Delhi High Court
Gian Singh & Another vs High Court Of Delhi & Ors. on 11 May, 2011
Author: A.K.Sikri
REPORTABLE
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ [W.P. (C) 2157 OF 1995]
RESERVED ON: 07.4.2011
% PRONOUNCED ON:11.5.2011
GIAN SINGH & ANOTHER . . . PETITIONERS
Through: Mr. Pawanjeet Singh Bindra,
Advocate.
VERSUS
HIGH COURT OF DELHI & ORS. . . .RESPONDENTS
Through: Mr. V.R. Datar, Advocate with
Mr. Chetan Lokur, Advocate for
DHC.
Ms. Urvashi Malhotra, Advocate
for Ms. Avnish Ahlawat,
Advocate for the respondent
No.2.
CORAM :-
HON'BLE MR. JUSTICE A.K. SIKRI
HON'BLE MR. JUSTICE M.L. MEHTA
1. Whether Reporters of Local newspapers may be
allowed to see the Judgment?
2. To be referred to the Reporter or not?
3. Whether the Judgment should be reported in the
Digest?
A.K. SIKRI, J.
1. This petition is filed by the two petitioners who were the
employees in the office of District & Sessions Judge, Delhi. They
have since retired. However, at the time of filing of this petition,
they were in service and were holding the post of Senior
Stenographers. The next promotion is to be the post of
Superintendent for which selection was held by the Departmental
Promotion Committee (DPC) in the year 1995 and promotions were
made vide orders dated 17th May, 1995 pursuant to the
recommendations of the DPC. The petitioners were not selected
for promotion to the said post and instead promotion was given to
respondent no. 4 to 6 which is the cause of their grievance. In this
writ petition the petitioners are seeking the following relief:-
"I) Pass a writ/direction/order in the nature of
certiorari quashing the order No. 8438/Estt/E-
3/DHC dated May 17, 1995 of the respondent
no.1 thereby appointing respondents no. 4 to 6
as Superintendents in the office of District &
Sessions Judge, Delhi
II) Pass a writ/direction/order in the nature of
mandamus directing the respondent no.1 to
appoint the petitioners as Superintendents in
the office of District & Sessions Judge with
effect from May 17, 1995 with all
consequential benefits resulting therefrom.
III) Pass such other order(s) as this Hon'ble
Court may deem fit and proper in the
circumstances of the case."
2. As mentioned above, the petitioners belonged to the
category of Senior Stenographers and in the seniority list of Sr.
Stenographers, they were placed at sl. No. 1 and 2. Respondents
no. 4 to 6, on the other hand, were working as Reader, SAS
Accountant and Reader respectively. The employees belonging to
all these cadres including Sr. Stenographers are eligible for
consideration to the post of Superintendent. Admittedly, at that
point of time, there were no service rules for promotion to the
post of Superintendent in the District Courts, Delhi framed by this
Court and the service conditions of lower court staff were
governed by Rules and Orders of Punjab & Haryana High Court V-
I, Chapter 18-A and the rules made therein by the Punjab &
Haryana High Court:-
"Rules of Punjab High Court relating to
appointment of Clerks (now Superintendents)
of the Court of District & Sessions Judge as
amended upto June, 1947:-
(1) Mode of appointment:-
"Posts of Clerks of Courts to District and
Sessions Judge shall be classified as selection
post and shall be in a provincial cadre"
(2) Authority competent to appoint.
Appointment to the post of Clerk of Court of
District and Sessions Judge whether
permanent or officiating shall be made by the
Hon'ble Judges of the High Court.
Provided that the District and Sessions Judge
concerned may make an officiating
appointment to the post of C.O.C. in a leave
vacancy for a period of not exceeding three
months, subject to confirmation by the
Hon'ble Judges of the High Court."
3. Three things emerged from the narration of the facts
disclosed above up to this stage which are:-
(a) For the post of Superintendent, the Readers, SAS
Accountant, Sr. Stenographers etc. are eligible to be
considered. Therefore, while considering their
candidature for promotion to the post of
Superintendent, a combined seniority list needs to be
prepared.
(b)The appointment to this post of Superintendent is by
way of selection.
