Supreme Court of India

S.N. DHINGRA AND ORS.versusUNION OF INDIA AND ORS.

Citation: 2001 INSC 60
Decided: 31 January 2001
Disposal: Dismissed
Bench: G B PATTANAIK

Holding

The continuous length of service of the promotee respondents from their appointment to the DHJS on 16 January 1986 determines their seniority, and the gradation list including them is valid.

Summary

The petitioners, who were direct recruits to the Delhi Higher Judicial Service (DHJS) in 1988, challenged a gradation list prepared by the Delhi High Court that included five promotee respondents appointed as Chief Metropolitan Magistrates in 1986. The respondents argued that their appointments, though labelled "fortuitous and stop‑gap," were made under the Administrator's power to upgrade posts to the DHJS cadre, and that their continuous service from 16 January 1986 should count for seniority. The petitioners contended that the respondents' posting as Chief Metropolitan Magistrates, a post subordinate to a Sessions Judge under the Criminal Procedure Code, precluded them from seniority over the direct recruits. The Supreme Court held that the Administrator’s up‑gradation created legitimate cadre posts, that the "fortuitous" label does not negate the respondents’ continuous service, and that seniority must be determined on the basis of continuous length of service as laid down in O.P. Singla and Rudra Kumar cases. Consequently, the High Court’s inclusion of the respondents in the gradation list was upheld and the writ petition was dismissed.

Issues considered

Whether the Administrator could upgrade the post of Chief Metropolitan Magistrate and include it in the Delhi Higher Judicial Service cadre.
Whether appointments described as "fortuitous and stop‑gap" are excluded from the principle of continuous length of service for seniority.
Whether the subordination of Chief Metropolitan Magistrates under the Criminal Procedure Code affects their seniority in the DHJS.
Whether the respondents’ continuous service from 16 January 1986 should be counted for seniority despite their posting as Chief Metropolitan Magistrates.

Legislation cited

Code of Criminal Procedure, 1973s. 17, s. 19, s. 28, s. 29
Constitution of Indias. Article 32

Subjects

inter‑se seniorityDelhi Higher Judicial Servicecontinuous length of servicepromotee vs direct recruitfortuitous appointmentRecruitment Rulesjudicial service seniorityCriminal Procedure Codeadministrative powergradations list

Judgment

A S.N. DHINGRA AND ORS.
v.
UNION OF INDIA AND ORS.

JANUARY 31, 2001

B [G.B. PATTANAIK AND B.N. AGRAWAL, JJ.]

Service law :

lnter-se seniority-Judicial Service-Direct recruits and promotees-
C Gradation list prepared by High Court on the directions of Supreme Court
in Rudra Kumar's case included names of Promotee-respondents-Promotees
appointed as Metropolitan Magistrates on fortuirous and slop-gap
arrangement and later upgraded to Judicial Service-objection by direct-
recruit-petitioners for inclusion of their names on ground that they were not
D initially appointed in the Judicial Service and were junior to them under the
provisions of Criminal Procedure Code-Continuous length in service for
seniority-Determination of-Held, on facts, promotees were initially
appointed in Judicial Service and therefore, continuous service should be
determined from the date of their appointment.

E This Court in Rudra Kumar Sain & Ors. v. Union of India & Ors.,
(2000( 8 SCC 25, quashed the inter-se seniority lists prepared by High Court
of Delhi, between Direct Recruits and Promotees of Delhi Higher Judicial
Service on the ground that the guidelines and directions given by this Court
in O.P. Singla's case (1984( 4 SC<:: 450 has not been rightly followed and
directed the High Court to re-determine the inter-se seniority on the basis of
F continuous length of service in the cadre. The High Court, as per the
directions, drew up a Gradation list which included names of promotee-
respondents. The respondents have been continuously working m Delhi'
Higher Judicial Service w.e.f. 18th January, 1986 but had been posted as
Chief Metropolitan Magistrates. Petitioners, who are direct-recruits, filed a
G writ Petition under Article 32 of the Constitution challenging the inclusion
of the names of promotee-respondents in the gradation list.

