{"id":96367,"date":"1979-08-22T00:00:00","date_gmt":"1979-08-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/g-r-luthra-vs-lt-governor-of-delhi-ors-on-22-august-1979"},"modified":"2015-07-18T12:23:10","modified_gmt":"2015-07-18T06:53:10","slug":"g-r-luthra-vs-lt-governor-of-delhi-ors-on-22-august-1979","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/g-r-luthra-vs-lt-governor-of-delhi-ors-on-22-august-1979","title":{"rendered":"G. R. Luthra vs Lt. Governor Of Delhi & Ors on 22 August, 1979"},"content":{"rendered":"
Supreme Court of India<\/div>\n
G. R. Luthra vs Lt. Governor Of Delhi & Ors on 22 August, 1979<\/div>\n
Equivalent citations: 1979 AIR 1900, \t\t 1980 SCR (1) 313<\/div>\n
Author: S M Fazalali<\/div>\n
Bench: Fazalali, Syed Murtaza<\/div>\n
           PETITIONER:\nG. R. LUTHRA\n\n\tVs.\n\nRESPONDENT:\nLT. GOVERNOR OF DELHI & ORS.\n\nDATE OF JUDGMENT22\/08\/1979\n\nBENCH:\nFAZALALI, SYED MURTAZA\nBENCH:\nFAZALALI, SYED MURTAZA\nDESAI, D.A.\n\nCITATION:\n 1979 AIR 1900\t\t  1980 SCR  (1) 313\n 1979 SCC  (4) 406\n\n\nACT:\n     Delhi Higher  Judicial Service  Rules,  1970-Petitioner\nthroughout  senior   to\t respondent-Both  were\tallotted  to\ndifferent  States   on\tdivision   of  State-Respondent\t got\nproforma  promotion  in\t State\tCadre-Petitioner  given\t the\nbenefit of \"next below rule\" and promoted later in his State\nCadre-Respondent if could claim seniority over petitioner.\n\n\n\nHEADNOTE:\n     In\t the  competitive  examination\tfor  recruitment  to\nPunjab State  Judicial Service,\t conducted in  1950  by\t the\nundivided State of Punjab, the petitioner and respondent no.\n3 were\tplaced at  s. nos.  4 and  13 in  the merit list. On\nAugust 7,  1950 the  petitioner was appointed as a Sub-Judge\nagainst a  permanent post while the respondent was appointed\nas Sub-Judge against a temporary post on November 23. 1950.\n     Till the  formation of  the State\tof  Delhi,  judicial\nofficers of  Punjab were  posted  as  judicial\tofficers  in\nDelhi. Both the petitioner and the respondent were posted as\nSub-Judges in  Delhi. Consequent  upon the  division of\t the\nState of  Punjab into  Punjab and Haryana the petitioner was\nallotted to  Haryana while  the respondent  was retained  in\nPunjab. But  even thereafter  they continued  as Senior Sub-\nJudges in  Delhi. The  Chief Justice  of Punjab\t and Haryana\nHigh Court  and the  Chief Justice of the newly formed Delhi\nHigh Court  decided that  in  the  judicial  service  to  be\nconstituted for\t Delhi the  petitioner would  rank senior to\nthe respondent\t(the petitioner\t being placed  at the fourth\nplace and  the respondent  at sixth  place in  the  list  of\nseniority). In\tMay, 1967  the petitioner  was appointed  as\nAssistant  Sessions   Judge,  Delhi;   the  respondent\t was\nappointed as  Assistant Sessions  Judge, Delhi\tin February,\n1968. In  the meantime\tthe respondent\twas given a proforma\npromotion in  the State\t of Punjab with effect from June 24,\n1967 and  giving  the  benefit\tof  \"next  below  rule\"\t the\npetitioner was\tpromoted as Additional District and Sessions\nJudge with  effect from\t July 28,  1967. The  petitioner was\nconfirmed as District and Sessions Judge in his parent cadre\non October  2, 1970,  while the\t respondent was appointed as\nAdditional District  and Sessions  Judge at Delhi on June 5,\n1968 and continued in that post till May, 1971.\n     When the  Delhi Higher  Judicial Service  was formed in\n1970  the  petitioner  was  placed  at\ts.  no.\t 7  and\t the\nrespondent at s. no. 8 in the list of judicial officers.