{"id":21496,"date":"2001-01-31T00:00:00","date_gmt":"2001-01-30T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/s-n-dhingra-ors-vs-union-of-india-ors-on-31-january-2001"},"modified":"2015-12-19T00:46:52","modified_gmt":"2015-12-18T19:16:52","slug":"s-n-dhingra-ors-vs-union-of-india-ors-on-31-january-2001","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/s-n-dhingra-ors-vs-union-of-india-ors-on-31-january-2001","title":{"rendered":"S.N.Dhingra & Ors vs Union Of India & Ors on 31 January, 2001"},"content":{"rendered":"
Supreme Court of India<\/div>\n
S.N.Dhingra & Ors vs Union Of India & Ors on 31 January, 2001<\/div>\n
Author: Pattanaik<\/div>\n
Bench: G.B.Pattanaik, B.N.Agarwal<\/div>\n
           CASE NO.:\nWrit Petition (civil) 388  of  1994.\n\n\n\nPETITIONER:\nS.N.DHINGRA & ORS.\n\n\tVs.\n\nRESPONDENT:\nUNION OF INDIA & ORS.\n\nDATE OF JUDGMENT:\t31\/01\/2001\n\nBENCH:\nG.B.Pattanaik, B.N.Agarwal\n\n\n\n\nJUDGMENT:\n<\/pre>\n
L…..I………T…….T…….T…….T…….T…….T..J<\/p>\n
      JUDGMENT<\/p>\n
      PATTANAIK,J.\n<\/p>\n
      This  petition under Article 32 by the Direct Recruits
\nto  Delhi Higher Judicial Service, assails the inclusion  of
\nthe respondents 5 to 8 in the Gradation List drawn up by the
\nHigh Court of Delhi by order dated 22.8.2000 pursuant to the
\ndirections given by this Court in Writ Petition No.  490\/87.
\nThese  respondents  have been continuously working in  Delhi
\nHigher\tJudicial  Service w.e.f.  18th of January, 1986\t but
\nhad been posted as Chief Metropolitan Magistrates on account
\nof  the Government decision of up-gradation of the said post
\nof  Chief Metropolitan Magistrates.  The petitioners on\t the
\nother  hand are directly recruited officers to Delhi  Higher
\nJudicial  Service in the year 1988 pursuant to the selection
\nmade  in accordance with the Recruitment Rules.\t The bone of
\ncontention  of the petitioners is that the respondents,\t who
\nwere  continuing as Chief Metropolitan Magistrates, must  be
\nheld  to  be  juniors to the petitioners inasmuch  as  their
\ndecision  was  subject\tto challenge in\t appeal\t before\t the
\npetitioners,  who were appointed as Additional District\t and
\nSessions  Judge,  and  the  High Court\tcommitted  error  in
\nincluding  the\tnames of these respondents in the  gradation
\nlist  pursuant to the directions given by this Court in\t the
\nConstitution  Bench  by\t not   properly\t understanding\t the
\ndirections in question.\n<\/p>\n
      This  Court in O.P.Singlas case, 1984(4) SCC 450 took
\ninto   consideration   the  relevant   provisions   of\t the
\nRecruitment  Rules  and\t came  to   hold  that\tthe  quota
\nprinciple  contemplated in the Recruitment Rules has totally
\nbroken\tdown  and as such seniority of the officers  in\t the
\nDelhi Higher Judicial Service cannot be determined by taking
\nrecourse to the quota and rota provided in Rule 8(2).  The
\nCourt  on the other hand indicated that the seniority has to
\nbe  determined on the basis of continuous length of  service
\nprovided   the\tpromotees  have\t  been\tpromoted  after\t due
\nconsultation  with  the High Court and they did\t posses\t the
\nrequisite  qualification  for promotion in  accordance\twith
\nRule  7\t of  the Recruitment Rules.  The Court\thad  further
\nindicated in Singlas that the ad hoc, fortuitous and stop-
\ngap  appointees will not be entitled to the benefit of\tthe
\naforesaid  principle  namely  the   continuous\tlength\t of
\nservice\t as the basis of their seniority in the cadre.\t As
\nthe High Court failed to implement the aforesaid judgment of
\nthis  Court in its proper perspective and drew up  seniority
\nlist contrary to the letter and spirit of the judgment, writ
\npetitions  were filed in this Court which stood disposed  of
\nby  a Constitution Bench in the case of Rudra Kumar Sain and
\nOrs.  Vs.  Union of India and Ors., reported in 2000 (8) SCC\n<\/p>\n
25.   The Constitution Bench came to the conclusion that the
\nprovisional  and final gradation list had not been drawn  up
\nin  accordance\twith the principles enunciated\tin  Singlas
\ncase  and accordingly the said gradation lists were quashed.