(c) The competent authority to make the promotion is the
High Court.
4. A request dated 22nd July, 1992 was received from the
District & Sessions Judge, Delhi for filling up of three posts of
Superintendent which were going to fall vacant on the ensuing
retirement of three incumbents namely Mr.Jaswant Singh, Mr. C.D.
Sidhu and Mr. M.C. Verma on 28.2.1993, 31.5.1993 and 30.6.1993
respectively.
5. In response to this request of the learned District & Sessions
Judge, Delhi this Court asked him to sent the names of such Class-
III employees of his office, office of the Administrative Civil Judge
and of the Judge, Small Cause Court who were completing 20
years of service in Class-III post as on 1.1.1993 alongwith their
ACR folders, service books and their service particulars. In
compliance, the District & Sessions Judge responded by sending
the requisite information and the records alongwith the summary
of ACRs. The matter was thereafter placed before the Full Court
on 21.5.1994 which decided to constitute a Committee of three
Hon'ble Judges of this Court to consider the candidature of the
eligible persons and to make its recommendations. The
Committee of three Hon'ble Judges was constituted for this
purpose held its meeting from time to time. In its third meeting it
iron out certain freezes so that things can put in place and the
deliberations of those meetings are not mentioned for the simple
reasons that they are not relevant for us. In the third meeting
which took place on 21.4.1995, the Selection Committee had
deliberations about the promotions to be made.
6. After going through the meeting, entire records and the
representations of the officials and also taking into consideration
the comments of the District & Sessions Judge, Delhi sent vide
letter dated 17th April, 1995. The Committee accepted the
presentation of Mr. Jagat Singh only and held him senior to Mr.
M.R. Agnihotri, who was at serial no.1 in the seniority list of
general line candidates on the basis of length of service. On the
similar analogy i.e. length of service Mr. Ajit Singh Dhari, Reader
(who was to retire the next year) was selected by the Selection
Committee. Therefore, the Committee recommended in order of
merit for appointment to three posts of Superintendents in the
office of District & Sessions Judge, Delhi as under, subject to the
decision of CWP No. 1152/88- Sh. V.K. Garg Vs. Administration of
Delhi, pending in the High Court of Delhi:-
1. Mr. Jagat Singh
2. Mr. M.R. Agnihotri
3. Mr. Ajit Singh Dhari
7. The recommendations of the Selection Committee were
placed before the Full Court. The Full Court in its meeting held on
6th May, 1995 approved the recommendations of the Selection
Committee. Accordingly, this Court sent letter No. 8438/Estt./E-
3/DHC dated 17th May, 1995 to the District and Sessions Judge,
Delhi to the effect that Hon'ble the Chief Justice and Judges of this
Court have been pleased to appoint S/Sh. Jagat Singh, Reader, M
R Agnihotri, SAS Accountant and Ajit Singh Dhari, Reader as
Superintendents w.e.f. the date they assumed charge of the post.
8. Challenge of the petitioners to the aforesaid process and
their exclusion is two folded namely, as per the petitioners, it is an
established practice that while considering the incumbent for the
post of Superintendent, inter se seniority amongst Stenographers,
Readers, SAS Accountant is determined on the basis of date on
which these incumbents attained the higher scale of pay in their
respective posts. Though, the respondents no. 4 to 6 had longer
length of service when counted from the date of entry in the
service, according to the petitioners since these two petitioners
were put in higher scale before respondent no. 4 to 6, they stole
march over the longer service of respondent no.4 to 6 and were
treated senior to them. The service records of petitioners and
respondent no. 4 to 6 is as under:-
Name of Date of Date of Date of Date of
official Appointm appointment Appointment Entry in
ent in the in the Scale in the scale Service
(S/Sh. Scale of ` of ` 550- of ` 425-
2000- 900/- 700/-
3200/-
Gian Singh 01.01.1986 01.03.1982 01.01.1973 20.11.1967
Som Kumar 01.01.1986 07.02.1987 01.01.1973 25.08.1960
Khullar
Jagat Singh Still not 01.05.1991 01.04.1981 19.10.1956
granted
M.R. Agnihotri -do- 04.091985 01.03.1982 20.12.1958
(500-900 &
not 550-
900)
Ajit Singh -do- Still not 01.03.1982 02.12.1957
Dhari granted
9. They have stated that petitioner no.1 was put in higher scale
w.e.f. 1.3.1982 and petitioner no.2 put in the senior scale on
7.2.1987. In comparison, respondent no. 4 and 5 entered the
senior scale only from 1.5.1991 and 4.9.1995 respectively,
whereas respondent no.6 had not got the senior scale till his
promotion as Superintendent. On this basis, they were senior to
respondent nos. 4 to 6 and they could not have been ignored for
the promotion. Petitioner no.1 has made his claim to the post of
Superintendent on an additional ground. He states that he is a
Scheduled Castes (SC) candidate and since one post in the
category of SC was available on that day, he could not be ignored
for promotion given to general category candidates. In this behalf
he has stated that one post of Superintendent in the office of
District & Sessions Judge fell vacant upon retirement of Sh.