The petitioners contended that the High Court has not properly
implemented the directions given by the Court in Rudra Kumar's case in
preparing the gradation list; that recruitment of respondents by a notification
H 770
S.N. DHlNGRA v. U.0.1. 771
dated 16.1.1986 was fortuitous and stop-gap since a fresh appointment to the A
service on temporary basis was made under the Recruitment Rules by a
notification dated 24.2.1989 only; that, therefore, the services of the
respondents from 16. J.I 986 to 24.2.1989 should not be reckoned for
determining continuous length of service for seniority purposes; that by
mere up-gradation of the post of Chief Metropolitan Magistrate, those posts
did not form part of the cadre and, therefore, the respondents are not regular B
appointees to the Judicial Service; that as per the provisions of Cr.P.C., a
Chief Metropolitan Magistrat.e is subordinate to Sessions Judge and,
therefore, the respondents who continued as Chief Metropolitan Magistrates
till February 1989 should not be held to be senior to the petitioners, who are
recruited as Additional District and Sessions Judge in the year 1988 itself; C
that this Court in O.P. Sing/a 's case, while involving the principle of
'continuous length of service', held that the posts must belong to the same
cadre discharging similar functions and bearing the same responsibility;
and that by applying the said principle, the Chief Metropolitan Magistrates
cannot be said to discharge similar functions and bear the same responsibility
as the Additional District and Sessions Judge entitling them for seniority on D
the basis of continuous length of service for the period they continued as
Chief Metropolitan Magistrates.

Respondent-High Court contended that the appointment of the
respondents on 16.1.1986 was to Delhi Higher Judicial Service and not against E
any particular post, though their appointments were fortuitous and stop--
gap; that the Administrator is empowered under the Recruitment Rules to
create cadre posts as may be necessary and in the absence of any embargo,
the upgradation of the post of Chief Metropolitan magistrate and inclusion of
the upgraded posts in the Judicial Service entitles the incumbents of those
posts to claim seniority on the basis of their continuous service; and that the F
fact of Chief Metropolitan Magistrates being subordinate to District and
Sessions Judge under the provisions of Cr.P.C. does not take away the benefits
of their continuous service in the cadre.

Promotee-respondents contended that they were initially appointed to G
Delhi Higher Judicial Service on 16.1.86 and continued to hold the post in
the service even though the appointment was fortuitous and stop-gap; that the
observation in Rudra Kumar's case that such appointment cannot deprive the
benefit of the continuous length of service for the purpose of seniority; that
the notification appointing the direct recruit petitioners to the Delhi Higher
Judicial Service on probation indicated that their seniority would be subject H
772 SUPREME COURT REPORTS [200 I] I S.C.R.

A to and in accordance with the decision of this Court in the pending cases; and
that by their mere posting as Chief Metropolitan Magistrates as against the
upgraded posts in the said cadre of Delhi Higher Judicial Service would not
deprive them of their right to have their continuous length of service as the
basis for seniority in the cadre.

B Dismissing the Writ Petition, the Court

HELD : 1.1. Referring the provisions of the Recruitment Rules and the
earlier two earlier decisions of this Court, the Administrator by upgrading
five posts of Chief Metropolitan Magistrates to the rank of Delhi Higher
C Judicial Service and including them in the service has merely exercised his
power under the Rules, and therefore, the appointees like the respondents to
those posts in the service from Delhi Judicial Service must be held to be
born in the service from the date of their appointment by virtue of notification
order dated 16.1.1986. In the aforesaid premises, the upgraded posts of Chief
Metropolitan Magistrates were born in the cadre of Delhi Higher Judicial
D Service and, necessarily, therefore, the incumbents appointed against those
posts would not ordinarily be deprived of their benefit accruing from such
appointment unless in their true nature and spirit the appointments can at
all be termed to be 'fortuitous or stop gap'. [780-C-F[

E 1.2. This Court in Rudra Kumar's case has clearly indicated that whether
a particular appointment is really fortuitous or stop-gap has to be decided in
the facts and circumstances of the case and any universal principle cannot be
made for the purpose. The Administrator had upgraded the posts of chief
Metropolitan Magistrates to be in Delhi Higher Judicial Service and the
postes have been filled up by the respondents belonging to Delhi Higher
F Judicial Service in consulation with the High Court. The respondents did
possess the requisite qualification and experience for being appointed to Delhi
Higher Judicial Service and have been continuing in the said Service from \-