\nThe  Constitution  Bench  also\tfurther\t directed  that\t the
\nappointees to the Delhi Higher Judicial Service prior to the
\namendment of the Recruitment Rules in the year 1987, whether
\nby  direct recruitment or by promotion, are entitled to\t get
\ntheir  seniority  re-determined on the basis  of  continuous
\nlength\tof  service in the cadre, as indicated\tin  Singlas
\ncase  and the High Court, therefore should draw up the\tsame
\nwithin\ta specified period.  The Constitution Bench  further
\nelaborated the meaning of the expression ad hoc, fortuitous
\nand stop gap and having said so, it was further observed:\n<\/p>\n
      It  is  not possible to lay down any  strait-  jacket
\nformula\t nor  give an exhaustive list of  circumstances\t and
\nsituation  in which such an appointment (ad hoc,  fortuitous
\nor  stop gap) can be made.  As such, this discussion is\t not
\nintended  to  enumerate the circumstances or  situations  in
\nwhich  appointments  of officers can be said to come  within
\nthe scope of any of these terms.  It is only to indicate how
\nthe  matter  should  be approached while  dealing  with\t the
\nquestion of inter se seniority of officers in the cadre.\n<\/p>\n
      Thus  both  in Singlas case as well the  Constitution
\nBench  decision\t in  Rudra  Kumars  case,  this\t Court\thas
\nindicated  the principle on which the inter se seniority  of
\nthe  officers  of  Delhi Higher Judicial Service has  to  be
\ndrawn  up, particularly when the statutory mode contained in
\nRule  8(2)  of\tquota and rota principle was found  to\tbe
\nbroken\tdown and at the same time it was also indicated that
\nfor  finding  out  the period of continuous service  in\t the
\ncadre  of  Higher Judicial Service, the ad hoc,\t fortuitous
\nand  stop-gap appointments would not be taken into account.
