PETITIONER:
G. R. LUTHRA
Vs.
RESPONDENT:
LT. GOVERNOR OF DELHI & ORS.
DATE OF JUDGMENT22/08/1979
BENCH:
FAZALALI, SYED MURTAZA
BENCH:
FAZALALI, SYED MURTAZA
DESAI, D.A.
CITATION:
1979 AIR 1900 1980 SCR (1) 313
1979 SCC (4) 406
ACT:
Delhi Higher Judicial Service Rules, 1970-Petitioner
throughout senior to respondent-Both were allotted to
different States on division of State-Respondent got
proforma promotion in State Cadre-Petitioner given the
benefit of "next below rule" and promoted later in his State
Cadre-Respondent if could claim seniority over petitioner.
HEADNOTE:
In the competitive examination for recruitment to
Punjab State Judicial Service, conducted in 1950 by the
undivided State of Punjab, the petitioner and respondent no.
3 were placed at s. nos. 4 and 13 in the merit list. On
August 7, 1950 the petitioner was appointed as a Sub-Judge
against a permanent post while the respondent was appointed
as Sub-Judge against a temporary post on November 23. 1950.
Till the formation of the State of Delhi, judicial
officers of Punjab were posted as judicial officers in
Delhi. Both the petitioner and the respondent were posted as
Sub-Judges in Delhi. Consequent upon the division of the
State of Punjab into Punjab and Haryana the petitioner was
allotted to Haryana while the respondent was retained in
Punjab. But even thereafter they continued as Senior Sub-
Judges in Delhi. The Chief Justice of Punjab and Haryana
High Court and the Chief Justice of the newly formed Delhi
High Court decided that in the judicial service to be
constituted for Delhi the petitioner would rank senior to
the respondent (the petitioner being placed at the fourth
place and the respondent at sixth place in the list of
seniority). In May, 1967 the petitioner was appointed as
Assistant Sessions Judge, Delhi; the respondent was
appointed as Assistant Sessions Judge, Delhi in February,
1968. In the meantime the respondent was given a proforma
promotion in the State of Punjab with effect from June 24,
1967 and giving the benefit of "next below rule" the
petitioner was promoted as Additional District and Sessions
Judge with effect from July 28, 1967. The petitioner was
confirmed as District and Sessions Judge in his parent cadre
on October 2, 1970, while the respondent was appointed as
Additional District and Sessions Judge at Delhi on June 5,
1968 and continued in that post till May, 1971.
When the Delhi Higher Judicial Service was formed in
1970 the petitioner was placed at s. no. 7 and the
respondent at s. no. 8 in the list of judicial officers.
The respondent's representation claiming seniority over
the petitioner was accepted by the Delhi High Court on the
ground that in view of Rule 6(3) of the Delhi Higher
Judicial Service Rules 1970 as interpreted by this Court in
G. R. Luthra v. Lt. Governor, Delhi (AIR 1974 SC 1908) the
respondent was senior to the petitioner.
In a petition under Art. 32 of the Constitution the
petitioner impugned the order of the Lt. Governor passed on
the recommendation of the High Court treating him to be
junior to respondent no. 3.
314
Allowing the petition,
^
HELD: 1. The petitioner was senior to the respondent
and was rightly placed above the respondent in the initial
constitution of the Delhi Higher Judicial Service in May
1971 and the order of the Lt. Governor was, therefore,
erroneous. [322 D-E]
2. Rule 6(3) of the Rules provides that the seniority
of candidates appointed at the initial constitution shall be
in accordance with the length of service rendered by them in
the cadres to which they belonged 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. The petitioner was throughout treated as senior to
the respondent and even in the initial recruitment to the
Delhi Higher Judicial Service he was shown as senior to the
respondent. Since the inter se seniority had been fixed
initially the petitioner was senior to the respondent and
this position cannot be altered. [320 B-C]
3. Although the respondent was promoted to a higher
post before the petitioner was promoted in the respective
parent State cadres, since the appointment of the petitioner
was made subject to the next below rule, his seniority over
the respondent was fully protected. If the respondent was to
be given seniority over the petitioner the question of
giving benefit of the next below rule to the petitioner
would not have arisen. Therefore, merely because the
respondent got a proforma promotion and was temporarily
promoted six months before the petitioner would not make him
senior to the petitioner. [317 E-G]
4. Even r. 6(1) (a) envisages that for initial
recruitment to the service appointments were to be made from
District Judges and Additional District Judges functioning
as such in the Union Territory of Delhi on deputation from
other States. On the date of formation of the service the
respondent was not functioning either as District Judge or
as Additional District Judge but was on deputation with the
Income Tax Appellate Tribunal. [322 A-B]
5. The case of G. R. Luthra v. Lt. Governor Delhi, was
clearly distinguishable in that the respondent was not a
party to that case and his case did not fall for
consideration by the Court. It was laid down in that case
that length of service rendered by a candidate during the
period when he was rendering service either as District
Judge or Additional District Judge against a permanent or a
temporary post was the criterion for the determination of
seniority under the Rules. [320 G]
In the instant case although the petitioner and
respondent were drawn from different sources and from
different States at the time of the initial formation of the
cadre the former was shown above the respondent and,
therefore, the respondent could not claim seniority over the
petitioner. [321 E]
