Delhi High Court
Shri Shyam Sunder Oberoi & Ors. vs The District & Sessions Judge Tis ... on 10 March, 2015
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 7462/2000
% 10th March, 2015
SHRI SHYAM SUNDER OBEROI & ORS. ..... Petitioners
Through: Mr. Pramod Gupta, Advocate with
Ms. Yogyata Verma, Advocate.
versus
THE DISTRICT & SESSIONS JUDGE TIS HAZARI COURTS, DELHI &
ORS. ..... Respondents
Through: Ms. Latika Chaudhary, Advocate for
respondent Nos.1 and 2.
Mr. Harpreet Singh, Advocate for
respondent Nos.3 to 25.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? Yes
VALMIKI J. MEHTA, J (ORAL)
1. By this writ petition filed under Articles 226 & 227 of the
Constitution of India, the petitioners who were Lower Division Clerks-
LDCs(Stenographers) with the respondent no.1/the District & Sessions
Judge Delhi, impugn the order dated 17.11.2000 by which the private
respondents have been given seniority above the petitioners. This seniority
has been given to the private respondent nos. 3 to 25 (also Stenographers) by
the private respondent nos. 3 to 25 being regularized from the dates of their
W.P.(C) No.7462/2000 Page 1 of 24
initial appointment on ad hoc basis. Petitioners, who were appointed on a
regular basis to the regular posts after undergoing a proper selection process,
although appointed later on than the private respondents, state that since the
petitioners have been appointed through the regular recruitment process i.e
against vacancies in sanctioned posts and were duly qualified for
appointment in terms of the relevant rules, the private respondents cannot be
given regularization from their original appointment on ad hoc basis
inasmuch as private respondents were not even qualified for being appointed
to the posts when they were originally appointed on ad hoc basis.
2. For deciding the writ petition, the following admitted aspects
are required to be noted:-
(i) Petitioners were admittedly appointed after the appointments of the
private respondent nos.3 to 25, but, the private respondent nos.3 to 25 were
appointed originally only on an ad hoc basis and without the private
respondent nos. 3 to 25 meeting the qualifying criteria for appointment.
(ii) Petitioners were appointed through a regular recruitment process
against vacancies in sanctioned posts and these petitioners satisfied the
eligibility criteria for appointments.
W.P.(C) No.7462/2000 Page 2 of 24
(iii) Respondent no.1 has passed the impugned order dated 17.11.2000 not
on the ground that the private respondent nos. 3 to 25 in law were entitled to
regularization from their initial dates on ad hoc appointments and
consequent seniority, but, impugned order is passed basing itself upon the
order dated 6.4.1994 in C.M. No. 772/1994 in L.P.A. No.89/1993 read with
order passed in C.M. No.5411/1992 in C.W.P. No.1820/1990. Putting it
differently, in deciding the dates from which private respondent nos. 3 to 25
should be regularized, the respondent no.1 while passing the impugned order
dated 17.11.2000 has done so simply because as per the respondent no.1 it
was required to do so in compliance of the court order dated 6.4.1994.
(iv) The orders passed by Single Judges of this Court, the Division Bench
of this Court and orders in connected matters by the Supreme Court only
state that the private respondents should be regularized and their seniority
should be protected, however, it is not stated in any of these orders that the
specific date of seniority to be given to the private respondents should be
from the original dates of their ad hoc appointments.
3. The issue in the present case is as to between two groups of
persons which is the group which is entitled to seniority; one group of
persons being those persons who have been regularly appointed by a
regular selection process and who satisfy the eligibility criteria and were
W.P.(C) No.7462/2000 Page 3 of 24
appointed on vacancies in sanctioned posts and the other group being of
persons who were appointed prior to the first group stated, but, these
persons in the second group though appointed earlier to the persons in the
first group were only appointed on ad hoc basis without being asked to
comply with any criteria whether of written test or typing test or
shorthand test etc. Since the terms of appointments of the private
respondents are more or less in terms of similar letters of appointment,
two sample appointment letters are reproduced as under:-
"OFFICE OF THE DISTRICT AND SESSIONS JUDGE; DELHI
ORDER
The following candidates are hereby appointed as Lower Division
Clerks in the pay scale of Rs.950-1500 on purely adhoc basis w.e.f.