Jaswant Singh on February 28, 1993. Another post fell vacant with
the retirement of Sh. C.D. Sidhu with effect from May 31, 1993.
Yet another post fell vacant upon the retirement of Shri Man
Chand Verma with effect from June 30, 1993. It is significant to
state that the said Shri Jaswant Singh and Shri Sidhu were
candidates from the reserved category, whose posts could be filled
up only by SC/ST candidates. His submissions is that his non-
appointment is contrary to law laid down by the Supreme Court in
the case of R.K.Sabharwal, Vs. State of Punjab & Ors. (JT
1995 (2) SC 351).
10. Insofar as, first contention is concerned, we do not find any
merit therein. The petitioners admit that they were junior to the
respondents if the inter se seniority is to be counted from the date
of entry in to the service. They have made their claim of seniority
above them only on the ground that they were given the senior
scale of ` 2000-3200 earlier to the respondents no. 4 to 6.
Admittedly, there is no such rule of preparing seniority on this
basis. It is for this reason their claim is predicated on the so called
established practice. However, we do not find that there was any
practice of fixing the inter se seniority on the basis of entry into
the senior scale. The petitioners have given instance of Mr. M.C.
Verma who was appointed as Superintendent w.e.f. 5.1.1990.
Attempt is to show that it was because of the reason that he got
the senior scale prior to others though his date of entry into the
service was late. This solitary instance cannot be treated as
"established practice". One need not forget that the promotion to
the post of Superintendent is by way of selection and, therefore, a
person who is junior but is found more meritorious than a senior
can be given the promotion to the post of superintendent. The
respondent in the counter affidavit has specifically refuted and
denied any such practice. It is specifically asserted that seniority
is counted only on the basis of total length of service i.e. entry into
the service. There is no reason to disbelieve the same more so,
when the petitioners have not been able to fortify their claim on
the basis of any cogent reason.
11. In so far as second contention is concerned, we may note
that there were four posts of Superintendent at the relevant time
in the office of District & Sessions Judge, Delhi. Before the
exercise in question was undertaken, these posts were manned by
the following persons:-
(i) Mr. Jaswant Singh,
(ii) Mr. C.D. Sidhu
(iii) Mr. Mam Chand Verma
12. Mr. Jaswant Singh and Mr. Sidhu were from the reserved
category who retired w.e.f. 28.2.1993 and 31.5.1993 respectively.
Exercise was undertaken to fill up these two posts as well.
13. As per 40 Point Roster applicable to the post of
Superintendent, with the appointment of Sh. M.C. Verma roster
was complete. It is contended that thereafter with the creation of
vacancies on the retirement of Mr. Jaswant Singh and Mr. C.D.
Sidhu who were in reserved category, these posts could be filled
up only from amongst the incumbent of the reserved categories as
per the judgment of the Supreme Court in the case of R.K.
Sabharwal (supra).