G. R. Luthra, Additional District Judge, Delhi v. Lt.
Governor, Delhi & Ors., AIR 1974 SC 1908 distinguished.
JUDGMENT:
ORIGINAL JURISDICTION : Writ Petition No. 402 of 1977.
Under Article 32 of the Constitution.
(Dr.) L. M. Singhvi, Raj Punjvani and G. S. Chatterjee
for the Petitioner.
315
Soli J. Sorabjee, Addl. Sol. Genl. E. C. Agarwala and
R. N. Sachthey for Respondent No. 2 (Delhi High Court).
A. K. Sen, U. R. Lalit, P. H. Parekh, C. B. Singh, M.
Mudgal and B. L. Verma for Respondent No. 3.
The Judgment of the Court was delivered by
FAZAL ALI, J.-This writ petition has had a chequered
career and involves a competition regarding seniority
between the petitioner G. R. Luthra and Respondent No. 3 D.
R. Khanna who were simultaneously recruited as members of
the Punjab Judicial Service. The case appears to have
travelled through various stages both in the High Court and
in this Court on different aspects. After hearing counsel
for the parties in the view that we propose to take in this
petition and also because respondent No. 3 has filed an
affidavit that he would not press this Court for giving any
decision regarding his seniority over the petitioner if the
submission of respondent No. 3 regarding his appointment
under the Delhi Higher Judicial Service is decided against
him, it is not necessary for us to give any finding on the
scope and ambit of Rule 6(3) of the Rules.
In view of these facts the controversy in this case has
been very much narrowed down and the point for decision
falls within a very narrow compass. In order however to
understand the question involved, it may be necessary to
give a short history and a brief resume of the manner in
which the petitioner and respondent No. 3 were appointed and
their vertical mobility in the hierarchy through which they
had moved up.
To begin with, both the petitioner and respondent No. 3
competed for entrance to the State Judicial Service of the
undivided Punjab. The petitioner Luthra was appointed as far
back as 7th August, 1950 having obtained 4th position in the
competitive examination and was appointed as Sub-Judge
against a permanent post. Respondent No. 3 had also taken
the same competitive examination but obtained a lower
position (13th) and was appointed as Sub-Judge against a
temporary post. Thus, from inception three important facts
are established:
1. That the petitioner had obtained a higher position
in the competitive examination held for entrance
to the State Judicial Service whereas respondent
No. 3 had obtained a lower position. This is
important because under the Rules and the
conventions the seniority of new recruits is
normally governed by the place which they occupy
in the competitive examination.
316
2. The petitioner Luthra was appointed on the 7th
August, 1950 whereas respondent No. 3 D. R. Khanna
was appointed on the 23rd November, 1950 i.e.
about 3 1/2 months later. Thus, even regarding the
time of appointment, the petitioner entered the
service prior to respondent No. 3 both having been
appointed to the same service and having been
recruited through the same competitive
examination.
3. That while the petitioner Luthra was appointed
against a permanent vacancy respondent No. 3 was
appointed in the State Judicial Service only
against a temporary post. This was also an
important factor which has to be taken into
consideration in order to determine the inter se
seniority of the petitioner and respondent No. 3.
Both the petitioner and respondent No. 3 were thus
appointed as members of the Punjab Judicial Service in the
undivided Punjab. So far as Delhi was concerned before the
birth of the Haryana State it used to be a Judicial District
of Punjab. Unfortunately, the services of the respondent No.