\n     The respondent's representation claiming seniority over\nthe petitioner\twas accepted  by the Delhi High Court on the\nground that  in view  of  Rule\t6(3)  of  the  Delhi  Higher\nJudicial Service  Rules 1970 as interpreted by this Court in\nG. R.  Luthra v.  Lt. Governor, Delhi (AIR<\/a> 1974 SC 1908) the\nrespondent was senior to the petitioner.\n     In a  petition under  Art. 32  of the  Constitution the\npetitioner impugned  the order of the Lt. Governor passed on\nthe recommendation  of the  High Court\ttreating him  to  be\njunior to respondent no. 3.\n314\n     Allowing the petition,\n^\n     HELD: 1.  The petitioner  was senior  to the respondent\nand was\t rightly placed\t above the respondent in the initial\nconstitution of\t the Delhi  Higher Judicial  Service in\t May\n1971 and  the order  of the  Lt.  Governor  was,  therefore,\nerroneous. [322 D-E]\n     2. Rule  6(3) of  the Rules provides that the seniority\nof candidates appointed at the initial constitution shall be\nin accordance with the length of service rendered by them in\nthe cadres  to which  they belonged  at the  time  of  their\ninitial recruitment  to the  service provided that the inter\nse seniority  as already  fixed in  such cadres shall not be\naltered. The  petitioner was throughout treated as senior to\nthe respondent\tand even  in the  initial recruitment to the\nDelhi Higher  Judicial Service he was shown as senior to the\nrespondent. Since  the inter  se seniority  had\t been  fixed\ninitially the  petitioner was  senior to  the respondent and\nthis position cannot be altered. [320 B-C]\n     3. Although  the respondent  was promoted\tto a  higher\npost before  the petitioner  was promoted  in the respective\nparent State cadres, since the appointment of the petitioner\nwas made  subject to the next below rule, his seniority over\nthe respondent was fully protected. If the respondent was to\nbe given  seniority over  the  petitioner  the\tquestion  of\ngiving benefit\tof the\tnext below  rule to  the  petitioner\nwould  not   have  arisen.  Therefore,\tmerely\tbecause\t the\nrespondent got\ta proforma  promotion  and  was\t temporarily\npromoted six months before the petitioner would not make him\nsenior to the petitioner. [317 E-G]\n     4.\t Even\tr.  6(1)  (a)  envisages  that\tfor  initial\nrecruitment to the service appointments were to be made from\nDistrict Judges\t and Additional\t District Judges functioning\nas such\t in the\t Union Territory of Delhi on deputation from\nother States.  On the  date of\tformation of the service the\nrespondent was\tnot functioning\t either as District Judge or\nas Additional  District Judge but was on deputation with the\nIncome Tax Appellate Tribunal. [322 A-B]\n     5. The  case of G. R. Luthra v. Lt. Governor Delhi,<\/a> was\nclearly distinguishable\t in that  the respondent  was not  a\nparty  to   that  case\t and  his  case\t did  not  fall\t for\nconsideration by  the Court.  It was  laid down in that case\nthat length  of service\t rendered by  a candidate during the\nperiod when  he was  rendering service\teither\tas  District\nJudge or  Additional District Judge against a permanent or a\ntemporary post\twas the\t criterion for\tthe determination of\nseniority under the Rules. [320 G]\n     In\t the   instant\tcase  although\tthe  petitioner\t and\nrespondent  were  drawn\t from  different  sources  and\tfrom\ndifferent States at the time of the initial formation of the\ncadre  the  former  was\t shown\tabove  the  respondent\tand,\ntherefore, the respondent could not claim seniority over the\npetitioner. [321 E]\n     G. R.  Luthra, Additional\tDistrict Judge, Delhi v. Lt.\nGovernor, Delhi & Ors., AIR<\/a> 1974 SC 1908 distinguished.\n\n\n\nJUDGMENT:\n<\/pre>\n
     ORIGINAL JURISDICTION : Writ Petition No. 402 of 1977.