January, 1986. In this premises, it would be a travesty of justice if their
continuous appointment in the service is not taken into account for the purpose
G of their seniority, merely because of the use of the expression 'stop-gap and
fortuitous' in the order dated 16th January, 1986. Having examined the entire
facts and circumstances of the case in hand, particularly, the upgradation of
the post of Chief Metropolitan Magistrate to the post in Delhi Higher Judicial
Service and filling up of those posts in consulation with the High Court by
the Administrator, it is difficult to hold that such appointment of the
H respondents from 16.1.86 till 1989 were in fact really fortuitous or stop-gap.
S.N. DHINGRA v. U.0.1. [PATTANAIK, J.) 773
-..
-..,;- To hold such appointments· to be fortuitous or stop-gap, would be against the A
spirit of the judgment of this Court in O.P. Sing/a which was reaffirmed in
Rudra Kumar's case.1780-H; 781-A-Ef

1.3. The appointment to a service and posting thereafter are two different
concepts. Once the appointment is made to the Higher Judicial Service, fhen
the subsequent posting against some posts born in the Higher Judicial Service B
~ will not deprive the appointees from the benefits of continuous appointment
against the post mere_ly because at a given point of time against their order
an appeal lay to the District and Sessions Judge, which might have been
occupied by the petitioners on being directly recruited in the year 1988. In
view of the constitution Bench Judgment of this Court in Rudra Kumar's
case and in view of the earlier directions contained in O.P. Sing/a's case and
c
__.., in view of the conclusions arrived at, the ultimate conclusion is inescapable
that the continuous length of service of the respondents right from their
appointment to the Higher Judicial Service in January, 1986 should be the
basis on which their seniority has to be determined and the High Court
therefore, was fully justified in including the.names of these respondents in D
the gradation list that had been drawn up on 22nd of August, 2000.
(781-G-H; 782-A..Cf
~ Rudra Kumar Sain & Ors v. Union of India & Ors., 120001 8 SCC 25
and Re: O.P. Sing/a, 1198414 SCC 450, relied on.
E
CIVIL ORIGINAL JURISDICTION : Writ Petition (c) No. 388 of
1994.

(Under Article 32 of the Constitution of India.)
~
P.N. Mishra, Shanti Bhushan, Raju Ramachandran, G.L. Sanghi, P.P. Rao, F
P.P. Malhotra, Tara Chandra Sharma, Vikrant Yadav, Abhisht Kumar, Ajay
Sharma, Ms. Neelam Sharma, Ms. Pankhuri, Rakesh K. Khanna, Ms. Pallavi
Choudhary. Surya Kant, G.P. Thareja-ln-person, M.M. Kashyap, Rajiv Nanda,
S.N. Terdol, R.P. Gupta, Kailash Vasdev, Rajesh Prasad Singh, T.L. Garg, D.N.
Goburdhan, Ms. Pinky Anand, A. Mariarputham, Ms. Aruna Mathur, Anurag
D. Mathur, Pradeep Mishra, Ms. Geeta Luthra and B.K. Pal for the appearing G
--4
parties.

The Judgment of the Court was delivered by

PATTANAIK, J. This petition under Article 32 by the Direct Recruits to
Delhi Higher Judicial Service, assails the inclusion of the respondents 5 to 8 H
774 SUPREME COURT REPORTS [200 I] I S.C.R.

A in the Gradation List drawn up by the High Court of Delhi by order dated
22.8.2000 pursuant to the directions given by this Court in Writ Petition No. -v
490/87. These respondents have been continuously working in Delhi Higher
Judicial Service w.e.f. 18th of January, 1986 but had been posted as Chief
Metropolitan Magistrates on account of the Government decision of up-
gradation of the said post of Chief Metropolitan Magistrates. The petitioners
B on the other hand are directly recruited officers to Delhi Higher Judicial
Service in the year 1988 pursuant t~ the selection made in accordance with
the Recruitment Rules. The bone of contention of the petitioners is that the )!.
respondents, who were continuing as Chief Metropolitan Magistrates, must
be held to be ju11iors to the petitioners inasmuch as their decision was subject
c to challenge in appeal before the petitioners, who were appointed as Additional
District and Sessions Judge, and the High Court committed error in including
the names of these respondents in the gradation list pursuant to the directions I
given by this Court in the Constitution Bench by not properly understanding ~ ;...
the directions in question.

