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Supreme Court of India
Shyam Sunder Oberoi vs District And Session Judge on 8 December, 2021Author: Ajay Rastogi

Bench: Ajay Rastogi, Abhay S. Oka

NON­REPORTABLE
IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(S). 7535 OF 2021
(Arising out of SLP(Civil) No(s). 3896 of 2019)

SHYAM SUNDER OBEROI & ORS. ….APPELLANT(S)

VERSUS

DISTRICT AND SESSION JUDGE
TIS HAZARI COURT, DELHI & ORS. ….RESPONDENT(S)

JUDGMENT
Rastogi, J.

1. Leave granted.

2. The instant appeal has jointly been filed by the employees who

are substantively appointed as Lower Division Clerks(in short
Signature Not Verified

Digitally signed by

“LDC”) after going through the regular process of recruitment and
Charanjeet kaur
Date: 2021.12.08
13:27:34 IST
Reason:

qualifying written and typing tests in the year 1987 assailing the

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judgment passed by the Division Bench of the High Court of Delhi

dated 6th December, 2018 directing the respondents who were

appointed on ad­hoc basis in the years 1983­1989 and later

qualified the typing test in the first or second attempt in the year

1992 or thereafter are placed en­block senior to the appellants in

the seniority list of LDC on being regularized by Order dated 17 th

November, 2000 from the date of their initial ad­hoc appointment.

3. Although in the Order dated 17th November 2000, it was

clearly mentioned that the seniority of the respondents ad­hoc

employees who are regularised after qualifying typing test from the

date of their initial appointment, shall be fixed separately according

to rules. Admittedly, there are no rules/guidelines available for

determining seniority of the employees appointed in the cadre of

LDC of the ministerial staff under the subordinate judiciary of

Delhi.

4. Admittedly, the respondents were initially appointed as LDC

on ad­hoc basis during the period 1983­1989 and their term of

appointment was extended from time to time. Since they were

continued for a long period of time, Civil Writ Petition No. 1820 of

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1990 was filed by them before the High Court of Delhi seeking

regularization of service.

5. During the pendency of Civil Writ Petition No. 1820 of 1990, a

fresh appointment process was initiated, pursuant to which a panel

of 180 candidates was prepared and it was notified that the written

test and typing test is scheduled to be held on 23 rd August, 1992

and their grievance was that if such candidates are being

appointed, that will jeopardize their claim of seniority and taking

note thereof, by an interim Order dated 20 th August, 1992 while

keeping 26 vacancies reserved for ad­hoc employees, granted them

protection of seniority and deferred the test which was to be held on

23rd August, 1992.

6. By a subsequent order dated 12 th November 1992, the learned

Single Judge of the High Court while granting exemption to the ad­

hoc employees from appearing in the written test directed to

consider them for regularization after qualifying typing test. It was

further directed by the High Court in its Order dated 12 th

November, 1992 that the seniority of the respondent ad­hoc

employees in the cadre of LDC vis­à­vis fresh recruits, who were to

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be appointed from the panel of 180 candidates shall remain

protected.

7. Such of the employees/LDCs who were working on ad­hoc

basis and qualified the typing test pursuant to an order dated 12 th

November, 1992 passed by the High Court in Civil Writ Petition No.

1820 of 1990 followed with the Order of the Division Bench of the

High Court dated 6th April, 1994 in the earlier proceedings initiated

at their instance, the District and Session Judge, Delhi(respondent

no. 1), by an Order dated 17 th November, 2000 regularised the

services of such ad­hoc LDCs who qualified the typing test from the

date of their initial appointment. At the given point of time, it was

specifically mentioned that such of the LDCs who stand regularized

from the date of initial appointment pursuant to an Order dated

17th November 2000, their seniority shall be separately fixed in

accordance with rules.

8. The order passed by the District and Session Judge, Delhi

dated 17th November 2000 became a subject matter of challenge by

filing of Civil Writ Petition No. 7462 of 2000 before the learned

Single Judge of the High Court at the instance of the present

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appellants and few others who are similarly situated appointed as

LDCs through open selection during the year 1987, after going

through the process of selection for making substantive

appointment.