23.4.1990 (F.N) or from the date they take over the charge, against the
vacancies reserved for Scheduled Castes & Scheduled Tribes. The
appointment is valid upto 31.5.1990 (A.N) or till the vacancies are filed
up on regular basis, whichever is earlier:-
SL. NAMES PLACE OF POSTING
NO.
1. Ms. Pushpinder L.D.C. in the Copying
Walia Agency (Civil)
2. Sh. Gopal Gossain L.D.C. in the Account
Branch.
3. Sh. Shailender Asstt. Ahlmad in the Court
Sharma of Sh. L.D. Malik,
A.R.C./Delhi
SD/-
(JASPAL SINGH)
Dated: 23.3.1990 DISTRICT & SESSIONS JUDGE
DELHI
No.18263-18328/F.1(3)/90 Dated, Delhi the 23.3.1991.
Copy for warded for information and necessary action to:
1. The Officer Incharge, Accounts Branch (3 Copies)
2. The Pay and Accounts Officer No.VI, Tis Hazari, Delhi, through
the Accounts Branch.
3. Personal file of the officials.
4. Officials concerned.
SD/-
(JASPAL SINGH)
DISTRICT & SESSIONS JUDGE
DELHI
OFFICE OF THE DISTRICT AND SESSIONS JUDGE, DELHI
ORDER
The following candidates are hereby appointed as Lower Division
Clerks/Ahlmad/Asstt. Ahlmads/Copyist in the pay scale of Rs.950-
1500 on purely adhoc basis w.e.f. 21.4.1990 (F.N) or from the date they
take over the charge, against the vacancies reserved for Scheduled
Castes & Scheduled Tribes. The appointment is valid upto 18.7.1990
(A.N) or till the vacancies are filed up on regular basis, whichever is
earlier:-
SI NAMES PLACE OF POSTING
NO.
1. Sh. Satbir L.D.C. in the Record Room
Singh (Civil)
2. Miss Mohini -do-
3. Sh. Iqbal Typist in the court of Smt.
Ahmed R. Kiran Nath, M.M. New
Delhi.
4. Sh. Ashok Asst. Ahlmad in the court of
Kumar Mrs. Mamta Sengal, ARC,
Delhi
5. Miss Sangita Asst. Ahlmad in the court of
Rani Mrs. Rekha Sharma, ADJ,
Delhi
6. Mrs. Asha Asst. Ahlmad in the court of
Rani Mrs. Rekha Rani, SJ, Delhi
7. Sh. Rajesh L.D.C. in the Record Room
Malik (Crl.)
SD/-
(JASPAL SINGH)
Dated: DISTRICT & SESSIONS JUDGE
DELHI
No.21829-21849/F.1(3)/90 Dated, Delhi the 18.4.1996.
Copy forwarded for information and necessary action to:
1. The Officer Incharge, Accounts Branch (7 Copies)
2. The Pay and Accounts Officer No.VI, Tis Hazari, Delhi, through
the Accounts Branch.
3. All the officials concerned.
4. Personal file of the officials concerned.
SD/-
(JASPAL SINGH)
DISTRICT & SESSIONS JUDGE
DELHI"
4. Petitioners place reliance upon the judgment of the Supreme
Court in the case of Ch. Narayana Rao Vs. Union of India and Ors. (2010)
10 SCC 247. This judgment considers and discusses the ratio of all the other
earlier relevant judgments on the point of inter se seniority between ad hoc
appointed employees who were not appointed in a regular appointment
process by satisfying the eligibility criteria and on existence of vacant
sanctioned posts and those persons who were regular appointees on
satisfying the eligibility criteria and such appointments being against
vacancies in sanctioned posts undergoing a regular selection process. The
relevant paras of this judgment are paras 3 to 7, 11 and 15 to 20 and which
paras read as under:-
"3. The factual matrix of the case lies in narrow compass: the
appellant was appointed on 26-11-1981 on the post of Stenographer
(OG). His appointment was against a temporary vacancy of
Stenographer, with the following rider:
"His appointment is purely on an ad hoc and temporary
basis and his services may be terminated any time
without assigning any reasons."
