioner. On the completion of the work of the Com-
c
missfon of Inquiry on October 31, 1986 the petitioner was posted again
as Addi~ional District & Sessions Judge and was placed on probation
for a period of two years with effect from April 4, 1987. Aggrieved by
the aforesaid supersession the petitioner filed the above petition be-
fore this Court questioning the validity of the supersession on several D
grounds, some of them being common to the petitioner and Shri S.M.
Aggarwal who had been impleaded as Petitioner No. 2. Since ·the case
of the petitioner can be disposed of on a short ground .we do not
propose to express our opinion on the grounds which are common to
the petitioner, S.M. Aggarwal and other Judicial Officers working in
the Delhi Higher Judicial Service. The contentions of the parties on E
those grounds are left open.

The short question which arises for consideration in this case is
whether the supersession of the petitioner made by the High Court by
placing seventeen officers, who were junior to him, on probation
before he was placed on probation is valid or not. While the petition- F
er's contention is that no officer who is sent on deputation can be made
to suffer from ariy evil consequences and that on his return to his
parent department he should be placed in the same position in senior-
ity which he w;,uld have occupied had he not gone on deputation, the
submission made on behalf of the High Court is that the petitioner
having gone on deputation at.his own risk, he could not be placed on G
probation as an Additional District & Sessions Judge till.4.4.1987 and
he was bound to lose his seniority. It was further urged on behalf of the
High Court that those Judicial Officers who were juniono him in the
seniority list but who had been placed on probation as Additional
District and Sessions Judge before 4.4.1987 were entitled to be treated
as his seniors. H
- ':'J

266 SUPREME COURT REPORTS [1988] 3 S.C.R.

At the hearing of this case we asked the learned counsel appear-
A
ing for both the parties to show whether there were any rules govern-
ing the deputation of an officer working in the judicial department. No
such rules were produced before us. This case has, therefore, .to be
determined on the principles of justice, equity and relevant judicial
precedents.
B
In the State of Mysore v. M.H. Bellary, 11964] 7 S.C.R. 471 the
facts of the case were these. The respondent in t.hatcase, M.H. Bel-
Iary, was a Government servant in one of the departments of the
Bombay Government. He was sent on deputation to another depart-
ment and after serving there for a long period and getting a number of
promotions he was ·reverted back to his parent department and
c ordered to be posted at a considerably lower grade, while another
Government servant who was below his rank had been promoted as
Assistant Secretary. Thereupon the respondent therein filed a petition
before the High Court of Mysore (Karnataka) under Article 226 of the
Constitution of India challenging the order of his posting. There was a
D rule, rule 50(b) in the Bombay Civil Services Rules which read as
follows:

"50(b ). Services in another post, other than a post carrying
less pay referred to in clause (a) of rule 22 whether in a
substantive or officiating capacity, service on deputation
E and leave other than extra ordinary leave count for incre-
ments in the time scale applicable to the post on which the
Government servant holds a lien as well as in time scale
applicable to the post or posts, if any, on which he would
hold a lien had his lien not been suspended:

F Provided that Government may, in any case in which
they are satisfied that the leave was taken on account of
illness or for any other cause beyond the Government
servant's control, direct that extra-ordinary, leave shall be
counted for increment under this clause."

G That rule referred to the right of the Government servant who
goes on deputation to earn increments in the pay scale applicable to
the post on which he held a lien on his return to the parent department
from the department to which he had been deputed. One of the ques-
tions which arose for consideration in ihat case also was whether the
respondent who had gone on deputation was entitled to claim the
H promotion which he would have got in his parent department had he
R.L. GUPTA v. U.0.1. [VENKATARAMIAH, J.J 267

not been sent on deputation. The High Court accepted the case of the A
respondent therein who had filed the writ petition and granted him the
relief sought by him. Aggrieved by the decision of the High Court the
appellant, State of Mysore, filed an appeal before this Court. In that
appeal this Court observed thus:
B
; The other submission of learned counsel was that a Gov-
emment servant though he had a right to increments in a
time scale applicable to the post that he held on the date of
his transfer on deputation and on which he had a lien, had
- no legal right to be promoted to a higher post and that the
,,,l\ construction adopted by the High Court virtually conc~ded
or guaranteed to officers on deputation a right to an auto- c.
~
I
matic promotion which they would not have had if they had
not been posted on deputation. We see no force in this
contention either. Learned Counsel is right only in so far as
the promotion involved relates to a selection post. But
where it is based on seniority-cum-merit, those considera-
!ions are not relevant. The service of an officer on deputa- D
tion in another department is treated by the rule as equiva-
lent to service in the parent department and it is this equation
between the services in the two departments that forms the
basis of Rule 50(b). So long therefore as the. servi.ce of the
employee in the new department is satisfactory and he is
A obtaining the increments and promotions in that. depart- E
ment, it stands to reason that that satisfactory service.and the
manner of its discharge in the post he actually fills, should be
deemed to be rendered in the parent department also so as to
entitle him to promotions, which are often on seniority-cum-
-merit basis. What is indicated here is precisely what is
~. F
termed in official language the 'next below rule' under which
an officer on deputation is given a paper-promotion and
shown as holding a higher post in the parent department if
the officer next below him there is being promoted. If there
are adverse remarks against him in the new department o.i:
punishments inflicted on him there, different considerations
would arise and these adverse remarks etc. would and could G
certainly be taken. into account in the parent department
.:J. also, but that is not the position here. In view of the facts of
the case it is not necessary to discuss this aspect in any
detail or any further.,"
(underlining by us)
H
•
268 SUPREME COURT REPORTS [1988] 3 S.C.R.