9. The learned Single Judge of the High Court by Order dated

10th March 2015, after taking into consideration the material

available on record, and as there was no rule existing in

determining seniority of LDCs working in the ministerial cadre of

the subordinate Courts, placing reliance on the judgment of this

Court in Direct Recruit Class II Engg. Officers’ Association Vs.

State of Maharashtra 1990(2) SCC 712 in para 47(B) held as

under:­

“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.”

10. Since the respondents were deprived of their seniority from the

date of appointment, the order of the learned Single Judge dated

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10th March, 2015 came to be challenged at their instance by filing

Letters Patent Appeal No. 328 of 2015.

11. While examining the question in regard to determining

seniority of ad­hoc employees who qualified the typing test at the

later stage and were regularized from the initial date of appointment

by Order dated 17th November 2000, the emphasis of the Division

Bench was on the Order dated 20 th August, 1992 passed by the

High Court in the earlier round of litigation in Civil Writ Petition No.

1820 of 1990 noticing the apprehension shown by the respondent

ad­hoc employees that 180 candidates who are in the panel, their

typing test is being scheduled on 23 rd August, 1992 and at the

given point of time, such of the candidates who qualified the written

and typing test, on being appointed may jeopardize their right of

seniority and at least their seniority qua them be protected and by

an interim Order dated 20th August, 1992, seniority of such of the

ad­hoc employees who were considered for regularization were

directed to be protected qua the panel of 180 candidates who

qualified the written and typing test and that was noticed by the

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learned Single Judge of the High Court while disposing of Civil Writ

Petition No. 1820 of 1990 by its Order dated 12 th November, 1992.

12. It may be relevant to note that the present appellants are not

concerned/related to the candidates who were in the panel of 180

candidates of which a reference has been made by the learned

Single Judge of the High Court in its Order dated 20 th August, 1992

but the Division Bench of the High Court, in its impugned

judgment, took note of the Order dated 20 th August 1992 passed by

the learned Single Judge of the High Court in the earlier

proceedings of which a reference has been made allowed the LPA

preferred by the respondents by Order dated 6 th December, 2018

and observed as under:­

“14. The above statement before the Court on behalf of respondent
no. 1 was honoured when the order dated 17 th November, 2000
was issued regularizing the services of the appellants from the date
of their initial appointments. Once it was made clear by the order
dated 20th August, 1992 that the filling up of the vacancies on
regular basis would be subject to the right of the present
appellants in the matter of seniority, as and when they were
regularized, it could not have been contended by the writ
petitioners i.e. Respondent nos. 2 to 37 that notwithstanding the
order dated 20th August, 1992 of this Court, which has become
final, the writ petitioners would be considered seniors to the
present appellants. Once the appellants had been regularized from
a certain date, their seniority obviously had to be counted from
that date. That was in fact the whole purpose of the appellants
seeking regularization from the date of their initial appointments.

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15. It is also not as if the present appellants were not qualified
and, therefore, could not have been regularized from the dates of
their initial appointment. It is another matter that the appellants
did not undergo a written test but then they had worked for nearly
seven years as LDCs when they were made to undergo the typing
test. Again, pursuant to the judicial orders which were passed on
12th November, 1992 and 6th April, 1994, they underwent tests, but
in a sense a modified test of where the written examination was
dispensed with and they were made to give the typing­cum­
shorthand test in which they qualified. As already noticed, some of
them had got a second chance pursuant to the order dated 6 th
April, 1994 of the Division Bench. Nevertheless, the fact remains
that the present appellants passed the qualifying test they were
expected to pass in order to be regularized.
18. While this Court concurs with the decision of the learned
Single Judge that the dates of the regularization of the present
appellants in the post from the date of their initial appointment on
ad hoc basis in terms of the order dated 17 th November, 2000
issued by the respondent no. 1 should be left undisturbed, this
Court disagrees with the learned Single Judge that the seniority of
the appellants would not count from those very dates of their
regularization.
19. To that extent, the impugned order of the learned Single
Judge is set aside. The net result is that the appellants will count
their seniority from the dates of their respective regularization of
the posts as LDCs.