\n     Under Article 32 of the Constitution.\n<\/p>\n
     (Dr.) L.  M. Singhvi, Raj Punjvani and G. S. Chatterjee
\nfor the Petitioner.\n<\/p>\n
315<\/span><\/p>\n
     Soli J.  Sorabjee, Addl.  Sol. Genl. E. C. Agarwala and
\nR. N. Sachthey for Respondent No. 2 (Delhi High Court).\n<\/p>\n
     A. K.  Sen, U.  R. Lalit, P. H. Parekh, C. B. Singh, M.
\nMudgal and B. L. Verma for Respondent No. 3.\n<\/p>\n
     The Judgment of the Court was delivered by
\n     FAZAL ALI,\t J.-This writ  petition has  had a chequered
\ncareer\tand   involves\ta  competition\tregarding  seniority
\nbetween the  petitioner G. R. Luthra and Respondent No. 3 D.
\nR. Khanna  who were  simultaneously recruited  as members of
\nthe Punjab  Judicial  Service.\tThe  case  appears  to\thave
\ntravelled through  various stages both in the High Court and
\nin this\t Court on  different aspects.  After hearing counsel
\nfor the\t parties in the view that we propose to take in this
\npetition and  also because  respondent No.  3 has  filed  an
\naffidavit that\the would not press this Court for giving any
\ndecision regarding  his seniority over the petitioner if the
\nsubmission of  respondent No.  3 regarding  his\t appointment
\nunder the  Delhi Higher\t Judicial Service is decided against
\nhim, it\t is not\t necessary for us to give any finding on the
\nscope and ambit of Rule 6(3) of the Rules.\n<\/p>\n
     In view of these facts the controversy in this case has
\nbeen very  much narrowed  down and  the point  for  decision
\nfalls within  a very  narrow compass.  In order\t however  to
\nunderstand the\tquestion involved,  it may  be necessary  to
\ngive a\tshort history  and a  brief resume  of the manner in
\nwhich the petitioner and respondent No. 3 were appointed and
\ntheir vertical\tmobility in the hierarchy through which they
\nhad moved up.\n<\/p>\n
     To begin with, both the petitioner and respondent No. 3
\ncompeted for  entrance to  the State Judicial Service of the
\nundivided Punjab. The petitioner Luthra was appointed as far
\nback as 7th August, 1950 having obtained 4th position in the
\ncompetitive  examination  and  was  appointed  as  Sub-Judge
\nagainst a  permanent post.  Respondent No.  3 had also taken
\nthe  same  competitive\texamination  but  obtained  a  lower
\nposition (13th)\t and was  appointed as\tSub-Judge against  a
\ntemporary post.\t Thus, from  inception three important facts
\nare established:\n<\/p>\n
     1.\t  That the petitioner had obtained a higher position
\n\t  in the  competitive examination  held for entrance
\n\t  to the  State Judicial  Service whereas respondent
\n\t  No. 3\t had obtained  a  lower\t position.  This  is
\n\t  important  because   under  the   Rules  and\t the
\n\t  conventions  the  seniority  of  new\trecruits  is
\n\t  normally governed  by the  place which they occupy
\n\t  in the competitive examination.\n<\/p><\/blockquote>\n
316<\/span><\/p>\n
     2.\t  The petitioner  Luthra was  appointed on  the\t 7th
\n\t  August, 1950 whereas respondent No. 3 D. R. Khanna
\n\t  was appointed\t on the\t 23rd  November,  1950\ti.e.
\n\t  about 3 1\/2 months later. Thus, even regarding the
\n\t  time of  appointment, the  petitioner entered\t the
\n\t  service prior to respondent No. 3 both having been
\n\t  appointed to\tthe same  service  and\thaving\tbeen
\n\t  recruited    through\t  the\t same\t competitive
\n\t  examination.\n<\/p><\/blockquote>\n
     3.\t  That while  the petitioner  Luthra  was  appointed
\n\t  against a  permanent vacancy\trespondent No. 3 was
\n\t  appointed  in\t the  State  Judicial  Service\tonly
\n\t  against  a   temporary  post.\t This  was  also  an
\n\t  important  factor  which  has\t to  be\t taken\tinto
\n\t  consideration in  order to  determine the inter se
\n\t  seniority of the petitioner and respondent No. 3.<\/p><\/blockquote>\n
     Both the  petitioner and  respondent No.  3  were\tthus
\nappointed as  members of  the Punjab Judicial Service in the
\nundivided Punjab.  So far  as Delhi was concerned before the
\nbirth of the Haryana State it used to be a Judicial District
\nof Punjab. Unfortunately, the services of the respondent No.
