Holding

Appointments made under Rules 16 or 17, after due consultation with the High Court and meeting the qualifications of Rule 7, are not to be treated as ad hoc, fortuitous or stop‑gap; seniority must be determined by continuous length of service as laid down in O.P. Singla v. Union of India.

Summary

The case concerned the inter‑se seniority of officers in the Delhi Higher Judicial Service appointed either by direct recruitment from the Bar or by promotion from the Delhi Judicial Service. The Delhi High Court had prepared seniority lists that excluded promotees appointed under Rules 16 and 17 on the ground that their posts were "ad hoc", "fortuitous" or "stop‑gap". The petitioners (promotees) challenged this exclusion, arguing that the Supreme Court’s decision in O.P. Singla v. Union of India (1985) required seniority to be based on continuous length of service for all appointees who satisfied Rule 7 and were appointed after due consultation with the High Court. The Supreme Court held that the High Court erred in treating such promotees as a separate class, reaffirmed the Singla ratio that continuous service determines seniority, and clarified the meaning of the terms "ad hoc", "fortuitous" and "stop‑gap". Consequently, the Court quashed both the provisional and final seniority lists and ordered a fresh determination based on continuous service. The petition for writ No. 490/87 was allowed, while other writ petitions were dismissed or disposed as directed.

Issues considered

The applicability of the O.P. Singla judgment to seniority determination for promotees appointed under Rules 16 and 17 of the Delhi Higher Judicial Service Rules, 1970.
Whether appointments made under Rules 16/17, after consultation with the High Court and satisfying Rule 7, can be characterised as "ad hoc", "fortuitous" or "stop‑gap" for seniority purposes.
Whether the quota and rota principle under Rule 8(2) continues to govern seniority when promotions are made under Rules 16/17.
The proper interpretation of the terms "ad hoc", "fortuitous" and "stop‑gap" in service law.

Legislation cited

Constitution of Indias. Article 14, s. Article 16, s. Article 311(2), s. Article 32
Delhi Higher Judicial Service Rules, 1970s. Rule 16, s. Rule 17, s. Rule 2(b), s. Rule 2(d), s. Rule 5(2), s. Rule 7, s. Rule 8(2)

Subjects

senioritypromotionDelhi Higher Judicial Serviceinter‑se senioritytemporary appointmentad hocfortuitousstop‑gapservice lawquotaRule 8(2)Rule 16Rule 17constitutional law

Judgment

RUDRA KUMAR SAIN AND ORS. ETC. A
v.
UNION OF INDIA AND ORS.

AUGUST 22, 2000

[G.B. PATTANAIK, S. RAJENDRA BABU, D.P. MOHAPATRA, B
DORAISWAMY RAJU AND SHIVARAJ V. PATIL, JJ.]

Delhi Higher Judicial Service Rules, 1970-Rules 8(2), 16 and 17-
Seniority-Determination of-Direct recruits and .promotees-Appointment of
promotees on temporary posts or on temporary basis on substantive basis C
under Rules 16 and 17 after due consultation and/or approval of High Court-
Promotees officiating on promoted posts for long duration-Held, seniority
should be determined including the period of their continuous officiation in
the promoted post-Such promotions are not fortuitous/ad hoc/stop gap-
Service law-Promotions.
D
Delhi Higher Judicial Service Rules, 1970-Rules 2(b)(d)(e) and 16-
'Members of the service'-Meaning o.f-'Cadre' and 'Service'-Ambit o.f-
Held, 'cadre' is a larger concept than 'service' -Promotees appointed under
Rule 16 are 'members o.f the service'-Service Law-Promotions.

Words and Phrases-' Fortuitous', 'ad hoc' and 'stop gap appointment'- E
Meaning o.f-Service law.

Under the provisions of the Delhi Higher Judicial Service Rules,
1970, recruitment in the service is to be made either by promotion on the
basis of selection from members of the Delhi Judicial Service or by direct
F
recruitment from the Bar. As per the provisions of Rule 8(2) the seniority
of direct recruits vis-a-vis promotees should be determined in the order of
rotation of vacancies between the direct recruits and promotees based on
the quota of vacancies reserved for both categories. Rule 16 permits crea-
tion of temporary posts in the Delhi Higher Judicial Service and such posts
are to be filled in consultation with the High Court from amongst the G
members of the Delhi Judicial Service. Rule 17 of the Delhi Higher Judicial
Service Rules, 1970 permit the filling of, in consultation with the High
Court, even substantive vacancies in the Delhi Higher Judicial Service by
making temporary appointment from amongst members of the Delhi Judi-
cial Service. H
573
574 SUPREME COURT REPORTS (2000] SUPP. 2 S.C.R.
A A three Judge Bench of this Court in O.P. Sing/a & Anr. etc. v. Union of
India & Ors., [1985] 1 SCR 351 while interpreting the provisions of Delhi
Higher Judicial Service Rules, 1970, took notice of the long periods of
officiation by the promotees on temporary posts created in the cadre of
Additional District and Sessions Judge and evolved an equitable rule for
determining the inter se seniority between the direct recruits and promotees.
B
This Court delivered two judgments; Chief Justice Y.V. Chandrachud, on
behalf of himself and Justice R.S. Pathak delivered one judgment whereas
Justice Sabyasachi Mukharji delivered a separate (partly dissenting) judg-
ment. This Court directed that the seniority of the direct recruits must be
determined according to the dates on which direct recruits were appointed
C to their respective posts and the seniority of the promotees must be deter-
mined from dates from which the promotees have been officiating continu-
ously either in temporary posts or in substantive vacancies in a temporary
capacity. This Court held that no distinction could be made between the
direct recruits who are appointed to substantive vacancies in the service on
D the recommendation of the High Court under Rule 5(2) pf the Delhi Higher
Judicial Service Rules, 1970 and the promotees who are appointed in consul-
tation with the High Court to posts in the service under Rules 16 and 17 of
the Delhi Higher Judicial Service Rules, 1970. However, this Court indi-
cated that the persons belonging to the Delhi Judicial Service who are ap-
pointed to temporary posts of Additional District and Sessions Judge on an
E ad hoc basis or for fortuitous reasons or by way of stop gap arrangement
would not be entitled for seniority on the basis of their continuous length of
service as they form a separate class.

Pursuant to the direction of this Court in O.P. Sing/a, the High Court
F of Delhi prepared a provisional seniority list allocating seniority according
to the length of continuous officiation, regardless of whether an appointee
held a temporary post or a permanent post or whether he was a promotee or
a direct recruit. However, the High Court excluded officers who satisfied the
qualification prescribed under Rule 7 of the Delhi Higher Judicial Service
Rules, 1970 but had beeg,.appointed under Rules 16 and 17 of the Delhi
G Higher Judicial Service Rules, 1970 with the approval of the High Court on
the ground that they held posts on ad hoc basis or for fortuitous reasons or
by way of stop-gap arrangement.

The aggrieved officers filed their objections to the provisional senior-
H ity list. The High Court, while considering t.he objections, examined the
R.K. SAIN v. U.O.l. 575
question of lien against a post and then, recorded a finding that anyone who A
comes to hold one of the posts subject to a lien, must be held to be holding it
as an ad hoc arrangement or for fortuitous reasons or as a stop gap arrange·
ment. The High Court also recorded a further finding that if the position of
the person, whose seniority is under consideration is beyond the total number
of posts in Service, then also his appointment must necessarily fall within the
B
description of ad hoc/fortuitous/stop gap appointment.

The persons aggrieved by the final seniority list prepared by the
High Court of Delhi filed a writ petition in this Court under Article 32 of
the Constitution of India. Before this Court, reconsideration of the judg·
ment of this Court in O.P. Singla & Am: etc. v. Union of India & Ors., [1985] c
1 SCR 351 was sought for on the ground that it is contrary to the law laid
down by this Court in Chandramouleshwar Prasad v. Patna High Court &
Ors., [1970] 2 SCR 666.