13. We have heard learned counsel for the parties and perused the

material available on record with their assistance.

14. The facts are not in dispute and culled out that the present

group of appellants are the members of the ministerial cadre(LDC)

appointed on substantive basis after going through the process of

selection prescribed for holding regular selection after they have

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gone through the written test followed with the typing test in the

year 1987. At the given point of time, the respondents were

appointed on ad­hoc basis for a fixed term during the period 1983­

1989 and after they were granted exemption from appearing in the

written test by the High Court in Civil Writ Petition No. 1820 of

1990 preferred at their instance, all of them qualified the typing test

in the first or second attempt in the year 1992 or thereafter and

were regularized by the District and Session Judge by an order

dated 17th November, 2000 from the date of their initial

appointment. So far as the question of seniority is concerned, it

was specifically mentioned that it shall be separately determined in

accordance with rules but as there were no rules/guidelines at that

time for determining seniority of the employees of the ministerial

cadre in the subordinate service of Delhi, a presumption was drawn

as they were regularized from the date of appointment that entails

consequential seniority but that came to be clarified by the learned

Single Judge that they will not be entitled to claim seniority over

such of the employees who were appointed on substantive basis

unlike the present appellants but that came to be set aside by the

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Division Bench of the High Court by the impugned judgment dated

6th December, 2018 primarily relying on the interim order passed by

the High Court in the earlier proceedings dated 20 th August 1992

which was in reference to panel of 180 candidates who qualified the

typing test held pursuant to Orders passed by the High Court of

Delhi dated 12th November, 1992 and 6th April, 1994 respectively.

15. Indisputedly, the Order dated 20th August, 1992 in no manner

was related to determination of seniority qua the present appellants

who were recruited through open selection after qualifying the

written test followed by typing test in the year 1987.

16. In the facts and circumstances, a question certainly arises if

the employees who were appointed in the first instance on ad­hoc

basis for a fixed term which has been extended from time to time,

and have qualified the typing test at a later point of time, which is

one of the pre­qualification for regular/substantive appointment,

can claim regularization from initial appointment but since the

learned Single Judge and the Division Bench of the High Court in

the impugned judgment have not interfered with the order passed

by the District and Session Judge dated 17 th November, 2000 in

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granting the benefit of regularization from the date of initial

appointment, after such a long passage of time, it would not have

been advisable for this Court to interfere so far as such appointees

seeking regularization from the date of initial appointment although

acquire the pre­requisite qualification at the later stage, but at the

given point of time, the interim order dated 20th August, 1992 of the

High Court in the earlier proceedings has been misread by the

Division Bench of the High Court while passing the impugned

judgment dated 6th December 2018.

17. We consider it appropriate to observe that the employees who

were appointed on ad­hoc basis and qualified typing test at the later

stage, in absence of the scheme of rules in determining seniority, at

least could not have a right to march over such of the employees

who were appointed on substantive basis after going through the

process of selection for holding regular selection and their right of

seniority in no manner be relegated qua such of the ad­hoc

employees who qualified typing test at a later stage and regularized

subsequently from the date of initial appointment like in the instant

case by an Order dated 17th November, 2000.

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18. In our considered view, the Division Bench has committed a

manifest error under the impugned judgment in granting them the

benefit of seniority who were appointed on ad­hoc basis as LDCs

from the date of their regularization which was neither granted by

the District and Session Judge by its Order dated 17 th November,

2000 nor they were entitled for under the law.

19. Consequently, the appeal succeeds and is allowed. The

judgment passed by the Division Bench of High Court of Delhi

dated 6th December, 2018 is accordingly set aside. No costs.

20. Pending application(s), if any, stand disposed of.

……………………………..J.
(AJAY RASTOGI)

…………………………….J.
(ABHAY S. OKA)
NEW DELHI
DECEMBER 08, 2021

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