\n3 remained  terminated due to medical unfitness between 13th
\nMarch, 1952  to 23rd  May, 1956.  But  this  gap  is  of  no
\nconsequences because  subsequently his medical unfitness was
\nset aside in appeal and respondent No. 3 was reinstated with
\neffect from  the  date\tof  his\t appointment,  namely,\t23rd
\nNovember, 1950.\n<\/p>\n
     On the 9th March, 1963 the petitioner Luthra was posted
\nat Delhi  as Sub-Judge.\t On 1st\t November, 1966 by virtue of
\nre-organisation of  Punjab, Punjab  and Haryana\t became\t two
\nseparate States\t and some areas were transferred to Himachal
\nPradesh. As  a result  of the  aforesaid reorganisation\t the
\nservices of  the petitioner  Luthra were  allocated  to\t the
\nState of  Haryana and  that of\trespondent No.\t3 Khanna  to
\nPunjab, but  both the  officers continued  to be  posted  at
\nDelhi and  were Senior Sub-Judges. On the same date, namely,
\n1st November,  1966 Delhi  High Court  was created  and came
\ninto existence. Shortly thereafter, on 5th November, 1966 in
\na meeting  of the  Chief Justices  of the Punjab and Haryana
\nand Delhi  High Courts\ta list\tof Judicial  Officers to  be
\nabsorbed in  the Judicial Service to be constituted at Delhi
\nwas finalised  and in the list of the Lower Judicial Service
\nwhich appears  at page\t393 of the Paper Book the petitioner
\nLuthra was placed at S. No. 4 whereas respondent No. 3 D. R.
\nKhanna was  placed at  S. No.  6. Thus,\t the two High Courts
\nclearly decided\t that in  the new Service the petitioner was
\nto rank\t senior to  respondent No.  3. This  decision was  a
\nlogical corollary  of the  history of  the services  of\t the
\npetitioner  and\t respondent  No.  3,  discussed\t above.\t The
\nproceedings of the meeting are contained
\n317<\/span>
\nat pages  392-395 of  the Paper\t Book in  which\t the  Courts
\ndecided to  allocate one  District and\tSessions  Judge\t for
\nDelhi and  8 Additional\t District and Sessions Judges in the
\nHigher Judicial\t Service and  39  Sub-Judges  in  the  Lower
\nJudicial Service.  Both the  petitioner and respondent No. 3
\nat that\t time fell  in the third category. Thus, even though
\nthe petitioner\tand respondent\tNo. 3  had for a short while
\nbeen allocated\tto two\tdifferent States,  namely,  one\t was
\nallotted to  Punjab and\t the other  to Haryana, but with the
\ncoming into  existence of  the Delhi High Court both of them
\nagain joined  the same\tservice and their rank and seniority
\nwas throughout maintained.\n<\/p>\n
     On 9th May, 1967 the petitioner Luthra was appointed as
\nAssistant  Sessions  Judge,  Delhi,  Respondent\t No.  3\t was
\nappointed as  Assistant Sessions  Judge\t on  21st  February,
\n1968, but it appears that by a letter dated 22nd March, 1971
\nwritten by  the Registrar  of the  Punjab and  Haryana\tHigh
\nCourt addressed\t to the\t Accountant General,  Punjab,  Simla
\nrespondent No.\t3 was  given proforma  promotion with effect
\nfrom 24th  June, 1967.\tThe proforma promotion is related to
\nvacancies in  his parent  State and  has nothing  to do with
\nvacancies or  seniority where both were at the relevant time
\nserving. This  letter is  annexed as Annexure 2 appearing at
\npages 288-89  of the  Paper Book.  The petitioner Luthra was
\nhowever given  benefit of  the next below rule as Additional
\nDistrict and  Sessions Judge  with effect  from\t 28th  July,
\n1967. This  unfortunate episode seems to be the sheet anchor
\nof the\targument of  respondent No.  3 in claiming seniority
\nover the petitioner. It is true that by virtue of the letter
\nreferred  to   above  respondent  No.  3  was  appointed  as
\nAdditional  District   and  Sessions   Judge  prior  to\t the
\npetitioner but\tsince this  appointment was  made subject to
\nthe next below rule it is manifest that the seniority of the
\npetitioner  over   respondent  No.  3  was  fully  protected
\notherwise if  in fact  the respondent  No. 3 was to be given
\nseniority  over\t the  petitioner,  the\tquestion  of  giving
\nbenefit of  the next  below rule to the petitioner would not
\nhave arisen.  The letter referred to above was passed by the
\norder of the Chief Justice and the Judges of the High Court.