\nSince respondents 5 to 8 were the promoted officers in Delhi
\nHigher\tJudicial  Service  prior  to the  amendment  of\t the
\nRecruitment   Rules  in\t 1987,\t their\tseniority  has\tbeen
\ndetermined  on\tthe  basis  of their  continuous  length  of
\nservice\t in  the  cadre\t pursuant to  the  observations\t and
\ndirections  given  by this Court in the\t Constitution  Bench
\ndecision of Rudra Kumars case.\n<\/p>\n
      Mr.   Shanti  Bhushan,  the  learned  senior  counsel,
\nappearing  for\tthe present petitioners, who are the  direct
\nrecruits  to  the Delhi Higher Judicial Service in the\tyear
\n1988,\thowever\t contends  that\t  the  inclusion  of   these
\nrespondents  in\t the  gradation\t list already  drawn  up  is
\nerroneous inasmuch as their recruitment itself unequivocally
\nindicates  that\t the  same  is purely fortuitous  and  as  a
\nstop-gap  arrangement,\tas  it would be\t apparent  from\t the
\nNotification  dated 16.1.1986.\tMr.  Shanti Bhushan  further
\ncontends that the appointment of these respondents by letter
\ndated  16.1.86 was fortuitous and as a stop-gap\t arrangement
\nis  re-enforced by the fact that a fresh appointment to\t the
\nservice\t on  temporary basis was made in their favour  under
\nRule  16(2) of the Recruitment Rules by the Administrator by
\nNotification  of  24th\tof February, 1989 and  as  such\t the
\nservices  of  these  respondents from 16.1.86  till  24.2.89
\nbeing  purely  a fortuitous and stop- gap  arrangement,\t the
\nsaid  period  could  not have been  reckoned  as  continuous
\nservice for determination of their seniority in the cadre of
\nDelhi  Higher Judicial Service and the High Court, therefore
\nwas  not justified in including their names in the gradation
\nlist  drawn  up\t on  22nd  August,  2000,  pursuant  to\t the
\ndirections  given  by this Court in the\t Constitution  Bench
\ndecision of Rudra Kumars case.\tMr.  Shanti Bhushan further
\ncontends  that\tby  mere up-gradation of the post  of  Chief
\nMetropolitan  Magistrate, those posts did not form a part of
\ncadre  until amendment in question and inclusion of the post
\nin  the\t schedule,  and adjudged from that angle  also,\t the
\nappointees  to\tthose posts could not have been held  to  be
\nregular\t appointees  in Delhi Higher Judicial Service.\t The
\nschedule  having  been\tamended\t only\tin  1991  and  these
\nrespondents  having  been  continued as\t Chief\tMetropolitan
\nMagistrates  till  February, 1989, could not have been\tmade
\nsenior to the direct recruits-petitioners who were recruited
\nto  the Delhi Higher Judicial Service in the year 1988.\t Mr.
\nShanti Bhushan, the learned senior counsel, relying upon the
\nprovisions  of the Criminal Procedure Code also\t strenuously
\ncontended  that against the orders of the Chief Metropolitan
\nMagistrates,  appeal being maintainable to the District\t and
\nSessions Judge and the respondents having continued as Chief
\nMetropolitan Magistrates till 1989 and against their orders,
\nappeal\tbeing  maintainable  to the  District  and  Sessions
\nJudge,\twhich post was held by the petitioners since in\t the
\nyear 1988, those respondents could not have been made senior
\nto  the petitioners in any view of the matter.\tAccording to
\nMr.   Shanti Bhushan, both in Singlas case 1984(4) SCC\t450
\nas  well  as in Patwardhans case, 1977 (3) S.C.R.  775,\t on
\nwhich  reliance was placed in Singlas case, the Court while
\nevolving  the principle of continuous length of service as
\nthe criterion for determination of the inter se seniority in
\nthe  cadre,  has hastened to add that the post\tin  question
\nmust  belong to the same cadre and the incumbents  discharge
\nsimilar\t functions  and\t bear the same\tresponsibility,\t but
\napplying  the  aforesaid principle to the case in  hand,  it
\ncannot\tbe  said  that the  Chief  Metropolitan\t Magistrates
\ndischarge   the\t  similar  function   and  bear\t  the\tsame
\nresponsibility as the Additional District and Sessions Judge
\nand,  therefore,  the respondents could not have been  given
\ntheir  seniority  on  the  basis of  continuous\t length\t of