4. Thus, his letter of appointment clearly stipulated that it
was not only ad hoc but temporary too, terminable at any time
without assigning any reasons. However, he continued in service,
but after few years, an apprehension arose in the mind of the
appellant and other similarly situated stenographers that their
services may be terminated. Thus, the Appellant and others were
constrained to approach the Jabalpur Bench of the Tribunal by
filing original application, claiming that the respondent be
restrained from terminating their services and they be regularised.
The Tribunal vide its order dated 23-10-1989 directed that the
services of the appellant and other similarly situated stenographers,
be not terminated, instead they be regularised subject to qualifying
requisite test.
5. The operative part of the order of the Tribunal is
reproduced hereinbelow:
"The Government may examine and review the position
as whether it is possible to regularize the services of these
petitioners by relaxing the rule requiring their recruitment
through the Staff Selection Commission. If it is not
considered feasible by the Government, then we direct
that the petitioners should be continued in service and the
respondents are restrained from terminating their services
but two opportunities be given to the petitioners to attain
proficiency in Stenography and clear the test with the
requisite standard of speed in shorthand, etc. before their
regularisation. In other words their appointments as
stenographers will be treated as officiating appointment
although not confirmed but also not ad hoc pending such
a regularisation."
6. It is clear from a reading of the aforesaid direction that the
respondents were restrained from terminating the services of the
appellant and two opportunities were directed to be given to the
appellant to clear proficiency test so that he becomes entitled for
regularisation.
7. On the strength of the said order of Tribunal, his services
were not terminated and he continued in employment with the
respondents. He, thereafter, qualified the proficiency test in
Stenography conducted by the Staff Selection Commission in 1992.
Thus, he was regularised with effect from 12-04-1992, the date on
which he was declared successful in the test. 50% of his past
service was also ordered to be counted for the purpose of
computation of pensionary benefits.
xxxx xxxx xxxx xxxx
11. The contention of the respondents from the very beginning
had been that the appellant was one among several persons who
were appointed as Stenographers (OG) on purely temporary and ad-
hoc basis. However, they were given their regular appointment as
Stenographers (OG) in the Department only from the date of
passing the qualifying test with approval by the Staff Selection
Commission. All those who had been appointed alongwith
appellant were treated alike and were given their regular
appointment only from the date of their passing the requisite test.
Thus, no case of discrimination was made out by the appellant as
likes were treated alike.
xxxx xxxx xxxx xxxx
15. The said question, as has been projected above, should not
detain us long as the same has been considered in the matter of
Direct Recruit Class II Engg. Officers' Assn. v. State of
Maharashtra,: (1990) 2 SCC 712 by a Constitution Bench of this
Court. After eloquent discussion with regard to inter se seniority of
direct recruits and promotees, the same has been summed up in para
47. The relevant portion of the said para applicable to the facts of
this appeal is reproduced hereinbelow: (SCC PP. 744-45, para 47)
"47. To sum up, we hold that-
(A) Once an incumbent is appointed to a post according to
rule, his seniority has to be counted from the date of his
appointment and not according to the date of his
confirmation.
The corollary of the above rule is that where the initial
appointment is only ad hoc and not according to rules and
made as a stop gap arrangement, the officiation in such post
cannot be taken into account for considering the seniority.
(B) If the initial appointment is not made by following the
procedure laid down by the rules but the appointee
continues in the post uninterruptedly till the regularisation
of his service in accordance with the rules, the period of
officiating service will be counted."
16. On the strength of the aforesaid Constitution Bench
Judgment, Mr. Sushil Kumar Jain strenuously submitted before us
that Clause (B) thereof should be invoked for the purpose of grant
of seniority to the appellant. We have minutely examined the same
but are unable to accept the said contention as according to us
corollary of Clause (A) of para 47 of the aforesaid judgment would
be applicable to the appellant's case.
