Seniority fixation at the initial constitution of the Delhi Higher Judicial Service. The Supreme Court held 'cadre' under Rule 6(3) includes temporary posts, so seniority follows total length of service as District/Addl. District Judge, not date of confirmation. Appeal dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
~74
A
O. R. LUTHRA, ADDITIONAL DISTRICT' JUDGE, DELHl
v.
LT, GOVERNOR, DELHI & ORS . •
September 3, 1974.
[A. N. RAY, C.J., K. K. MATHEW, J.]
B
Delhi Higher Judicial Service Rules, 1970--Rule 6(3 )-''Length of service ,,.endered by them in the cadre to lvhich they belong", meaning-Seniority if deJermined on the basis of confirmation or length of service.
Rule 6(3) of the Delhi Higher Judicial Service Rules, 1970, provides that the seniority of the candidates appointed at the initial constitution of the service shall be in accordance with the "length of service rendered by them in the cadre to which they belong" at the time of their initial recruitment to the service. Under Rule 6(1) the appointment is to be made substantially from amongst District Judges and Additional District Judges, functioning as such in the union territory of Delhi on deputation from other States and those recommended by their respective States.
| - Respondents2,3 and 4 were appointed priortothe appellant as temporary |
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Additional District and Sessions Judges in the CadreofDistrict and Additional |
District and SessionsJud&eintb,eirrespective States.Theappellant was con- |
| fumed against permanent post in his parent State; before respondent3,while |
| xespondents2and4werenotconfirmed. When the appellant and the respon- |
dents were appointed substantively, in May 1971, to the Delhi Higher Judicial |
| Service the respondents were given seniority over the appellant since the length |
| .of service rendered by the respondents in the cadre of District and Additional |
District to Sessioris Judgestowhich they belongedatthe timeofinitial recruit- |
mentwaslonger than thatofthe appe!Jant The High Court rejected a writ |
| petition by the appellant against the fixation·ofseniority. |
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In the appeal to this Court the appellant contended that the expression "the length of service rendered by them in the cadres to which they belong'' meant the length of service in substantive appointment to permanent posts, and that for purpose of seniority what was relevant was the date of confirmation and not the date of appointment in an officiating or temporary capacity,
Dismissing the appeal,
| HEID:that the respondents had been rightly treatedassenior to the appel- tant. |
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| · (i) The words "in the cadretowhich they belong" in rule 6 (3) cover the .casesofperm.anentaswellastemporary Additional District and Sessions Judges atthe timeofinitial recruitment. The Rules were framed for those who were 'functioning_as_Additional DistrictandSessions JudgesatDelhiandtheDelhi Higher Judicial Servicewasconstituted with persons who rendered service as Additional District and SessionsJudges intemporary postsorintemporary capa- -cityagainst permanent posts. The ward "cadre" includesbothtemporaryand permanent posts. Toconfine cadre to permanent posts would render the rules totally unworkable and impracticable, becauseatthe timeofinitial recruitment thepersons came on deputation from States mostly in their temporary capacity asAdditional Dfatrict and Sessions Judges. [983C; A;984E-Fl |
(ii) The important yardstick in the determination of seniority is the length of service rendered in a cadre. Where confirmation is the decisive factor to determine the :i;eniorty, rules state so. Confirmation depends on the accident of permanent posts falling vacant. To determine seniority according to confirma· tion is to wipe out the length of service. The criterion for the determination of •eniority under the Delhi rules is the length of service. [983 B-C; 984 C-D]
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G. R, !.UTHRA v. LT. GOVERNOR (Ray, C.J.)
97 5
CIVIL APPELLATE JURISDICTION Civil Appeal No. 777 of 1973. Appeal by special leave from the judgment and order dated the 21st March, 1972 of the Delhi High Court at New Delhi, in Civil Writ No. 1211 of 1971.