D This Court in O.P. Sing/a 's case, [ 1984] 4 SCC 450 took into consideration
the relevant provisions of the Recruitment Rules and came to hold that the
'.'quota" principle contemplated in the Recruitment Rules has totally broken
down and as such seniority of the officers in the Delhi Higher Judicial Service
cannot be determined by taking recourse to the "quota and rota" provided
in Rule 8(2). The Court on the other hand indicated that the seniority has to
E
be determined on the basis of continuous length of service provided the
promotees have been. promoted after due consultation with the High Court
and they did posses the requisite qualification for promotion in accordance
with Rule 7 of the Recruitment Rules. The Court had further indicated in
Sing la's that the "ad hoc, fortuitous and stop-gap" appointees will not be
F entitled to the benefit of the aforesaid principle namely the 'continuous length "I
of service' as the basis of their seniority in the cadre. As the High Court failed
to implement the aforesaid judgment of this Court in its proper perspective
and drew up seniority list contrary to the letter and spirit of the judgment,
writ petitions were filed in this Court which stood disposed of by a Constitution
a Bench in the case of Rudra Kumar Sain and Ors. v. Union of India and Ors.,
reported in [2000] 8 SCC 25. The Constitution Bench came to the conclusion
that the provisional and final gradation list had not been drawn up in accordance
with the principles enunciated in Sing/a 's case and accordingly the said
gradation lists were quashed. The Constitution Bench also further directed
that the appointees to the Delhi Higher Judicial Service prior to the amendment
H of the Recruitment Rules in the year 1987, whether by direct recruitment or
S.N. DHINGRA v. U.0.1. [PATTANAIK, J.] 775
by promotion, are entitled to get their seniority"re-determined on the basis of A
continuous length of service in the cadre, as indicated in Singla 's case and
the High Court, therefore should draw up the same within a specified period.
The Constitution Bench further elaborated the meaning of the expression "ad
hoc, fortuitous and stop gap" and having said so, it was further observed:

"It is not possible to lay down any strait-jacket formula nor give an B
exhaustive list of circumstances and situation in which such an
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 C
matter should be approached while dealing with the question of inter
se seniority of officers in the cadre."

Thus both in Sing/a 's case as well the Constitution Bench decision in Rudra
Kumar's case, this Court has indicated the principle on which the inter se
seniority of the officers of Delhi Higher Judicial Service ha$ to be drawn up, D
particularly when the statutory mode contained in Rule 8(2) of "quota and
rota" principle was found to be broken down and at the same time it was also
indicated that for finding out the period of continuous service in the cadre
of Higher Judicial Service, the "ad hoc, fortuitous and stop-gap" appointments
would not be taken into account. Since respondents 5 to 8 were the promoted
officers in Delhi Higher Judicial Service prior to the amendment of the E
Recruitment Rules in I 987, their seniority has been determined on the basis
of their continuous length of service in the cadre pursuant to the observations
and directions given by this Court in the Constitution Bench decision of
Rudra Kumar's case.

Mr. Shanti Bhushan, the learned senior counsel, appearing for the F
present petitioners, who an; the direct recruits to the Delhi Higher Judicial
Service in the year 1988, however contends that the inclusion of these
respondents in the gradation list already drawn up is erroneous inasmuch as
their recruitment itself un~quivocally indicates that the same is purely fortuitous
and as a stop-gap arrangement, as it would be apparent from the Notification G
dated 16.1.1986. Mr. Shanti Bhushan further contends that the appointment
of these re.spondents by letter dated 16.1.86 was fortuitous and as a stop-gap
arrangement is re-enforced by the fact that a fresh appointment to the service
on temporary basis was made in their favour under Rule 16(2) of the
Recruitment Rules by the Administrator by Notification of 24th of February,
1989 and as such the services of these respondents from 16.1.86 till 24.2.~9 H
776 SUPREME COURT REPORTS [200 I] I S.C.R.

