Delhi High Court (June 1, 2001) 2001 (TLS)125268 2001-DLT-93-552 :: 2001-AD (Del)-6-614 JASWANT SINGH Vs. District AND Sessions Judge Delhi O. P. DWIVEDI, ( 1 ) THIS appeal under section 10 of the Letters patent Act is directed against the order dated 1/2/1995 whereby the learned single Judge dismissed appellant s writ petition No. 3073/91. In the said writ petition the appellant had sought quashing of order dated 4/10/1989 passed by Hon ble Mr. Justice H. C. Goel rejecting the departmental appeal preferred by the appellant against the office order of the District and sessions judge, Delhi dated 13/9/1985 whereby earlier order dated 9/5/1985 placing the appellant in the higher scale Rs. 550-900 with effect from 22/12/1973 was recalled. ( 2 ) BRIEFLY stated the facts relating to this appeal are as under:- THE appellant was appointed as a typist (LDC) in the pay scale Rs. 55-110 with effect from 12/10/1955 in the office of the District and Sessions judge, Delhi. In the year 1964 he was promoted as steno-Typist in the pay scale of Rs. 110-180 + Rs. 20. 00 as special pay. In December 1965 he was promoted to the post of stenographer in the pay scale of Rs. 130-300 and he was confirmed in the said post on 6/7/1976. He was later on appointed as superintendent in the of rice of District and Sessions judge, Delhi with effect from 29/5/1981 and served in the said post till his retirement on 28/2/1993. ( 3 ) IN the year 1985 Government upgraded 19 posts/ of stenographers to the scale of Rs. 425-700 with effect from 1/1/1973. Accordingly, the district and Sessions Judge, Delhi placed 19 stenographers in the revised pay scale of Rs. 425-700 and the petitioner being Scheduled Caste candidate was placed in the first position according to the 40 point roster. In the same year i. e. in the year 1985, the government created one post in the higher scale of Rs. 550-900 for the stenographers with effect from 1/1/1973. So the the District and Sessions Judge, delhi issued an order dated 9/5/1985 whereby the appellant was placed in the said pay scale of Rs. 550-900 from 22/12/1973 after the death of the senior most stenographer Mr. S. K. Joshi, who died on 21/12/1973. It may be pointed out here that in the seniority list of stenographers Mr. So the the District and Sessions Judge, delhi issued an order dated 9/5/1985 whereby the appellant was placed in the said pay scale of Rs. 550-900 from 22/12/1973 after the death of the senior most stenographer Mr. S. K. Joshi, who died on 21/12/1973. It may be pointed out here that in the seniority list of stenographers Mr. S. K. Joshi figured at serial No. 1 and Mr. M. M. Manchanda figured at serial No. 2. The appellant s position in the seniority list was 19th. Feeling aggrieved by the placement of the petitioner in the higher scale of Rs. 550-900 with effect from 22/12/1973, Mr. Manchanda made a representation to the District and sessions Judge, Delhi and thereupon the District and sessions Judge, Delhi withdrew the order dated 9/5/1985 whereby the appellant was placed in the higher pay scale of Rs. 550-900 from 22/121973 and instead passed order dated 13/9/1985 whereby mr. Manchanda was placed in the senior scale from 1/1/1973 onwards whereas Mr. S. K. Joshi was shown to have drawn presumptive pay of the said post from 1/1/1973 till his death on 21/12/1973 under FR 9 (24 ). Aggrieved by order dated 13/9/1985, the appellant made representation to the District and Sessions Judge, Delhi which was rejected. He preferred a departmental appeal to the high Court but same was dismissed by Hon ble Mr. Justice H. C. Goel vide order dated 4/10/1989. The appellant s contention in his departmental appeal was that since he was placed at serial No. 1 in the office order issued by the District and Sessions Judge, delhi on 9/5/1985 placing 19 stenographers in the revised pay scale of Rs. 425-700 he become entitled to be put in the next higher pay scale of Rs. 550-900 with effect from 1/1/1973, he being at the top of list. Alternatively it was contended that by applying 40 point roster also the first vacancy should have gone to him he being a scheduled caste candidate. Both these contentions of the appellant were rejected by Hon ble Mr. Justice H. C. Goel on the ground that inter se seniority of the stenographers remains unaltered even though the appellant being a scheduled caste candidate, was shown at serial No. 1 for the purpose of allotment of vacancy in accordance with the 40 point roster. This was so held in view of the following O. Ms :- 1. Justice H. C. Goel on the ground that inter se seniority of the stenographers remains unaltered even though the appellant being a scheduled caste candidate, was shown at serial No. 1 for the purpose of allotment of vacancy in accordance with the 40 point roster. This was so held in view of the following O. Ms :- 1. OM 10/15/73-Estt (SCT) dated 24/5/1974. 