17. It cannot be disputed that the initial appointment of the
Appellant was only ad-hoc and for a temporary period and was also
not in accordance with the Rules of 1990 as he did not appear in the
requisite test, which is conducted by Staff Selection Commission,
before his appointment. The same was only a stop gap arrangement.
Therefore, his officiation on such a post cannot be taken into
account for considering the seniority. Thus, in our considered
opinion neither Clause (A) nor Clause (B), as reproduced
hereinabove, would be applicable to the appellant's case and he
cannot draw any advantages therefrom. On the other hand, he
would be squarely covered by the corollary appended to Clause (A).
18. This judgment of Constitution Bench in Direct Recruit's
case (supra) has been followed by three learned Judges of this
Court in the case of State of W. B. v. Aghore Nath Dey: (1993) 3
SCC 371 authored by most illustrious learned Judge of this Court,
Hon'ble Mr. Justice J.S. Verma (as he then was).
19. After considering the scope and ratio decidendi of Direct
Recruit's case (supra), it has been held in SCC paras 24 and 25 in
lucid and concise words as under: (Aghore Nath Dey case (supra),
SCC pp.382-83)
"24. The question, therefore, is of the category which
would be covered by Conclusion (B) excluding therefrom
the cases covered by the corollary in Conclusion (A).
25. In our opinion, the conclusion (B) was added to cover
a different kind of situation, wherein the appointments are
otherwise regular, except for the deficiency of certain
procedural requirements laid down by the rules. This is
clear from the opening words of the conclusion (B),
namely, 'if the initial appointment is not made by following
the procedure laid down by the rules' and the latter
expression 'till the regularisation of his service in
accordance with the rules'. We read conclusion (B), and it
must be so read to reconcile with conclusion (A), to cover
the cases where the initial appointment is made against an
existing vacancy, not limited to a fixed period of time or
purpose by the appointment order itself, and is made
subject to the deficiency in the procedural requirements
prescribed by the rules for adjudging suitability of the
appointee for the post being cured at the time of
regularisation, the appointee being eligible and qualified in
every manner for a regular appointment on the date of
initial appointment in such cases. Decision about the
nature of the appointment, for determining whether it falls
in this category, has to be made on the basis of the terms of
the initial appointment itself and the provisions in the
rules. In such cases, the deficiency in the procedural
requirements laid down by the rules has to be cured at the
first available opportunity, without any default of the
employee, and the appointee must continue in the post
uninterruptedly till the regularisation of his service, in
accordance with the rules. In such cases, the appointee is
not to blame for the deficiency in the procedural
requirements under the rules at the time of his initial
appointment, and the appointment not being limited to a
fixed period of time is intended to be a regular
appointment, subject to the remaining procedural
requirements of the rules being fulfilled at the earliest. In
such cases also, if there be any delay in curing the defects
on account of any fault of the appointee, the appointee
would not get the full benefit of the earlier period on
account of his default, the benefit being confined only to
the period for which he is not to blame. This category of
cases is different from those covered by the corollary in
conclusion (A) which relates to appointment only on ad
hoc basis as a stopgap arrangement and not according to
rules. It is, therefore, not correct to say, that the present
cases can fall within the ambit of conclusion (B), even
though they are squarely covered by the corollary in
conclusion (A)."