14. One of the contention raised in the aforesaid case before the
Constitution Bench of the Supreme Court was that once the post
earmarked for SC/ST and backward classes and the roster are
filled, the reservation is complete. The roster cannot operate and
should be stopped. Any post falling vacant in the cadre thereafter
is to be filled up from the category - reserved or general - due to
retirement etc. This contention was accepted by the Constitution
Bench in the following manner:-
"We see considerable force in the second
contention raised by the learned Counsel for the
petitioners. The reservations provided under the
impugned Government instructions are to be
operated in accordance with the roster to be
maintained in each Department. The roster is
implemented in the form of running account
from year to year. The purpose of "running
account" is to make sure that the Scheduled
Castes/Schedule Tribes and Backward Classes
get their percentage of reserved posts. The
concept of "running account" in the impugned
instructions has to be so interpreted that it does
not result in excessive reservation. "16% of the
posts..." are reserved for members of the
Scheduled Caste and Backward Classes. In a lot
of 100 posts those falling at serial numbers 1, 7,
15, 22, 30, 37, 44, 51, 58, 65, 72, 80, 87 and 91
have been reserved and earmarked in the roster
for the Scheduled Castes. Roster points 26 and
76 are reserved for the members of Backward
Classes. It is thus obvious that when
recruitment to a cadre starts then 14 posts
earmarked in the roster are to be filled from
amongst the members of the Scheduled Caste.
To illustrate, first post in a cadre must go to the
Scheduled Caste and thereafter the said class is
entitled to 7th, 15th, 22nd and onwards upto
91st post. When the total number of posts
in a cadre are filled by the operation of the
roster then the result envisaged by the
impugned instructions is achieved. In other
words, in a cadre of 100 posts when the posts
earmarked in the roster for the Scheduled
Castes and the Backward Classes are filled the
percentage of reservation provided for the
reserved categories is achieved. We see no
justification to operate the roster thereafter. The
"running account" is to operate only till the
quota provided under the impugned instructions
is reached and not thereafter. Once the
prescribed percentage of posts is filled the
numerical test of adequacy is satisfied and
thereafter the roster does not survive. The
percentage of reservation is the desired
representation of the Backward Classes in the
State services and is consistent with the
demographic estimate based on the proportion
worked out in relation to their population. The
numerical quota of posts is not a shifting
boundary but represents a figure with due
application of mind. Therefore, the only way
to assure equality of opportunity to the
Backward Classes and the general
category is to permit the roster to operate
till the time the respective
appointees/promotes occupy the posts
meant for them in the roster. The operation
of the roster and the "running account" must
come to an end thereafter. The vacancies
arising in the cadre, after the initial posts
are filled, will pose no difficulty. As and
when there is a vacancy whether
permanent or temporary in a particular
post the same has to be filled from
amongst the category to which the post
belonged in the roster. For example the
Scheduled Caste persons holding the posts at
Roster-points 1, 7, 15 retire then these slots are
to be filled from amongst the persons belonging
to the Scheduled Castes. Similarly, if the
persons holding the post at points 8 to 14 or 23
to 29 retire then these slots are to be filled from
among the general category. By following this
procedure there shall neither be short-fall nor
excess in the percentage of reservation."
15. The Court also pointed out the anomalous result that would
follow if the roster is permitted to operate even after the total
posts in the cadre In this direction, the Court explained
"We may examine the likely result if the
roster is permitted to operate in respect of
the vacancies arising after the total posts in a
cadre are filled. In a 100 point roster, 14 posts
at various roster-points are filled from
amongst the Scheduled Castes/Scheduled
Tribes candidates, 2 posts are filled from
amongst the Backward Classes and the
remaining 84 posts are filled from amongst
the general category. Suppose all the posts in
a cadre consisting of 100 posts are filled in
accordance with the roster by December
31,1994. Thereafter in the year 1995, 25
general category persons (out of the 84)
retire. Again in the year 1996, 25 more
persons belonging to the general category
retire. The position which would emerge
would be that the Scheduled Castes and
Backward Classes would claim 16% share out
of the 50 vacancies. If 8 vacancies are given
to them then in the cadre of 100 posts the
reserve Categories would be holding 24 posts
thereby increasing the reservation from 16%
to 24%. On the contrary if the roster is
permitted to operate till the total posts in a
cadre are filled and thereafter the vacancies
falling in the cadre are to be filled by the
same category of persons whose retirement
etc. caused the vacancies then the balance
between the reserve category and the general
category shall always be maintained. We
make it clear that in the even of non-
availability of a reserve candidate at the
roster-point it would be open to the State
Government to carry forward the point in a
just and fair manner."