8
M. K. Ramamurthi, Shyamla Pappu and J. Ramamurthi, for the appellant.
F. S. Nariman, Additional Solicitor General of India, R. N. Sachthey and M. N. Shroff, for respondent no. I.
S. V. Gupte, L. R. Gupta and M. V. Goswami, for responden nos. 2 and 3.
L. R. Gupta and M. V. Goswami, for respondent no. 4.
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ARGUMEI'iTS
For the Appellant : Under rule 6(3) requirement is length of service and not "continuous length". So the entire length of service as District or Addl. District & Sessions Judge is to be taken even if it is by parts.
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For correct interpretation of rule 6 (3) the words used therein have to be un~ derstood in their ordinary connotation as the rules themselvc! do not adopt any such definition in this behalf. The word 'Cadres' used in plural has significance and indicates that there must be more 'cadres' than one or at least two cadres. Rule 6(1) enumerates the officers who are eligible for initial recruitment. Acording to this rule, initial recruitment can be from District and Addi. District Judges functioning as· such in Delhi and from those whose names were recommended by their respective states. In case it is taken that temporary and permanent District Judges are in one and the same cadre, then only one cadre would be fqrmed. Two cadres could be formed only if there is a cadre of permanent District Judges separate fron1 that of Sub Judges who are working temporarily as Addi. District Judges. The expression ''to which they belong'' -attached to the word "Cadres" connotes belonging to any of the aforesaid two cadres, by whatever name called in different states.
The use of the word 'cadres' in plural was deliberate because in the corresponding seniority in Delhi Judicial Service Rules which were framed and notified simultaneous the word 'Cadre' has been used in singular.
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Rule 9 of Delhi Judicial Rules makes Sub Judges, Law Graduate, Magistrates working in Delhi, member of Civil Judicial Cadres of States whose names had been recommended by the State Government for appointment and members of Delhi, Himachal Pradesh, Andaman, and Nicobar Islands, Civil Service, who are law graduates, eligible for initial recruitment. They formed one category of equivalent cadre :uid thereby necessitating the use of the word 'cadre' in singular in seniority rule 11. On that interpretation, the Appellant and Respondent No. 2 were in the 'cadre' of permanent District Judges and hence their seniority is to be with re· ference to the dates on which they became permanent District Judges. As the appe1Jant had become permanent earlier, he must rank snior to respendent No. 2. As respondent Nos. 3 & 4 were still in lower cadre of Subordinate Judges kbown as Punjab Civil Service (Judicial Branch) they must rank junior to the appellant.
It was contended on behalf of the respondents that having regard to the fact the Delhi Higher Judicial Service was being consituted mainly for those who were functioning as Addl. District Judges in Delhi who were 11 in number, and out of whom only two or three .were permanent District Judges, the framers of the rules must be intending to fix the senioritv having regard to the actual length of service rendered as District _gr Addi. District Judges only, irrespective of wbe. ther they were permanent or temporary and that therefore. it shoulrt be held that the seniority shall be in accordance with the actual length of service as District & Additional District Judges functioning as such. It was also urged that the use of the word 'cadres' in plural referred to number of cadres in different states of India.
[1975] 1 s.c.R.
976
SUPREME COURT REPORTS
In the Presen~ context the relevant shade of ordinary dictionary meas.ing of e word 'cadre' t! "perma'!ent establishment. of unit forming nucleus for expan· s1on at nee'!" and the 1n;ean1ng of the word. "Belg" is forming part of or a mem· her of service. So the import of the rule 1s that 1t has reference to the service of t4e cndidates in their substantive appointment against permanent posts. It wa! held m 1958 S.C.. 88 at 82 and 843 that substantive appointments against permanent posts give nse to nghts to a Government servant which means that if a person is temporary he can be reverted at any time aad :is such he does aot belong to the cadre. None can belong to two cadres of permanent District Jodee• and Sub Judges at the same time and therefore, a temporary Adell. District Judge i~ actually in the cadre .of .Sub Judges and cannot therefore belong at the same time to the cadres of D1stnct Judges, -unless he is confirmed in cadre of District Judges. Applying the aforesaid principles for interpretation of the rule, only permanent District and Sessions Judges were in higher cadre, and the length of service inter-se means their length as permanent District Judges. Therefore, Shri K. S. Sidhu, who had less length of service as permanent District Judge must rank junior to the appellant. Temporary District Judges who are actually substantive subordinate judges, as was the case with respondents nos. 3 and 4 must rank junior to the appellant and respondent no. 2.
