T.H.B Chalapathi And Others (Petitioners) v. High Court Of Andhra Pradesh And Others (Respordents).

A. Lakshmana Rao, J.:— The adjudicators themselves have sought adjudication by this Court in a matter relating to their inter se seniority. They are no other than the District and Sessions Judges, Grade II governed by the Andhra Pradesh State Higher Judicial Service Special Rules issued in G.O Ms. No. 1556, General Administration (Special A) dated 10th October, 1958.

2. The petitioners were appointed to act as District and Sessions Judges, Grade II in category II of the Andhra Pradesh State Higher Judicial Service, by direct recruitment, on probation for a period of one year with effect from the date of taking charge. The respective dates of their assuming charge, completion of probation and confirmation are as given below:—

S. No. Name Order of appointment Date of assumption of charge Date of completion of probation Order of confirmation Date from which confirmed (1) (2) (3) (4) (5) (6) (7) Sarvasri 1. M. Mohana Rama Reddy G.O.Ms No. 877, G.A (SCX) Dept., dated 23-12-1976. 5-1-77 4-1-78 A.N Notification No. 170-B, Spl. dated 18-8-78 5-1-77 2. Y. Venkatachalam do 6-1-77 5-1-78 A.N do 6-1-77 3. P.V Vidyasagair do 19-1-77 18-1-78 A.N do 19-1-77 4. K. Mohan Rao do 3-1-77 2-1-78 A.N do 3-1-77 5. P. Rangayya do 12-1-77 11-1-78 A.N do 12-1-77 6. T.H.B Chalapathi do 7-1-77 6-1-78 A.N do 7-1-77 7. A.V Koteswara Rao G.O Ms. No. 12, G.A(SCX) Dept, dated 7-1-1918. 19-1-81 19-1-82 — —

3. The respondents 3 to 23 and 25 in Writ Petition No. 52 of 1983 are the District Judges, Grade II, appointed by transfer from among Sub-Judges in the Andhra Pradesh State Judicial Service and the Hyderabad State Judicial Service, on the recommendation of the High Court. Respondent No. 24 is the petitioner in Writ Petition No. 1968 of 1982. The particulars of their appointment and confirmation are as follows:

S. No. Name Order of approval of the name by the Governor for appointment Order of appointment Date of assumption of charge Order of confirmation Date from which confirmed (1) (2) (3) (4) (5) (6) (7) Sarvasri 1. A. Sanjeeva Rao (Retired) D.O 1920 Spl./73-3 dated 29-12-73. G.O Rt No. 1900 G.A (Spl) Dept., Dt. 10-7-74 3-8-74 High Court's Notificati-on No. 169-B. Spl. Dt. 18-8-78 4-10-75 2. Immaneni Panduranga Rao D.O Rt. No. 2740 Dated 11-10-74 G.O.Rt No. 274 Dated 11-10-74 25-10-74 do 1-11-75 3. D.J Jagannadha Raju do do 15-1-75 do 1-3-77 4. B. Rama Rao (Retired) do G.O Rt. No. 3448 G.A(Spl). Dt. 31-12-74 8-1-75 do 1-7-77 5. N.D Patnaik do do 17-1-75 do 1-7-77 6. B.V Narasimham G.O Rt. No. 472 G.A(SCX) Dept., Dt. 25-2-75. G.O Rt. No. 473, G.A(SCX) Dept., Dt 25-2-75 9-7-75 do 1-8-77 7. Nayani Krishna Murthy (Retired) G.O Rt. No. 958, G.O(SCX) Dept. Dt. 15-4-75 G.O Rt. No. 162 G.O(SCX) Dept. Dt 30-6-65 10-9-75 do 1-12-77 8. J. Venugopal Rao do do 11-9-75 do 8-2-78 9. V. Neeladri Rao do do 17-9-75 High Court Notification No. 155-B, Spl. dt. 20-8-78 1-4-78 10. J. Narasimha Rao do G.O Rt. No. 3445, G.O(SCX) Dept., Dt. 4-9-1975 17-9-75 do 1-5-78 11. M. Srinivasa Rao do do 7-10-75 do 1-7-78