The above decision was followed by this Court in the State of
A
Mysore and Another v. P.N. Nanjundiah and Another, [1969) S.L.R.
346~ (1969) 3 S.C.C. 633. In that case this Court observed thus:

"So long as the service of the employee in the new
department is satisfactory and he is obtaining the incre-
ments and promotions in that department, it stands to
reason that the satisfactory service and the manner of its
discharge in the post he actually fills, should be deemed to
be rendered in the parent department also so as to entitle
him to promotion which are open on seniority-<:u:m-merit
basis."
c It is not disputed in this case that the petitioner would have been
placed on probation as a matter of course on 22.11.1985 if he had been
serving as an Additional District and Sessions Judge and would have
continued to be senior to Shri J aspal Singh who was placed on proba-
tion on that _date. In regard to the quality of the work rendered by the
D petitioner in the capacity of the Secretary to the Commission of
Inquiry headed by Shri Justice Ranganath Misra, we may quote the
certificate issued by Shri Justice Ranganath Misra on 29.11.1986. It
reads thus:

:'Shri R.L. Gupta, a Member of the Delhi Superior
E Judicial Service, worked as the Secretary of the Commis-
sion of Inquiry set up under my Chairmanship to inquire
into the atrocities in Delhi, Kanpur and Bokaro following
the assassination of the late Prime Minister Mrs. Indira
Gandhi. He worked in the Commission in that capacity
from the beginning of June, 1985 till October, 1986.
F
Shri Gupta handled his job with ability and effici-
ency. He impressed me as a brilliant judicial officer. I
found him to be well versed in law. He exhibited character,
courage and sagacity. I was impressed by his sense of social
vision, legal acumen and capacity to comprehend human
G problems."

. On his return to the Delhi.Judicial Service from the Commission
' of Inquiry the High Court placed him on probation with effect from