20. According to us, corollary appended to Clause (A) of
Direct Recruit case (supra) and the aforesaid judgment in Aghore
Nath Dey (supra) case squarely decide the issue." (emphasis added)
5. A reading of the aforesaid paragraphs shows that the main
judgment on this issue is the Constitution Bench judgment of 1990 in the
case of Direct Recruit Class II (supra) and para 47(A) of which stated that
if the original appointment is only ad hoc being not in accordance with the
rules and made as a stopgap appointment, the period of officiation in such
posts cannot be taken into account for considering the seniority. The
exception carved out to this position was that if the appointment is made of
the ad hoc persons only in violation of the procedure i.e there is appointment
which otherwise is a regular appointment in terms of satisfying the eligibility
criteria and appointment against vacancies in sanctioned posts but
appointment is irregular inasmuch as the procedure laid down by the rules is
violated, then in such latter case, the period of officiating service of the ad
hoc employee would be counted. This paragraph 47(A) of the judgment in
the case of Direct Recruit Class II (supra) was explained in the judgment in
the case of Aghore Nath Dey (supra) and para 24 of which has been
reproduced in para 19 of the judgment in the case of Ch. Narayana Rao
(supra) clarifying that the situation envisaged in para 47(B) of the judgment
in the case of Direct Recruit Class II (supra) only pertains to irregular
appointment in violation of the procedure and it did not cover cases where
persons who were appointed on ad hoc basis were not eligible and qualified
for being appointed to the posts. The law is hence that a person who is
appointed only on an ad hoc basis and he did not satisfy the relevant
eligibility criteria for appointment, then, the period of service of such ad hoc
appointed persons obviously will not be counted towards their seniority.
6. Let us therefore examine as to whether appointment of the
private respondents were irregular so as to fall within para 47(B) of the
judgment in the case of Direct Recruit Class II (supra) or the appointments
were illegal appointments covered under para 47(A) of the judgment in the
case of Direct Recruit Class II (supra). For this purpose, it will be
necessary to reproduce the entire order dated 12.11.1992 which was passed
by a learned Single Judge of this Court in C.M. No.5411/1992 in C.W.P.
No.1820/1990 and which order reads as under:-
"CM 5411/92
By this application, the petitioners seek clarification in
respect to the directions given by this Court by order dated 28 th July
92, for passing the qualifying test for their regular appointment as
Lower Division Clerks in the establishment of the District &
Sessions Judge, Delhi. The petitioners plead that after the aforesaid
order, the office of the District & Sessions Judge issued a circular
notifying 23rd August 1992 as a date for holding written test as well
as typing test. It was thereafter that the petitioners approached this
Court with the present application praying that the said notice be
quashed and they may be ordered to be regularised without holding
any test, and consider them for regularisation on the basis of their
past performance.
This prayer, as such, cannot be allowed, because there is already
an order of the Court that the petitioners be regularised against
regular posts of L.D.Cs. in the establishment of the District &
Sessions Judge after they pass the qualifying test. Therefore, there
cannot be a complete waiver of the test, as the petitioners now seek.
However, the order dated 28.7.92 was passed on the basis of some
directions given by the Supreme Court in the writ petition filed by
some Stenographers, who were also working on ad hoc basis, in the
establishment of the District & Sessions Judge.
After notice of this application, the matter has been adjourned
from time to time. Mr. Mahajan states that there are no specific rules
on the subject, and the draft rules, which had been sent to the Delhi
Administration, are still under consideration, and that so far the only
rule on the subject, as contained in the Punjab High Court Rules and
Orders, is Rule 5, reads as under:
"V. Appointment.- (1) Appointment to ministerial posts
shall ordinarily be made either by open competition or by
selection from a list of qualified candidates or apprentices
accepted by the District Judge, Judge of Small Cause Court,
or Sub-Judge to whom powers of appointment have been
delegated, as the case may be. Any departure from either
these methods should be reported to the High Court for
confirmation.
(2) . . . . . . . . . .
(3) When appointment to a permanent post is made from
candidates, preference must be given to the senior candidate
unless, he has shown himself, unfit, provided that when
candidates possessing higher educational qualifications for a
post, for which an examination standard is fixed, such as
graduates, are available they should be given preference over
less well qualified candidates."
This rule obviously does not speak of any test, but I am given to
understand that over the years the office has prescribed written as
well typing test for recruitment to the ministerial staff of the
establishment of the District & Sessions Judge on regular basis. It is,
however, admitted that in so far as the stenographers are concerned,
who were working on ad hoc basis and were regularised pursuant to
the directions of the Supreme Court, they were not subjected to any
written test and that they have been given regular appointment, after
a typing-cum-shorthand test only.
