Full Judgment Text
$~15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 13.03.2019
+ W.P.(C) No.9912/2016
MANMEET SINGH & ORS ..... Petitioners
Through Mr.Arvind K. Nigam, Sr. Adv. with
Ms.Jyoti Dutt Sharma, Adv.,
Mr.Rahul Sharma, Adv., Mr.C.K.
Bhatt, Adv., Mr.Mehtaab Singh
Sandhu, Adv. & Mr.Pratishth
Kaushal, Adv.
Versus
THE DELHI HIGH COURT THROUGH
REGISTRAR GENERAL ..... Respondent
Through Mr.Sanjoy Ghose, Adv. with
Mr.Rhishabh Jetley, Adv. for Delhi
High Court.
Mr.Arvind K. Sharma, Adv. for R-3
& 4.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MS. JUSTICE REKHA PALLI
VIPIN SANGHI, J (ORAL)
1. The present petition was initially preferred by twelve
petitioners. However, the same survives only in respect of two of
them namely Mr.Manmeet Singh, who is petitioner no.1 and Mr.Vijay
Kumar Sharma, who is petitioner no.6 in the Amended Memo of
nd
Parties dated 2 November, 2018. Both the petitioners joined the
service of respondent no.1 as Junior Judicial Assistant (JJA) on
th
regular basis. The petitioner no.1 was appointed as JJA on 6
WP(C) No.9912/2016 Page 1 of 17
th
October, 2004 and the petitioner no.6 was appointed as JJA on 4
March, 2005. The next promotional post is that of a Judicial
Assistant (JA). Under the then applicable Recruitment Rules (RRs),
the post of JA could be filled by promotion from members of the
Establishment of the High Court who were Graduate with five years’
service, or from those who were High School/Matric with ten years’
service in categories of 21 & 22 of Class – III mentioned in Schedule
- 1. Categories 21 & 22 of Class - III mentioned in Schedule 1 are
“Lower Division Clerk” (LDC) & “Restorer”. It may be noted that
the post of JJA is that of an LDC.
2. It appears that as a large number of vacancies in the post of JA
were lying vacant and requisite number of JJAs were not available –
who could be promoted as JAs, on account of their not having the
requisite experience as prescribed in the RRs. A Committee of three
Hon’ble Judges of this Court was appointed to examine the issue, and
make its recommendations. The Committee in its meeting held on
th
25 April, 2008, resolved that “ keeping in view the large number of
vacancies in the cadre of Judicial Assistant and the fact that sufficient
number of officials are not eligible (having not put in requisite service
of 5 years) in the feeder category, we recommend that one time
relaxation in the Recruitment Rule for Judicial Assistant may be
granted by reducing the qualifying service for Graduates from 5 to 3
to three years ”. For those having Matric/Higher Secondary
qualification, the Committee recommended the reduction of
experience from 10 years to 5 years. However, we are not concerned
with the reduction in experience qua Matriculates, as both petitioner
WP(C) No.9912/2016 Page 2 of 17
no.1 and petitioner no.6 are graduates. We may observe that the said
recommendation was made by the Committee, in the light of the
power to relax the requirement of the Rules vested in Hon’ble the
Chief Justice under Rule 12 of the Delhi High Court Establishment
(Appointment & Conditions of Service) Rules, 1972 which states that
“ The Chief Justice may, by order, dispense with or relax the
requirements of any rule to such extent with respect to such
conditions as he may consider necessary in any particular case ”.