\nIn these circumstances, therefore, merely because respondent
\nNo. 3 got a proforma promotion and was temporarily appointed
\nas Additional  District and Sessions Judge six months before
\nthe  petitioner\t that  will  not  make\thim  senior  to\t the
\npetitioner. This  fact is borne out by another circumstance.
\nThe petitioner was also appointed as Additional District and
\nSessions Judge\ton 25th\t November, 1967\t and while  both the
\npetitioner and\trespondent No.\t3 were holding the same post
\nat Delhi.  The petitioner  was\tconfirmed  as  District\t and
\nSessions Judge\tin  his\t parent\t State\tof  Haryana  on\t 2nd
\nOctober, 1970.\n<\/p>\n
318<\/span><\/p>\n
On the\tother hand,  respondent No. 3 was appointed as Addl.
\nDistrict & Sessions Judge Delhi on 5-6-1968 and continued as
\nAddl. District\tand Sessions  Judge till 17-5-71. Respondent
\nNo. 3,\thowever, was  confirmed as Sub Judge on 5-6-1968 but
\nwas confirmed  as District  and Sessions Judge Delhi several
\nyears after.\n<\/p>\n
     On 27-8-1970  Delhi Higher\t Judicial Service  and Delhi
\nJudicial Service  Rules were  framed by\t the Lt. Governor in
\nconsultation with  the Delhi  High Court.  On 22-3-1971 Shri
\nKhanna respondent  No. 3 was appointed as Member, Income Tax
\nTribunal at  Jaipur. About two months thereafter i.e. on 17-
\n5-1971 there  was  a  regular  notification  initiating\t the
\nconstitution of\t the  Delhi  Higher  Judicial  Service\twith
\neffect from  17-5-1971 by  which in  the Higher\t Service the
\npetitioner was\tput at\tS. No.\t7 and respondent No. 3 at S.
\nNo. 8. This notification may be extracted thus:-\n<\/p>\n
\t  “In pursuance\t of the\t provisions of rule 6 of the
\n     Delhi  Higher   Judicial\tService\t  Rules\t  1970\t the
\n     Administrator  of\t Delhi\t is   pleased\tto   appoint
\n     substantively in  consultation with the High Court, the
\n     following persons\tfrom the  States noted against each,
\n     to the  Delhi Higher  Judicial Service  at its  initial
\n     constitution with\teffect from  17-5-71 and in order of
\n     seniority indicated:\n<\/p><\/blockquote>\n
————————————————————<\/p>\n
\nSl. Name  of the Officer    Post held at Present    State to\nNo.\t\t\t\t\t\t       which\n\t\t\t\t\t\t   belongs\n<\/pre>\n
————————————————————<\/p>\n
\n1.   Shri Rajinder Nath\t    Registrar, Delhi High   Himachal\nA319\n     Aggarwal\t\t   Court, New Delhi.\t   Pradesh.\n2.   Shri Fauja Singh Gill Addl. District &\t   Punjab\n\t\t\t   Sessions Judge, Delhi\n<\/pre>\n
3.   Shri Mohinder Singh   Members(Punjab)Official Punjab
\n\t\t\t   Language (Legislative)
\n\t\t\t   Commission, Ministry of
\n\t\t\t   Law, Government of India.\n<\/p>\n
4.   Shri Kashmir Singh\t   Addl. District & Sessi- Punjab
\n\t\t\t   ons Judge, Delhi.\n<\/p>\n
5.   Shri Om Nath Verma\t      DO\t\t    DO\n6.   Shri Jagmaner Das Jain   DO\t\t    DO\n7.   Shri Gulshan Rai Luthra  DO\t\t    Haryana\n8.   Shri Dev Raj Khanna      DO\t\t    Punjab\n<\/pre>\n
————————————————————\n<\/p>\n
319<\/span><\/p>\n
     Thus, this\t notification would  show that\twhatever may
\nhave been the position prior to the coming into force of the
\nnew Service,  the petitioner  was treated  to be  senior  to
\nrespondent No.\t3. As  we have\talready stated that both the
\npetitioner and\trespondent No.\t3 were practically recruited
\nthrough the same source and were members of the same Service
\nthough for  a short  period the\t petitioner was\t allotted to
\nHaryana and  respondent No.  3 to  Punjab but that would not
\nintroduce any  break in\t the service  of either\t of them  or