2. OM 1/11/79-Estt (SCT) dated 22/4/1970. 3. OM l/3/72-Estt (SCT) dated 12/3/1973. ( 4 ) THE other contention of the appellant that being a schedule caste candidate he should have been given the next higher pay scale of Rs. 550-900 with effect from 1/1/1973 was negatived on the basis of OM. No. 1/9/74-Estt (SCT) dated 29/4/1975 which provided that when there is only one vacancy in a particular year it had to be treated as unreserved. The appellant also filed a review application against the order dated 4/10/1989, rejecting his departmental appeal. The review was also dismissed. ( 5 ) THE appellant then filed writ petition No. 3073/91 seeking appropriate writ/direction or order quashing the order of the District and Sessions Judge, dated 13/9/1985 Delhi and also the order dated 4/10/1989 passed by the High Court in the departmental appeal. By the impugned order dated 1/2/1995 the writ petition was dismissed by the learned single Judge repelling the appellant s contention on the basis of the OM dated 29/4/1975 and other O. Ms. referred to above. Feeling aggrieved the appellant has preferred this appeal. ( 6 ) WE have heard learned counsel for the parties and perused the record as also the written submissions filed on 5/5/2001 by the learned counsel for the appellant. ( 7 ) IN this appeal, learned counsel for the appellant has not pressed the point that because of his placement at serial No. 1 in the list prepared for the purpose of grant of revised scale of Rs. 425-700 in accordance with the 40 point roster, the appellant became senior most and therefore automatically entitled to the grant of next higher scale of Rs. 550-900. It was conceded by the learned counsel for the appellant at the time of arguments as also in para 3 and 4 of his written submissions that Mr. S. K. Joshi was senior most stenographer. So no objection can be taken to his appointment in the higher pay scale of Rs. 550-900. It was conceded by the learned counsel for the appellant at the time of arguments as also in para 3 and 4 of his written submissions that Mr. S. K. Joshi was senior most stenographer. So no objection can be taken to his appointment in the higher pay scale of Rs. 550-900 initially with effect from 1/1/1973 till his death on 21/12/1973. The submission of the learned counsel for the appellant is that on the death of Mr. S. K. Joshi on 21/12/1973, second vacancy arose on the same post during the year 1973 and therefore this time the vacancy should have been treated to be reserved by virtue of O. M. dated 29/4/1975 particularly clause 6 thereof. ( 8 ) AS against this, the submission of the learned counsel for the respondent was that since the senior most stenographer Mr. S. K. Joshi was already working on deputation as Branch Incharge, copying agency before 1/1/1973 till his death on 21/12/1973, Mr. M. M. Manchanda who was second in the order of seniority occupied the said post of stenographer in the pay scale of Rs. 550-900 with effect from 1/1/1973 for the first time and continued to do so even after the death of Mr. Joshi. According to the learned counsel for the respondent no vacancy arose in the scale of Rs. 550-900 on the death of Mr. Joshi on 21/12/1973 so the question of appointment of the appellant to the said scale did not arise. Mr. Joshi being senior most stenographer was simply presumed to be in the scale of Rs. 550-900 from 1/1/1973 to 21/12/1973 under FR 9 (24) for the purpose of calculating his dues but actually Mr. Joshi was never appointed to that post. ( 9 ) WE have given our thoughtful consideration to the respective submissions of the learned counsel for the parties and we are of the view that the appellant s contention that on the death of Mr. Joshi on 21/12/1983, vacancy arose for the second time in the pay scale of Rs. 550-900 can not be upheld. One post in the higher scale of Rs. 550-900 was created for the stenographers vide letter No. F/9/84-Judl-/661 dated 28/3/1985 from the Law and Judicial Department, government of NCT of Delhi. Joshi on 21/12/1983, vacancy arose for the second time in the pay scale of Rs. 550-900 can not be upheld. One post in the higher scale of Rs. 550-900 was created for the stenographers vide letter No. F/9/84-Judl-/661 dated 28/3/1985 from the Law and Judicial Department, government of NCT of Delhi. Accordingly, the District and Sessions Judge issued impugned office orders dated 8/5/1985 and 13/9/1985 which are reproduced below for facility of reference:- ( 10 ) OFFICE OF THE DISTRICT and SESSIONS JUDGE: DELHI order in pursuance of letter No. F. 1/9/84-Judl. /661 dated 28/3/85 from the Law and Judicial Department, Delhi administration, Delhi conveying the sanction of the Lt. Governor, Delhi to the upgradation of posts of stenographers in the pay scale of Rs. 425-700 in the district Court of Delhi to the pay scale of Rs. 550-900 the following Stenographers are hereby appointed in the pay scale of Rs. 550-900 from the date mentioned against their names :-___________________________________________________________________________ office OF THE DISTRICT and SESSIONS JUDGE: DELHI order in superssession of this office order dated 8. 