\nservice\t for  the  period  they\t  are  continued  as  Chief
\nMetropolitan  Magistrates.   Mr.    Shanti  Bhushan  further
\ncontends  that an examination of the scheme of the  Criminal
\nProcedure  Code, more particularly, Sections 17, 19, 28\t and
\n29   unequivocally  indicate  that   a\tChief\tMetropolitan
\nMagistrate  is\tsubordinate  to\t  the  Sessions\t Judge\tand,
\ntherefore  notwithstanding the up- gradation of the post  of
\nChief  Metropolitan Magistrate, the statutory  subordination
\nunder  the Criminal Procedure Code remains and consequently,
\nthe   respondents  who\tcontinued   as\tChief\tMetropolitan
\nMagistrates till February, 1989, cannot be held to be senior
\nto the petitioners, who are recruited as Additional District
\nand  Sessions Judge in the year 1988 and in this view of the
\nmatter,\t the inclusion of the name of the respondents in the
\ngradation list drawn up is erroneous.\n<\/p>\n
      Mr.   P.P.  Rao, the learned senior counsel, appearing
\nfor  the  High Court of Delhi, on the other  hand  contended
\nthat  the order of the Administrator in upgrading five posts
\nof  Chief  Metropolitan\t Magistrates and including  them  in
\nDelhi  Higher  Judicial Service tantamounts to\tcreation  of
\ntemporary posts in the service under sub-rule (2) of Rule 16
\nof  the\t Rules.\t  According  to\t  the  learned\tcounsel\t the
\ndefinition  of\tcadre  post in Rule 2((b)  of  the  Rules,
\nclearly\t conceives  any other temporary post  declared\tas
\ncadre  post  by the Administrator and, therefore,  when\t the
\nAdministrator  upgraded\t the  post   of\t Chief\tMetropolitan
\nMagistrate and included those posts in Delhi Higher Judicial
\nService, then the holder of those posts cannot be denied the
\nbenefit\t of  such  continuation\t of  service.\tThe  learned
\ncounsel\t further  contended  that  under Rule  4(2)  of\t the
\nRecruitment  Rules, the Administrator is empowered to create
\nfrom  time  to time as many cadre posts as may be  necessary
\nand  in the absence of any embargo on the aforesaid power of
\nthe  Administrator, the so-called upgradation of the post of
\nChief  Metropolitan  Magistrate\t and   inclusion  of   those
\nupgraded  posts\t in  the   Delhi  Higher  Judicial  Service,
\nundoubtedly  entitles the incumbents of those posts to claim
\nseniority  on the basis of their continuous service, as\t has
\nbeen  held  in Singlas case and upheld by the  Constitution
\nBench  in  Rudra Kumars case.  The learned counsel  further
\ncontends  that notwithstanding the amendment of the schedule
\nin  the\t year  1991, the position being that five  posts  of
\nChief  Metropolitan  Magistrates  were\t upgraded  and\twere
\nincluded  in  the Delhi Higher Judicial Service and  private
\nrespondents  having been continuing against those posts, the
\nHigh  Court  was  justified in taking the entire  length  of
\ncontinuous  service  in the Higher Judicial Service for\t the
\npurpose of determination of their seniority in the cadre and
\nno  error can be found therein in the matter of\t preparation
\nof  gradation  list  on 22nd August, 2000, pursuant  to\t the
\nConstitution  Bench  judgment of this Court.  In support  of
\nthis  contention,  he placed reliance on a decision of\tthis
\nCourt  in  the case of S.L.Kaul and Ors.  Vs.  Secretary  to
\nGovt.\tof India, Ministry of Information and  Broadcasting,
\nNew  Delhi  &  Ors., 1989 Supp.(1) SCC 147.  Mr.   Rao\talso
\ncontended  that\t the very appointment of the respondents  on
\n16th  of January, 1986 was to Delhi Higher Judicial  Service
\nand not against any particular post.  On being so appointed,
\nthe  High  Court  which is the authority  to  make  posting,
\nposted\tthem as Chief Metropolitan Magistrates or Additional
\nChief  Metropolitan  Magistrates against the  five  upgraded
\nposts of the Chief Metropolitan Magistrates.  This being the
\nposition,  the fact that against their order while they were
\ncontinuing  as Chief Metropolitan Magistrates, an appeal lay
\nto  the District and Sessions Judge under the provisions  of
\nCriminal  Procedure Code, will not take away the benefits of
\ntheir  continuous service in the cadre, as contended by\t Mr.