Disposing the writ petitions, the Court
D
HELD : 1.1. The High Court committed an error by excluding the
promotees on the ground that they held posts on ad hoc basis or for
fortuitous reasons or by way of stop-gap arrangement, even though their
appointments had been made under Rules 16 and 17 of the Delhi Higher
Judicial Service Rules, 1970 after due consultation with and/or approval of E
the High Court and the appointees satisfied the qualification under Rule 7
of the Delhi Higher Judicial Service Rules, 1970. [584-H; 585-A·B]

1.2. This Court had categorically directed in 0.P. Sing la & Am: etc. v.
Union of India & Ors., [1985] 1 SCR 351 that if appointments are made
F
under Rule 16 or 17 of the Delhi Higher Judicial Service Rules, 1970 after
due consultation and/or approval of the High Court and if the appointee
did qualify to hold the promotional post as required under Rule 7 of the
Delhi Higher Judicial Service Rules, 1970, then such appointment of the
appointee will not be ignored for the purpose of determining the inter-se
seniority in the cadre and the continuous length of Service should be the G
basis though Rule 8(2) of the Delhi Higher Judicial Service Rules, 1970
provides otherwise. The High Court erred in taking shelter under the
expression ad hoc/fortuitous/stop gap and in ignoring continuous length of
service of such appointees, while determining the inter se seniority between
the direct recruits and promotees. [590-A-B-C] H
576 SUPREME COURT REPORTS [2000] SUPP. 2 S.C. rt
A 1.3. The conclusion of the High Court that a person, promoted to the
Higher Judicial Service under Rules 16 or 17 of the Delhi Higher Judicial
Service Rules, 1970, to a post against which some person has a lien, would
ipso facto make such appointment ad hoc/fortuitous/stop gap, is contrary
to the conclusion of this court in O.P. Sing/a & Anr. etc. v. Union of India &
Ors., [1985] l SCR 351. [589-H; 590-A]
B
1.4. The promotees, who were appointed under Rule 16(2) of the Delhi
Higher Judicial Service Rules, 1970, and continuously held the said post
and further, such appointments have been made in consultation with the
High Court of Delhi and they had the requisite qualifications under Rule 7
C of the Delhi Higher Judicial Service Rules, 1970, their appointments cannot
be held to be either ad hoc or fortuitous or stop-gap. [592-A-B]

0.P. Sing/a & Anr. etc. v. Union of India & Ors., [1985] 1SCR351 and
S.B. Patwardhan v. State of Maharashtra, [1977] 3 SCR 775, referred to.

D Afzal Ullah v. The State of Uttar Pradesh, [1964] 4 SCR 991 and N.B.
Sa11jana, Assistant Collector of Central Excise, Bombay & Ors. v. Elphinstone
Spinning and Weavi11g Mills Co. Ltd., [1971] 3 SCR 506, cited.

2. The High Court has failed to appreciate what was stated in the
concurrent judgment of Sabyasachi Mukharji, J. in O.P. Sing/a & Am: etc.
E v. Union of India & Ors., [1985] 1 SCR 351 wherein in no uncertain terms,
it was stated that so far as controversy regarding the fixation of the
seniority between the promotees and direct recruits is concerned, the same
will not be guided by Joginder Nath & Ors. v. Unio11 of India & Ors., [1975]
2 SCR 553 in as much as in Joginder Nath' s case, the court construed the
F Delhi Judicial Service Rules, 1970 in the context ofseniority and confirma-
.!
tion and not in the context of inter se seniority between the promotees and
direct recruits. [590-E-F -G]

Joginder Nalh & Ors. v. Union of India & Ors., (1975] 2 SCR 553 and
O.P. Si11gla & A11r. elc. v. Unio11 of !11dia & Ors., (1985] 1 SCR 351, referred
G to.

3. On an analysis of the scheme of the Delhi Higher Judicial Service
Rules, 1970, it appears that 'Cadre' is a larger concept than 'Service'
under the Delhi Higher Judicial Service Rules, 1970, and the appointees
under Rule 16 of the Delhi Higher Judicial Service Rules, 1970 can be held
H to be "Members of the Service". (592-G-H]
R.K. SAIN v. U.0.1. 577
4. The judgment of this Court in O.P. Sing/a & Am: etc. v. Union of A
India & Ors., [1985] 1 SCR 351 is obviously intended to evolve some
equitable principle for determination of inter se seniority of a group of
officers, when the rule of seniority contained in Rule 8(2) of the Delhi
Higher Judicial Service Rules, 1970 has been held to be not operative
because of breaking down of 'quota and rota' rule. To meet the peculiar B
situation, the Court evolved the principle that continuous length of service
should be the criteria for inter se seniority between the direct recruits and
the promotees, provided the promotees did possess the required qualifica-
tion as per Rule 7 of the Delhi Higher Judicial Service Rules, 1970 and the
appointments had been made under Rules 16 and 17 of the Delhi Higher
Judicial Service Rules, 1970, after due consultation and/or approval of the c
High Court, which is the most appropriate basis evolved in the fact situa-
tion. This being the position, there is no justification for re-considering the
decision of this Court in 0.P. Singla & Am: etc. v. Union of India & Ors.,
[1985] l SCR 351. [593-D-E-F-G]

Chandramollleshwar Prasad v. Patna High Court & Ors., [1970] 2 SCR
D
666 and 0.P. Sing/a & An~ etc. v. Union of India Ors., [1985] 1 SCR 351,
referred to.

5.1. The meaning to be assigned to the terms 'fortuitous', 'ad hoc,
and 'stop gap' while interpreting provisions of a Service Rule will depend E
on the provisions of that Rule and the context in and the purpose for which
the expressions are used. [595-G-H]

5.2. The meaning of the terms 'fortuitous', 'ad hoc' and 'stop gap' in
the context of computation of inter se seniority of officers holding cadre
post will depend on the facts and circumstances in which the appointment F
came to be made. For that purpose it will be necessary to look into the
purpose for which the post was created and the nature of the appointment
of the officer as stated in the appointment order. If a post is created to meet
a situation which has suddenly arisen on account of happening of some
event of a temporary nature then the appointment of such a post can aptly
G
be described as 'fortuitous' in nature; if an appointment is made to meet
the contingency arising on account of delay in completing the process of
regular recruitment to the post due to any reason and it is not possible to
leave the post vacant till then, and to meet this contingency an appoint-
ment is made then it can appropriately be called as 'stop-gap arrange-
ment' and appointment in the post as 'ad hoc' appointment. It is not H
578 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.

A possible to lay down any straight jacket formula nor give an exhaustive list
of circumstances and situation in which such ad hoc, fortuitous or stop-gap
appointments can be made. [595-G-H; 596-A-B-C-D]

5.3. In service Jurisprudence, a person who possesses the requisite
qualification for being appointed to a particular post and then he is ap-
B pointed with the approval and consultation of the appropriate
authority and continues in the post for a fairly long period, then such
appointment cannot be held to be 'stop-gap' or 'fortuitous' or purely
'ad hoc'. [598-E-F]

C 5.4. An appointment made either under Rule 16 or 17 of the Delhi
Higher Judicial Service Rules, 1970, after due consultation with the High
Court and when the appointee possesses the prescribed qualification for
such appointment provided in Rule 7 of the Delhi Higher Judicial Service

D
Rules, 1970 and continues as such for a fairly long period, then the same
cannot be held to "fortuitous". The reasoning and basis on which the
-
appointment of the promotees in the Delhi Higher Judicial Service was
held by the High Court to be fortuitous/ad hoc/stop gap are wholly errone-
ous and, therefore, exclusion of those appointees to have their continuous
length of service for seniority is erroneous. [595-C-D; 598-F]

E Parshottam Lal Dhingra v. Union of India, [1958] SCR 328; Stroud's
Judicial Dictionary; Black's Law Dictionwy; O.~ford Dictionary; P. Ramanatha
Aiyer's Law lexicon 2nd Edn., referred to.

CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 490 of 1987.

F Under Article 32 of the Constitution of India.

WITH

Writ Petitions (Civil) Nos. 1252/90, 14114/84, 707/88, 856/88 and
764/88
G
Kapil Sibal, Gopal Subramanium, Dipankar Gupta, P.P. Rao, Govind
Dass, R. Venkataramani, M. Chandrashekharan, M.S. Ganesh, Ms. Kamini
Jaiswal, Ranjit Kumar, Rakesh K. Khanna, Surya Kant, Ms. Pallavi Choudhary,
A. Mariarputham, Ms. Aruna Mathur, B.K. Pal, Amit Dhingra, P.H. Parekh,
H T.C. Sharma, K.L. Janjani, Rajiv Sharma, Rupesh Kumar, Ms. Neelam Sharma,
R.K. SAIN v. U.0.1. [PAITANAIK, J.] 579
Ms. P. Shrivastava, Randhir Singh Jain, Vimal Chandra, S. Dave, C.V. Subba A
Rao, Rajiv Nanda, B.K. Prasad, Anil Kumar Gupta, Ms. J.S. Wad, Om Prakash
Verma, T.L. Garg, Urmila Sirur, Dr. M.P. Raju, John Thomas, S.P. Sharma,
M.M. Kashyap, Jaspal Singh and Padam Singh Respondents-in-person., Ms.
Bina Madhvan, Ms. Indoo Verma, Sunil Dogra, Manu Nair and Ms. A.
Subhashini for the appearing parties.
B
The Judgment of the Court was delivered by

PATTANAIK, J. These writ petitions filed under Article 32 of the
Constitution by the officers of Delhi Higher Judicial Service, some by the
promotees and others by direct recruits, in-fact, raise the question as to whether c
in determining inter-se seniority between the promotees and the direct recruits,
the guidelines and directions given by this Court in the case of 0.P. Sing/a &
Anr. etc. v. Union of India & Ors., reported in [1985) l SCR 351, have been
duly followed or not? It is rather unfortunate that on an erroneous impression
that the judgment in Singla's case is under consideration before a Constitution
Bench, these writ petitions were directed to be placed before a Constitution D
Bench, resulting thereby inordinate delay in disposal of the matters, which in
turn, must have adversely affected the career of several persons. At the begin-
ning of the hearing of these writ petitions, on being asked, the counsel appear-
ing for all the parties, could not indicate any decision where the correctness of
judgment of this Court in Sing/a 's case was under consideration, though in E
one of these writ petitions filed by a direct recruit, namely Writ Petition
No. 1252/90, Mr. Gopal Subramanium, the learned senior counsel for the
petitioner, challenged the correctness of decision of this Court in Sing/a~· case
to which, we will advert at the appropriate time. Suffice it to say for the present
that O.P. Singla, who was also a promotce to the Delhi Higher Judicial Service,
filed the writ petition, claiming that since they have been working as Additional F
District and Session Judges, against temporary posts created by the Delhi
Administration in the cadre of Additional District & Sessions Judge, they
should be treated as "Members of Delhi Higher Judicial Service" and the
seniority should be decided on the basis of continuous length of service. The
three Judge Bench, which heard the case delivered two judgments, Chief
G
Justice Y.V.Chandrachud, as he then was. speaking for himself and on behalf
of Justice R.S. Pathak and Justice Sabyasachi Mukharji, giving a separate
judgment. Chief Justice Chandrachud in the majority judgment also indicated
that the conclusion which the majority has arrived at, is not different from the
one, reached by Justice Mukharji, but because of the general importance of the
case and because of disagreement on the interpretation of one of tqe provisions H
580 SUPREME COURT REPORTS (2000] SUPP. 2 S.C.R.

A of the Recruitment Rules, it was thought fit that the separate judgment should
be written. The disagreement between the two judgments was on the question
as to whether the Recruitment Rules, provided for any quota in the Delhi
Higher Judicial Service and whether the principle of 'quota and rota' was
required to be followed for determining the inter-se seniority.. Interpreting the
proviso to Rule 7 of the Rules, Justice Mukharji came to the conclusion that
B
Rule 7 only provides for ceiling of direct recruits by providing that in case,
there were recruitment from the Bar as well as by promotion, in such a case,
Bar recruits would not be more than one third of the substantive posts in the
service and there is no quota as such. Justice Mukharji was of the view that
Rule 8(2) proceeds on the mis-conception that there is quota fixed for direct
c recruits, which Rule 7 does not and Rule 8(2) cannot on plain literal meaning
also be construed or interpreted to mean that it was deemed by the legislature
and the rule-making body to engraft any quota. Chief Justice Chandrachud, on
the other hand, speaking for himself as well as on behalf of Justice Pathak, on
a construction of Rule 7 and Rule 8(2 ), came to hold that the proviso to Rule
D 7 has to be read along with Rule 8(2), since the two provisions are inter-related
and their combined reading yields but one result, that the proviso prescribes
a quota of one third for direct recruits. It was also held that Rule 8(2) cannot
be held to be unconstitutional, merely because it reserves one third of the
vacancies in the service for direct recruits and provides that the first available
vacancy in the service will be filled in by a direct recruit, the next two by
E promotees and so on. In the majority judgment, Their Lordships also came to
the conclusion that though the proviso to Rule 7 prescribes a quota of one third
for direct recruits and provides for rotation of vacancies between them and the
promotees, who are appointed to the service. that rule must inevitably break
down when appointments to promotees are made to the Service under Rules
F 16 and 17. Having interpreted the provisions of Rules 7 & 8 of the Recruitment
Rules, as aforesaid, their Lordships examined the different provisions of the
Recruitment Rules and recorded their findings, which would be appropriate for
us to enumerate for resolving the controversy in these writ petitions. On going
through the detailed charts, which were filed by the promotees in Sing/a' s case,
the Court came to the conclusion:
G
"These charts show, indisputably, that promotees who have been func-
tioning as temporary Additional District and Sessions Judges for an
unbroken period between 8 to 12 years are regarded as juniors to the
direct recruits who have been appointed as Additional District and
H Sessions Judges much later."
R.K. SAIN v. U.0.1. [PATIANAIK, J.] 581
The Court further held: A
"The process of reading the Rules as parts of a connected whole does
not end with Rules 7 and 8. Rules 16 and 17 are also relevant for the
present purpose and have, indeed, an important bearing on the question
of reservation of vacancies for direct recruits to the extent of one-third
of the substantive posts in the Service." B

Adverting to Rules 16 and 17 it was held:

"The position which emerges from the provisions contained in Rules
16 and 17 is that it is permissible to create temporary posts in the
Service and, even substantive vacancies in the Service can be filled by c
making temporary appointments."

Interpreting Rules 2(b) and 2( d), it was held that according to the scheme of

- the Rules in this case, 'Service' is a narrower body than the 'cadre'. In
interpreting Rules 2(b) and 2(d), Their Lordships held that by the definition
contained in Rule 2(d), membership of the Service is limited to persons, who
are appointed in a substantive capacity to the Service, but by reading the second
D

part of Rule 2(b) in an extended sense, every temporary post which carries the
same designation as that of any of the posts specified in the Schedule is a Cadre
Post, whether such post is comprised in the Service or not. Such po!!ls and the
posts specified in the Schedule will together constitute the Cadre under Rule E
2(b ), if an extended meaning is given to the second part of the rule. Having
given such meaning to the provisions of Rules 2(b), 2(d), 7, 8, 16 and 17, the
Court proceeds to determine the question of seniority between direct recruits
and promotees. It was then observed:

"Care has, therefore, to be taken to apply the provisions of Rule 8(2) F
in such a manner as not to lead to the violation of the guarantee of
equality and equal opportunity contained in Articles 14 and 16 of the
Constitution. For that purpose, it is necessary to ascertain as to which
of the promotees can be regarded as belonging to the same class as the
direct recruits." G
In its pursuit to ascertain as to which of the promotees can be regarded as
belonging to the same class as direct recruits, the Court observed:

"that in the matter of seniority, it is difficult to appreciate, how any
distinction can be made between direct recruits who are appointed to H
582 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.