The aforesaid intervretation is harmonious with the provisions of Art. 14 and 16 of the Constitution of India and is reasonable, just and equitable. Treating equally the unequals i.e. permanent Subordinate Judges working as temporary Add.I. District & Sessions Judges on the one hand and permanent District &: Sessions Judges on the other in the matter Of seniority of permanent District Judg~ will offend the provisions of Article 14 and 16 of the Constitution of India. Therefore. the rules should be so constn1ed as to. render them constitutionally valid and this can be done only if the expression, "length of service in the cadres to which they belong" is understood as length of service in their respective aubstantive appointments. Further it will also render the action of the High Court and Administrator (respondent no. I) consistent in as tnu:h as Shri R. N. Aggarwal had been placed senior to Shri Fauja Singh Gill, only because the former had been confirmed earlier, though the latter had been appointed as Addl. District & Sessions Judge earlier.
The general principles enunciated by Government of India Ministry of Home Aiairs vide memo dated 22-12-1959 clearly contemplate that for the purposes of seniority what is relevant is the date of confirmation and not the date of appointment in officiating or temporary capacity. Depa1ture from this general rule in a matter of construction cannot be inferred, unless it is stated in Delhi Higher Judicial Service Rules unambiguously and categorically. No such intention to depart from the general rules can be spelt out on a plain reading of the provisions contained in the aforesaid rules.
The length of service referred to in rule 6(3) 'in the cadres to which they belong' when examined in the light of Punjab and Haryana Superior Judicial Service Rules in force at the time of initial constitution of service i.e. 17th May 1971 clearly shows that the length of service is to be considered only with reference to the appointment to permanent posts ·which alone were included in the said service. According to rule 3(2) cadre post means a permanent post in the service. That means only permanent posts are iuded in the cadre. According: to rule 3 ( 4) ex-cadre pQst n1eans tetnporary post and the same rank as the cadre post. According to rule 15 ex·cadre posts for purposes of fixation of pay etc. only were to be governed by the provisions .of those ules. 'P_iat mea.ns that t.e~~ porary posts were outside the cadre of PunJab Supenor Jud1c1al Service. This ts also apparent from the definition of the word "appointed to service'' and ''mem ber of service" given in sub rule 1 and. 6 of Rule 3 respectively as meaning: persons holding cadre posts. Therefore, only the appellant and respodent no. 2 beJonged to Superior Judicial Service of Haryana and Punjab respectively and their seniority is to be in accordance with the length of service as perman~nt District Judges. Re_spondents nos. 3 and 4 did not belong to Punjab Supenor Judicial Service but belonged to Punjab Civil Service (Judicial Branch) on account of which they must rank junior.
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G. R, LUTHRA v. LT. GOVERNOR (Ray, C.J.)
977
A
for respondent No. 1.