3. Upon consideration of the Committee’s recommendations,
Hon’ble the Acting Chief Justice on 07.05.2008 passed the following
order:-
“The Committee has recommended a one-time
relaxation of the Rules requiring experience of five
years for Graduates and ten years for matriculates
as Jr. Judicial Assistant/Restorer to facilitate
appointments against the available vacancies in
the cadre of Judicial Assistants. While there can
be no denial of the fact that there is need for
immediate filing up of the available vacancies to
provide one Judicial Assistants to each court in
addition to the staff already provided to it, the
proposed relaxation need not be for purposes of
making a substantive appointment. The better
course would be to relax the requirement of the
Rule only to facilitate appointments against the
available vacancies on `ad hoc basis’ to tide over
the current stalemate that has arisen on account
of the number of eligible candidates being less
than the number of available vacancies. This
would mean that as and when the candidates
appointed on ad hoc basis complete the requisite
experience/length of service stipulated under the
Rules, they can be considered by the Committee
WP(C) No.9912/2016 Page 3 of 17
for a substantive appointment. Needless to say
that the experience which the ad hoc appointees
may acquire in the higher cadre of Judicial
Assistant could be considered as experience as
Junior Judicial Assistant/Restorer for purposes of
their substantive appointments. I am also satisfied
that it is a fit case in which the power vested in the
Chief Justice under Rule 12 of the Delhi High
Court Establishment (Appointment & Conditions of
Service) Rules, 1972 needs to be exercised to the
limited extent indicated above.
I, accordingly, in exercise of the said power
relax the requirement of five years’ experience in
case of Graduates and ten years’ experience in the
case of non-Graduates to the extent that the said
experience shall for purposes of ad hoc
appointments against the post of Judicial Assistant,
on one time basis stand reduced from 5 years to 3
years and from 10 years to 5 years respectively.”
(emphasis supplied)
4. Thus, Hon’ble the Acting Chief Justice did not accept the
proposal of the Committee aforesaid in its entirety to grant one time
relaxation of experience, so as to make regular promotions to the post
of JA, and all that was granted by way of relaxation was that JJA/
LDC with three years experience could be appointed on ad hoc basis
as JA to tide over the current stalemate. In his order, Hon’ble the
Acting Chief Justice also emphasised that, as and when the candidates
appointed on ad hoc basis complete the requisite experience/length of
service stipulated under the Rules, they could be considered by the
Committee for substantive appointment
5. On the basis of the aforesaid decision taken by Hon’ble the
Acting Chief Justice, the petitioners along with 56 others were
WP(C) No.9912/2016 Page 4 of 17
promoted on ad hoc basis as JAs w.e.f. 18.07.2008 vide order dated
22.07.2008. It was specifically stated in the order, that the
appointment of officials at serial nos.18 to 58, was purely on ad hoc
basis and that it would not confer upon them any right of regular
appointment as such, or for claiming seniority or any other
consequential benefits. In the said list, the names of petitioner nos.1
& 6 were placed at serial nos.36 & 52 respectively.
6. Petitioner nos.1 & 6 acquired the requisite experience of five
th th
years as regular JJAs on 12 October, 2009 and 4 March, 2010
respectively and, therefore, became eligible on the said dates for
consideration for regular promotion as JAs. A meeting of the
Selection Committee comprising of three Hon’ble Judges of this
Court was held on 18.01.2011 to consider the matter regarding
regularization of the services of the officials who were earlier
appointed as ad hoc JAs. The Committee, inter alia, observed that out
of 41 JJAs appointed as ad hoc JAs pursuant to relaxation granted to
them, 32 JAs were still working on ad hoc basis. 24 of them had
already completed the requisite length of service in the feeder cadre
for appointment to the post of JA. The Committee further observed
that it had considered their service records and ACRs and had found
them fit for regular appointment. Consequently, the Committee
recommended the names of 24 ad hoc JAs for being made temporary
Judicial Assistant. Based on these recommendations, order dated
05.02.2011 was issued by the respondent appointing, inter alia,
petitioner nos.1 & 6 as Temporary Judicial Assistant w.e.f.
02.02.2011.
WP(C) No.9912/2016 Page 5 of 17
7. With passage of time, the two petitioners mentioned
hereinabove were further promoted as Senior Judicial Assistants(SJA)
on 24.02.2014 February, 2014 and 27.10.2016 respectively.
8. In September, 2016, the Recruitment Rules for promotion to the
post of Administrative Officers (Judicial) (AOJ)/Court Master were
amended vide notification dated 24.09.2016. The material part of the
said amendment was that, now, Graduates with seven years regular
service (Law Graduate to be preferred) in the post of Judicial
Assistant/Judicial Translator /Personal Assistant/Assistant Librarian/
Chief Cashier or its equivalent post or combined service in any of
these posts and the posts of Assistant Accounts Officer/Senior
Judicial Assistant/Senior Judicial Translator/Reader/Senior Personal
Assistant/Senior Assistant Librarian/Court Officers and/or its
equivalent posts (as mentioned in Clause B(i)) also became eligible
for promotion to the posts of Administrative Officer(Judicial)/Court
Master.