1
''
,,-,, H
4.4.1987. The question for consideration, therefore, is whether it is
just and reasonable to deprive the petitioner of his seniority only
because he was not working in the Delhi Higher Judicial Service dur-
ti0
R.L. GUPTA v. U.0.1. [VENKATARAMIAH, J.] 269
y ing the period when his juniors were allowed to supersede him.
A
We are not impressed by the submission made on behalf of the
-'!
}!igh Court that the petitioner having been informed by the High
Court that he was going on deputation at his own risk he could not
retain his seniority over his juniors who were placed on probation
during the period of deputation. It is well-known that many officers B
) have to be sent on deputation in the public interest to other depart-
ments in order to meat the exigencies of public service and that before
sending them on deputation their consent is invariably taken. Merely
because they have given their consent to go on deputation they should
.A, not be allowed to suffer unless there is a specific rule to the contraty or
other good reason for it. That is the ratio of the decision in State of
\
Mysore v. M.H. Bel/ary (supra) and of the decision in State of Mysore
c
-.i
and Anr. v. P.N. Nanjundiah (supra). These decisions declare that an
officer on deputation is entitled to get increments in the pay scale
attached to the post in their parent department and also to get promo-
tion when it is based on seniority cum merit as and whert his junior in
the parent department is promoted by the application of the 'next D
below rule'. When increments and promotion can be earned, there is
no reason why he should not be trea.ted as being on probation also in
the post held by him in the parent department even while he is on
deputation. In this case the petitioner was not even sent on deputation
.,;, to a department where his services could be absorbed permanently. He
was sent on deputation as Secretary to a Commission which was asked E
to enquire into a certain matter of public importance which was to be
over in a short time. The Commission itself was to become functus
officio on the submission. of its report. The Commission was presided
over by a Judge of the Supreme Court of India and it was not possible
for him to give up his post as Secretary of the Commission without the
+·· .perrrtission of the Chairman of the Commission and to return to the F
Delhi Judicial Service. He continued in the post of the Secretary to the
Commission of Inquiry as the Chairman of the Commission found it
difficult to relieve him in the midst of the inquiry. The object of plac-
ing an officer on probation is only to assess whether he is suitable for
the post to which he is appointed. It is not necessary that such assess-
ment should always be made by the appointing authority unless there G
is any legal impediment. Such assessment can also be made by the
J authority under whom the officer is required to work on deputation. In
the instant case the authority under whom the petitioner was ask_ed to
work while on deputation was a Judge of the Supreme Court of India
who had approved the service of ihe petitioner as can be seen from the
certificate issued on 29. ll.1986which is extracted above. It may also H
270 SUPREME COURT REPORTS 11988] 3 S.C.R.
'1.
A be seen from the decision of this Court in O.P. Sing/a & Anr. etc. v. '
Union of India & Ors., [1985] 1 S.C.R. 351 that the High Court had
placed some of the officers of the Delhi Higher Judicial Service on
probation for the purpose of confirming them in the Delhi Higher
Judicial Service while they were on deputation in other departments.
Shri D.C. Aggarwal was placed on probation while he was working as
B a Member of the Sales Tax Tribunal, Shri Mahesh Chandra was placed
on probation while he was a Member of the Central Government
Industrial Tribunal and Ms. Santosh Duggal had been placed on prob-
ation during her tenure as Member, Customs, Excise and Gold Con-
trol Appellate Tribunal. It is stated that the High Court declined to
place the petitioner on probation when he was working as the Secret-
e ary of the Commission on account of the observation made by Justice
Mukharjee in O.P. Singla's case (supra) at page 396 of the Reports
that such probations while the officers were on deputation were mean-
ingless formalities. But the High Court overlooked that the same
learned Judge had observed little lower down in the said judgment that
"an appointment on probation is not a jurisprudential1sine qua non for
D absorption into the services, though 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." Even though
it had been stated that the petitioner was sent on deputation at his own
E risk to the Commission of Inquiry it would be unjust to hold that the
High Court could have on the facts and circumstances of this case
passed orders which would have the effect of superseding the peti-
tioner. We also fail to appreciate the implication of the observation
made in the course of the resolution of the High Court that the
petitioner had 'refused to come back and got it intimated through
F Justice R.N. Misra vide demi--0fficial letter dated 19.8.85 that he had
come on deputation at his own risk.' It was not truly a case of refusal
on the part of the petitioner to go back to the Delhi Higher Judicial
Service nor can it be said that he was responsible for what Shri Justice
R.N. Misra had written. Shri Justice R.N. Misra found it difficult to
relieve the petitioner in the midst of the inquiry for obvious reasons
G and that could not be used against the petitioner for depriving him of
his seniority. The stand taken by the High Court in this case cannot,
therefore, be upheld. We may, however, state at this stage that Shri P.
Dutta, Additional Solicitor-General oflndia appearing on behalf of
the Union of India has very fairly supported the case of the petitioner.

H At this stage we have to.flbServe that no innocent officer should
R.L. GUPTA v. U.0.1. [VENKATARAMIAH, J.] 271

be exposed to the grave risk to which the petitioner has been exposed
A
in this case. In the instant case, the petitioner was promoted as an
Additional District and Sessions Judge· under rule 16 of the Delhi
Higher Judicial Service Rules in 1976. The post to which he was prom-
oted was called a temporary post although truly it was not a temporary
post. Neither the High Court nor the Delhi Administration ever
believed that the post to which the petitioner was promoted would B
ever cease to exist. There was no chance of its abolition at all. Yet it
was called a temporary because it was in excess of the strength of the
posts in the Delhi Higher Judicial Service which had been fixed at 16
by rule 4 read with the Schedule attached to the Delhi Higher Judicial
Service Rules in the year 1970. If the Schedule had been amended
from time to time by increasing the number of posts keeping pace with
the reality of the situation perhaps the strength .should have been
c
increased to 50 by now. Rule 12(2) of the said Rules states that all
candidates, .other than those appointed at the initial constitution of the
Service on appointment to the Service shall be on probation for a
period of two years. In the circumstances by appointing ·ttje Judicial·
Officers of the Higher Judicial Service to temporary posis instead of D
appointing them to permanent posts the Delhi Administration has
virtually made a mockery of the rules of recruitment. To place a Judi-
cial Officer, promoted to the Higher Judicial Service, on probation
nearly 9 years after his promotion as in this case is a mere farce.
Ordinarily an officer should be on probation from the date of his
appointment and if he is found unsuitable within the period of proba- E
tion he should be weeded out of service. We are told that the reason
for not placing a judicial officer on probation on his appointment is
· that the strength of the cadre is fixed at 16. Is it just and reasonable to
place an officer on probation nearly 9 years after his appointment and
then turn him out of service if his services are found to be not
satisfactory during the period of probation which would fall in the 10th F
and 11th year of his service in that cadre?