A substantive vacancies in the Service on the recommendation of the
High Court under Rule 5(2) and the promotees, who are appointed in
consultation with the High Court to posts in the Service under Rules
16 and 17." -
While coming to the aforesaid conclusion, it was also indicated that the persons
B belonging to the Delhi Judicial Service, who are appointed to. temporary posts
of Additional District and Sessions Judges on an ad hoc basis or for fortuitous
reasons or by way of a stop-gap arrangement, c.onstitute a class which is
separate and distinct from those who are appointed to posts in the Service in
strict conformity with the rules of recruitment. The Court, then noted a repre-
c sentative order of appointment under Rule 16 and held that such appointments
were neither ad hoc, 1or fortuitous, nor in the nature of a stop-gap arrangement
and persons promoted under such orders have been factually officiating con-
tinuously without a break as Additional District and Sessions Judges for a long
number of years. Their Lordships noticed the difficulties in evolving a rule,
which will cause no hardship of any kind to any member of the Service and
D yet attempted to minimise the same as far as possible, so that inequities and
disparities which are inherent in a system which provides for recruitment to the
Service from more than one source. It would be appropriate to extract the
following observations made by Their Lordships in the majority judgment:

"It may bear emphasis that promotees appointed under Rules 16
E
and 17 to the Higher Judicial Service can rank for seniority along with
direct recruits only if they are appointed in consultation with the High
Court as required by those Rules and if they satisfy the requirement
laid down in Rule 7(a) that they must have completed not less than ten
years of service in the Delhi Judicial Service."
F
The best solution to the situation that confronted the Court in Singla's case was
to adopt the rule enunciated in S.B. Patwardlum v. State of Maharashtra,
[1977] 3 SCR 775, to have.continuous officiation in a non- fortuitous vacancy
ought to receive due recognition in fixing seniority between persons who are
recruited from different sources, so long as they belong to the same cadre,
G discharge similar functions and bear the same responsibilities. It was also held
that since rule of 'quota and rota' ceases to apply when appointments are made
under Rules 16 and 17, the seniority of direct recruits and promotees appointed
under those Rules must be determined according to the dates on which direct
recruits were appointed to their respective posts and the dates from which the
H promotees have been officiating continuou9ly either in temporary posts created
•

R.K. SAIN v. U.O.I. [PATTANAIK, J.] 583
in the Service or in substantive vacancies to which they were appointed in a A
temporary capacity. Justice Mukharji in the separate judgment also came to the
same conclusion for determining the inter-se seniority between the promotees
and direct recruits. It may be noticed that the Court ultimately quashed the
seniority list which had been prepared by the High Court and observed that a
new seniority list be prepared on the basis of the view taken in the judgment
B
and the said new seniority list would include the direct recruits and promotees
appointed under Rules 16 and 17. While quashing the seniority list, the sen-
iority of Shri G.S.Dakha was protected, since he had been appointed as Ad-
ditional and Sessions Judge in a vacancy reserved for the members of Sched-
uled Caste.
c
Subsequent to the judgment of this Court in Singla, the High Court of
Delhi redrew up a seniority list on 26th of March, 1985 and in drawing up the
said list, the principle that was evolved is the subject matter of challenge in the
, writ petitions filed by the promotees. It may be stated that a fresh look was also
given to the earlier seniority list that had been prepared on 26th of March, 1985
D
and a Committee of Judges submitted the report on 5th of March, 1986, which
was approved by the Full Court in its Meeting on 25th of October, 1986 and
the final seniority list thus emanated on 11th of November, 1986. According
to the promotee officers, while preparing the final seniority list, the High Court
of Delhi has not followed the directions given by this Court in Sing la's case
and erroneously did not take into consideration the continuous appointment of E
the officers as Additional District and Sessi~ns Judge, notwithstanding the fact
that the appointments had been made after due consultation with the High
Court and the appointees fulfilled the requirements of Rule 7(1) of the Recruit-
ment Rules, on an erroneous conclusion that the appointment was ad hoc or
fortuitous or stop-gap. A representation appears to have been filed by the F
promotees in 1987 and then the present writ petition was filed which was
registered as Writ Petition No. 490/87.

At the outset, it may be stated that the Delhi Higher Judicial Service
Rules, 1970 were amended in the year 1987 by Notification dated 17th of
March, 1987, subsequent to and pursuant to the observations made by this G
Court in Sinf?la 's case and by virtue of explanation added to Rules 16 and 17,
Rules 5 and 7 to 11 became applicable to such appointments also. We are not
concerned in this batch of cases with the effect of such amended provisions or
the inter-se seniority to be determined subsequent to the year 1987, though we
are told that a fresh seniority list has been prepared in March, 1995 and the Full H
•

584 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.

A Court of Delhi High Court has taken a decision thereof in the year 1998. For
the present, we are only concerned with the question whether in preparing the
seniority list of the officers recruited to the Higher Judicial Service from both
the sources viz. as direct recruits as well as by promotion, prior to the amend-
ment of 1987, the directions and conclusions of this Court in Sing/a 's case has
-
been duly given effect to.
B
Mr. Kapil Sibal, the learned senior counsel, appearing for the petitioners
in Writ Petition No. 490/87, who are the promotees, contended that even
though the recruitment to the Higher Judicial Service of these petitioners have
been made eitherunder Rule 16 orunder Rule 17 of the Recruitment Rules after
C due consultation and I or approval of the High Court and the incumbents were
duly qualified for being promoted under Rule 7 of the Recruitment Rules and
had continuously held the posts of Additional District and Sessions Judge, yet
the High Court erroneously was of the opinion that they are ad hoc or fortuitous
or stop-gap appointees and, therefore, they were made junior to the direct
recruits and the continuous length of service was not taken into account for the
D purpose of determination of the inter-se seniority. According to Mr. Sibal, there
was no ambiguity in the judgment of this Court in Sing la's case, but since the
Court had not indicated as to when an appointment can be said to be ad hoc
or fortuitous or stop-gap arrangement, the High Court went on examining the
number of posts that were available on 22.4.1980, the date on which Smt. Usha
E Mehra was directly appointed and then after giving her the 30th position in the
seniority list, the promotees' seniority were adjusted and all other promotees
who even though have been recruited under Rule 16 or 17 after due consul-
tation with the High Court and also satisfied the qualification required under
Rule 7 and had continuously held the post of Additional District and Sessions
Judge, much prior to Smt. Usha Mehra, yet such appointments of the promotees
F
was held to be ad hoc or fortuitous and by adopting such procedure, the High
Court acted contrary to the judgment and directions of this Court in Sing/a 's
case. According to Mr. Sibal, it is only when an appointment is made to the
Higher Judicial Service of a person, belonging to the Delhi Judicial Service
without due consultation or approval of the High Court or when such appointee
G did not have the prescribed quali.fication under Rule 7 for being promoted or
any short term appointment is made in exigency of any particular situation,
requiring immediate recruitment or an appointment is made purely by way of
stop-gap arrangement, which can obviously be for a very short period, then
only the appointment can be held to be on ad hoc basis or for fortuitous reasons
H or by way of a.stop-gap arrangement and in such a contingency, the Services
R.K. SAIN v. U.0.1. [PATTANAIK, J.] 585
rendered by an appointee cannot be counted for the purpose of seniority in the A
Higher Judicial Service. But when. the appointment is made by the Adminis-
trator either under Rule 16 or Rule 17, after due consultation with or getting
the approval of the High Court and the appointee satisfies the qualification
required under Rule 7 and continuously holds the post of Additional District
and Sessions Judge for a fairly long period, as in the case in hand, it is difficult
B
to import the concept of ad hoc or fortuitous or stop-gap, which is well known
in the Service Jurisprudence to such appointments. In this view of the matter,
the High Court committed serious error in coming to the conclusion that the
appointment of the petitioners was ad hoc/fortuitous/stop-gap and consequently,
the seniority list thus prepared is contrary to the directions given by this Court
in Singla's case. The second Committee, which examined the objections filed c
to the provisional list, approved by the Full Court of Delhi High Court in its
Meeting held on 15th of May, 1985 also committed the same mistake as the
earlier Committee and went on examining the question of lien under the
fundamental rules, and as to how many of the incumbents of the Delhi Higher
Judicial Service were on deputation to different posts for the purpose of finding D
out as to whether the appointments made in that chain would be ad hoc or
fortuitous or stop-gap. According to Mr. Sibal, the second Committee, even
went to the extent of holding that if a quota post meant for direct recruit
according to the quota, remains unfilled, then the promotee occupying the last
post must be taken to be holding the post on ad hoc basis or for fortuitous
reasons or by way of stop-gap arrangement and the promotee holding the last . E
post must be made to surrender it, and applying this theory one Shri Sagar
Chand Jain, who had worked for about four years as Additional District &
Sessions Judge was made junior to Smt. Usha Mehra but according to the
Committee that was the best solution, and, therefore, the provisional seniority
list already approved by the Full Court was recommended to be accepted as F
the final list. From the final seniority list, it transpires that Shri Sagar Chand
Jain had been appointed as Additional District and Sessions Judge on 27.7.76,
whereas Smt. Usha Mehra was appointed as Additional District and Sessions
Judge as a direct recruit on 22.4.1980, but yet she was shown senior to Shri
Jain. Mr. Sibal also p~inted out that even the officers who had been appointed
in December, 1980 and had been continuing as Additional District & Sessions G
Judge, yet their appointments were held to be fortuitous as three posts for direct
recruitment had been advertised. According to Mr. Sibal, the High Court of
Delhi had failed to implement the positive mandate of this Court in Singla's
case and the spirit of the same in drawing up the seniority list and gross
injustice has been meted out to the promotee officers. The learned counsel H
586 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.