9. Upon applications being invited for the post of AOJ/Court
Master, the petitioners offered their candidatures by claiming that
they had experience of seven years in the post of JA–having been
appointed to the said post on ad hoc basis w.e.f. 18.07.2008 vide
order dated 22.07.2008. The respondent, however, did not accept this
submission on the premise that the service rendered by the petitioners
on ad hoc basis could not be treated as regular service, and that their
service as JA could be counted only from the date when they had
been appointed on temporary basis by order dated 05.02.2011 of
Hon’ble the Acting Chief Justice, pursuant to recommendations of the
WP(C) No.9912/2016 Page 6 of 17
Selection Committee constituted for considering their cases for
temporary appointment as JA.
10. Aggrieved by the refusal of the respondent to count their
service as JA from the date of their ad hoc appointment, vide order
dated 18.07.2008, the petitioners have preferred this petition.
11. As the examination for selection of candidates for promotion to
th
the post of AOJ and Court Master was scheduled to be held on 13
th
August, 2017, the Court vide its order dated 17 May, 2017 permitted
the petitioners to participate in the selection process, subject to
outcome of the petition. The respondent nos.3 & 4 also participated
in the said examination along with the petitioners. From the results of
the examinations so held, it emerges that the names of the petitioners
figure in the merit list, while the names of respondent nos.3 & 4 have
been placed in the wait list.
12. In support of the petition the submission of Mr.Arvind Nigam,
learned senior counsel for the petitioners, is that Hon’ble the Acting
Chief Justice having invoked his power of relaxation under the of
rules, and granted one time relaxation of the required experience as
JJA while promoting the petitioners as JAs, the service rendered by
them as JAs in ad hoc capacity is bound to be treated as regular
service, as their ad hoc appointment was followed by regular
appointment. In support of this submission, Mr.Nigam places
reliance on A. Janardhana Vs. Union of India & Ors. (1983) 3 SCC
601 . He further submits that, in any event, the service rendered by the
petitioners as JAs from the date when they acquired the requisite
experience of five years as substantive JJAs - should be
WP(C) No.9912/2016 Page 7 of 17
counted/treated as regular service as JAs. Mr.Nigam submits that
even if the above method of computation of the Regular Service as
JAs were to be adopted, they would qualify with seven years regular
service as JAs on the cut off date.
13. In support of his submission–that in the aforesaid
circumstances, the services rendered by the petitioner on ad hoc basis
ought to be counted as regular service, Mr.Nigam has placed reliance
on the decision of the Supreme Court in Direct Recruit Class II
Engineering Officers’ Association Vs. State of Maharashtra & Ors.
(1990) 2 SCC 715 and, in particular, on paragraphs 13 & 47 thereof.
We extract paragraph 13, and the relevant portion of paragraph 47
hereunder:-
“ 13. When the cases were taken up for hearing before
us, it was faintly suggested that the principle laid down
in Patwardhan case was unsound and fit to be overruled,
but no attempt was made to substantiate the plea. We
were taken through the judgment by the learned counsel
for the parties more than once and we are in complete
agreement with the ratio decidendi, that the period of
continuous officiation by a government servant, after
his appointment by following the rules applicable for
substantive appointments, has to be taken into account
for determining his seniority; and seniority cannot be
determined on the sole test of confirmation, for, as was
pointed out, confirmation is one of the inglorious
uncertainties of government service depending neither
on efficiency of the incumbent nor on the availability of
substantive vacancies. The principle for deciding inter se
seniority has to conform to the principles of equality spelt
out by Articles 14 and 16. If an appointment is made by
way of stop-gap arrangement, without considering the
claims of all the eligible available persons and without
WP(C) No.9912/2016 Page 8 of 17
following the rules of appointment, the experience on
such appointment cannot be equated with the
experience of a regular appointee, because of the
qualitative difference in the appointment. To equate the
two would be to treat two unequals as equal which would
violate the equality clause. But if the appointment is
made after considering the claims of all eligible
candidates and the appointee continues in the post
uninterruptedly till the regularisation of his service in
accordance with the rules made for regular substantive
appointments, there is no reason to exclude the
officiating service for purpose of seniority. Same will be
the position if the initial appointment itself is made in
accordance with the rules applicable to substantive
appointments as in the present case. To hold otherwise
will be discriminatory and arbitrary. This principle has
been followed in innumerable cases and has been further
elaborated by this Court in several judgments including
those in Baleshwar Dass v. State of U.P. and Delhi
Water Supply and Sewage Disposal Committee v. R.K.