The Administrators should know that the work in courts has
increased by two or three times in almost every court during the last
decade. The population has increased by 20 crores during this period.
Laws have multiplied, transactions have increased and people are be- G
coming more and more conscious of their rights. But the number of
Judges has remained constant. This has led to frustration amongst
litigants, lawyers and Judges. This frustration gives rise to different
kinds of tensions including the tension which is now prevailing in the
city of Delhi. We are told that the Delhi High Court has been pressing
for the appointment of more number of Judges. The High Court H
272 SUPREME COURT REPORTS [1988] 3 S.C.R.

A addressed a Jette~ to the Delhi Administration requesting it to sanction
169 additional posts in the Delhi Judicial Service on 16.1.1983. The
Delhi Administration sought some clarifications. In reply the High
. Court has again by its letter dated 7th/11th January, 1988 urged for 1:.e
sanctioning of 169 posts. This letter shows that as on 1.9.1987 in the
courts manned by the officers of the Delhi Judicial Service (who on
B promotion will be members of the Delhi Higher Judicial Service) there
were 51, 173 Regular Suits, UlO Small Cause Suits, 974 Civil Appeals,
10,592 ·Rent cases, pending before courts dealing with such cases.
There were 97,943 cases pending before the courts of Chief and Addi-
tional Cbief Metropolitan Magistrates and 2,35,033 cases pending
before other Magistrates as on 1.9.1987. The Delhi Administration
c appears to have not taken any serious notice of the appalling situation
prevailing in the Delhi courts. The Administrators should not look at
the recommendation as one which is intended to provide some jobs to
lawyers. They should look at the recommendation of the High Court
as one intended to give relief to the suffering litigants who waste their
1
valuable time near courts for years waiting for justice. This is a prob-
D lem which should be solved on a war-footing. The Delhi Administra-
tion should straightaway· increase the strength of the Delhi Judicial
Service at least by 150, increase the number of posts in the Delhi
Higher Judicial Service at least ~y 40, establish court premises in diffe-
rent parts of the Union Territory of Delhi and see that the pending
cases which are in the order of lakhs, many of which are lingering for
E .the last ten years and more, are disposed of within two years. If the
total strength is increased at all levels, this farce of placing the Judicial
Officers on probation after nearly ten years will also end.' We must
also observe that the Government should not consider finance as a
constraint because by not appointing sufficient number of Judges the~
Government is suffering more financially. The Government itself .
F being a big litigant is subjected to several orders of stay, prohibitory
orders, injunctions etc. leading to delay in completion of several pro-
jects and works. The indirect effects of frustration amorigst the people
lead to a. greater financial drain. We may add here that if by any
chance the arrears of cases come down; then the vacancies in judicial
posts may not be filled up. The ex{enditure on judicial department
G will thus automatically come down. We hope that the Union of India
and Delhi Administration will sanction at least 150 more posts in the
Delhi Judicial Service and about 40 posts in the Delhi Higher Judicial
Service and also take immediate steps to establish additional courts.
We also suggest that the expenditure on judicial administration should
not be subjected to the constraints of non-plan expenditure. The judi-
H cial department is not an unproductive department. Peace and tran-
R.L. GUPTA v. U.0.1. [VENKATARAMIAH, J.J 273

quility that will result from quick disposal of cases is much more valu- A
able than the economic goods produced by factories. Delay in disposal
of cases affects the gross national product adversely. In fact peace and
tranquility will help in greater production of economic goods. Quick
disposal of cases will also save millions of man-hours which are now
being wasted near the courts in India. There must be a change of
B
attitude on the part of the Governments and the administrators at the
) secretariats. It is imperative that every State should increase the
strength of Judicial Officers at least by thirty per cent immediately.
L Otherwise there would be a catastrophe in about a year or two. It is
hoped that this warning will not go unheeded.

We are of the view that the petitioner in this case should have c
been plated on probation on 22.11.1985 even though he was on depu-
tation on that date and on his confirmation heis entitled to maintain
his seniority above Shri Jaspal Singh. We, therefore, direct that the
petitioner shall be deemed to have been on.probation from 22.11.1985
and his services shall be regulated accordingly. The petitioner shall
D
also be deeined to be above Shri Jasp al Singh in the seniority list of
officers in the Delhi Higher Judicial Service.

In making this order, as· already stated, we have not considered
the other contentions raised in the petition including the contenti.;n
thatthe petitioner should be deemed to have been on probation from
the date of his promotion to the cadre of Additional District Judge or E
any other date prior to 22.11.1985. All those contentions are left open.
The Writ Petition is allowed accordingly. There is no order as to costs.

S.L. Petition allowed.