A points out that Shri M.A. Khan, Shri Ravi Kumar, Shri O.P. Dwivedi, Shri R.C.
Jain and Shri J.D.Kapoor though had been duly appointed in the year 1980
under Rules 16 and 17 and had continuously held the post of Additional District
and Sessions Judge, they were shown junior to Shri B.S. Chaudhary, a direct
recruit, who was appointed on 10.11.1982. Similarly, Shri B.N. Chaturvedi and
Shri RC.Chopra, though had been appointed as Additional District and Ses-
B
sions Judge in August, 1984 under Rule 16, after due consultation with the
High Court of Delhi and also were duly qualified under Rule 7 and continu-
ously held the post of Additional District and Sessions Judge, yet they were
made junior to the direct recruits of the year 1985 namely Ms. Sharda Aggarwal,
Shri H.R.Malhotra and Shri J.P. Singh. This determination of inter-se seniority,
c according to Mr. Sibal is in contravention of the principles evolved by this
Court in Sing/a's case and, therefore, such seniority list cannot be sustained.
Mr. Sibal also pointed out that even though, this Court in O.P. Singla 's case
categorically held that the controversy regarding the fixation of the seniority
list between the promotecs and direct recruits cannot be resolved following the
earlier decision in the case of Joginder Nath, yet the High Court while drawing
D
up the seniority list, followed the principle of Joginder Nath. According to Mr.
Sibal, there cannot be a more blatant contravention of the directions given by
this Court in Singla 's case than the one committed by the High Court in the
case in hand.

E Mr. Dipankar Gupta, the learned senior counsel, appearing for the peti-
tioners in Writ Petition No. 1252/90, on the other hand contended with force
that since there cannot be any appointment more than the number of posts
available in the Service and this Court having indicated that stop-gap/fortui-
tous/ad hoc appointments will not ensure to the benefit of such appointees for
F the purpose of their seniority, it was incumbent on the High Court to identify
the posts available in the Service for being regularly filled up and any appoint-
ments made in excess of the posts available must be held to be either stop-gap
or fortuitous or ad hoc and, consequently, the High court did not commit any ....
illegality in drawing up the seniority list. Mr. Gupta also contended that the
"Member of the Service" having been defined in Rule 2(d) to mean a person,
G appointed in a substantive capacity to the Service under the provisions of the
Rules, and Rule 16 having provided for creation of temporary posts in the
Service by the Administrator and filling up of the same, such appointments
cannot be held to be appointments in the Service in substantive capacity and
such appointees cannot be held to be "Members of the Service" within the
H meaning of Rule 2(d) and on this ground, the Judgment in Sing/a' case requires
R.K. SAIN v. U.0.1. [PATTANAIK, J.] 587
re- consideration. A
Mr. Gopal Subramanium, the learned senior counsel, appearing for the
direct recruits, seriously contended that the judgment of this Court in Sing la's
case is contrary to the law laid down by this Court in Chandramouleshwar
Prasad v. Patna High Court & Ors., [ 1970] 2 S.C.R., 666 , and, therefore, the
said judgment must be reconsidered. He also contended that the statutory rules B
having provided for a quota for the direct recruits, as apparent from a combined
reading of Rules 7 and 8, if no such quota is fixed for the direct recruits in case
of appointments made under Rules 16 and 17, then the rule will be grossly
discriminatory and would be liable to be struck down and, therefore, until such
quota is provided in respect of appointments made under Rules 16 and 17, it c
would only be meet and proper to hold that the seniority must be determined
in accordance with Rule 8(2), which would necessarily mean that the appoint-
ees under Rules 16 and 17 cannot claim parity with regular appointees under
, Rule 7 and, therefore, cannot claim seniority in the Cadre. The learned counsel
also contended that the decision in Joginder Nmh's case being one, in relation
to the very Service, the principles evolved therein must be made applicable and, D
High Court, therefore, ri5htly relied upon the same in determining the inter-
se seniority. According to Mr. Subramanium, only the genuine appointees
under Rules 16 and 17 may, at best, get the benefit of the decision of this Court
in Singla's case and appointment made against temporary post, because the
temporary appoilJtee has gone elsewhere, cannot be held to be an appointment E
under Rule 16, even though, he might have been nomenclatured as such.

Mr. Govind Das, the learned senior counsel, appearing for the respond-
ents in Writ Petition No. 490/87, fairly stated that this Court having not
indicated the true import and meaning of the expression "stop- gap/fortuitous/
ad hoc" , the High Court had to give meaning to the same and in so doing, the F
High Court has taken into account the number of posts available in the Service
and has tried to implement the directions given by this Court in Sing/a' s case.
According to Mr. Das, this Court should now indicate or clarify the meaning
of the expression "stop-gap/fortuitous/ad hoc" in which event, there will not
be any further controversy in implementing the directions of this Court for G
drawing up the seniority list.

Mr. Rakesh Kumar also appearing for respondent No. 8 in Writ Petition
No. 490/87, who happens to be a direct recruit, contended that in Sing la's case,
this Court has tried to work out the equity and for working out equity, it will
not be appropriate to take into account the Services rendered by an appointee H
. 588 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.

A against a temporary post when the original appointee against the said tempo-
rary post is on deputation to some other Service. According to Mr. Rakesh
Kumar, by not following the quota, meant for direct recruits, gross inequity
has already been met out to such direct recruits and over and above that, if
the continuous service of such an appointee under Rule 16, as stated above is
taken into account for determination of their seniority, then the aspiration with
B
which a Member of the Bar joins the post in the Higher Judicial Service will
be marred and it will work out gross inequity, so far as the direct recruit is
concerned.