\nShanti\tBhushan, and, therefore, the impugned gradation list
\nhas  rightly been drawn up.  According to Mr.  Rao, it is no
\ndoubt  true that in the appointment order dated 16.1.86,  it
\nhas  been indicated that the appointments are fortuitous and
\nstop-gap,  but this labelling is of no consequence and would
\nnot  deny  the\trespondents  of\t their\tvaluable  rights  of
\ncontinuing  in\tthe Delhi Higher Judicial Service and  would
\nnot  deprive  them  of\t their\tseniority  being  determined
\naccording  to  the principles evolved in Singlas  case\tand
\naffirmed in the Constitution Bench judgment of this Court in
\nRudra  Kumars case, particularly, when the Court has  tried
\nto resolve the impasse created by directing that continuous
\nlength\tof service should be the principle for\tdetermining
\nthe seniority.\n<\/p>\n
      Mr.    G.L.   Sanghi,  the   leaned  senior   counsel,
\nappearing  for\tsome  of the  promotee-respondents,  in\t the
\ncontext\t of  the facts of the present case,  contended\tthat
\nappointment   to  service  and\t thereafter  posting  to   a
\nparticular  post  are  two  different  concepts.   Once\t the
\nrespondents  were appointed to Delhi Higher Judicial Service
\nby  order dated 16th of January, 1986 and continued to\thold
\nthe  post  in  the said service, the  continuous  period  of
\nofficiation is the only guiding factor for determining their
\nseniority  in the cadre.  This principle having been evolved
\nby  this Court in Singlas case and upheld in Rudra  Kumars
\ncase,  cannot be given a go-bye, merely because the  initial
\nletter\tof  appointment\t indicated that the  appointment  is
\nfortuitous  or stop-gap.  Mr.  Sanghi contended that the use
\nof  the\t expression fortuitous and stop- gap by\t the  High
\nCourt  is  because of the fact indicated in the\t Registrars
\nletter\tdated  4th of January, 1986, namely  the  sanctioned
\nstrength  of Delhi Higher Judicial Service, as it stood then
\nand  the  fact\tthat  the   advertisement  had\tbeen  issued
\nseparately  for the direct recruits as per Rule 7(b) of\t the
\nRecruitment  Rules.   This  letter was considered  in  Rudra
\nKumars\tcase  by the Constitution Bench and the\t Court\thad
\nobserved  as  to how the High Court was obsessed for use  of
\nthe   word  fortuitous\tand   stop-gap.\t  This\tbeing  the
\nposition,   and\t in  the  light\t  of  the   directions\t and
\nobservations  in Rudra Kumar’ case, the High Court  rightly
\nincluded  the  names of these respondents in  the  gradation
\nlist  drawn up, and there is no infirmity in the same.\t Mr.