16. In the end of the judgment, the Bench clarified that the
interpretation given by the Court to the working of the roster and
findings on this point shall operate prospective. This judgment
was rendered in February 10, 1995 and, therefore, would govern
the present case as the promotions are made in May, 1995.
17. We have applied the ratio in R.K. Sabharwal judgment
(supra) to the present case. The first aspect to be examined is as
to whether the roster was complete on the promotion of Sh. M.C.
Verma and thereafter the vacancy was to be filled up depending
upon the category of persons who retired and caused the vacancy.
This is what is claimed by the petitioners.
18. On the other hand, in the counter affidavit filed by the
respondent no.1, it is denied that with the appointment of Mr.
M.C.Verma the roster was complete. As per the High Court he was
appointed as point no.9 in the 40 Point Roster. As per the chain of
appointment given to respondent no. 4 to 6 were appointment as
point 10,11 and 12 in roster maintained. This is demonstrated in
the following manner:-
Recruitm Point Whether Name of the Whether SC/ST Remark
ent yr. in the reserved or officer/official or from Genl. s
roster unreserved appointed Line
1981 1. Scheduled Sh. Nand Kishore Scheduled -
caste Caste
(16.3.81
1983 2. Unreserved Sh. R.P. Malik Neither -
(25.2.83
3. -do- Sh. N.M. -do- -
Manchanda
(25.2.93
4. Scheduled Sh. Jaswant Singh Scheduled Since
Tribe (25.2.830 Caste no S/T
candida
te was
availabl
e, this
vacanc
y was
given to
S/C
officer
being
exchan
geable
5. Unreserved Sh. K.C. Jain Neither -
(13.5.83)
1986 6. -do Sh. Laxmi Narain -do-
(Nov. 86
7. -do Sh. Daljit Singh -do
(19.12.86)
1988 8. Scheduled Sh.C.D.Sidhu Scheduled
Caste (Dec.88) Caste
9. Unreserved Sh.M.C. Verma Neither -
1995 10. -do- Sh. Jagat Singh Filled
1995 11. -do- Sh. M.R. Agnihotri -do-
1995 12. -do- Sh. Ajit Singh -do-
Dhari
13. -do-
19. It is thus claimed that ratio of the judgment in R.K.Sabharwal
(Supra) does not apply in the present circumstances as 40 point
roster had not been exhausted.
20. We have considered the submissions of both the parties.
There is one peculiar feature in the instant case which in fact is
not pointed out by counsel for either party. There are only four
posts of Superintendent in the office of District & Sessions Judge,
Delhi. When the number of posts are so less in this cadre, it is
difficult to say that the roster was complete on promotion of Mr.
M.C. Verma and thereafter vacancies were to be filled up
depending upon the category of staff who retired and caused the
vacancy. Reason is simple. Even if we treat one post occupied by
SC candidate and on his retirement, that post always to be filled
up by SC Candidates on the application of R.K. Sabharwal (supra),
then it would amount to reserving 25% post for SC candidates for
all times together. Such a situation cannot be allowed to prevail
nor was contemplated in the decision rendered in R.K. Sabharwal
(supra). The main purpose for prescribing post-based roster was
to ensure that on the one hand that the backward classes get their
due representation and on the other hand, it was equally strong
reason that does not result therefrom. It is stated at the cost of
repetition that if we accept the contention of the learned counsel
for the petitioner then, at all times, there would be 25% post
reserved for the SC candidates as against 15% permitted by Rules.
This situation can be avoided only if the 40% roster which is in
operation is allowed to continue till end as with the appointment
of respondent 4 to 6, points 10, 11 and 12 in the roster only
consumed and, we have no option to hold that 40. Roster which is
maintained has not completed its life and is to be continued. Once
this roster is operated, the reserved category candidates would
get due representation at the points reserved for them. There is
no other course which could be permissible on the facts of this
case.
21. Because of the aforesaid reasons, we do not find any merit in
this writ petition which is accordingly dismissed.
(A.K. SIKRI)
JUDGE
(M.L. MEHTA)
JUDGE
MAY 11 , 2011
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