3 remained terminated due to medical unfitness between 13th
March, 1952 to 23rd May, 1956. But this gap is of no
consequences because subsequently his medical unfitness was
set aside in appeal and respondent No. 3 was reinstated with
effect from the date of his appointment, namely, 23rd
November, 1950.
On the 9th March, 1963 the petitioner Luthra was posted
at Delhi as Sub-Judge. On 1st November, 1966 by virtue of
re-organisation of Punjab, Punjab and Haryana became two
separate States and some areas were transferred to Himachal
Pradesh. As a result of the aforesaid reorganisation the
services of the petitioner Luthra were allocated to the
State of Haryana and that of respondent No. 3 Khanna to
Punjab, but both the officers continued to be posted at
Delhi and were Senior Sub-Judges. On the same date, namely,
1st November, 1966 Delhi High Court was created and came
into existence. Shortly thereafter, on 5th November, 1966 in
a meeting of the Chief Justices of the Punjab and Haryana
and Delhi High Courts a list of Judicial Officers to be
absorbed in the Judicial Service to be constituted at Delhi
was finalised and in the list of the Lower Judicial Service
which appears at page 393 of the Paper Book the petitioner
Luthra was placed at S. No. 4 whereas respondent No. 3 D. R.
Khanna was placed at S. No. 6. Thus, the two High Courts
clearly decided that in the new Service the petitioner was
to rank senior to respondent No. 3. This decision was a
logical corollary of the history of the services of the
petitioner and respondent No. 3, discussed above. The
proceedings of the meeting are contained
317
at pages 392-395 of the Paper Book in which the Courts
decided to allocate one District and Sessions Judge for
Delhi and 8 Additional District and Sessions Judges in the
Higher Judicial Service and 39 Sub-Judges in the Lower
Judicial Service. Both the petitioner and respondent No. 3
at that time fell in the third category. Thus, even though
the petitioner and respondent No. 3 had for a short while
been allocated to two different States, namely, one was
allotted to Punjab and the other to Haryana, but with the
coming into existence of the Delhi High Court both of them
again joined the same service and their rank and seniority
was throughout maintained.
On 9th May, 1967 the petitioner Luthra was appointed as
Assistant Sessions Judge, Delhi, Respondent No. 3 was
appointed as Assistant Sessions Judge on 21st February,
1968, but it appears that by a letter dated 22nd March, 1971
written by the Registrar of the Punjab and Haryana High
Court addressed to the Accountant General, Punjab, Simla
respondent No. 3 was given proforma promotion with effect
from 24th June, 1967. The proforma promotion is related to
vacancies in his parent State and has nothing to do with
vacancies or seniority where both were at the relevant time
serving. This letter is annexed as Annexure 2 appearing at
pages 288-89 of the Paper Book. The petitioner Luthra was
however given benefit of the next below rule as Additional
District and Sessions Judge with effect from 28th July,
1967. This unfortunate episode seems to be the sheet anchor
of the argument of respondent No. 3 in claiming seniority
over the petitioner. It is true that by virtue of the letter
referred to above respondent No. 3 was appointed as
Additional District and Sessions Judge prior to the
petitioner but since this appointment was made subject to
the next below rule it is manifest that the seniority of the
petitioner over respondent No. 3 was fully protected
otherwise if in fact the respondent No. 3 was to be given
seniority over the petitioner, the question of giving
benefit of the next below rule to the petitioner would not
have arisen. The letter referred to above was passed by the
order of the Chief Justice and the Judges of the High Court.
In these circumstances, therefore, merely because respondent
No. 3 got a proforma promotion and was temporarily appointed
as Additional District and Sessions Judge six months before
the petitioner that will not make him senior to the
petitioner. This fact is borne out by another circumstance.
The petitioner was also appointed as Additional District and
Sessions Judge on 25th November, 1967 and while both the
petitioner and respondent No. 3 were holding the same post
at Delhi. The petitioner was confirmed as District and
Sessions Judge in his parent State of Haryana on 2nd
October, 1970.
318
On the other hand, respondent No. 3 was appointed as Addl.
District & Sessions Judge Delhi on 5-6-1968 and continued as
Addl. District and Sessions Judge till 17-5-71. Respondent
No. 3, however, was confirmed as Sub Judge on 5-6-1968 but
was confirmed as District and Sessions Judge Delhi several
years after.