A being purely a fortuitous and stop- gap arrarigement, the said period could
not have been reckoned as continuous service for determination of their
seniority in the cadre of Delhi Higher Judicial Service and the High Court,
therefore was not justified in including their names in the gradation list drawn
up on 22nd August, 2000, pursuant to the directions given by this Court in
B the Constitution Bench decision of Rudra Kumar's case. Mr. Shanti Bhushan
further contends that by mere up-gradation of the post of Chief Metropolitan
Magistrate, those posts did not form a part of cadre until amendment in
question and inclusion of the post in the schedule, and adjudged from that
angle also, the appointees to those posts could not have been held to be
regular appointees in Delhi Higher Judicial Service. The schedule having been
C amended only in 1991 and these respondents having been continued as Chief
Metropolitan Magistrates till February, 1989, could not have been made senior
to the direct recruits-petitioners who were recruited to the Delhi Higher
Judicial Service in the year 1988. Mr. Shanti Bhushan, the learned senior
counsel, relying upon the provisions of the Criminal Procedure Code also
strenuously contended that against the orders of the Chief Metropolitan
D Magistrates, appeal being maintainable to the District and Sessions Judge
and the respondents having continued as Chief Metropolitan Magistrates till
1989 and against their orders, appeal being maintainable to the District and
Sessions Judge, which post was held by the petitioners since in the year 1988,
those respondents could not have been made senior to the petitioners in any
E view of the matter. According to Mr. Shanti Bhushan, both in Singla's case
[1984] 4 SCC 450 as well as in Patwardhan's case, [1977] 3 S.C.R. 775, on
which reliance was placed in Singla' s case, the Court while evolving the
principle of 'continuous length of service' as the criterion for determination
of the inter se seniority in the cadre, has hastened to add that the post in
question must belong to the same cadre and the. incumbents discharge similar
F functions and bear the same responsibility, but applying the aforesaid principle
to the case in hand, it cannot be said that the Chief Metropolitan Magistrates
discharge the similar function and bear the same responsibility as the
Additional District and Sessions Judge and, therefore, the respondents could
not have been given their seniority on the basis of 'continuous length of
G service' for the period they are continued as Chief Metropolitan Magistrates.
Mr. Shanti Bhushan further contends that an examination of the scheme of
the Criminal Procedure Code, more particularly, Sections 17, 19, 28 and 29
unequivocally indicate that a Chief Metropolitan Magistrate is subordinate to
the Sessions Judge and, therefore notwithstanding the up- gradation of the
post of Chief Metropolitan Magistrate, the statutory subordination under the
H Criminal Procedure Code remains and consequently, the respondents who
S.N. DHINGRA v. U.0.1. [PATTANAIK, J.] 777

continued as Chief Metropolitan Magistrates till February, 1989, cannot be A
held to be senior to the petitioners, who are recruited as Additional District
and Sessions Judge in the year 1988 and in this view of the matter, the
inclusion of the name of the respondents in the gradation list drawn up is
erroneous.