12. K.V Raghava Rao do do 9-10-75 do 1-7-78 13. T.B Seshacharyulu (Retired) do do 22-10-75 do 10-11-78 14. M. Ranga Reddy do do 29-10-75 do 1-12-78 15. Iyyapu Panduranga Rao do G.O.Rt No. 4764 G.A (SCX) Dep Dt. 27-10-74 17-4-76 do 1-4-79 16. Y.V.R Narahari Rao (Retired) G.O.Rt No. 985 G.A (SCX) Dept. 15-4-1975 G.O.Rt No. 1765 G.A (SCX) Dept. dt. 27-10-74 19-4-76 High Court's Notification No. 155, B. Spl. dt. 20-8-78 1-5-79 17. S.V Subbayya Sastry do do 10-6-76 High Court's Notification No. 202-B Spl. dt. 3-8-82 1-7-79 18. K. Padmanabha Gowd do do 16-6-76 do 1-7-79 19. Rupendra Pershad Saighal G.O Rt. No. 176 G.A SCX) Dept. dt. 3-6-1976 G.O Rt. No 2346 G.A (SCX) Dept. dt. 24-6-76. 16-6-76 do 1-10-79 20. S.V Ramana Reddy do do 8-9-76 do 1-10-79 22. D. Ramalinga Swamy do do G.O.Rt No. 1045 G.A (SCX) Dept. dt. 29-9-76 16-12-76 do 18-4-80

4. The Governor promulgated the Andhra Pradesh State Higher Judicial Service Special Rules in G.O.Ms No. 1556 dated 10th October, 1958 regulating the appointment and other conditions of service of the District and Sessions Judges Grade land Grade II. The rules relevant for the purpose of these writ petitioners are Rules 1, 2, 4, 5 and 6 and they are extracted.

1. CONSTITUTION:

The service shall consist of the following categories:

Category I: District and Sessions Judges—

First Grade.

Category II: District and Sessions Judge, Second Grade including Chairman, Andhra Pradesh Sales Tax Appellate Tribunal; Chief; Judge City Civil Court; Additional Chief Judge, City Civil Court, Chief Judge, Court of Small Causes; Chief City Magistrate; Chairman. Tribunal for Disciplinary Proceedings; Presiding Officer, Labour Courts and Additional District and Sessions Judges.

2. APPOINTMENTS:

(a) Appointment to Category I shall be made by ‘promotion from Category II and appointment to Category II shall be made —

(1) by transfer from among—

(a) Sub-Judge in the Andhra Pradesh State Judicial Service; or in the Hyderabad State Judicial Service; and

(2) by direct recruitment from the Bar:

Provided that 33 ⅓% of the total number of permanent posts shall be filled or reserved to be filled by direct recruitment.

Explanation: In the determination of 33 ⅓% of the totol number of permanent posts, fractions exceeding one half shall be counted as one and other fractions shall be disregarded.

(b) All promotions shall be made on grounds of merit and ability, seniority being considered only when merit and ability are approximately equal.

2. A. SPECIAL REPRESENTATION:

The rule of Special Representation (Rule 22 in Part II of the Andhra Pradesh State and Subordinate Service Rules, except in so far as it relates to physically handicapped persons, shall apply for appointment by direct recruimtent to Category II.

4. PROBATION:

Every person appointed to Category II otherwise than by transfer, shall, from the date on which he joins duty, be on probation for a total period of one year on duty.

5. APPOINTMENTS, POSTINGS AND TRANSFERS:

(1) All first appointments, and re-appointments of persons under reversion, to the category of District and Sessions Judges, Second Grade, shall be made by the Governor in consultation with the High Court.

(2) All postings, other than first appointments or reappointments to the service, and transfer in the service, shall be made by the High Court:

Provided that postings to the posts of Chairman, of the Andhra Pradesh Sales Tax Appellate Tribunal, Chairman and Members of Tribunal for Disciplinary Proceedings, Presiding Officers of Labour Courts, shall be made by the Governor in consultation with the High Court.

6. SENIORITY:

The seniority of a person appointed to category I or Category II shall be determined with reference to the date from which he was continuously on duty in that category.

