Delhi High Court

Amit Arora vs High Court Of Delhi Through Its ... on 4 January, 2017

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+    W.P.(C) 12096/2016 & CM Nos.47758-59/2016
                               Date of Decision : 4th January, 2017
     AMIT ARORA                                   ..... Petitioner
                      Through: Mr. Rajat Aneja, Advocate

                           versus

      HIGH COURT OF DELHI THROUGH ITS REGISTRAR
      GENERAL & ORS                          ..... Respondents
                   Through: Mr. Vikram Pradeep, Advocate

      CORAM:
      HON'BLE MR. JUSTICE SANJIV KHANNA
      HON'BLE MR. JUSTICE CHANDER SHEKHAR

      SANJIV KHANNA, J. (ORAL)

We have heard learned counsel for the petitioner - Amit Arora- in this

writ petition, which relates to inter se seniority dispute of the petitioner with

respondent Nos.2 to 5, namely, Monika Wadhwa, Shiv Kumar, Nirmala

Tiwari and Sunita Rawat as Senior Personal Assistant ('SPA').

2. The petitioner is a promotee officer, who was appointed to the said

post vide Notification dated 5.6.2006, against 25% departmental quota.

Respondent Nos.2 to 5 were appointed as SPA through direct recruitment

under the 75% quota on 28.7.2006. The inter se seniority between the direct

recruits and the promotees was then governed by Rule 5A of the Delhi High

Court Staff (Seniority) Rules, 1971 ('Rules'), which reads as under:

"5A. The inter se seniority of direct recruits vis-a-vis promotees shall be determined in order of rotation of vacancies between the direct recruits and promotees based on the quota of vacancies reserved for both categories provided that the first vacancy will be filled by a promotee and the next three vacancies by direct recruits and so on and so forth.

Provided further that the slot reserved for a direct recruit in the seniority list shall not be assigned to promotee even if there is delay in recruitment process and appointment of a direct recruit against their quota of 75%."

As per Rule 5 A, the inter se seniority between the direct recruits and the

promotees was to be determined by rotation of vacancies between the direct

recruits and the promotees, based on the quota of vacancies reserved for

both the categories. The first vacancy was to be filled-up by a promotee and

the next three vacancies by direct recruits and so forth.

3. In view of Rule 5A, it is an accepted and admitted position that the

petitioner would be junior to respondent Nos.2 to 5.

4. The petitioner, however, claims that Rule 5A was made inapplicable

to the post of SPA w.e.f. 21.11.2007. As per the petitioner after Rule 5A

was made inapplicable to SPAs, the inter se seniority of the petitioner and

respondent Nos.2 to 5 would be governed by Rule 3, i.e., on the basis of the

date of confirmation. Rule 3 reads as under:

"Inter se seniority of confirmed employees in any category of the High Court Staff shall be determined on the basis of the date of confirmation."

The petitioner, it is urged, was confirmed as an SPA on successful

completion of probation vide Notification dated 8.9.2010 w.e.f. 25.7.2007,

whereas respondent Nos. 2 to 5 were confirmed vide order dated 7.1.2012

w.e.f. 23.12.2011. Thus, on the dates of confirmation of the petitioner and

respondent Nos. 2 to 5 Rule 3 was applicable and therefore, the petitioner

would be senior to respondent Nos.2 to 5.

5. We have considered the contention raised by the petitioner but do not

find any merit in the same. It is an accepted and admitted position that Rule

5A was in operation and was applicable on the dates when the petitioner was

appointed on 5.6.2006 and respondent Nos.2 to 5 were appointed on

28.7.2006. The said Rule was made inapplicable to the post of SPA's

subsequently w.e.f. 21.11.2007. The seniority position inter se the petitioner

and respondent Nos.2 to 5 would be governed by the rule position as

applicable on the date when they were appointed, i.e., in terms of Rule 5A.

This is the mandate and ratio of the decision dated 21.10.2016 in WP(C)

No.2836/2010 titled V.K. Mittal & Ors. v. Registrar General, High Court

of Delhi & Ors..

6. Learned counsel for the petitioner submits V.K. Mittal & Ors. (supra)

is distinguishable and inapplicable to the present factual matrix for Rule 5A

had remained applicable to the post of Private Secretary ('PS') till 8.4.2009

and in case of V.K. Mittal & Ors. (supra), the parties were confirmed as PS

prior to the said date. Albeit in the present case, the petitioner was confirmed

on 25.07.2007 and the respondent nos. 2 to 5 were confirmed on 23.12.2011.

We would not accept this argument. The ratio in V.K. Mittal & Ors.(supra)

is that Rule 5A would apply as the said provision was applicable on the date

of appointment. An additional reason given by the Court in V.K. Mittal's

case (supra) was that even on the date of confirmation at the post of P.S.,

Rule 5A was applicable. The core reason and ground given in the case of

V.K. Mittal & Ors.(supra) was that the seniority position would be governed

by the Rule position as it existed on the date when the parties were

appointed and the said criteria would be determinative and apply.