On 27-8-1970 Delhi Higher Judicial Service and Delhi
Judicial Service Rules were framed by the Lt. Governor in
consultation with the Delhi High Court. On 22-3-1971 Shri
Khanna respondent No. 3 was appointed as Member, Income Tax
Tribunal at Jaipur. About two months thereafter i.e. on 17-
5-1971 there was a regular notification initiating the
constitution of the Delhi Higher Judicial Service with
effect from 17-5-1971 by which in the Higher Service the
petitioner was put at S. No. 7 and respondent No. 3 at S.
No. 8. This notification may be extracted thus:-
“In pursuance of the provisions of rule 6 of the
Delhi Higher Judicial Service Rules 1970 the
Administrator of Delhi is pleased to appoint
substantively in consultation with the High Court, the
following persons from the States noted against each,
to the Delhi Higher Judicial Service at its initial
constitution with effect from 17-5-71 and in order of
seniority indicated:
————————————————————
Sl. Name of the Officer Post held at Present State to No. which belongs
————————————————————
1. Shri Rajinder Nath Registrar, Delhi High Himachal
A319
Aggarwal Court, New Delhi. Pradesh.
2. Shri Fauja Singh Gill Addl. District & Punjab
Sessions Judge, Delhi
3. Shri Mohinder Singh Members(Punjab)Official Punjab
Language (Legislative)
Commission, Ministry of
Law, Government of India.
4. Shri Kashmir Singh Addl. District & Sessi- Punjab
ons Judge, Delhi.
5. Shri Om Nath Verma DO DO 6. Shri Jagmaner Das Jain DO DO 7. Shri Gulshan Rai Luthra DO Haryana 8. Shri Dev Raj Khanna DO Punjab
————————————————————
319
Thus, this notification would show that whatever may
have been the position prior to the coming into force of the
new Service, the petitioner was treated to be senior to
respondent No. 3. As we have already stated that both the
petitioner and respondent No. 3 were practically recruited
through the same source and were members of the same Service
though for a short period the petitioner was allotted to
Haryana and respondent No. 3 to Punjab but that would not
introduce any break in the service of either of them or
bring about a change in their seniority. Unfortunately,
however, it appears that the confusion was worse confounded
by a decision taken by the Delhi High Court on a
representation filed by respondent No. 3. It appears that
after the final list under the Delhi Higher Judicial Service
was notified and approved respondent No. 3 filed a
representation on the 21st January, 1972 claiming seniority
over the petitioner. This representation appears to have
been accepted by the High Court on 10th June, 1976 which
runs thus:
“I am desired to say that Shri D. R. Khanna a
member of the Delhi Higher Judicial Service, at present
on deputation as Judicial Member, Income Tax Appellate
Tribunal made a representation dated the 25th January,
1972 (copy enclosed) requesting that for the reasons
stated therein he may be placed above Shri G. R. Luthra
in the Gradation List of the officers of the Delhi
Higher Judicial Service. The comments of Shri Luthra on
the aforesaid representation of Shri Khanna were
obtained. Subsequently, both the officers filed
counters, copy of each one of which is enclosed. Both
Shri Khanna and Shri Luthra were heard by a Committee
of two Hon’ble Judges who submitted a report which was
considered on the Administrative Side by the Full Court
in its meeting held on 20th May, 1976 and it was
decided that in view of Rule 6(3) of the Delhi Higher
Judicial Service Rules, 1970, as interpreted by the
Supreme Court in A.I.R. 1974 S.C. 1908. Shri Khanna is
senior to Shri Luthra. I am directed to request that
orders of the Administrator may be obtained in this
behalf and necessary amendment in Delhi
Administration’s Notification No. 1(740)/76-Judl. dated
the 15th May, 1971 be made”.
Thus, the basis of the order of the High Court was the
interpretation of Rule 6(3) of the Delhi Higher Judicial
Service Rules, 1970. Section 6(3) runs thus:-
“6(3). The seniority of the candidates appointed
at the initial constitution shall be in accordance with
the length of
320
service rendered by them in the cadres 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”.