5. The High Court forwarded on October 15, 1973 a panel of 16 Subordinate Judges whom it considered fit for appointment by transfer as District and Sessions Judges, Grade II to the Governor. Respondents 3 to 8 were included in that panel. The Governor accepted the recommendation of the High Court and appointed them as District and Sessions Judges Grade II Thereafter, the High Court forwarded to the Governor on February 12 1975 another panel of Subordinate Judges whom it considered fit for appointment by transfer as District and Sessions Judges, Grade II consisting of respondents 9 to 20 and some others who since retired. The Governor approved all the names in the panel and appointed them as District and Sessions Judges Grade II. The names of respondents 21 to 23 were recommended by the High Court for appointment as District and Sessions Judges Grade II in D.O Letter No. 1/76 Confidential, B. Spl. dated January 27 1976 and the Governor approved that panel in G.O Rt. No 2076 dated June 3, 1976 and they were also appointed thereafter as District and Sessions Judges Grade II. All of them were appointed on the respective dates mentioned above, no doubt, in the first instance on a temporary basis. While the respondents were functioning as District and Sessions Judges Grade II the High Court sent proposals on February 2, 1976 to the Government to fill up six posts of District and Sessions Judges Grade II by direct recruitment. At that time the total number of permanent posts of District and Sessions Judges Grade II were 43 out of which only 8 posts were held by direct recruits. So to satisfy the quota of 33, ⅓% reserved to be filled by direct recruitment under the proviso to sub-rule (2) of Rule 2 six posts were notified. The petitioners in Writ Petitions Nos. 1968 of 1982 and 52 of 1983 were selected and they were appointed on the dates mentioned above. Prior to that, direct recruitment took place in the year 1973 and the subsequent direct recruitment was in the year 1981 when the petitioner in W.P No. 12282 of 1985 was appointed. Two permanent posts held by direct recruits fell vacant on October 7, 1974 on the elevation to the Bench of the High Court of two District and Sessions Judges. By virtue of the judgment of the Supreme Court dated September 2, 1975, (1975) 4 SCC 709 : A.I.R 1975 S.C 1922 striking down the selection of four direct recruit District Judges, four more vacancies arose. On 1st February, 1975 one more vacancy in the quota reserved for direct recruits had arisen on the retirement of another District and Sessions Judge. Thus seven permanent posts were vacant by the time notification was issued in the year 1976 calling for applications to fill the posts by direct recruitment. By the time the petitioners in the first two writ petitions were appointed three more permanent posts fell vacant. All those posts were held by some of the respondents till six out of those posts were filled up by direct reeruitment of the petitioners on 23rd December, 1976. The petitioners took charge in January, 1977 and their probation was declared on the respective dates mentioned in the table.

6. The Registrar of the High Court in his D.O No. 3/78 Confdl. B. Spl. dated May 19, 1978 forwarded proposals of the High Court to the Government for the regularisation of the temporary appointments of Respondents 3 to 23 and some others who since retired. On the basis of the recommendation of the High Court, the Governor appointed the respondents on a regular basis in G.O Rt. No. 2449 dated July 18, 1978to act as District and Sessions Judges, Grade II with effect from the respective dates they assumed charge on their initial appointment. Thereafter, by its Notification No. 169-B Sp1. dated August 18, 1978 the High Court appointed the respondents 3 to 10 as full members of the service in Category II. On the same day by its Notification No 170 B. Spl. the High Court also confirmed the petitioners in W.P Nos. 1968 of 1982 and 52 of 1983 in service. Some of the other respondents were confirmed on August 20, 1979 and the rest of the respondents on August 3, 1982.

7. Having regard to the facts stated above, it was submitted by Sri Y. Suryanarayana the learned counsel for the petitioners:

1. The reguiarisation of the services of the respondents and their confirmation with effect from the respective earlier dates, were contrary to the Andhra Pradesh State Higher Judicial Service Special Rules and the Andhra Pradesh State and Subordinate Service Rules;

2. The Andhra Pradesh State Higher Judicial Service Special Rules contemplate only a regular appointment to a permanent post and any appointment made to a temporary post falls outside the purview of the Special Rules;