Mr. P.P. Rao, the learned senior counsel, appearing for the High Court B
of Delhi, on the other hand contended that the order of the Administrator _in
upgrading five posts of Chief Metropolitan Magistrates and including them
in Delhi Higher Judicial Service tantamounts to creation of temporary posts
in the service under sub-rule (2) of Rule 16 of the Rules. According to the
learned counsel the definition of "cadre post" in Rule 2((b) of the Rules? C
clearly conceives "any other temporary post" declared as cadre post by the
Administrator and, therefore, when the Administrator upgraded the post of
Chief Metropolitan Magistrate and included those posts in Delhi Higher
Judicial Service, then the holder of those posts cannot be denied the benefit
of such continuation of service. The learned counsel further contended that
under Rule 4(2) of the Recruitment Rules, the Administrator is empowered to D
create from time to time as many cadre posts as may be necessary and in the
absence of any embargo on the aforesaid power of the Administrator, the so-
called upgradation of the post of Chief Metropolitan Magistrate and inclusion
of those upgraded posts in the Delhi Higher Judicial Service, undoubtedly
entitles the incumbents of those posts to claim seniority on the basis of their E
continuous service, as has been held in Sing/a 's case and upheld by the
Constitution Bench in Rudra Kumar's case. The learned counsel further
contends that notwithstanding the amendment of the schedule in the year
I 99 I, the position being that five posts. of Chief Metropolitan Magistrates
were upgraded and were included in the Delhi Higher Judicial Service and
private respondents having been continuing against those posts, the High F
Court was justified in taking the entire length of continuous service in the
Higher Judicial Service for the purpose of determination of their seniority in
the cadre and no error can be found tl)erein in the matter of preparation of
gradation list on 22nd August, 2000, pursuant to the Constitution Bench
judgment of this Court. In support of this contention, he placed reliance on G
a decision of this Court in the case of SL.Kaul and Ors. v. Secretary to Govt.
of India, Ministry of Information and Broadcasting, New Delhi & Ors., [I 989.]
Supp. I SCC 147. Mr. Rao also contended that the very appointment of the
. respondents on I6th of January, 1986 was to Delhi Higher Judicial Service and
not against any particular post. On being so appointed, the High Court which
is the authority to make posting, posted them as Chief Metropolitan Magistrates H
778 SUPREME COURT REPORTS [2001] I S.C.R.
i•
A or Additional Chief Metropolitan Magistrates against the five upgraded posts
of the Chief Metropolitan Magistrates. This bei11g the position, the fact that -¥
against their order while they were continuing as Chief Metropolitan
Magistrates, an appeal lay to the District and Sessions Judge .under the
provisions of Criminal Procedure Code, will not take away the benefits of their
continuous service in the cadre, as contended by Mr. Shanti Bhushan, and,
B. therefore, the impugned gradation list has rightly been drawn up. According
to Mr. Rao, it is no doubt true that in the appointment order dated 16.1.86,
it has been indicated that the appointments are fortuitous and stop-gap, but
this labelling is of no consequence and would not deny the respondents of
their valuable rights of continuing in the Delhi Higher Judicial Service and
C would not deprive them of their seniority being determined according to the
principles evolved in Sing/a 's case and affirmed in the Constitution Bench I
judgment of this Court in Rudra Kumar's case, particularly, when the Court
has tried to resolve the impasse created by directing that 'continuous length
of service' should be the principle for determining the seniority.

D Mr. G.L. Sanghi, the leaned senior counsel, appearing for some of the
·pr-0motee-respondents, in the context of the facts of the present case,
contended that appointment to service and thereafter posting to a particular
post are two different concepts. Once the respondents were appointed to
Delhi Higher Judicial Service by order dated 16th of January, 1986 and continued
E to hold the post in the said service, the continuous period of officiation is
the only guiding factor for determining their seniority in the cadre. This
principle having been evolved by this Court in Singla's case and upheld in
Rudra Kumar's case, cannot be given a go-bye, merely because the initial
letter of appointment indicated that the appointment is fortuitous or stop-gap.
Mr. Sanghi contended that the use of the expression "fortuitous and stop-
F gap" by the High Court is because of the fact indicated in the Registrar's
letter dated 4th of January, 1986, namely the sanctioned strength of Delhi
Higher Judicial Service, as it stood then and the fact that the advertisement
had been issued separately for the direct recruits as per Rule 7(b) of the
Recruitment Rules. This letter was considered in Rudra Kumar's case by the
G Constitution Bench and the Court had observed as to how the High Court
was obsessed for use of the word "fortuitous and stop-gap". This being the
position, and in the light of the directions and observations in Rudra Kumar"
case, the High Court rightly included the names of these respondent~ in the
gradation list drawn up, and there is no infirmity in the same. Mr. Sanghi
contends that in concluding paragraph of the judgment of the Constitution
H Bench in Rudra Kumar's case, the High Court was called upon to draw up the
S.N. DHINGRA v. U.0.1. [PATTANAIK, .I.] 779
seniority of all the officers, direct recruits and promotees, appointed to Delhi A
Higher Judicial Service prior to the amendment of the Recruitment Rules of
1987 and. in view of the aforesaid directions and the respondents having been
appointed to the Delhi Higher Judicial Service with effect from 16.1.1986 and
having continued in the said service without interruption, it was only logical
for the High Court to include them in the gradation list drawn up and the B
petitioners who came to be rrcruited in the year 1988, cannot make any
complaint of the same. According to Mr. Sanghi, though the order of
appointment dated 16.1.86 indicate the appointment to be fortuitous or stop-
gap, but the substance being looked at and the principles enunciated in Rudra
Kumar's case being applied for, such appointment cannot be held to be
fortuitous or stop-gap, so as to deprive the benefit of the continuous length C
of service for the purpose of seniority of the appointees, and consequently,
the gradation list drawn up does not require any interference.