7. In B.S. Yadav v. State of Haryan, 1980 Supp SCC 524, the

Constitution Bench had examined a similar controversy. Rule 12 relating to

inter se seniority between the direct recruits and promotees of the Punjab

Superior Judicial Services, prior to 31.12.1976, had stipulated the criteria of

date of confirmation and post amendment, the criteria was the length of

continuous service on the post irrespective of the date of confirmation.

Referring to the Rule position, the Supreme Court held that appointments

and promotions made after 31.12.1976 would be governed by the amended

provisions and appointments/ promotions before the said date would be

determined on the criteria of the date of confirmation. Thus, the date of

appointment to service was relevant.

8. It is not the case of the petitioner that any retrospective effect has

been given to Rule 3. Rule 5A was made inapplicable to the post of SPAs

only w.e.f. 21.11.2007, which is after the appointment of the petitioner and

respondent Nos.2 to 5 as SPAs.

9. Learned counsel for the petitioner has referred to Prafulla Kumar

Swain v. Prakash Chandra Misra & Ors., JT 1993(1) SC 360. This was a

case of seniority dispute between the promotees and direct recruits

belonging to Orissa State Forest Service Class-II. The question which arose

was whether the respondent therein was to be assigned seniority from the

year of recruitment, i.e., 1979 or from the year of appointment, i.e., 1981.

Reference was made to Orissa Forest Service Class II Recruitment Rules,

1959 and with reference to the extant rule position, it was held:-

"27. Regulation 12 is important for our purposes. Under that Regulation the finally selected candidates are required to

undergo two years training. During the period of pendency a consolidated monthly allowance of Rs. 150 as stipend is paid. Under clause (b) of that Regulation he is required to execute a bond provided for in Appendix A. Regulation 12(c) in unmistakable terms says the period of training will not count as service under Government. Such service will count only from the date of appointment to the service after successful completion of the course of training. (Emphasis supplied).

We must give full meaning and effect to this Regulation."

The aforesaid decision would not assist and help the petitioner Rule 5A was

applicable when the petitioner and respondent nos. 2 to 5 were appointed as

SPAs. The said Rule referred to 'appointment' and not recruitment or

confirmation as the basis. The seniority position must therefore be fixed in

terms of the said Rule. In B.S. Yadav (supra), the Constitution Bench, in

Paragraphs 67 and 68 of the judgment, as reported in SCC, has observed that

application of rota system at the stage of confirmation was beset with

practical difficulties, for quota gets fixed at the stage of

recruitment/appointment and in this context held that the rules of the Punjab

Superior Judicial Service relating to confirmation/seniority were contrary to

the basic Constitutional concepts governing judicial service. It was

accordingly held in Paragraph 71 that the ratio applied at the stage of

recruitment/appointment in view of the language of the Rule cannot be

applied at the stage of confirmation. In Direct Recruits Class II

Engineering Officers' Association v. State of Maharashtra and Ors.

(1990) 2 SCC 715 it has been observed that seniority cannot be determined

on the sole test of confirmation, for confirmation is one of the inglorious

uncertainties of Government service, depending neither on efficiency of the

incumbent, nor on the availability of substantial vacancies. The principle for

deciding inter se seniority has to conform to the principle of quality spelt out

in Articles 14 and 16.

10. The Supreme Court in Union of India v. N.R. Parmar, (2012) 13

SCC 340, which decision refers to OMs dated 7.2.1986, 3.7.1986 and

3.3.2008, has held:-

"31.2 It is not necessary, that the direct recruits for vacancies of a particular recruitment year, should join within the recruitment year (during which the vacancies had arisen) itself. As such, the date of joining would not be a relevant factor for determining seniority of direct recruits. It would suffice if action has been initiated for direct recruit vacancies, within the recruitment year in which the vacancies had become available. This is so, because delay in administrative action, it was felt, could not deprive an individual of his due seniority. As such, initiation of action for recruitment within the recruitment year would be sufficient to assign seniority to the concerned appointees in terms of the

"rotation of quotas" principle, so as to arrange them with other appointees (from the alternative source), for vacancies of the same recruitment year."

11. Learned counsel for the petitioner submits that Rule 5A should be

treated as invalid, in view of the decision of the Supreme Court in B.S.

Mathur v. Union of India (2008) 10 SCC 271. We do not find any merit in

the said contention. In B.S. Mathur (supra), the issue was whether rota-

quota had broken down. With reference to the factual matrix, as it existed,

the Supreme Court agreed that the rota-quota had broken down, in the said

service. The contention of the petitioner that rota-quota has broken down in

the cadre of SPA is farcical and fallacious. The contention is that if the date

of confirmation is taken as the basis, then it should be assumed that rota-

quota rule had broken down. The petitioner and respondent nos. 2 to 5 were

appointed in the same year, i.e. 2006. They had not earlier officiated as

SPAs. Rota-quota has not broken down. The submission has no merit.