In construing Rule 6(3) of the Delhi Higher Judicial Service Rules, 1970 it is important to bear in mind that these Rules were tramed prlIDaruy to ena_ble those functioning as District Judges and Addl. District Judges in the Union Territory of De1n1 (who were on deputation from other States) to opt for or juin the Delhi Higher Judicial Service. The yardstick for d~term1nmg seruonty was length of service reudered by these persons as District Judges,and Ad.dl. 1J1stnct B Juages. 'fhe key word in Rule 6(3) is not ''cadres" but "service" the '"length of service renaered" is obviously the length of service rendered by such persons who were functioning as District Judges and Addl. District Judges in the Union Ter· rito1y of Delhi. lt was because they were on deputation from other .:::itates Lhat the words "cadres to which they belong" find a place in Rule 6(3)(a) of the Rules. The expression "cadres to which they belong" is to be read in the context of Rule 6; they mean the State-wise cadres [~ee Kule 6{4)J. '!hat "Cadres" does not mean "posts" is clear from Rule 6(4) which uses the two expressions separately. The decision cited by counsel for the petitioners on the meanirig of the express1on c "cadre" (1958 SCR 828 at 840) is not relevant. The ordinary general meaning of the word "cadre" is ''framework" or ''scheme". The "framework' in the present case was the Judicial Service to which each of these officers belonged at the time of the initial constitution of the Delhi Higher Judicial Service. the contention urged on behalf of the petitioner must result in reading the word "cadres" in Rule 6(3) as equivalent to "Higher Judicial Service". But this could never be the meaning of the expression "cadres" especially in view of the admitted position that at the date of the promulgation of the Rules (27th August 1970) and at the date of the initial constitution of the Service (15th May 1971) there were only D two persons (Mr. Gill and Mr. Joshi) out of the eleven District Judges and Addi. District Judges functioning as such io the Union Territory of Delhi who "belonged" to the Higher Judicial Service; that is who were confirmed on permanent posts in that Service. It would lead to the incongruous result that the seniority of the other candidates who were admittedly absorbed into the Service was not at all fixed by Rule 6(3 ). l!esides the proviso to Rule 6(3) furnished an additional reason why the contention of the petitioner cannot be accepted. At the time cJf the framing of the Rules the authorities obviously had before them the Punjab E Superior Judicial Service Rules 1963 which inter alia laid down a rule as to seniority. Rule 12 of the Punjab Superior Judicial Service Rules 1963 (which at the date of the promulgation of the Rules and at the date of the initial constitution of the Service) was applicable both in Pun Jab and Haryana, the seniority of substantive members of the Service was o be determined with reference to the res pective dates of their confirmation. The language of this rule was not adopted by those framin2 the Delhi Higher Judicial Service Rules. Besides at the date of the promulgation of the Rules and ar the date of the initial Constitution of the Service, it was known that there were eleven oersons (all from Punjab and F Haryana) functioning as District Judges and Addl. District Judges in the Union Territory of Delhi and it was also kp.own that out of the eleven posts of District Judges and Addl. District Judges only five were permanent and the remaining were temporary. It is submitted that such interpretation should be given to Rule 6(3) which would effectively make provision for a rule of seniority covering all these eleven persons who were in fact appointed to the Delhi Higher Judicial Service under the notification of 17th May 1971. Such an interpretation can only be given if the contention of the R'espondents is accepted. [n construing statutory G provisions, absurd and inconveniilnt results must us far as possible be avoided. (See Graise on Statutes p. 87).
B
~~r Resp'ondents Nos. 2-4
H 2. Even after 1-11-1966 the Petitioner ranked junior to the Respondents Nos. 2 to 4 while functioning either as lst Addi. Senior Sub Judge or Addi. District and Sessions Judge in Delhi on deputation from the State of Haryana till 17-5·71 when they were substantively appointed to the Delhi Higher Judicial Service.
97g
[1975] 1 s.c.a.
SUl'l\llMll COURT Rl!l'ORTS
A
S. According to Rule 6(l)(a) of the Delhi Higher Judicial Service Rules (hereinafter referred to as Delhi Rules), District Juoge/Addl. District Juoges functioning as such at Delhi formed very important class of officers from whom selection for initial recruitment to the Delhi Higher Judicial Service was to be made. This was so in view of Rule 6(4) which provided for inclusion of mini· -mum number of officers belonging to Punjab and Haryana States in the initial recruitment. According to Rule 6(3) of the Delhi Rules the seniority ol the candidates appointed at the initial recruitment was to be determined in accord~ ance with length of service rendered by them in the cadres to which they be· longed at the time- of initial recruitment to the service. It is manifest that im· portant wofds are 'functioning' and 'service'. An officer is said to function re· gardless of the nature of post held by him or his status being substantive. offi.cl3.tina or temporary and "service'' means service whether in substantive capacity or as temporary. After all for the purpose of initial recruitment when aj_l offi· cers were to be taken substantively what was required was good officers with experience i.e. length of service.