Mr. D.N. Goburdhan, the learned counsel appearing for some other
respondents, while supporting the contentions raised by Mr. Sanghi, further
urged that the notification, appointing the petitioners to Delhi Higher Judicial D
Service on probation, itself unequivocally indicates that the same is subject
to the final result in pending writ petitions and that the seniority vis-a-vis the
promotees in Delhi Higher Judicial Service would be determined and fixed in
accordance with the judgment of the Supreme Court in O.P.Sing/a's case as
well as the other writ petitions pending in the Supreme Court and in view of
such appointment letters and in view of the Constitution Bench decision in E
- Rudra Kumar's case, the High Court rightly determined the seniority and the
same should not be interfered with.

Mr. Raju Ramachandran, the learned senior counsel, appearing for
respondent No. 6, emphasised that the expression "discharging similar F
functions" in O.P. Singla's case, must be understood to mean capable of
discharging similar functions inasmuch as an appointee di6charges the
functions of the post to which he is appointed by the employer. In this view
ofthe·matter once respondents are appointed to Delhi Higher Judicial Service,
·their mere posting as Chief Metropolitan Magistrate as against the upgraded
post in the said cadre of Delhi Higher Judicial Service will not deprive them G
of their right to have their continuous length of service as the basis for
seniority in the cadre and, therefore, the impugned gradation list does not
suffer from any infirmity.

In view of the submissions made at the Bar and in view of the two
earlier decisions of this Court, O.P.Singla and Rudra Kumar, the first question H
780 SUPREME COURT REPORTS (2001] I S.C.R.

A that arises for our consideration is whether it was open for the Administrator
to upgrade the post of Chief Metropolitan Magistrate and include those
upgraded posts in Delhi Higher Judicial Service, so as to form a part of the
cadre post. The definition of 'cadre post' in Rule 2(b) of the Recruitment
Rules, stipulates that any other temporary post declared as cadre post by the
Administrator would be a 'cadre post' apart from those which have been
B specified in the schedule. The definition of 'service' in Rule 2(e) means the
Delhi Higher Judicial Service and the expression 'promoted officer' in Rule
2(h) of the Rules means a person who is appointed to the service by promotion
from Delhi Judicial Service. Rule 4(2) speaks of the power of the Administrator
to create cadre post from time to time as may be necessary. Rule 16 authorises
C the Administrator to create temporary post in the service and to 'fill up such
posts in consultation with the High Court from amongst the members of the
Delhi Judicial Service. In view of the aforesaid provisions of the Rules and
in view of the earlier decisions of this Court in Singla and Rudra Kumar, the
conclusion is irresistible that the Administrator by upgrading five posts of
Chief Metropolitan Magistrates to the rank of Delhi Higher Judicial Service
D and by including them in the service has merely exercised his power under
Rule 16, and therefore, the appointees like the respondents to those posts in
the service from Delhi Judicial Service must be held to be born in the service
from the date of their appointment by virtue of order dated 16th of January,
1986. This conclusion of ours is further strengthened from the fact that even
E the schedule has been amended later, by indicating the authorised strength
of the service to include the five posts of Chief Metropolitan Magistrates/
Additional Chief Metropolitan Magistrates. In the aforesaid premises and in
the light of the two earlier judgments of this Court in Singla and Rudra Kumar, •
we have no hesitation to come to the conclusion that the upgraded posts of
Chief Metropolitan Magistrates were born in the cadre of Delhi Higher Judicial
F Service and, necessarily, therefore, the incumbents appointed against those
posts would not ordinarily be deprived of their benefit accruing from such
appointment unless in their true nature and spirit the appointments can at all
be termed to be 'fortuitous or stop gap'.

