Full Judgment Text
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). 7535 OF 2021
(Arising out of SLP(Civil) No(s). 3896 of 2019)
SHYAM SUNDER OBEROI & ORS. ….APPELLANT(S)
VERSUS
DISTRICT AND SESSION JUDGE
TIS HAZARI COURT, DELHI & ORS. ….RESPONDENT(S)
J U D G M E N T
Rastogi, J.
1. Leave granted.
2. The instant appeal has jointly been filed by the employees who
are substantively appointed as Lower Division Clerks(in short
Signature Not Verified
Digitally signed by
Charanjeet kaur
Date: 2021.12.08
13:27:34 IST
Reason:
“LDC”) after going through the regular process of recruitment and
qualifying written and typing tests in the year 1987 assailing the
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judgment passed by the Division Bench of the High Court of Delhi
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dated 6 December, 2018 directing the respondents who were
appointed on adhoc basis in the years 19831989 and later
qualified the typing test in the first or second attempt in the year
1992 or thereafter are placed enblock senior to the appellants in
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the seniority list of LDC on being regularized by Order dated 17
November, 2000 from the date of their initial adhoc appointment.
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3. Although in the Order dated 17 November 2000, it was
clearly mentioned that the seniority of the respondents adhoc
employees who are regularised after qualifying typing test from the
date of their initial appointment, shall be fixed separately according
to rules. Admittedly, there are no rules/guidelines available for
determining seniority of the employees appointed in the cadre of
LDC of the ministerial staff under the subordinate judiciary of
Delhi.
4. Admittedly, the respondents were initially appointed as LDC
on adhoc basis during the period 19831989 and their term of
appointment was extended from time to time. Since they were
continued for a long period of time, Civil Writ Petition No. 1820 of
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1990 was filed by them before the High Court of Delhi seeking
regularization of service.
5. During the pendency of Civil Writ Petition No. 1820 of 1990, a
fresh appointment process was initiated, pursuant to which a panel
of 180 candidates was prepared and it was notified that the written
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test and typing test is scheduled to be held on 23 August, 1992
and their grievance was that if such candidates are being
appointed, that will jeopardize their claim of seniority and taking
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note thereof, by an interim Order dated 20 August, 1992 while
keeping 26 vacancies reserved for adhoc employees, granted them
protection of seniority and deferred the test which was to be held on
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23 August, 1992.
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6. By a subsequent order dated 12 November 1992, the learned
Single Judge of the High Court while granting exemption to the ad
hoc employees from appearing in the written test directed to
consider them for regularization after qualifying typing test. It was
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further directed by the High Court in its Order dated 12
November, 1992 that the seniority of the respondent adhoc
employees in the cadre of LDC visàvis fresh recruits, who were to
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be appointed from the panel of 180 candidates shall remain
protected.
7. Such of the employees/LDCs who were working on adhoc
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basis and qualified the typing test pursuant to an order dated 12
November, 1992 passed by the High Court in Civil Writ Petition No.
1820 of 1990 followed with the Order of the Division Bench of the
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High Court dated 6 April, 1994 in the earlier proceedings initiated
at their instance, the District and Session Judge, Delhi(respondent
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no. 1), by an Order dated 17 November, 2000 regularised the
services of such adhoc LDCs who qualified the typing test from the
date of their initial appointment. At the given point of time, it was
specifically mentioned that such of the LDCs who stand regularized
from the date of initial appointment pursuant to an Order dated
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17 November 2000, their seniority shall be separately fixed in
accordance with rules.
8. The order passed by the District and Session Judge, Delhi
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dated 17 November 2000 became a subject matter of challenge by
filing of Civil Writ Petition No. 7462 of 2000 before the learned
Single Judge of the High Court at the instance of the present
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appellants and few others who are similarly situated appointed as
LDCs through open selection during the year 1987, after going
through the process of selection for making substantive
appointment.
9. The learned Single Judge of the High Court by Order dated
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10 March 2015, after taking into consideration the material
available on record, and as there was no rule existing in
determining seniority of LDCs working in the ministerial cadre of
the subordinate Courts, placing reliance on the judgment of this
Court in
Direct Recruit Class II Engg. Officers’ Association Vs.