\nSanghi contends that in concluding paragraph of the judgment
\nof  the\t Constitution Bench in Rudra Kumars case, the  High
\nCourt  was  called upon to draw up the seniority of all\t the
\nofficers,  direct recruits and promotees, appointed to Delhi
\nHigher\tJudicial  Service  prior  to the  amendment  of\t the
\nRecruitment  Rules  of\t1987 and in view  of  the  aforesaid
\ndirections  and the respondents having been appointed to the
\nDelhi Higher Judicial Service with effect from 16.1.1986 and
\nhaving\tcontinued in the said service without  interruption,
\nit  was\t only logical for the High Court to include them  in
\nthe  gradation list drawn up and the petitioners who came to
\nbe  recruited in the year 1988, cannot make any complaint of
\nthe  same.   According to Mr.  Sanghi, though the  order  of
\nappointment  dated  16.1.86 indicate the appointment  to  be
\nfortuitous  or\tstop-gap, but the substance being looked  at
\nand  the  principles enunciated in Rudra Kumars case  being
\napplied\t for,  such  appointment  cannot   be  held  to\t  be
\nfortuitous  or stop-gap, so as to deprive the benefit of the
\ncontinuous length of service for the purpose of seniority of
\nthe  appointees, and consequently, the gradation list  drawn
\nup does not require any interference.\n<\/p>\n
      Mr.   D.N.Goburdhan, the learned counsel appearing for
\nsome  other  respondents, while supporting  the\t contentions
\nraised\tby Mr.\tSanghi, further urged that the notification,
\nappointing  the petitioners to Delhi Higher Judicial Service
\non  probation, itself unequivocally indicates that the\tsame
\nis subject to the final result in pending writ petitions and
\nthat  the seniority vis-a-vis the promotees in Delhi  Higher
\nJudicial Service would be determined and fixed in accordance
\nwith  the judgment of the Supreme Court in O.P.Singlas case
\nas  well as the other writ petitions pending in the  Supreme
\nCourt and in view of such appointment letters and in view of
\nthe  Constitution Bench decision in Rudra Kumars case,\tthe
\nHigh  Court  rightly determined the seniority and  the\tsame
\nshould not be interfered with.\n<\/p>\n
      Mr.   Raju  Ramachandran, the learned senior  counsel,
\nappearing  for\trespondent  No.\t  6,  emphasised  that\t the
\nexpression  discharging similar functions in  O.P.Singlas
\ncase,  must  be\t understood to mean capable  of\t discharging
\nsimilar\t functions  inasmuch as an appointee discharges\t the
\nfunctions  of  the  post  to which he is  appointed  by\t the
\nemployer.   In this view of the matter once respondents\t are
\nappointed  to  Delhi  Higher Judicial  Service,\t their\tmere
\nposting\t as  Chief  Metropolitan Magistrate as\tagainst\t the
\nupgraded  post\tin the said cadre of Delhi  Higher  Judicial
\nService\t will not deprive them of their right to have  their
\ncontinuous  length of service as the basis for seniority  in
\nthe  cadre and, therefore, the impugned gradation list\tdoes
\nnot suffer from any infirmity.\n<\/p>\n
      In view of the submissions made at the Bar and in view
\nof  the two earlier decisions of this Court, O.P.Singla\t and
\nRudra  Kumar,  the  first  question   that  arises  for\t our
\nconsideration  is whether it was open for the  Administrator
\nto  upgrade  the post of Chief Metropolitan  Magistrate\t and
\ninclude\t those\tupgraded  posts\t in  Delhi  Higher  Judicial
\nService,  so  as  to  form a part of the  cadre\t post.\t The
\ndefinition  of cadre post in Rule 2(b) of the  Recruitment
\nRules,\tstipulates that any other temporary post declared as
\ncadre  post  by\t the Administrator would be a  cadre  post
\napart  from those which have been specified in the schedule.
\nThe  definition\t of service in Rule 2(e) means\tthe  Delhi
\nHigher\tJudicial  Service  and\t the  expression   promoted
\nofficer\t in  Rule 2(h) of the Rules means a person  who\t is
\nappointed  to  the service by promotion from Delhi  Judicial
\nService.  Rule 4(2) speaks of the power of the Administrator
\nto  create cadre post from time to time as may be necessary.