5. 1985 the following Stenographery are hereby appointed to the pay scale of Rs. 550-900 from the date mentioned against their names:- ( 11 ) MR. Joshi had died long back in the year 1973 when he was working on the post of Branch Incharge, copying Agency, Record Room an ex-cadre post as per the affidavit filed on behalf of the High Court in the writ petition. Since Mr. Joshi had not worked on the post of stenographer from 1/1/1973 to 21/12/1973 he could not have been appointed to the said post posthumously so the second man in order Mr. Manchanda only could have been posted in the scale of Rs. 550-900. Of course for the purpose of calculation of his dues Mr. Joshi could be given the benefit under FR 9 (24) which defines presumptive pay of a post as the pay to which he may be entitled if he held that post substantively. To that extent the office order dated 8th May 1985 issued by the District and Sessions Judge, Delhi relating to the appointment of Mr. Joshi in the said pay scale of Rs. 550-900 from 1/1/1973 to 21/12/1973 may be faulted. On the representation of Mr. Manchanda this fault was remedied by subsequent office order dated 13/9/1985 issued by the District and Sessions Judge, delhi wherein Mr. Joshi in the said pay scale of Rs. 550-900 from 1/1/1973 to 21/12/1973 may be faulted. On the representation of Mr. Manchanda this fault was remedied by subsequent office order dated 13/9/1985 issued by the District and Sessions Judge, delhi wherein Mr. Joshi was shown to be entitled to presumptive pay under FR 9 (24) for the period from 1/1/1973 to 21/12/1973. Mr. Manchanda, the second senior most stenographer, therefore, was rightly given the post of stenographer in the pay scale of Rs. 550-900 with effect from 1/1/1973 onwards in which post he continued up to 3 1/05/1981. There was no vacancy in that post so long as Mr. Manchanda occupied the same. The death of Mr. Joshi on 21/12/1973, therefore, would not tantamount to a vacancy in the post of stenographer in the pay scale of Rs. 550-900 because mr. Joshi never occupied that post. For these reasons the argument that on the death of Mr. Joshi on 21/12/1973 vacancy arose for the second time in the post of stenographer in the pay scale of Rs. 550-900 is clearly untenable. ( 12 ) LEARNED counsel for the appellant also contended that the impugned office order- dated 13/9/1985 issued by the District and Sessions Judge, Delhi is violative of PR 12 which prohibits the appointment of two government servants to one permanent post in a substantive capacity. According to learned counsel For the appellant, the office order dated 13/9/1985 is in contravention of FR 12 in as much as both Mr. Joshi and manchanda were appointed to the post of stenographer in the higher pay scale of Rs. 550-900 for the period from 1/1/1973 onwards. A perusal of the office order dated 13/9/1985 re-produced above shows that it was only Manchanda who was appointed to the said post and the name of Mr. Joshi was mentioned therein only to show that his presumptive pay under FR 9 (24) could be calculated for the period from 1/1/1973 to 21/12/1973. These office orders dated 8/5/1985 and 13/9/1985 may not be happily worded but the core issue remains unchanged, viz. whether a second vacancy arose in the pay scale of Rs. 550-900 on the death of Mr. Joshi on 21/12/1973 and for the reasons already given, we have no hesitation in concluding that no such second vacancy arose. These office orders dated 8/5/1985 and 13/9/1985 may not be happily worded but the core issue remains unchanged, viz. whether a second vacancy arose in the pay scale of Rs. 550-900 on the death of Mr. Joshi on 21/12/1973 and for the reasons already given, we have no hesitation in concluding that no such second vacancy arose. FR 9 (24) merely provides a formula for calculation of the pay in a presumed posting. It does not denote the actual posting. Factual posting of an employee cannot be changed after his death although he could be granted benefits which could have accrued to him due to some later developments on presumptive basis. Since the post of senior stenographer in the pay scale of rs. 550-900 was never occupied by Mr. Joshi from 1/1/1973 till his death on 21/12/1973 no vacancy can be said to have arisen in that scale on the death of Mr. Joshi on 21/1/1973. ( 13 ) WE, therfore, find no fault in the office order dated 13/9/1985 passed by the learned District and Sessions Judge, Delhi whereby Mr. Manchanda was appointed in the higher pay scale of Rs. 550-900 from 1/1/1973 onwards. In the. circumstances, we find no merit in this appeal which is hereby dismissed. There will be no order as to costs. --- *** --- .