7.-The petitioner wants to add certain words in Rule 6(3) which do not exist Viz he wants to read the Rule to the effec~ "length of service rendered by them substantiveiy as confirmed District/ Addi. District & Sessions Judges in the cadre of Higher Judicial Service to which they belong permanently". 'No can· non of interpretation would permit the petitioner to add words in the Rules which the Rule makin11 authority deliberately avoided to incorporate. The plain meanina of the words as they occur in this Rule do not permit any other construction except that the len&th of service whether substantive or temporary rendered by
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G. R. LUTHRA V. LT. GOVERNOR (Ray, C.J.)
979
A
the candidates is. to be recognised and compared for the fixation of seniority, equated with ''cadre post" or the "service". The "cadre'', "cadre post'' and "service" are different words having different connotations, meaning and import and cannot be equated with each other. The meaning of cadre given in Webster's Dictionary is "frame or framework". The word "cadre" has been defined in Fundamental Rules (FR) vide FR 9(4) which means "the strength of service or a part of service sanctioned as a separate unit". Strength can be permanent as well as temporary. Fundamental Rules are applicable to the services in B Union Territory of Delhi. Framers of the Delhi Rules obviously gave the same meaning to the word "cadre" used in Rule 6 (3) as given in Fundamental Rules. As the Fundamental Rules were applicable to Union Territory of Delhi, the framers of the Rules advisedly did not think it neceSsary to incorporate the definition of "cadre" in the Delhi Rules. Cadre, as already stated, can consist of permanent or both permanent and temporarv or even temporary post only.
(a) pertain;
B
avoid dil'lastrous results and to make the harmonious construction of rule 6(a). Rule 6(3), Rule 6(4) and Rule 29 it i• necessarv that seniority is to be fixed on the ba<iis of length of service without any reference to the capacity, permanent, substantive or temporary in which the judicial officer has worked.
[1975] 1 s.c.R.
SUPREME CQURT REPORTS
980
A
ordinate Judicial Service in various states which is the source of initial recruitment to the Delhi Judicial Service consists in quite a few states of more than one cadre. This would also confirm the interpretation submitted above that the use of plural or singular in relation to the word Cadre in these Rules is of no significance.
12. The contention raised by the petitioner that the general principle governing seniority is the date of confirmation and the reliance placed on Government of India, Ministry of Home Affairs memo dated 22-12-1959 are equally misplaced. The rule of ·seniority which is relevant is the one contained in Rule 6 (3) of the Delhi Rules. No other rule or instruction or decision made in different context has any bearing. Furthermore the general rule is that seniority goes from the date of appointment regardless to the nature of appointment being temporary or permanent. This rule has been followed in all cases arising under different States Re-organisation Acts.
The Judgment of the Court was delivered by
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RAY, C. J. This is an appeal by special leave from the judgment dated 21 August, 1972 of the Delhi High Court.
The appellant challenged the notification dated- 15 May, 1971 determining the respondents K. S. Sidhu, 0. N. Vohra and J. D. Jain to be senior to the appellant in the Delhi Higher Judicial Service.
, The appellant and the respondents were recruited to the Delhi -Higher Judicial Service in accordance with the provisions of the belhi Higher Judicial Service Rules hereinafter referred to as the Delhi Rules.
D
The respondent Sidhu was appointed as a Subordinate Judge on 27 October, 1948 in the former Pepsu State. The respondents Vohra and Jain and the appellant were selected and appointed as Subordinate Judges in the Provincial Civil Service (Judicial Branch) in the Punjab State on the result of the competitive examination. The respondents Vnhra and Jain were appointed as Subordirate Judges on 4 August, 1950 and the appellant was appointed on 7 August, 1950.