Kashyap with which we are in agreement. In Narender
Chadha v. Union of India the officers were promoted
although without following the procedure prescribed
under the rules, but they continuously worked for long
periods of nearly 15-20 years on the posts without being
reverted. The period of their continuous officiation was
directed to be counted for seniority as it was held that
any other view would be arbitrary and violative of
Articles 14 and 16. There is considerable force in this
view also. We, therefore, confirm the principle of
counting towards seniority the period of continuous
officiation following an appointment made in
accordance with the rules prescribed for regular
substantive appointments in the service .”
xxx xxx xxx
47. To sum up, we hold that:
WP(C) No.9912/2016 Page 9 of 17
(A) Once an incumbent is appointed to a post
according to rule, his seniority has to be counted
from the date of his appointment and not
according to the date of his confirmation.
The corollary of the above rule is that where the
initial appointment is only ad hoc and not
according to rules and made as a stop-gap
arrangement, the officiation in such post cannot be
taken into account for considering the seniority.
(B) If the initial appointment is not made by
following the procedure laid down by the rules
but the appointee continues in the post
uninterruptedly till the regularisation of his
service in accordance with the rules, the period of
officiating service will be counted.......(emphasis
supplied)”
14. Mr.Nigam also places reliance on a decision of this Court in
Union of India Vs. Jai Singh & Anr. in WP (C) No.11660/2015
th
decided on 14 July, 2017 to submit that once the initial appointment
of the petitioners as JA, albeit on ad hoc basis, was done after
granting them relaxation in accordance with the power available
under the Recruitment Rules, their promotion as JAs on ad hoc basis,
th
vide order dated 18 July, 2008 was valid and ought to be treated as
regular appointment.
15. On the other hand, Mr.Ghose, who appears for the
respondent/Delhi High Court, submits that the present petition is
clearly barred by delay and laches. He submits that the petitioners
never raised their grievance that their promotion-effected in 2011,
should be reckoned from either the date of initial appointment, or
from the date that they became eligible for regular
WP(C) No.9912/2016 Page 10 of 17
appointment/promotion as JA, for nearly five years. It was only in
2016, when the Recruitment Rules for the post of AOJ and Court
Master were amended, that the petitioners started to claim that they
meet the eligibility criteria for consideration for promotion to the said
post, on the ground that their qualifying service as JAs had to be
th
counted from the date of their ad hoc promotion on 18 July, 2008
itself. Mr.Ghose, thus, submits that the claim of the petitioners being
highly belated, is liable to be rejected outrightly.
16. Learned counsel for the respondent nos.3 & 4 also seeks
dismissal of the petition. He submits that similar relief sought in the
case of Anil Yadav & Ors. Vs. Delhi High Court in WP (C) No.6232
of 2017 already stands rejected by this Court. He, therefore, submits
that the petitioners cannot claim benefit of their service as JA on ad
hoc basis, and contends that their service as JA can be counted only
th
from the date of their temporary appointment vide order dated 5
February, 2011.
17. We have heard the learned counsel for the parties at length and
perused the record.