A perusal of this rule would manifestly show that the
petitioner was treated as senior to respondent No. 3
throughout his whole career and even in the initial
recruitment by which the Delhi Higher Judicial Service came
into existence, the petitioner was shown senior to
respondent No. 3, and, therefore, on a plain reading of rule
6(3) there was no merit in the representation of respondent
No. 3 and according to the second part of the rule since
inter-se seniority had already been fixed initially, the
petitioner would be deemed to be senior to the respondent
No. 3 and this seniority could not be altered. With due
respect to the Hon’ble Judges we feel that the construction
placed by the High Court on rule 6(3) was not correct. The
High Court appears to have relied on a decision of this
Court in G. R. Luthra, Additional District Judge, Delhi v.
Lt. Governor, Delhi & Ors. which is clearly distinguishable
from the facts and circumstances of the present case and in
which the history of the services of the two officers had
not been placed or argued nor was respondent No. 3 a party
to that petition and, therefore, his case never came up for
consideration before this Court. Therefore, this Court had
no occasion to consider the various aspects of the question
which ex-hypothesi, did not arise. The facts and
circumstances under which the petitioner’s seniority was
maintained by giving a proforma promotion to respondent No.
3 and protecting the seniority of the petitioner by concept
of next below rule was also not brought to the notice of the
Court.
In fact, in the case of G. R. Luthra v. Lt. Governor,
Delhi & Ors. (supra) this Court clearly laid down that the
criterion for the determination of seniority under the Delhi
Rules was 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
against permanent or temporary posts. From the notification
dated 19th May, 1971 which has been extracted above it would
be seen that Mr. Sidhu, Mr. Vohra and Mr. Jain over whom the
petitioner Luthra was claiming seniority were shown at S.
No. 4, 5 and 6, that is to say above the petitioner Luthra.
This Court therefore obviously held that length of service
of these officers being more than the petitioner
321
Luthra, the claim of the petitioner Luthra was wholly
untenable. In this connection, this Court observed as
follows:-
“Rule 6(4) of the Delhi Rules shows 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 the Delhi Rules would 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”.
In the instant case also the petitioner and respondent No. 3
have been drawn from different sources and different States
before they were absorbed in the Delhi Higher Judicial
Service and it would appear from the notification mentioned
above that while the petitioner Luthra was shown at S. No.
7, respondent No. 3 was placed at S. No. 8. There-fore, on a
parity of reasoning adopted by this Court in the case cited
above the case of respondent No. 3 claiming seniority over
the petitioner Luthra cannot be accepted. Thus, the High
Court in recommending that respondent No. 3 should be
treated as senior to the petitioner Luthra acted against the
express decision of this Court cited above and that the
order of the High Court, therefore, was legally erroneous
and if given effect it would have been violative of Article
16 of the Constitution.
Moreover, Rule 6(1) of the Delhi Judicial Service Rules
runs thus:-
“6(1). For initial recruitment to the service, the
Administrator shall, in consultation with the High
Court, appoint persons to the service substantively
from amongst the following:-
(a) District Judges and Additional District Judges
functioning as such in the Union Territory of
Delhi on deputation from other States”.
322
Clause (a) makes it absolutely clear that persons to the
Higher Service would be recruited only from those District
and Additional District Judges who were actually functioning
in the Union Territory of Delhi on deputation from other
States. It is common ground that on this crucial date
respondent No. 3 was not functioning either as District
Judge or as Additional District Judge but was on deputation
with the Income Tax Tribunal. In view however of the
affidavit given by the respondent No. 3 we refrain from
giving any finding as to whether or not respondent No. 3 was
validly appointed because respondent No. 3 had conceded in
his affidavit that he would not press his claim of seniority
over the petitioner and, therefore, we need not take into
consideration the provisions of rule 6(1) (a) of the Rules.
Thus, on an overall consideration of the various
aspects of the matter discussed above, we are satisfied that
the petitioner Luthra was senior to respondent No. 3 and was
rightly placed above respondent No. 3 in the initial
constitution of the Delhi Higher Judicial Service by virtue
of the notification dated 19th May, 1971, and is, therefore,
entitled to such right as he may have and shall be deemed to
be senior to respondent No. 3. The order of the Lt. Governor
(Respondent No. 1) based on the recommendation of the High
Court treating the petitioner to be junior to respondent No.
3 is legally erroneous and is quashed as by making
respondent No. 3 senior to the petitioner the right of the
petitioner under Article 16 is clearly violated.
The petition is accordingly allowed, but in the
circumstances of the case there will be no order as to
costs.
P.B.R. Petition allowed.
323