The cases of the present petitioners, who are working as L.D.Cs
on ad hoc basis from about 3 to 9 years, ought to be given the same
treatment as given to the stenographers who were working on ad hoc
basis and were regularised after passing the qualifying test for
typing-cum-shorthand, because otherwise the procedure adopted by
the District & Sessions Judge will suffer from the vice of
discrimination or arbitrariness. The position would have been
different if there had been any specific rules on the subject.
It is further pointed out by Mr. Sikri, appearing for the petitioners,
that the shorthand test for stenographers is very basic to the nature of
their duties, and that so far as L.D.C.s are concerned, the requisite
qualifying test for them should be only of typing. This position is
not disputed from the side of the respondents.
I, therefore, think it a fit case to waive the written test and direct
that the case of the petitioners be taken up for regular appointment,
after they pass qualifying test of typing. In view of the submission
that the petitioners have been assigned duties so far where they had
no typing work, and they are out of practice, as compared to the ad
hoc stenographers, whose normal duty was to take dictation and do
typing work, and they being amenable to taking of qualifying test for
typing their prayer for some time, is allowed.
Since the petitioners were aware of the requirement of passing
qualifying typing test for regularisation, they are expected to have
made preparations for the same. I, therefore, think that a maximum
period of four months be given to them for qualifying the typing test
and the office of the District & Sessions Judge shall proceed
accordingly, and fix a date for holding the typing test for the
petitioners immediately after four months, and regularise those
petitioners who qualify the said test.
It has been further submitted by Mr. Sikri that in the case of ad
hoc stenographers, those who could not clear qualifying typing-cum-
shorthand test in the first attempt, were given a second chance to
qualify such test after a gap of three months. Same treatment can be
given to the petitioners also, and those who fall to qualify the typing
test in the first instance, shall be given three months time, and a
second test shall be taken after a gap of three months, and those who
qualify in the second test, shall be given regular appointment. The
seniority of the petitioners, vis-à-vis fresh recruits, shall be protected
in terms of the order dated 20th August, 1992.
This disposes of the writ petition itself.
No order as to costs."
7. The aforesaid order dated 12.11.1992 has to be read in the
context of an earlier order passed in the same proceedings on 20.8.1992 and
which reads as under:-
"CM 5411/92
Mr. Mahajan seeks time to file reply and also to get instructions.
Whereas time has to be allowed, but Mr. Sikri states that some
interim order may be passed because both the written as well as
typing tests are scheduled to be taken on 23.8.1992.
Mr. Mahajan further informs that the test of the outside candidates
has already been conducted and a panel of about 180 candidates,
who qualified in the said test, has been prepared. It is the common
case that the total number of vacancies is 255. Mr. Mahajan states
that liberty may be given to the respondents to fill up the vacancies
by appointing persons from the panel already prepared, with
undertaking that 26 vacancies shall be left reserved for the
petitioners, and shall be filled up only under orders of this Court.
Mr. Mahajan further agrees that in case petitioner' prayer for
regularisation is allowed, on regularisation, their seniority will be
protected and appointments made out of the candidates already
selected shall be subject to right of the petitioners in the matter of
seniority, as and when they are regularised.
In view of this undertaking given by Mr. Mahajan, it is considered
expedient to allow the respondents to proceed with the appointments
from out of the panel already prepared of outside candidates with
direction that 26 vacancies be kept reserved for the petitioners and
further that their seniority shall be protected, in case their prayer for
regularization is allowed.
Reply be filed within two weeks, with specific reference to the
contention of the petitioners that no written test has been taken of
the ad hoc stenographers, who have been regularised under orders of
the Supreme Court whereas such a test is also required for
appointment to the post of stenographers under the rules, and
secondly that in view of the nature of duties, the petitioners have
been performing so far as ad hoc employees, the petitioners may be
given some time for taking the typing test and the orders of
regularisation can be made conditional on their passing the said test
within a stipulated time. Mr. Mahajan undertakes to seek
instructions on these points.
Copy of the reply be given to the counsel for the petitioner who
may file rejoinder if any, before the next date.
To come up on 21.9.1992. In the meantime the tests-both written
as well as typing, fixed for 23.8.1992 be deferred till further orders.