18. The submission of Mr. Nigam, learned Senior counsel for the
petitioner is that the ad hoc service of the petitioners as JA’s from
18.07.2018 should count as regular service, since Hon’ble the Acting
Chief Justice relaxed the Recruitment Rules with regard to the extent
of experience required by the JJA’s for being considered for
promotion to the post of JA’s. The submission of Mr. Nigam is that
Hon’ble the Chief Justice exercised the power to relax the Rules
under Rule 12 of the Delhi High Establishment (Appointment &
WP(C) No.9912/2016 Page 11 of 17
Conditions of Service) Rules, 1972. He further submits that the ad
hoc appointment of the petitioners having been made in accordance
with the Rules, as relaxed, and it having been followed by temporary
appointment (which is considered as regular appointment by the
respondent), the period of service rendered on ad hoc basis should
count towards regular service in the light of the decision in Direct
Recruit Class II (supra). As noticed above, in respect of this
submission, he has also placed reliance on A. Janardhana (supra) and
Jai Singh (supra) .
19. We do not find merit in the aforesaid submission of Mr. Nigam.
This is for the reason that, firstly, Hon’ble The Acting Chief Justice
did not approve the recommendations of the Committee of Judges
made on 25.04.2008 as extracted hereinabove. Hon’ble The Acting
Chief Justice did exercise power of relaxation contained in Rule 12 of
the Delhi High Establishment (Appointment & Conditions of Service)
Rules, 1972. However, the relaxation granted in the present case was
conditional and not blanket in nature. What the petitioners are
seeking to do is to ignore the condition upon which the relaxation was
granted, which is not permissible.
20. Secondly, the relaxation of experience as JJA’s was granted
only to make ad hoc promotions, and it was specifically decided by
Hon’ble the Acting Chief Justice that “ as and when the candidates
appointed on ad hoc basis complete the requisite experience/ length of
service stipulated under the Rules, they can be considered by the
Committee for a substantive appointment .”
21. Thirdly, since at the time of their ad hoc appointment, the
WP(C) No.9912/2016 Page 12 of 17
petitioners were specifically informed that their ad hoc appointment
would not count towards regular service or seniority as JA, they could
not claim that they should get the benefit of their ad hoc service as JA
from the date of their ad hoc appointment. It is trite law that the
parties are bound by the terms of their appointment and, therefore,
there is merit in the respondent’s plea that the petitioners having been
specifically informed about the fact that their ad hoc service as
Judicial Assistant would not be counted towards their seniority, they
cannot claim that their service be counted as regular from the date of
their ad hoc appointment.
22. Now coming to the petitioners’ submission that their service as
JAs be counted, at least, from the date they completed the period of
substantive service as JJAs as required for promotion to the post of
JAs. In this regard, the foremost fact which needs to be noted is that
th
the petitioners appointment as Judicial Assistant on 18 July, 2008
was not by way of an ad hoc arrangement, but was an appointment in
accordance with the Recruitment Rules after giving them conditional
relaxation permissible under the Rules. No doubt, the same was an ad
hoc appointment, but Hon’ble the Acting Chief Justice had–while
considering the recommendation of the three member Committee of
the Hon’ble Judges, categorically directed that they could be
considered for substantive appointment, once they complete the
requisite period of service. The petitioner nos.1 & 6, admittedly,
th
completed the required substantive service of five years as JJAs on 6
th
October, 2009 and 4 March, 2010 respectively but, despite
availability of vacancies, they were not granted substantive
WP(C) No.9912/2016 Page 13 of 17
th
appointment till 5 February, 2011. This inaction on the part of the
respondent, in our view, was not only unfair, but also contrary to the
very basis of their ad hoc appointment, which was meant to remain ad
hoc only till they acquired the requisite experience of five years as
Junior Judicial Assistant. Their initial ad hoc appointment was only
on account of the fact that they did not have the qualifying service as
JJA. Otherwise, there was no impediment either on account of their
qualification or suitability. Thus, the petitioners were certainly
entitled to be considered for, and granted regular appointment as
Judicial Assistant immediately upon completing the requisite five
years service as Junior Judicial Assistant. The delay in holding of the
Selection Committee Meeting was attributable to the respondent.