\nbring about  a change  in  their  seniority.  Unfortunately,
\nhowever, it  appears that the confusion was worse confounded
\nby  a\tdecision  taken\t  by  the  Delhi  High\tCourt  on  a
\nrepresentation filed  by respondent  No. 3.  It appears that
\nafter the final list under the Delhi Higher Judicial Service
\nwas  notified\tand  approved\trespondent  No.\t 3  filed  a
\nrepresentation on  the 21st January, 1972 claiming seniority
\nover the  petitioner. This  representation appears  to\thave
\nbeen accepted  by the  High Court  on 10th  June, 1976 which
\nruns thus:\n<\/p>\n
\t  “I am\t desired to  say that  Shri D.\tR. Khanna  a
\n     member of the Delhi Higher Judicial Service, at present
\n     on deputation  as Judicial Member, Income Tax Appellate
\n     Tribunal made  a representation dated the 25th January,
\n     1972 (copy\t enclosed) requesting  that for\t the reasons
\n     stated therein he may be placed above Shri G. R. Luthra
\n     in the  Gradation List  of the  officers of  the  Delhi
\n     Higher Judicial Service. The comments of Shri Luthra on
\n     the  aforesaid   representation  of  Shri\tKhanna\twere
\n     obtained.\tSubsequently,\tboth  the   officers   filed
\n     counters, copy  of each  one of which is enclosed. Both
\n     Shri Khanna  and Shri  Luthra were heard by a Committee
\n     of two  Hon’ble Judges who submitted a report which was
\n     considered on the Administrative Side by the Full Court
\n     in its  meeting held  on 20th  May,  1976\tand  it\t was
\n     decided that  in view  of Rule 6(3) of the Delhi Higher
\n     Judicial Service  Rules, 1970,  as interpreted  by\t the
\n     Supreme Court  in A.I.R. 1974 S.C. 1908. Shri Khanna is
\n     senior to\tShri Luthra.  I am  directed to request that
\n     orders of\tthe Administrator  may be  obtained in\tthis
\n     behalf    and     necessary    amendment\t in    Delhi
\n     Administration’s Notification No. 1(740)\/76-Judl. dated
\n     the 15th May, 1971 be made”.\n<\/p><\/blockquote>\n
Thus, the  basis of  the order\tof the\tHigh Court  was\t the
\ninterpretation of  Rule 6(3)  of the  Delhi Higher  Judicial
\nService Rules, 1970. Section 6(3) runs thus:-\n<\/p>\n
\t  “6(3). The  seniority of  the candidates appointed
\n     at the initial constitution shall be in accordance with
\n     the length of
\n320<\/span>
\n     service rendered  by them\tin the\tcadres to which they
\n     belong at\tthe time of their initial recruitment to the
\n     service provided that the inter-se seniority as already
\n     fixed in such cadres shall not be altered”.\n<\/p><\/blockquote>\n
A perusal  of this  rule  would\t manifestly  show  that\t the
\npetitioner  was\t treated  as  senior  to  respondent  No.  3
\nthroughout  his\t  whole\t career\t and  even  in\tthe  initial
\nrecruitment by\twhich the Delhi Higher Judicial Service came
\ninto  existence,   the\tpetitioner   was  shown\t  senior  to
\nrespondent No. 3, and, therefore, on a plain reading of rule
\n6(3) there  was no merit in the representation of respondent
\nNo. 3  and according  to the  second part  of the rule since
\ninter-se seniority  had already\t been fixed  initially,\t the
\npetitioner would  be deemed  to be  senior to the respondent
\nNo. 3  and this\t seniority could  not be  altered. With\t due
\nrespect to  the Hon’ble Judges we feel that the construction
\nplaced by  the High  Court on rule 6(3) was not correct. The
\nHigh Court  appears to\thave relied  on a  decision of\tthis
\nCourt in  G. R.\t Luthra, Additional District Judge, Delhi v.