The respondent Sidhu was appointed as an cfficiating or temporary Additional bistrict and Sessions Judge on 15 January, 1966 in the State of Punjab.
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The respondent Jain was appointed as Senior Subordinate Judge in belhi on 12 October, 1966. The appellant was also made first the Additional Senior Subordinate Judge on 12 October, 1966.
The belhi High Court was established on 31 October, 1966.
G
On 1 November, 1966 the State of Punjab was reorganised. Two different States of Punjab and Haryana were formed.
The Central Government in exercise of its powers under the Punjab Reorganisation Act, 1966 allocated the respondents Sidhu, Vohra and Jain to Punjab and the appellant to the State of Haryana with effect from 1 November, 1966.
G. R, LUTHRA v. LT. GOVERNOR (Ray, C.J.)
981
A On or about 2/3 November, 1966 a select list of officers to be recruited to the Delhi Judicial Service showing the order of seniority was prepared.
B
The respondent Vohra was ?ppointed on 17 March, 1967 as Assistant Sessions Judge, Delhi. On 24 April, 1967 the respondent Vohra was promoted and appointed as temporary Additional District and Sessions Judge, Delhi against a permanent· post.
The respondent Sidhu was transferred to Delhi and appointed on 1 May, 1967 as Additional District and Sessions Judge on deputation. He had already been appointed as officiating Additional District and Sessions Judge on 15 January, 1966 in Punjab.
The respondent Jain was given promotion on 23 June, 1967 as c Additional District and Sessions Judge in his parent State of Punjab in the Punjab Superior Judicial Service while he was still on deputation. On 11 August, _1967 the respondent Jain was promoted and appointed as temporary Additional District and Sessions Judge, Delhi against one of the temporary posts.
On 28 July, 1967 the appellant was given promotion as Additional D District & Sessions Judge in his parent State of Haryana while he was still working on deputation as Senior Subprdinate Judge, Delhi.
On 27 August, 1970 the Delhi Higher Judicial Service Rules, 1970 were promulgated. ·
On 2 October, 1970 the appellant was confirmed as District & Sessions Judge in his parent State of Haryana whilst he was still funcE tioning as Additional District & Sessions Judge on deputation.
On 22 February 1971 the respondent Sidhu was confirmed as District & Sessions Judge in his parent State of Punjab whilst he was still functioning in Delhi as Additional District and Sessions Judge on deputation.
F On 15 May, 1971 the Administrator of Delhi issued a Gazette Notification appointing substantively the respondents and the appellant to the Delhi Higher Judicial Service on its initial constituticn. The respondents Sidhu, Vohra and Jain and the appellant were shown one after another in the order of seniority.
G
On 17 May, 1971 the appellant and the respondents assumed charge as Additional District and Sessions Judges, Delhi as members of the Delhi Higher Judicial Service.
On I September, 1971 the appellant made a representation to the High Court of Delhi, against the fixation of his seniority and claimed seniority over the respondents Sidhu, Vohra ana Jain. On 23 October, 1971 the High Court rejected the representation of the appellant.
The seniority of the respondents and the appellant depends on the H construction of Rule 6(3) of the Delhi Rules. Rule 6(3) states that the seniority of the candidates appointed at the initial constitution ~hall ])e in accordance with the length of service rendered by theDJ. j11
[1975] 1 s.c.R.
982
SUPREME COURT REPORTS
A
cadre to which they belong at the time of their initial recruitment to the service provided that the inter se seniority as already fixed in such cadres shall not be altered.
Rule 6(1) of the Delhi Rules states that for initial recruitment to the service which mean~ the Delhi Higher Judicial Service the Administrator shall, in consultation with the High Court, appoint persons to the service substantively from amongst the (a) District Judges and Additional District Judges functioning as such in the Unicn Territoryl; of Delhi on deputation from other State; (b) District Judges and Ad-:!! ditional District Judges whose names may be recommended by their respective States for appointment.
B
The appellant's contentions are twofold.