There was no impediment in holding the same earlier i.e. as soon as
the petitioners completed the qualifying service as JJAs. Pertinently,
under the Recruitment Rules, the promotion to JAs is made on
“ Seniority-cum-suitability ” basis alone. Thus, unless a candidate is
found to be “unsuitable” for a specific reason, on the basis of his
seniority he would normally be promoted in his turn. When the
petitioners were granted ad hoc promotions as JAs, obviously, there
was nothing to say that they were found “unsuitable”. Otherwise,
they would not have been promoted, even on ad hoc basis. Even
when they were made “temporary” by the Selection Committee on
18.01.2011, they were found “suitable”, since nothing adverse was
found against them. In these circumstances, we are of the considered
view that it would be unjust for the respondent to deny to the
petitioners “temporary” status as JAs from the dates they became
WP(C) No.9912/2016 Page 14 of 17
eligible for consideration for regular promotion on acquiring the
requisite qualifying service as JJAs.
23. We may deal with the decision relied upon by the learned
counsel for the respondent nos.3 & 4 in Anil Yadav (supra). In that
case, the petitioners had placed reliance on the Office Memorandum
th
dated 25 March, 1996 issued by the Department of Personnel &
Training, wherein it had been stated that whenever juniors are eligible
and are considered for promotion, the seniors who do not have the
qualifying eligibility service, could be considered provided they have
half of the qualifying/eligibility service. The submissions raised by
the petitioners in the present petition were not considered by the
Division Bench while disposing of the writ petition in Anil Yadav
(supra) case. In fact, para 17 of the decision states that the Court has
not expressed any opinion on merits of the petitioners’ claim for any
other relief, premised on their plea that they were not promoted on ad
hoc basis, but were actually regularly promoted as Judicial Assistants.
Thus reliance placed on Anil Yadav (supra) by learned counsel for the
respondent nos.3 & 4 is misplaced and is of no avail.
24. The matter, however, does not end here. Even though we have
found merit in the petitioners’ plea that they ought to have been
granted regular appointment as Judicial Assistant from the date they
completed five years service as Junior Judicial Assistants–as had been
decided by Hon’ble the Acting Chief Justice at the time of granting
conditional relaxation of the Rules, we cannot simply ignore the
respondent’s plea that the petitioners having approached this Court
after a delay of almost five years, their claim is barred by delay and
WP(C) No.9912/2016 Page 15 of 17
laches. In our view the petitioners ought to have promptly
approached the Court for claiming regular promotion/seniority as
Judicial Assistant from October, 2009/March, 2010, as the case may
be. Having not done so, there is undoubtedly delay on the petitioners’
part in approaching the Court. In view of the aforesaid, this Court is
not inclined to direct that the two petitioner Nos.1 & 6 should be
th
treated as regular/substantive Judicial Assistant from 6 October,
th
2009 and 4 March, 2010 respectively, as claimed. However, the
said delay on their part in approaching the Court, does not prevent the
respondent No.1 from undoing the wrong and injustice done to the
petitioners, and to grant them the benefit of their service from the
dates when they completed the requisite service of five years as
substantive JJAs.
25. In our view, this aspect needs to be considered by the respondent
No.1. We are of the view that the respondent should consider all the
relevant factors and then arrive at their conclusion as to whether, or not,
seniority should be granted to the petitioners as claimed by them.
26. Thus, while finding merit in the submission of the petitioners that
they ought to have been granted benefit of their service as Judicial
Assistant from the respective dates when they completed five years
regular service as Junior Judicial Assistant, we are constrained to decline
them relief, but deem it appropriate to refer the matter to the respondent
No.1 for taking a considered decision in a time bound manner, in the
light of our observations hereinabove. It is hoped that while doing so,
the respondent will also consider the fact that the names of both the
petitioners, who were permitted to take part in the
WP(C) No.9912/2016 Page 16 of 17
selection process for the post of AOJ/Court Master, have been placed
on the merit list and two unfilled vacancies of AOJ are still available.
The reasoned decision in this regard be conveyed to the petitioner
Nos.1 & 6 within twelve weeks from today.
27. The writ petition is disposed of in the above terms with no
order as to costs.
(VIPIN SANGHI)
JUDGE
(REKHA PALLI)
JUDGE
MARCH 12, 2019/aa.
WP(C) No.9912/2016 Page 17 of 17