\nLt. Governor,  Delhi & Ors.<\/a> which is clearly distinguishable
\nfrom the  facts and circumstances of the present case and in
\nwhich the  history of  the services  of the two officers had
\nnot been  placed or  argued nor was respondent No. 3 a party
\nto that\t petition and, therefore, his case never came up for
\nconsideration before  this Court.  Therefore, this Court had
\nno occasion  to consider the various aspects of the question
\nwhich  ex-hypothesi,   did  not\t  arise.   The\t facts\t and
\ncircumstances under  which the\tpetitioner’s  seniority\t was
\nmaintained by  giving a proforma promotion to respondent No.
\n3 and  protecting the seniority of the petitioner by concept
\nof next below rule was also not brought to the notice of the
\nCourt.\n<\/p>\n
     In fact,  in the  case of G. R. Luthra v. Lt. Governor,
\nDelhi &\t Ors.<\/a> (supra)  this Court clearly laid down that the
\ncriterion for the determination of seniority under the Delhi
\nRules was  the length  of service rendered by the candidates
\nduring the period when they were rendering service either as
\nDistrict Judge\tor as Additional District and Sessions Judge
\nagainst permanent  or temporary posts. From the notification
\ndated 19th May, 1971 which has been extracted above it would
\nbe seen that Mr. Sidhu, Mr. Vohra and Mr. Jain over whom the
\npetitioner Luthra  was claiming\t seniority were\t shown at S.
\nNo. 4,\t5 and 6, that is to say above the petitioner Luthra.
\nThis Court  therefore obviously\t held that length of service
\nof these officers being more than the petitioner
\n321<\/span>
\nLuthra, the  claim  of\tthe  petitioner\t Luthra\t was  wholly
\nuntenable.  In\tthis  connection,  this\t Court\tobserved  as
\nfollows:-\n<\/p>\n
\t  “Rule 6(4)  of the  Delhi  Rules  shows  that\t the
\n     respondents and  the appellant  were  absorbed  in\t the
\n     Delhi Higher Judicial Service from the States of Punjab
\n     and Haryana.  The length of service rendered by them as
\n     Additional\t District   and\t Sessions   Judges  is\t the
\n     criterion\tto  fix\t the  seniority.  The  word  ‘cadre’
\n     includes both permanent and temporary posts. To confine
\n     cadre to permanent posts under the Delhi Rules would be
\n     to\t  render    the\t  Rules\t  totally   unworkable\t and
\n     impracticable  because   at   the\t time\tof   initial
\n     recruitment the  persons came on deputation from States
\n     mostly  in\t  their\t temporary  capacity  as  Additional
\n     District and Sessions Judges.\n<\/p><\/blockquote>\n
\t  For these  reasons we\t are  of  opinion  that\t the
\n     respondents Sidhu,\t Vohra and  Jain  had  been  rightly
\n     treated as\t senior to  the appellant on the ground that
\n     the length\t of service  rendered by  the respondents in
\n     the cadre\tof  District  and  Additional  District\t and
\n     Sessions Judges  to which\tthey belonged at the time of
\n     initial  recruitment   is\tlonger\t than  that  of\t the
\n     appellant”.\n<\/p><\/blockquote>\n
In the instant case also the petitioner and respondent No. 3
\nhave been  drawn from different sources and different States
\nbefore they  were absorbed  in\tthe  Delhi  Higher  Judicial
\nService and  it would appear from the notification mentioned
\nabove that  while the  petitioner Luthra was shown at S. No.