First, the expression "the length of service rendered by them in the cadres to which they belong" means that the length of service has to be considered only with reference to the substantive appointment to permanent posts which alone were included in the service on 17 May, 1971, which is the relevant date for the purpose of determining seniority. The appellant was confirmed on 2 October, 1970, as District 11nd Sessions Judge in his parent State of Haryana. The respondent Sidhu was confirmed on 22 February, 1971 as District and Sessions Judge in his parent State of Punjab. Therefore the appellant is senior to the respondent Sidhu because the appellant is confirmed earlier in point of time than the respondent Sidhu. Both of them belong to the cadres of District Judges. The respondents Vohra and Jain are not yet confirmed as District Judges. They belong to the cadres of Additional District and Sessions Judges. Therefore, they cannot be senior to the appellant.
Second, the length of service rendered by the candidates in the cadres to which they belong at the time of their initial recruitment to the service can have reference only to the cadre of Additional District and Sessions Judges and the cadre of District and Sessions Judges from which recruitment was made in accordance with Rule 6(1 ). Cadre is a permanent establishment. The word "belong" in the expression "cadres to which they belong" means that a person is a member of the cadre in a substantive appointment against a permanent post. The . use of the expression "cadres" in contrast to the expression "cadre" which is used in Delhi Judicial Service Rules shows that recruitment is from two distinct cadres of Additional District and Sessions Judges and District and Sessions Judges. For purpose of seniority what is relevant is the date of confirmation and not the date of appointment in an officiating or temporary capacity .
. In order to examine the contentions of the appellant it is necessary to appreciate as to why and for whose benefit these 'Delhi Rules were framed. These Rules were framed for those who were functioning as Additional District and Sessions Judges at Delhi. There were II such persons. In Rule 6(3) the concentration is on the length of service rendered by the candidates appointed at the initial constitution. At the initial constitution of the Delhi Higher Judicial Service it appears th!\t the respondents and the appellant were all rendering service 11,s
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Cil. R. LUl'WltA v. LT. GOVl!ltNOit (ltlllY, (!.J.)
983
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Additional District and Sessions Judge. The fallacy of the appellant is that the appellant wants to equate cadre with substantive appointment to a permanent post. This construction totally overlocks the fact that the Delhi Higher Judicial Service was constituted with persons who rendered service as Additional District and Sessions Judges in temporary posts or in temporary capacity against i::ermanent posts. There were altogether five permanent and six temporary posts of District and Sessions Judges and Additional District and Sessions Judges. The respondents and the appellant were all recruited as temporary Additional District and Sessions Judges. The important yardstick in the determination of seniority is the length of service rendered by them in the cadre. "Cadre post" in the Fundamental Rules means a post as specified in the Schedule and includes a temporary post. The Delhi Higher Judicial Service Rules does not define "cadre" but defines "cadre post" to include a temporary post. The words "in the cadre to which they belong" in Rule 6(3) cover the cases of permanent as well as temporary Additional District and Sessions Judges at the time of initial recruitment.
In Fundamental Rule 9(22) "permanent post" means a post carryD ing a definite rate of pay sanctioned without limit of time. Funda- , mental Rule 9(30) defines "temporary post" as a post carrying a definite rate of pay sanctioned for a limited time. Temporary posts may be posts created to perform the ordinary work for which permanent posts already exist. Temporary posts may also be temporary addition to the cadre of a service. "Cadre" in Fundamental Rule 9(4) means the strength of a service or part of a service sanctioned as a separate unit. In the case of a temporary addition to the cadre of a service the power of the authorities to create such a post will depend on the provisions of the Rules. Isolated posts may be created for the performance of special tasks unconnected with the ordinar} work which a service is called upon to perform. Such temporary posts are treated as unclassified and isolated ex-cadre posts. Here again the power to create the post depends on the provisions contained in the F Rules. Where however temporary posts are considered as temporary additions to the cadre of a service the incnmbents of those posts wiJI draw their time scale pay.