Shri J.P. Singh, respondent no. 9 in Writ Petition No. 490/87, who is also
c a direct recruit, argued in- person and reiterated the stand taken by Mr. Dipankar
Gupta, appearing for some of the direct recruits and Mr. P.P. Rao, appearing
for the High Court. Mr. R.C. Chopra, a promotee, also appeared in-person and
adopted the stand taken by Mr. Sibal.

Mr. P.P. Rao, the learned senior counsel, appearing for the Delhi High
D
Court, on the other hand contended that prior to the judgment in Sing/a's case,
the High Court's understanding of the rule was that appointments made under
Rules 16 and 17 will not count for the purpose of seniority and inter-se
seniority has to be determined only between direct recruits and promotees made
under Rule 7, following the principle engrafted in Rule 8(2). But after the
E judgment in Singla's case, when the Court was confronted with a situation that
there has been more number of appointments than the posts available and even
in Sing/a's case, this Court had indicated that the fortuit.ous, ad hoc and stop-
gap appointees, cannot claim their seniority, the Full Court of Delhi High Court
took the decision that all appointments made beyond the number of posts
available, must assume the character of fortuitous, ad hoc or stop-gap, and,
F
therefore, cannot claim seniority in the Cadre. According to Mr. Rao, though
in Sing/a's case, the Court has not indicated the meaning of the expression "ad
hoc, fortuitous or stop-gap" but those expressions have been given due mean-
ing in Parshotam Lal Dhingra v. Union of India, [1958] SCR 828, and,
therefore, those meanings should be imported and given effect to. According
G to Mr. Rao, even though, the appointment letters might have indicated the
appointments to be one under Rules 16 or 17, but that by itself will not create
any right in favour of the appointees on the basis of the Sing/a 's judgment
inasmuch as a wrong levelling will not create a right as such. In support of this
contention Mr. Rao, relied upon decisions of this Court in the case of Afzal
H Ullah v. The State of Uttar Pradesh, [1964f 4 SCR 991, and N.B.Sanjana,
R.K. SAIN v. U.0.1. [PATIANAIK, J.] 589
Assistant Collector of Central Excise, Bombay & Ors. v. Elphinstone Spinning A
& Weaving Mills Co. Ltd., [1971] 3 SCR, 506. Mr Rao with reference to the
seniority list, which had been drawn up, contended that when the appointments
have been shown to be 'out of tum' such appointment must be held to be
fortuitous within the meaning of the said expression used in Sing/a~ case and,
therefore, such appoin\ees cannot claim a parity or equality with the regular
B
appointees under Rule 7 and, therefore, cannot claim their seniority on the basis
of mere continuous length of Service, as contended by Mr. Sibal, appearing for
the promotees.

Having examined the rival submissions at the Bar and having scrutinized
the two seniority lists drawn up by the Delhi High Court, the provisional as well c
as the final, the provisional made on 26th of March, 1985 and the final list
which was approved by the Full Court on 25th of October, 1986, we find
sufficient force in the contentions made by Mr. Sibal, appearing for the
promotees. We are also of the considered opinion that the High Court of Delhi,
in drawing up the seniority list, though proceeded to allocate seniority accord-
ing to the length of continuous officiation, rega:-dless of whether an appointee
D
held a temporary post or a permanent post or whether he was a promotee or
a direct recruit, as directed by this Court in Singla's case, but committed error
by excluding the persons, on the ground that they held posts on ad fwc basis
or for fortuitous reasons or by way of stop-gap arrangement, even though
appointments had been made under Rules 16 and 17 after due consultation with E
and or approval of the High Court and the appointees satisfied the qualification
required under "Rule 7 of the Rules. It is on this score, the ultimate seniority
list, drawn up, stands vitiated. When the report of the first Committee, on the
basis of which ultimately provisional seniority list was drawn up is examined,
it would appear that the Committee went on examining the question of a lien
F
against a post and then, recorded a finding that anyone who comes to hold one
of those posts, which is subject to a lien, must be held to be holding as an ad
hoc arrangement or for fortuitous reasons or as a stop-gap arrangement. The
Committee also recorded a further finding that if the 12.osi ti on of the person,
whose seniority is under consideration is beyond the total number of posts in
the Service, then also his appointment must necessarily fall within the descrip- G
tion of 'ad hoc/fortuitous/stop-gap' and having said so, the Committee as-
signed Ms. Usha Mehra, the 30th post and then adjusted the seniority accord-
ingly. The conclusion of the Committee that a person, promoted to the Higher
Judicial Service under Rule 16 or 17 of the Rules to a post against which some
other person has a lien, would ipso facto make such appointment ad hoc/ H
590 SUPREME COURT REPORTS (2000] SUPP. 2 S.C.R.

A fortuitous/stop-gap, is contrary to the conclusion of this Court in Sing la's case.
Then again, this Court having categorically directed in Sing/a' s case, that
appointments made under Rule16 or 17, after due consultation and/or :ipproval
of the High Court, and the appointee did qualify to hold the promotional post,
as required under Rule 7 of the Recruitment Rules, then such appointment of
B the appointee will not be ignored for the purpose of determining the inter-se
seniority in the cadre and on the other hand, continuous length of Service
should be the basis, though Rule 8(2) of the Rules provides otherwise. Yet the
High Court took shelter under the expression 'ad hoc/fortuitous/stop- gap' and
ignored the continuous length of Service of such appointees, while determining
the inter-se seniority. In fact, in Sing/as case, the Court on being confronted
c with a peculiar situation, had given the direction as to in what way, it will be
equitable for all concerned to determine the inter-se seniority, but notwith-
standing the same, the High Court appears to have stuck to the idea of the
principles engrafted in Rule 8(2) of the Rules and then decided the question
of seniority on the basis of number of posts, available in the Service. While
D doing so, the High Court obviously missed the findings of this Court that under
the scheme of the Rules, 'Service' is a narrower body than the cadre and every
temporary post, which carries the same designation as that of any of the posts
in the schedule is a cadre post, whether such post is comprised in the 'Service'
or not. It is also apparent from the report that the High Court followed Joginder
E Nath~· case in drawing up the seniority, on the ground that the judgment (in
Singla's case) does not indicate whether the earlier decision of the High Court
in Joginder Nath' s case is still to be followed in preparing the seniority list or
not, but obviously, the High Court has failed to appreciate, what was stated in
the concurrent judgment of Mukharji J, in Sing hi '.1· case, wherein in no uncer-
tain terms, it was stated that so far as, controversy regarding the fixation of the
F seniority list between the promotees and direct recruits, the same will not be
guided by Joginder Nath 's case inasmuch as in Joginder Nath 's case, the Court
constn1ed the Delhi Judicial Service Rules, 1970 in the context of seniority and
confirmation and not in the context of inter-se seniority between the promotees
and direct recruits. The entire reasoning given by the High Court in the first
G report, on the basis of which, provisional seniority list has been drawn up,
cannot, but be held to be contrary to the directions given by this Court in
Sing/as case, and accordingly, must be held to be erroneous. The reasoning _
of the High Court, in fact, nullifies the ratio in Sing/a' s case, wherein
Chandrachud CJ, had observed, after noticing a representative order of ap-
H pointment under Rule 16:-
R.K. SAIN v. U.0.1. [PA!fANAIK, J.] 591
"The appointments were neither ad hoc, nor fortuitous, nor in the A
nature of a stop-gap arrangement. Indeed, no further orders have ever
·\ been passed recalling the four promotees and, others similarly situated,
to their original posts in the subordinate Delhi Judicial Service.
Promotees who were under Rule 16 have been officiating continu-
ously, without a break, as Additional District and Sessions Jiidges for
B
a long number of years. It is both unrealistic and unjust to treat them
as aliens.to the Service merely because the authorities did not take up
to the necessity of converting the temporary posts into permanent ones,
even after some of the promotees had worked in those posts from five
to twelve years."
c
Yet, the High Court in drawing up the seniority list, have treated such promotees,
who are appointed under Rule 16 as aliens to the Service and thus, the High
Court was wholly in error in preparing the provisional seniority list, as already
stated. If we examine the second Committee report, which had considered the
objections filed by the promotees and ultimately, on the basis of which the final
D
seniority list was approved by the Full Court in its Meeting on 25th of October,
1986 and the list was prepared on !Ith of November, 1986, we also find, the
High Court committed similar error in accepting the provisional seniority list
as final. In the second Report, the Committee, again was of the view that if a
post meant for a direct recruit, according to the quota, remains unfilled, then
the promotee occupying the last post, must be taken to be holding that post "on E
ad hoc basis or for fortuitous reasons or by way of a stop-gap arrangement''.
This indicates that the Committee was still obsessed with the provisions of Rule
8(2) of the Recruitment Rules, even though 'in Sing/a 's case, it has been
categorically held by this Court that 'quota' principle has broken down and as
such, seniority cannot be determined by taking recourse to the 'quota and rota' F
provided under Rule 8(2) but on the basis of continuous length of Service,
,. provided the promotees have been promoted after due consultation with and/
or approval of the High Court under Rule 16 or 17 and they did possess the
requisite qualification for promotion, as provided under Rule 7. At this stage,
it would be appropriate to notice the letter of appointment of Shri M.A. Khan,
Shri O.P. Dwivedi, Shri R.C.Jain and Shri J.D. Kapoor by the order of the G
Administrator dated 19th of December, 1980, which is identical with the
representative order, this Court had taken note of, in Sing la's case. It is not the
case of the High Court or any of the direct recruits-respondents that these
promotees, on being promoted on 19th of December, 1980, have at any point
of time, reverted to their substantive post before Shri B.S. Chaudhary was H
592 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.