\n7, respondent No. 3 was placed at S. No. 8. There-fore, on a
\nparity of  reasoning adopted by this Court in the case cited
\nabove the  case of  respondent No. 3 claiming seniority over
\nthe petitioner\tLuthra cannot  be accepted.  Thus, the\tHigh
\nCourt in  recommending\tthat  respondent  No.  3  should  be
\ntreated as senior to the petitioner Luthra acted against the
\nexpress decision  of this  Court cited\tabove and  that\t the
\norder of  the High  Court, therefore,  was legally erroneous
\nand if\tgiven effect it would have been violative of Article
\n16 of the Constitution.\n<\/p>\n
     Moreover, Rule 6(1) of the Delhi Judicial Service Rules
\nruns thus:-\n<\/p>\n
\t  “6(1). For initial recruitment to the service, the
\n     Administrator shall,  in  consultation  with  the\tHigh
\n     Court, appoint  persons to\t the  service  substantively
\n     from amongst the following:-\n<\/p><\/blockquote>\n
     (a)  District Judges  and\tAdditional  District  Judges
\n\t  functioning as  such in  the\tUnion  Territory  of
\n\t  Delhi on deputation from other States”.\n<\/p><\/blockquote>\n
322<\/span><\/p>\n
Clause (a)  makes it  absolutely clear\tthat persons  to the
\nHigher Service\twould be  recruited only from those District
\nand Additional District Judges who were actually functioning
\nin the\tUnion Territory\t of Delhi  on deputation  from other
\nStates. It  is common  ground  that  on\t this  crucial\tdate
\nrespondent No.\t3 was  not functioning\teither\tas  District
\nJudge or  as Additional District Judge but was on deputation
\nwith the  Income  Tax  Tribunal.  In  view  however  of\t the
\naffidavit given\t by the\t respondent No.\t 3 we  refrain\tfrom
\ngiving any finding as to whether or not respondent No. 3 was
\nvalidly appointed  because respondent  No. 3 had conceded in
\nhis affidavit that he would not press his claim of seniority
\nover the  petitioner and,  therefore, we  need not take into
\nconsideration the provisions of rule 6(1) (a) of the Rules.\n<\/p>\n
     Thus,  on\tan  overall  consideration  of\tthe  various
\naspects of the matter discussed above, we are satisfied that
\nthe petitioner Luthra was senior to respondent No. 3 and was
\nrightly\t placed\t above\trespondent  No.\t 3  in\tthe  initial
\nconstitution of\t the Delhi Higher Judicial Service by virtue
\nof the notification dated 19th May, 1971, and is, therefore,
\nentitled to such right as he may have and shall be deemed to
\nbe senior to respondent No. 3. The order of the Lt. Governor
\n(Respondent No.\t 1) based  on the recommendation of the High
\nCourt treating the petitioner to be junior to respondent No.
\n3  is\tlegally\t erroneous  and\t is  quashed  as  by  making
\nrespondent No.\t3 senior  to the petitioner the right of the
\npetitioner under Article 16 is clearly violated.\n<\/p>\n
     The  petition   is\t accordingly  allowed,\tbut  in\t the
\ncircumstances of  the case  there will\tbe no  order  as  to
\ncosts.\n<\/p>\n
P.B.R.\t\t\t\t\t   Petition allowed.\n323<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India G. R. Luthra vs Lt. Governor Of Delhi & Ors on 22 August, 1979 Equivalent citations: 1979 AIR 1900, 1980 SCR (1) 313 Author: S M Fazalali Bench: Fazalali, Syed Murtaza PETITIONER: G. R. LUTHRA Vs. RESPONDENT: LT. GOVERNOR OF DELHI & ORS. DATE OF JUDGMENT22\/08\/1979 BENCH: FAZALALI, SYED MURTAZA BENCH: […]<\/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-96367","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nG. R. Luthra vs Lt. 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