\nRule  16  authorises the Administrator to  create  temporary
\npost  in  the  service\tand  to\t  fill\tup  such  posts\t  in
\nconsultation with the High Court from amongst the members of
\nthe  Delhi  Judicial  Service.\t In view  of  the  aforesaid
\nprovisions of the Rules and in view of the earlier decisions
\nof  this Court in Singla and Rudra Kumar, the conclusion  is
\nirresistible  that the Administrator by upgrading five posts
\nof  Chief  Metropolitan\t Magistrates to the  rank  of  Delhi
\nHigher Judicial Service and by including them in the service
\nhas merely exercised his power under Rule 16, and therefore,
\nthe  appointees\t like the respondents to those posts in\t the
\nservice\t from Delhi Judicial Service must be held to be born
\nin  the service from the date of their appointment by virtue
\nof  order  dated 16th of January, 1986.\t This conclusion  of
\nours  is  further strengthened from the fact that  even\t the
\nschedule   has\tbeen  amended\tlater,\tby  indicating\t the
\nauthorised strength of the service to include the five posts
\nof   Chief    Metropolitan    Magistrates\/Additional   Chief
\nMetropolitan  Magistrates.  In the aforesaid premises and in
\nthe  light  of\tthe two earlier judgments of this  Court  in
\nSingla and Rudra Kumar, we have no hesitation to come to the
\nconclusion  that  the upgraded posts of\t Chief\tMetropolitan
\nMagistrates  were born in the cadre of Delhi Higher Judicial
\nService\t  and,\t necessarily,\ttherefore,  the\t  incumbents
\nappointed  against  those  posts  would\t not  ordinarily  be
\ndeprived  of  their benefit accruing from  such\t appointment
\nunless\tin their true nature and spirit the appointments can
\nat all be termed to be fortuitous or stop gap.\n<\/p>\n
      The  next\t question  that\t arises\t for  consideration,
\ntherefore, is whether such appointments though nomenclatured
\nas  stop- gap and fortuitous can at all be held to be such
\nin  the\t light\tof the enunciation of those  terminology  in
\nRudra\tKumars\tcase.\tThere  is   no\tdispute\t that\tthe
\nConstitution  Bench  in\t Rudra\t Kumars\t case  has  clearly
\nindicated  that\t whether a particular appointment is  really
\nfortuitous  or\tstop-gap has to be decided in the facts\t and
\ncircumstances of the case and any universal principle cannot
\nbe  made  for  the  purpose.   In  the\tcase  in  hand,\t the
\nAdministrator had upgraded those posts of Chief Metropolitan
\nMagistrates  to\t be  in Delhi Higher Judicial  Service,\t the
\nposts  have been filled up by these respondents belonging to
\nDelhi  Judicial Service in consultation with the High Court.
\nThese  respondents  did possess the requisite  qualification
\nand  experience for being appointed to Delhi Higher Judicial
\nService\t and  they have been continuing in the\tsaid  Higher
\nJudicial  Service from January, 1986.  In this premises,  it
\nwould  be  a  travesty\tof   justice  if  their\t  continuous
\nappointment in the service is not taken into account for the
\npurpose of their seniority, merely because of the use of the
\nexpression stop-gap and fortuitous in the order dated 16th
\nof  January,  1986.   It may be stated that  the  order\t had
\nemanated  from the High Court and in Rudra Kumars case, the
\nConstitution  Bench has already dealt with the obsession  of
\nthe  High  Court  for  use of such expression  and  how\t for
\ninaction  on the part of the High Court, the promotees\thave
\nsuffered  in  the  matter  of their  seniority\tand  how  in
\nSinglas\t case  the Court resolved the impasse by  directing
\ncontinuous length of service to be the guiding principle for
\ndetermination  of  the\tseniority  in  the  cadre.    Having
\nexamined  the entire facts and circumstances of the case  in
\nhand,  particularly,  the upgradation of the post  of  Chief
\nMetropolitan Magistrate to the post in Delhi Higher Judicial
\nService\t and filling up of those posts in consultation\twith
\nthe High Court by the Administrator, we find it difficult to
\nhold  that such appointment of the respondents from  16.1.86
\ntill  1989  were in fact really fortuitous or stop-gap.\t  To