Copy of this order be given dasti to counsel for both sides."
8(i) It is the contention of the private respondents in terms of these
orders that since their seniority was to be protected and they were to be
regularized, regularization of the private respondents has been rightly done
in terms of the impugned order dated 17.11.2000 by giving the private
respondents benefit of regularization from the original dates of their ad hoc
appointments.
(ii) The contention of the private respondents is however
misconceived and I do not agree with the same inasmuch as reference to the
language used in the aforesaid orders only talk of seniority of the private
respondents being protected, but it is nowhere stated that seniority of the
private respondents must be fixed in violation of the law. Once seniority
needs to be fixed and private respondents are to be regularized, the same has
to be done in accordance with the law because the orders reproduced above
do not state that regularization of private respondents should be done from
the original dates of their ad hoc appointments. Admittedly, the private
respondents cleared the requirement of passing the qualifying typing test
after appointments of the petitioners and therefore private respondents
complied with the requirements for their regularization only after
appointments of the petitioners and which petitioners were regular
appointees on regular basis as the petitioners had complied with all the
requirements of a regular recruitment process including meeting of the
eligibility criteria and petitioners were appointed on vacancies in sanctioned
posts after competition inter se among candidates who were called through
the Employment Exchange by passing the tests.
9(i) Learned counsel for the private respondents sought to
distinguish the judgment in the case of Ch.Narayana Rao (supra) and
sought to take benefit of the aforesaid orders passed by a learned Single
Judge of this Court in C.M. No.5411/1992 in C.W.P. No.1820/1990 by
arguing that once there were no recruitment rules in force on the date of
appointment of the private respondents there did not arise any issue of illegal
appointment of the private respondents. It is argued that appointments of the
private respondents are only irregular appointments and not illegal
appointments inasmuch as the appointments could have been illegal
appointments only if recruitment rules existed and the requirements of which
existing rules were not complied with.
(ii) The argument urged on behalf of the private respondents is
misconceived for the reason that the aforesaid orders reproduced above
passed in C.M. No.5411/1992 in C.W.P. No.1820/1990 show that though
there were no existing recruitment rules but there were existing eligibility
criteria for appointment of the LDCs/Stenographers and these persons for
their appointments had to clear a written test as also a typing-cum-shorthand
test. This requirement of candidates/Stenographers/LDCs clearing the
written test as also the typing-cum-shorthand test was a criteria which was
followed historically for appointments made by the respondent no.1 of
persons to the posts of LDCs/Stenographers and therefore once eligibility
criteria exist it cannot be argued by the private respondents that since
recruitment rules did not exist as to the eligibility criteria it cannot be said
that there is eligibility criteria. Surely, in the absence of any extant rules,
eligibility criteria fixed and applied by the respondent no.1 historically, and
which was also prevalent when the private respondents were appointed,
would be the eligibility criteria for appointment and admittedly the private
respondents did not satisfy this eligibility criteria till after appointment of the
petitioners on a regular basis. In fact, the private respondents had an
advantage not only of regularization although they were only ad hoc
appointees, they got the additional benefit that they did not have to clear any
written test but only had to clear a typing test and which orders were passed
because certain other persons in terms of the Supreme Court order dated
16.3.1990 were only required to pass a typing test. This order of the
Supreme Court dated 16.3.1990 reads as under:-
"UPON hearing counsel the court made the following
ORDER
Application for exemption from paying court fee is allowed, as prayed
for.
Issue notice returnable within four weeks from today.
In addition to usual service dasti service is also permitted.
Petitioners who are ad hoc employees of the District and Sessions
Court, Delhi are candidates for selection for appointment to the
regular post of stenographers. Applications for the said post are also
invited from outsiders. There shall be an interim stay of the test
proposed to be held for the outsiders. There is, however, no objection
to the test being conducted in so far as the petitioners are concerned.
Their selection shall be subject to the result of the Writ Petition. The
petition for stay is accordingly ordered."