G The next question that arises for consideration, therefore, is whether
such appointments though nomenclatured as 'stop- gap and fortuitous' can
at all be held to be such in the light of the enunciation of those terminology
in Rudra Kumar's case. There is no dispute that the Constitution Bench in
Rudra Kumar's case has clearly indicated that whether a particular appointment
is really fortuitous or stop-gap has to be decided in the facts and circumstances
H of the case and any universal principle cannot be made for the purpose. In
S.N. DHINGRA v. U.0.1. [PATTANAIK, .I.] 781
the case in hand, the Administrator had upgraded those posts of Chief A
Metropolitan Magistrates to be in Delhi Higher Judicial Service, the posts
have been filled up by these respondents belonging to Delhi Judicial Service
in consultation with the High Court. These respondents did possess the
requisite qualification and experience for being appointed to Delhi Higher
Judicial Service and they have been continuing in the said Higher Judicial B
Service from January, 1986. In this premises, it would be a travesty of justice
if their continuous appointment in•the service is not taken into account for
the purpose of their seniority, merely because of the use of the expression
'stop-gap and fortuitous' in the order dated 16th of January, 1986. It may be
stated that the order had emanated from the High Court and in Rudra Kumar's
case, the Constitution Bench has already dealt with the obsession of the High C
Court for use of such expression and how for inaction on the part of the High
Court, the promotees have suffered in the matter of their seniority and how
_,,- in Singla's case the Court resolved the impasse by directing continuous
length of service to be the guiding principle for determination of the seniority
in the cadre. Having examined the entire facts and circumstances of the case
in hand, particularly, the upgradation of the post of Chief Metropolitan D
Magistrate to the post in Delhi Higher Judicial Service and filling up of those
posts in consultation with the High Court by the Administrator, we find it
difficult to hold that such appointment of the respondents from 16.1.86 till
1989 were in fact really fortuitous or stop-gap. To hold such appointments to
be fortuitous or stop-gap, would be against the spirit of the judgment of this E
Court in Sing la and re- affinned in Rudra Kumar's case. we; therefore, are not
persuaded to agree with the submissions of Mr. Shanti Bhushan that the
appointment of respondents from 16.1.1986 till 1989 must be held to be
fortuitous or stop-gap and on that score ought not to be counted for the
purpose of their seniority in the cadre.
F
The next question that arises for consideration is whether the fact ihat
the respondents though were appointed to Delhi Higher Judicial Service, but
having been posted as Chief Metropolitan Magistrates against whose orders,
appeal lay to the Court of District and Sessions Judge would make any
difference? In this connection we find sufficient force in the argument of Mr. G
Sanghi that appointment to a service and posting thereafter are of two different
~-
concepts. Once the appointment is made to the Higher Judicial Service, as in _
the case in hand, then the subsequent posting against some posts born in
the Higher Judicial Service wi II not deprive the appointees from the benefits
of continuous appointment against the post merely because at a given point
of time against their order an appeal lay to the District and Sessions Judge, H
782 SUPREME COURT REPORTS [200 I) I S.C.R.

A which might have been occupied by th'e petitioners on being directly recruited
in the year 1988. It is in this context, the very recruitment of the petitioners
and the terms and conditions mentioned therein is of great significance as
pointed out by Mr. Goburdhan, appearing for some of the respondents. It has
been unequivocally stated that the question of their seniority would be
subject to and in accordance with the decision of the Supreme Court in the
B pending cases. In view of the Constitution Bench Judgment in Rudra Kumar
and in view of the earlier directions contained in O.P. Singla and in view of
our conclusion already arrived at, the ultimate conclusion is inescapable that
the continuous length of service of these respondents right from their
appointment to the Higher Judicial Service in January, 1986 should be the
C basis on which their seniority has to be determined and the High Court
therefore, was fully justified -in includiAg the names of these respondents in
the gr!dation list that had been drawn up on 22nd of August, 2000.
I
The submission of Mr. Shanti Bhushan, on the basis of the provisions
of the Criminal Procedure Code and the $Ubordination of the Chief Metropolitan
D Magistrates, as provided in Section 19'' of the Criminal Procedure Code is of
little cJnsequence fo~ th~' dete~in.ation of the seniority in the service, once
it is held that the upgraded post of Chief Metropolitan Magistrate stood
included in the Delhi Higher Judicial Service.

In the aforesaid premises, we do not find any merit in the writ petition,
E which accordingly fails and is dismissed. But in the circumstances there
would be no order as to costs.

B.S. Petition dismiss~d.

Search Indian case law

Ask in plain English, not just keywords. 25,000 AI words free, no card.

Try "inter‑se seniority"Sign in to search