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The Punjab Superior Judicial Service Rules, 1963 defines "cadre post" mean a permanent post in the service and "ex-cadre" post means a post of the same rank as a cadre post. The aforesaid Punjab Rules show that cadre means incumbents of both permanent and temporary posts. Rule 12 of those Punjab Rules states that the seniority of the substantive members of the service, whether permanent or temporary, shall be determined with reference to the respective dates of their confirmation. These Punjab Rules are referred to only for the purpose of showing that where confirmation is the decisive factor to determine the seniority the Rule states so.
The appellant was appointed a temporary Addi'tional District and Sessions Judge on 25 November, 1967 against one of the temporary posts created by the Government of India. The respondents Sidhu,
9i4
[1975] 1 s.c.R.
SUP!ll!ME COURT REPORTS
A
Vohra and Jain had all be~n appointed temporary Additional Judges on !st May 1967; 24 Apnl, 1967; and 11 August 1967 respectively earlier than the appointment of the. appellant. '
It is apparent that the respondents Sidhu, Vohra and Jain were rendering longer se~vice as Additional District and Sessions Judge than the appellant m the cadre of District and Additional District and Sessions Judge to which they belonged.
. The appellant wa.s .confirmd on 2 October, 1970 as District Judge m the Haryana Judicial Sernce and the respondent Sidhu was confirmd as District Judg~ on 22 February, 1971 in the Punjab Judicial Service. The confirmatmn of the appellant and the respondent Sidhu was against perm~nent posts in Haryana and Punjab Judicial Services because of the accident of permanent posts falling vacant at that time in their home States from which they came on deputation. To determine seniority according to confirmation in permanent posts is to wipe out .the length of service rendered by the candidates appointed at the initial constitution of the Delhi Higher Judicial Service. The respondents are in fact senior to the appellant in regard to appointment as Additional District and Sessions Judges.
The criterion for the determination of seniority under the Delhi Rules is the length of service rendered by the candidates during the period when they were rendering service either as District Judge or as Additional District and Sessions Judge in permanent or temporary capacities.
Rule 6(4) of the Delhi Rules show that the respondents and the appellant were absorbed in the Delhi Higher Judicial Service from the States of Punjab and Haryana. The length of service rendered by them as Additional District and Sessions Judges is the criterion to fix the seniority. The word "cadre" includes both permanent and temporary posts. To confine cadre to permanent posts under tne Delhi Rules w0uld be to render the Rules totally unworkable and impracticable because at the time of initial recruitment the persons came on deputation from States mostly in their temporary capacity as Additional District and Sessions Judges.
For these reasons we are of opinion that the respondents Sidhu, Vohra and Jain had been rightly treated as senior to the appellant on the ground that the length of service rendered by the respondents in the cadre of District and Additional District and Sessions Judges to which they belonged at the time of initial recruitment is longer than that of· the appellant. The respondents and the appellants were all functioning as Additional District Judges on deputation at Delhi at the time of the initial constitution of the Delhi Higher Judicial S.rvice. The respondents were appointed prior to the appellant as Additional District and S"8sions Judge. The respondents rendered longer service as Additional District and Sessions Judge vis-a-vis the appellant. The appeal is, therefore, dismissed. In view of the fact that there was no order as to costs in the High Court parties will pay and be~r their own costs. · ·
Appeal .dismissed.
P.H.P.
B
c
D
E
F
G
H
L /M 192SupCl/7 5-2,500-11-9· 7 5-GIPF.
2 issues framed by the court
Does 'length of service rendered by them in the cadre to which they belong' in Rule 6(3) mean substantive service on permanent posts or total service as District/Addl. District Judges?
Is date of confirmation rather than length of temporary service the criterion for inter se seniority at initial constitution of the service?
5 provisions across 3 enactments
G. R. Luthra
Lt. Governor, Delhi
K. S. Sidhu
O. N. Vohra
J. D. Jain
A. N. Ray
K. K. Mathew
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