10. Indubitably therefore, whereas the private respondents satisfied
the eligibility criteria of passing the typing test only after petitioners were
regularly appointed on regular basis, consequently the ratio of the judgment
in the case of Ch. Narayana Rao (supra) squarely applies and private
respondents by being regularized in terms of the impugned order dated
17.11.2000 cannot by its effect be given seniority from the dates of their
initial appointments on ad hoc basis. At this stage, I also reject the specious
argument urged on behalf of the private respondents that the impugned order
dated 17.11.2000 does not fix the seniority and hence the same does not
affect the petitioners, inasmuch as, once the dates of appointments of the
private respondents are fixed from the date of their original ad hoc
appointments then for the purpose of their seniority such would be the dates
of their appointments for determining seniority and surely it cannot be
otherwise because the private respondents are not agreeable to their being
treated as regularized from the dates from which they cleared typing test for
satisfying the eligibility criteria for being regularly appointed as
Stenographers/LDCs.
11. Reliance placed by the private respondents upon the judgment
of the Supreme Court in the case of Sumnyan & Ors. Vs. Limi Niri & Ors.
2010 (4) SCALE 164 is misplaced inasmuch as para 29 of this judgment
which is relied upon has been understood and explained in the judgment in
the the case of Ch. Narayana Rao (supra) by reference to Aghore Nath Dey
(supras)'s case that para 47(B) of the judgment in the case of Direct Recruit
Class II (supra) deals with irregular appointments by violating the
procedure and not those appointments which are illegal appointments made
by not satisfying the eligibility criteria of appointment. No doubt, period of
officiating service whether on probation or otherwise will be counted
towards regular services but unless such service is by persons who were duly
qualified for appointment, and their appointments were only irregular, only
in such circumstances, such service can be counted for seniority purposes
and not otherwise.
12. On behalf of private respondents, reliance was placed upon the
judgment in the case of Santosh Kumar Vs. State of A.P. and Ors. AIR
2003 SC 4036 and para 11 whereof interprets the Constitution Bench
judgment in the case of Direct Recruit Class II (supra) but these
observations of the Supreme Court in para 47(B) of the judgment in the case
of Direct Recruit Class II (supra) have already been sufficiently dealt with
above and therefore reliance placed upon the judgment in the case of
Santosh Kumar (supra) on behalf of the private respondents is
misconceived and rejected.
13. I may state that respondent nos.1 and 2 have taken up a very
curious argument. This curious argument is that oral observations were
made by the court while passing the aforesaid order in LPA No.89/1993 and
therefore the private respondents because of these oral observations were
given seniority above the petitioners. This argument urged on behalf of
respondent nos.1 and 2 is rejected in limine because courts only speak
through its orders and judgments and never have oral observations made by
the courts during the course of hearing been allowed to be a basis to create
vested rights of parties and much less which will be prejudicial to persons
such as the petitioners who were not even a party in LPA No.89/1993. If
any reference in this regard is required to be made, reference can be made to
the ratio of the judgment of the Supreme Court in the case of State of
Maharashtra Vs. Ramdas Shrinivas Naik and Anr., (1982) 2 SCC 463 and
which ratio has been consistently followed thereafter including in the
judgment of the Supreme Court in the case of D.P. Chadha Vs. Triyugi
Narain Mishra & Ors. (2001) 2 SCC 221 that only what is written in the
record of judicial proceedings is final and binding.
14. Learned counsel for the respondent nos.1 and 2 finally argued
that the writ petition is barred by delay and laches, however, this argument
of the respondent nos.1 and 2 is misconceived because the present writ
petition is of the year 2000 and the order impugned is the order dated
17.11.2000. This argument of respondent nos.1 and 2 is also therefore
rejected.
15. In view of the above, the writ petition is allowed. Impugned
list/order dated 17.11.2000 is quashed to the limited extent that the private
respondent nos.3 to 25 are given seniority above the petitioners. The order
dated 17.11.2000 will remain to the extent that it regularizes the services of
the private respondents, of course however the same is not to have the effect
of giving private respondents seniority above the petitioners as claimed by
the private respondents and also supported by the respondent no.1/employer.
No costs.
MARCH 10, 2015 VALMIKI J. MEHTA, J
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