A appointed as a direct recruit on 10.11.1982. In this view of the matter, these
promotees, who are appointed under Rule 16(2) of the Recruitment Rules on
19.12.1980, and continuously held the said post and further, such appointments
have been made in consultation with the High Court of Delhi and they had the
requisite qualifications under Rule 7 of the Recruitment Rules, their appoint-
ments cannot be held to be either ad hoc or fortuitous or stop-gap, and nec-
B
essarily, therefore, they must be held to be senior to Shri B.S.Chaudhary, a
direct recruit of the year 1982, on the basis of continuous length of Service,
in accordance with the directions given by this Court in Singla's case. Simi-
larly, the two other promotees, namely, Shri B.N.Chaturvedi and Shri
RC.Chopra, who had been appointed since August, 1984 and also continu-
c ously held the post of Additional District and Sessions Judge for all these years,
must be held to be senior to the direct recruits, namely, Msc Sharda Aggarwal,
who was directly recruited on 07 .6.1985 and Shri H.R. Malhotra and Shri
J.P.Singh, who were directly recruited on 26.11.1985.

It would be worthwhile to notice that the promotee officers, in their
D rejoinder affidavit, have indicated that in course of arguments in Singla 's case,
the Supreme Court had directed the Delhi High Court to submit a chart,
indicating under which rule, the promotees had been appointed and pursuant
to the said directions, the High Court had submitted a chart and all the peti-
tioners (the promotees) were shown to have been appointed either under Rule
E 16 or Rule 17. A chart, also purported to have been filed in the earlier case,
has been enclosed to the rejoinder affidavit, which clearly indicates the factual
matrix, which were there before this Court in Sing/a' s case. Even, the High
Court in its counter affidavit in the present proceedings, has submitted that all
the petitioners herein were appointed under Rule 16 or 17 of the Rules and the
respective dates of appointments are matters of record.
F
So far as the argument of Mr. Dipankar Gupta, the learned senior coun-
sel, appearing for the direct recruits, to the effect that in view of the definition
of 'Service' in Rule 2(d), the appointees under Rule 16 cannot be held to be
"Members of the Service", it may be stated that the said question was duly
considered in Sing la's case and on an analysis of the scheme of the Rules, this
G
Court came to the conclusion that the Rule is peculiar in nature and 'Cadre'
is a larger concept than 'Service' under the Recruitment Rules. The Court
recorded a finding that all persons recruited under Rule 17 to the posts having
the same designation, as per the post in the schedule, must be held to be
'Members of the Cadre' and, therefore, while determining the incer se seniority
H in the 'Cadre', they cannot be ignored from consideration nor can they be held
R.K. SAIN v. U.0.1. [PATIANAIK, J.] 593
to be alien to the Cadre. The said contention of Mr. Gupta, accordingly, cannot A
be sustained.

So far as the contention of Mr. Gopal Subramanium, the learned senior
counsel, appearing for the direct recruits, is concerned, in praying for re-
consideration of the judgment of this Court in Singla's case, the same also
cannot be sustained inasmuch as the Court in Singla's case did consider the B
earlier decision of this Court in Chandramouleshwar's case, and recorded a
finding that in that case, it was only a matter of adjustment of seniority between
the promotees inter-se and not between the promotees and direct recruits and,
therefore, the ratio therein is of no application. Further, Justice Mukharji, in his
concurring judgment did consider Joginder nath's case and held that the c
principle evolved therein cannot be applied to the. case in hand, where inter-
se seniority between the promotees and direct recruits are going to be decided
on equitable consideration. We are also unable to accept the contention of Mr.
Subramanium that until the principle of 'quota' provided in Rule 8 is ma'!le
applicable to appointments under Rules 16 and 17, such appointees, under
D
Ru.Jes 16 and 17 cannot claim continuous length of service for their seniority.
Such a contention appears to have been considered and negatived in Singla's
case. The Judgment of this Court in Singla's case is obviously intended to
evolve some equitable principle for determination of inter-se seniority of a
group of officers, when the rule of seniority contained in Rule 8(2) has been
held to be not operative because of breaking down of 'quota and rota' rule. To E
meet the peculiar situation, the Court evolved the principle that continuous
length of service should be the criteria for inter-se seniority between the direct
recruits and the promotees, provided, the promotees did possess the required
qualification as per Rule 7 and the appointments had been made under Rules
16 and 17, after due consultation and/or approval of the High Court, which in
F
our view also is the most appropriate basis, evolved in the fact situation. This
being the position, we see no justification for re-considering the decision of this
Court in Sing/a' s case. That apart, the Recruitment Rules have been amended
in the year 1987 and the aforesaid principle, which had been evolved in
Sing/a 's case, would apply for determining the inter-se seniority between the
promotees and direct recruits, all of whom had been appointed to the Higher G
Judicial Service, prior to the amendment of the Rules in question, which was
made in the year 1987. We have also considered the arguments advanced by
Mr. P.P. Rao, the learned senior counsel, appearing for Delhi High Court and
we are unable to persuade ourselves to accept the same inasmuch as it is not
a mere question of levelling, as urged by Mr. Rao, but, it is a question which H
594 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.
A was directly considered by this Court in Singla's case and, after examining the
representative order, the Court positively recorded a conclusion that the ap-
pointments made under Rule 16 or 17 cannot be held to be alien to the Cadre.
In fact the Court was persuaded to come to the aforesaid conclusion, as it was
found that the persons appointed under Rules 16 and 17 having all the neces-
sary qualifications and having been appointed after due consultation with the
B
High Court, though they had served for more than five to seven years, but yet
have been shown junior to the direct recruits, who had come to the Service
much later than them. It is, therefore, not possible for us to accept Mr. Rao's
contention and permit any further scrutiny into such appointments made either
under Rule 16 or under Rule 17 of the Recruitment Rules. It is in fact,
c interesting to notice that the schedule to the Recruitment Rules, which came
into existence in 1971, was amended for the first time only in the year 1991,
20 years, after and if a strict construction to the different provisions of the Rules
would be given, then all the temporary appointees under Rule 16, who might
have rendered 5 to 10 years of Service would be denied of their right for the
D purpose of seniority. It is this impasse, created on account of inaction of the
authorities and on account of non- adherence to the provisions of the Rules
strictly, which persuaded the Court in Singla 's case to evolve the principles for
working out equities and that principle has to be followed by the High Court
in drawing up the seniority list. It is not necessary to deal with the contention,
raised by Mr. Rakesh Kumar, appearing for the direct recruits and Shri J.P.Singh,
E appearing in person, who is a direct recruit also, as well as Mr. R.C.Chopra,
appearing in person, who is a promotee, as essentially, they adopted the argu-
ments of either Mr. Dipankar Gupta or Mr. Gopal Subramanium and Mr. Kapil
Sibal.