State of Maharashtra 1990(2) SCC 712 in para 47(B) held as
under:
“In view of the above, the writ petition is allowed. Impugned
list/order dated 17.11.2000 is quashed to the limited extent that
the private respondent nos. 3 to 25 are given seniority above the
petitioners. The order dated 17.11.2000 will remain to the extent
that it regularizes the services of the private respondents, of course
however the same is not to have the effect of giving private
respondents seniority above the petitioners as claimed by the
private respondents and also supported by the respondent no.
1/employer. No costs.”
10. Since the respondents were deprived of their seniority from the
date of appointment, the order of the learned Single Judge dated
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10 March, 2015 came to be challenged at their instance by filing
Letters Patent Appeal No. 328 of 2015.
11. While examining the question in regard to determining
seniority of adhoc employees who qualified the typing test at the
later stage and were regularized from the initial date of appointment
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by Order dated 17 November 2000, the emphasis of the Division
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Bench was on the Order dated 20 August, 1992 passed by the
High Court in the earlier round of litigation in Civil Writ Petition No.
1820 of 1990 noticing the apprehension shown by the respondent
adhoc employees that 180 candidates who are in the panel, their
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typing test is being scheduled on 23 August, 1992 and at the
given point of time, such of the candidates who qualified the written
and typing test, on being appointed may jeopardize their right of
seniority and at least their seniority qua them be protected and by
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an interim Order dated 20 August, 1992, seniority of such of the
adhoc employees who were considered for regularization were
directed to be protected qua the panel of 180 candidates who
qualified the written and typing test and that was noticed by the
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learned Single Judge of the High Court while disposing of Civil Writ
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Petition No. 1820 of 1990 by its Order dated 12 November, 1992.
12. It may be relevant to note that the present appellants are not
concerned/related to the candidates who were in the panel of 180
candidates of which a reference has been made by the learned
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Single Judge of the High Court in its Order dated 20 August, 1992
but the Division Bench of the High Court, in its impugned
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judgment, took note of the Order dated 20 August 1992 passed by
the learned Single Judge of the High Court in the earlier
proceedings of which a reference has been made allowed the LPA
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preferred by the respondents by Order dated 6 December, 2018
and observed as under:
“14. The above statement before the Court on behalf of respondent
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no. 1 was honoured when the order dated 17 November, 2000
was issued regularizing the services of the appellants from the date
of their initial appointments. Once it was made clear by the order
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dated 20 August, 1992 that the filling up of the vacancies on
regular basis would be subject to the right of the present
appellants in the matter of seniority, as and when they were
regularized, it could not have been contended by the writ
petitioners i.e. Respondent nos. 2 to 37 that notwithstanding the
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order dated 20 August, 1992 of this Court, which has become
final, the writ petitioners would be considered seniors to the
present appellants. Once the appellants had been regularized from
a certain date, their seniority obviously had to be counted from
that date. That was in fact the whole purpose of the appellants
seeking regularization from the date of their initial appointments.
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15. It is also not as if the present appellants were not qualified
and, therefore, could not have been regularized from the dates of
their initial appointment. It is another matter that the appellants
did not undergo a written test but then they had worked for nearly
seven years as LDCs when they were made to undergo the typing
test. Again, pursuant to the judicial orders which were passed on
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12 November, 1992 and 6 April, 1994, they underwent tests, but
in a sense a modified test of where the written examination was
dispensed with and they were made to give the typingcum
shorthand test in which they qualified. As already noticed, some of
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them had got a second chance pursuant to the order dated 6
April, 1994 of the Division Bench. Nevertheless, the fact remains
that the present appellants passed the qualifying test they were
expected to pass in order to be regularized.
18. While this Court concurs with the decision of the learned
Single Judge that the dates of the regularization of the present
appellants in the post from the date of their initial appointment on
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ad hoc basis in terms of the order dated 17 November, 2000
issued by the respondent no. 1 should be left undisturbed, this
Court disagrees with the learned Single Judge that the seniority of
the appellants would not count from those very dates of their
regularization.