\nhold  such appointments to be fortuitous or stop-gap,  would
\nbe  against  the  spirit of the judgment of  this  Court  in
\nSingla\tand  re-  affirmed  in\t Rudra\tKumars\tcase.\tWe,
\ntherefore,  are not persuaded to agree with the\t submissions
\nof  Mr.\t Shanti Bhushan that the appointment of\t respondents
\nfrom  16.1.1986\t till 1989 must be held to be fortuitous  or
\nstop-gap  and on that score ought not to be counted for\t the
\npurpose of their seniority in the cadre.\n<\/p>\n
      The  next\t question that arises for  consideration  is
\nwhether\t the fact that the respondents though were appointed
\nto  Delhi Higher Judicial Service, but having been posted as
\nChief  Metropolitan Magistrates against whose orders, appeal
\nlay  to the Court of District and Sessions Judge would\tmake
\nany difference?\t In this connection we find sufficient force
\nin the argument of Mr.\tSanghi that appointment to a service
\nand  posting thereafter are of two different concepts.\tOnce
\nthe  appointment is made to the Higher Judicial Service,  as
\nin  the\t case in hand, then the subsequent  posting  against
\nsome  posts  born  in the Higher Judicial Service  will\t not
\ndeprive\t the  appointees  from the  benefits  of  continuous
\nappointment against the post merely because at a given point
\nof  time  against their order an appeal lay to the  District
\nand  Sessions  Judge, which might have been occupied by\t the
\npetitioners  on\t being directly recruited in the year  1988.
\nIt  is\tin  this  context,   the  very\trecruitment  of\t the
\npetitioners  and the terms and conditions mentioned  therein
\nis  of great significance as pointed out by Mr.\t  Goburdhan,
\nappearing  for\tsome  of  the\trespondents.   It  has\tbeen
\nunequivocally  stated  that the question of their  seniority
\nwould  be subject to and in accordance with the decision  of
\nthe  Supreme  Court  in the pending cases.  In view  of\t the
\nConstitution  Bench  Judgment in Rudra Kumar and in view  of
\nthe earlier directions contained in OP Singla and in view of
\nour  conclusion already arrived at, the ultimate  conclusion
\nis  inescapable\t that  the continuous length of\t service  of
\nthese respondents right from their appointment to the Higher
\nJudicial  Service  in January, 1986 should be the  basis  on
\nwhich  their  seniority\t has to be determined and  the\tHigh
\nCourt  therefore, was fully justified in including the names
\nof  these  respondents in the gradation list that  had\tbeen
\ndrawn up on 22nd of August, 2000.\n<\/p>\n
      The submission of Mr.  Shanti Bhushan, on the basis of
\nthe  provisions\t of  the  Criminal Procedure  Code  and\t the
\nsubordination  of  the\tChief Metropolitan  Magistrates,  as
\nprovided  in Section 19 of the Criminal Procedure Code is of
\nlittle consequence for the determination of the seniority in
\nthe service, once it is held that the upgraded post of Chief
\nMetropolitan  Magistrate stood included in the Delhi  Higher
\nJudicial Service.\n<\/p>\n
      In the aforesaid premises, we do not find any merit in
\nthe writ petition, which accordingly fails and is dismissed.
\nBut  in\t the  circumstances there would be no  order  as  to
\ncosts.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India S.N.Dhingra & Ors vs Union Of India & Ors on 31 January, 2001 Author: Pattanaik Bench: G.B.Pattanaik, B.N.Agarwal CASE NO.: Writ Petition (civil) 388 of 1994. PETITIONER: S.N.DHINGRA & ORS. Vs. RESPONDENT: UNION OF INDIA & ORS. DATE OF JUDGMENT: 31\/01\/2001 BENCH: G.B.Pattanaik, B.N.Agarwal JUDGMENT: L…..I………T…….T…….T…….T…….T…….T..J JUDGMENT PATTANAIK,J. This petition under […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-21496","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nS.N.Dhingra & Ors vs Union Of India & Ors on 31 January, 2001 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/s-n-dhingra-ors-vs-union-of-india-ors-on-31-january-2001\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"S.N.Dhingra & Ors vs Union Of India & Ors on 31 January, 2001 - 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