D.C. Anand vs U.O.I. And Ors.
1995 Latest Caselaw 186 Del

JUDGMENT

P.K. Bahri, J.

(1) Rule D.B. Only a short question is involved in this case. We have heard learned Counsel for the parties and we proceed to dispose of this writ petition.

(2) Petitioner, Along with other candidates had appeared in Delhi Judicial Service Examination held in the year 1980. Though successful in the examination the petitioner was not given appointment as there was miscalculation in calculating the Scheduled Caste vacancies. The petitioner had filed legal proceedings and ultimately the Hon'ble Supreme Court vide judgment delivered on 22.8.1994 in Civil Writ Petition No. 2962 of 1981 titled Dal Chand Anand v. Union of India & Others, passed the following effective order : "WE accordingly direct that the High Court and Delhi Administration will take expeditious steps for notifying the appointments of the petitioners, Dal Chand Anand and Prem Prakash, to the Delhi Judicial Service. For purposes of seniority the former will rank higher than the latter because that was their order of seniority in the original merit list of 1980. Since they have not actually worked as Sub Judges during the intervening period, they will not be entitled to any remuneration for that period. They will however rank for seniority in the Delhi Judicial Service on the footing, that they were not appointed when they ought to have been appointed, that is to say, when the other candidates were appointed on the basis of the result of the 1980 examination. In all other respects including probation, their appointment will be subject to the provisions of the relevant rules and regulations."

(3) The claim of the petitioner is that since he has been in service in view of the judgment of the Hon'ble Supreme Court he is entitled to have the higher grade of pay of Rs. 1200-1800 as he has rendered five years service. The time scale of the post in the Delhi Judicial Service is Rs. 700-1300 and it is mentioned that the senior scale of Rs. 1200-1800 would be available to the members of such service "after five years service, (emphasis on this). The contention of the petitioner is that since he has been given deeming appointment from the year 1980 he has to be deemed in service from that date and since he has completed five years service he is entitled to the senior scale of pay of Rs. 1200-1800.

(4) Respondents have on the other hand, opposed the prayer of the petitioner on the view that unless and until a particular judicial officer has rendered active five years service he is not entitled to the senior scale of pay. Thus, we have to consider the word 'service' appearing in the rule as to whether the service should be actually rendered service or it may be deemed service. The judgment of the Hon'ble Supreme Court is quite clear that for the period the petitioner was out of active service he is not to be paid any pay or allowances but for all other purposes he would be deemed to be in service from the year the successful candidates of 1980 judicial service examination were appointed. The words used in the Rule that after five years service senior scale has to be given, according to our view, admits of no two interpretations. A person who has been in service for five years has to be given senior scale of pay. It is not necessary that he should have actually rendered service for five years before being entitled to have the senior scale of pay. It is true that the judgment of the Hon'ble Supreme Court makes it clear that for the purposes of probation the petitioner is to be governed by the rules as if he was appointed on the day the judgment of the Supreme Court was delivered, but the rule regarding giving the higher scale of pay does not contemplate that the judicial officer should be in active service for a period of five years before he could get the higher scale of pay. The deeming service of the petitioner, in our view, is enough to entitle him to have the higher scale of pay after five years.

(5) The person immediately senior to the petitioner in the said test was appointed on 4.6.1981 and, thus, the petitioner's date of appointment in the service has to be 5.6.1981. Obviously, the petitioner is in service from 5.6.1981 and having been in service for five years he has become entitled to have the senior scale of pay of Rs. 1200-1800 with effect from 5.6.1981. We allow the writ petition and make the Rule absolute and direct the respondents to grant the senior scale of pay of Rs. 1200-1800 to the petitioner with effect from 5.6.1981. Parties are left to bear their own costs.