19. To that extent, the impugned order of the learned Single
Judge is set aside. The net result is that the appellants will count
their seniority from the dates of their respective regularization of
the posts as LDCs.
13. We have heard learned counsel for the parties and perused the
material available on record with their assistance.
14. The facts are not in dispute and culled out that the present
group of appellants are the members of the ministerial cadre(LDC)
appointed on substantive basis after going through the process of
selection prescribed for holding regular selection after they have
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gone through the written test followed with the typing test in the
year 1987. At the given point of time, the respondents were
appointed on adhoc basis for a fixed term during the period 1983
1989 and after they were granted exemption from appearing in the
written test by the High Court in Civil Writ Petition No. 1820 of
1990 preferred at their instance, all of them qualified the typing test
in the first or second attempt in the year 1992 or thereafter and
were regularized by the District and Session Judge by an order
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dated 17 November, 2000 from the date of their initial
appointment. So far as the question of seniority is concerned, it
was specifically mentioned that it shall be separately determined in
accordance with rules but as there were no rules/guidelines at that
time for determining seniority of the employees of the ministerial
cadre in the subordinate service of Delhi, a presumption was drawn
as they were regularized from the date of appointment that entails
consequential seniority but that came to be clarified by the learned
Single Judge that they will not be entitled to claim seniority over
such of the employees who were appointed on substantive basis
unlike the present appellants but that came to be set aside by the
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Division Bench of the High Court by the impugned judgment dated
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6 December, 2018 primarily relying on the interim order passed by
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the High Court in the earlier proceedings dated 20 August 1992
which was in reference to panel of 180 candidates who qualified the
typing test held pursuant to Orders passed by the High Court of
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Delhi dated 12 November, 1992 and 6 April, 1994 respectively.
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15. Indisputedly, the Order dated 20 August, 1992 in no manner
was related to determination of seniority qua the present appellants
who were recruited through open selection after qualifying the
written test followed by typing test in the year 1987.
16. In the facts and circumstances, a question certainly arises if
the employees who were appointed in the first instance on adhoc
basis for a fixed term which has been extended from time to time,
and have qualified the typing test at a later point of time, which is
one of the prequalification for regular/substantive appointment,
can claim regularization from initial appointment but since the
learned Single Judge and the Division Bench of the High Court in
the impugned judgment have not interfered with the order passed
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by the District and Session Judge dated 17 November, 2000 in
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granting the benefit of regularization from the date of initial
appointment, after such a long passage of time, it would not have
been advisable for this Court to interfere so far as such appointees
seeking regularization from the date of initial appointment although
acquire the prerequisite qualification at the later stage, but at the
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given point of time, the interim order dated 20 August, 1992 of the
High Court in the earlier proceedings has been misread by the
Division Bench of the High Court while passing the impugned
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judgment dated 6 December 2018.
17. We consider it appropriate to observe that the employees who
were appointed on adhoc basis and qualified typing test at the later
stage, in absence of the scheme of rules in determining seniority, at
least could not have a right to march over such of the employees
who were appointed on substantive basis after going through the
process of selection for holding regular selection and their right of
seniority in no manner be relegated qua such of the adhoc
employees who qualified typing test at a later stage and regularized
subsequently from the date of initial appointment like in the instant
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case by an Order dated 17 November, 2000.
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18. In our considered view, the Division Bench has committed a
manifest error under the impugned judgment in granting them the
benefit of seniority who were appointed on adhoc basis as LDCs
from the date of their regularization which was neither granted by
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the District and Session Judge by its Order dated 17 November,
2000 nor they were entitled for under the law.
19. Consequently, the appeal succeeds and is allowed. The
judgment passed by the Division Bench of High Court of Delhi
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dated 6 December, 2018 is accordingly set aside. No costs.
20. Pending application(s), if any, stand disposed of.
……………………………..J.
(AJAY RASTOGI)
…………………………….J.
(ABHAY S. OKA)
NEW DELHI
DECEMBER 08, 2021
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