F So far as the terminology used in Sing/a 's case, namely 'ad hoc', 'for-
tuitous' and 'stop-gap', the same is quite familiar in the Service Jurisprudence.
Mr. Rao, appearing for the High Court of Delhi, however, contended before us
that the said tenninology should be given the same meaning, as was given in
Parshotam Lal Dhingra v. Union of India, [1958] S.C.R. Page 328. In Dhingra's
case, the Court was examining whether removal of an employee can be held
G to be a penal and whether Article 311 (2) of the Constitution can at all be
attracted and the Court also observed that certain amount of confusion arises
because of the indiscriminate use of the words "provisional", "officiating" and
"on probation". We do not think that the concept or meaning given to those
terminology in Dhingra 's case will have any awlication to the case in hand,
H where the Court is trying to work- out an equitable remedy in a manner which
R.K. SAIN v. U.0.1. [PATTANAIK, J.] 595
will not disentitle an appointee, the benefit of his fairly long period of Service A
for the purpose of seniority, even though he possesses the requisite qualifica-
tion and even though his appointment has been made after due consultation
and/or approval of the High Court.

The three terms 'ad hoc', 'stop-gap' and 'fortuitous' are in frequent use
in service jurisprudence. In the absence of definition of these terms in the rules B
in question we have to look to the dictionary meaning of the words and the
meaning commonly assigned to them in service matters. The meaning given
to the expression "fortuitous" in Stroud's Judicial Dictionary is "accident or
fortuitous casualty". This should obviously connote that if an appointment is
made accidentally, because of a particular emergent situation and such appoint- c
ment obviously would not continue for a fairly long period. But an appointment
made either under Rule 16 or 17 of the Recruitment Rules, after due consul-
tation with the High Court and the appointee possesses the prescribed quali-
fication fo~ such appointment provided in Rule 7 and continues as such for a
fairly long period, then the same cannot be held to "fortuitous". In Black's Law
dictionary, the expression "fortuitous" means "occurring by chance", "a fortui-
D
tous event may be highly unfortunate". It thus, indicates that it occurs only by
chance or accident, which could not have been reasonably foreseen. The
expression "ad hoc" in Black's Law Dictionary, means "something which is
formed for a particular purpose". The expression "stop-gap" as per Oxford
Dictionary, means "a temporary way of dealing with a problem or satisfying E
a need".

In Oxford Dictionary, the word 'ad hoc' means for a particular purpose;
specially. In the same Dictionary, the word 'fortuitous' means happening by
accident or chance rather thari design.
F
In P. Ramanatha Aiyer's Law Lexicon (2nd Edition) the word 'ad hoc'
is described as "for particular purpose, Made, established, acting or concerned
with a particular and or purpose'. The meaning of word 'fortuitous event' is
given as 'an event which happens by a cause which we cannot resist; one which
is unforeseen and caused by supedor force, which it is impossible to resist; a
G
term synonymous with Act of God'.

The meaning to be assigned to these terms while interpreting provisions
of a Service Rule wilt depend on the provisions of that R.ule and the context
in and the purpose for which the expressions are used. The meaning of any of
these terms in the context of computation of inter-se seniority of officers H
596 SUPREME COURT REPORTS [2000) SUPP. 2 S.C.R.
A holding cadre post will depend on the facts and circumstances in which the
appointment came to be made. For that purpose it will be necessary to look into
the purpose for which the post was created and the nature of the appointment
of the officer as stated in the appointment order. If the appointment order itself
indicates that the post is created to meet a particular temporary contingency and
for a period specified in the order, then the appointment to such a post can be
B
aptly described as 'ad hoc' or 'stop-gap'. If a post is created to meet a situation ..
which has suddenly arisen on account of happening of some event of a tem-
porary nature then the appointment of such a post can aptly be described as
'fortuitous' in nature. If an appointment is made to meet the contingency
arising on account of delay in completing the process of regular recruitment
C to the post due to any reason and it is not possible to leave the post vacant till
then, and to meet this contingency an appointment is made then it can appro-
priately be called as a 'stop-gap' arrangement and appointment in the post as
'ad hoc' appointment. It is not possible to lay down any straight-jacket formula
nor give an exhaustive list of circumstances and situation in which such an
D appointment (ad hoc, fortuitous or stop-gap) can be made. As such, this
discussion is not intended to enumerate the circumstances or situations in
which appointments of officers can be said to come within the scope of any
of these terms. It is only to indicate how the matter should be approached while
dealing with the question of inter se seniority of officers in the cadre.

E In the Service Jurisprudence, a person who possesses the requisite quali-
fication for being appointed to a particular post and then he is appointed with
the approval and consultation of the appropriate authority and continues in the
post for a fairly long period, then such appointment cannot be held to be
"stop-gap or fortuitous or purely ad hoc". In this view of the matter, the
reasoning and basis on which, the appointment of the promotees in the Delhi
F Higher Judicial Service in the case in hand was held by the High Court to be
'fortuitous/ad hoc/stop-gap' are wholly erroneous and, therefore, exclusion of
those appointees to have their continuous length of service for seniority is
erroneous.

In view of our conclusions, as aforesaid, we quash the seniority list both
G provisional and final, so far as, it relates to the appointees either by direct
recruitment or by promotion in the Delhi Higher Judicial Service, prior to the
amendment of the Recruitment Rules in the year 1987, and their inter-se
seniority must be re-determined on the basis of continuous length of service
in the Cadre, as indicated in Singla's case and explained by us in this judgment.
H Since the future of these officers to a great extent depends upon seniority and
R.K. SAIN v. U.0.1. [PATIANAIK, J.] 597
many of these officers may be on the verge of superannuation, the High Court A
would do well in finalising the seniority within a period of six weeks from the
date of receipt of this judgment.

Writ Petition No. 490/87 is accordingly allowed.

Writ Petition Nos. 1252/90 and 14114/84 are accordingly dismissed. B
Writ Petition Nos. 707 /88, 856/88 and 764/88 stand disposed of in terms
of the directions given herein-above.

Application for impleadment filed by Mr. R.C.Chopra in Writ Petition
(Civil) No.490/87 is allowed. C
Application for impleadment' filed by one Ms. Rekha Sharma in Writ
Petition(Civil) No.1252 of 1990, stands rejected, since in this batch of cases,
we are concerned with the inter-se seniority between the direct recruits and the
promotees, who are appointed prior to the amendment of the Rules in 1987 and
the applicant Ms. Rekha Sharma was appointed in January, 1988. D

The application for impleadment by Shri J.B. Goel in Writ Petition
(Civil) No. 14114 of 1984 stands allowed.

B.K.M. Writ Petition No. 490/87 allowed.
Writ Petition Nos. 1252 and E
14114/84 dismissed.

Writ Petition Nos. 707/88
856/88 and 764/88
disposed of.