3. The first appointment of the Respondents as District and Sessions Judges, Grade II can be traced only to Rule 10(a)(1) of the Andhra Pradesh State and Subordinate Service Rules and such temporary service cannot be counted for the purpose of seniority;

4. Proviso to sub-clause (2) of Clause (a) of Rule 2 of the Special Rules prescribed the quota between the appointees by transfer and direct recruits and the Rule of quota necessarily implied the application of the principle of Rotation;

5. When persons were appointed to the same category from two sources on the basis of quota, the same Rule of Quota should be applied at the time of confirmation and determination of seniority also; and

6. Rule 6 should be interpreted in such a manner as to give full effect to the Rule of quota or else Rule 6 will be violative of Articles 14 and 16 of the Constitution.

8. In the year 1974 the number of permanent posts in Category II was forty-three. Apart from those permanent posts there were ten temporary posts, out of which six were of Additional District and Sessions Judges, three were of Additional Chief Judges, City Civil Court, Hyderabad and one was that of Metropolitian Sessions Judge, Hyderabad. They were (1) II Additional District and Sessions Court. Guntur, (2) Additional District and Sessions Court, Medak at Sangareddy (3) II Additional District and Sessions Court. East Godavari at Rajahmundry (4) II Additional District and Sessions Court, Visakhapatnam (5) Additional District and Sessions Court, Adilabad (6) III Additional District and Sessions Court Visakhapatnam (7 Additional Chief Judge, City Small Cause Court, Hyderabad (8) Additional Chief Judge, City Civil Court, Hyderabad (9) F.T Cases and (10) Metropolitan Sessions Court, Hyderabad. The permanent strength continued to be 43 till 1980 when the strength was raised to 51 in G.O Ms. No. 239, Home (Courts A) department, dated April 18, 1980. After 1974 the number of temporary courts also increased. In 1975 the Court of Additional Chief Judge, City Civil Court-cum-Special Judge, S.P.E Cases, Hyderabad was constituted. In 1976 two Courts (1) II Additional I Metropolitan Sessions Court. Hyderabad and (2) II Additional District I and Sessions Court, Kurnool were set up. In 1978 the Court of Additional Chief Judge, City Civil Court-cum-Special Judge for A.C.B Cases, Hyderabad was constituted. In 1980 two eourts were established: They were (1) III Additional District and Sessions Court, Guntur and (2) Special Judge for trial of Cases under Economic Offences at Hyderabad. In 1981 Principal District and Sessions Court, Vizianagaram, Principal District and Sessions Court, Ranga Reddy District, Additional District and Sessions Court, Khammam, Additional District and Sefsions Court, Nalgonda, Additional District and Sessions Court, Nizamabad, IV Additional District and Sessions Court, Visakhapatnam, Additional Sessions Court for trial of Decoity cases at Vijayawada and II Additional District land Sessions Court, Karimnagar were constituted. In 1982 three more Courts (1) Additional District and Sessions Court, Vlzianagaram (2) Additional District and Sessions Court, Ranga Reddy and (3) II Additional H District and Sessions Court, Cuddapah were set up. In 1983 three courts were constituted. They were (1)III Additional District and Sessions Court, Kurnool (2) Special Judge for trial of cases under Essential Commodities Act at Nellore and (3) III Additional District and Sessions Court, East Godavari at Kakinada. In 1984 It Additional District and Sessions Court, Chittoor at Madanapalli and in 1985 II Additional District and Sessionf I Court, Anantapur at Hindpur were set up. Out of these Courts eight I temporary Courts existing till the year 1974 were made permanent in I.G.O Ms. No 239, Home (Cts. A) Dept., dated April 18, 1980 and ten Courts were made permanent in G.O Ms. No. 428, Horne (Cts. A) Dept., dated June 29, 1984. Out of these only the Courts of Additional Chief Judge, City Civil Court, Hyderabad-cum-Special Judge for S.P.E Cases, Hyderabad was abolished in the year 1983 and the IV Additional District and Sessions Court, Visakhapatnam was abolished with effect from September 15, 1985. The rest of the Courts continued to be temporary Courts. Thus it is evident that though the Courts were described as temporary they were continued ever since they were established and some of them were even made permanent. Ever since the respondents were appointed on a temporary basis as District and Sessions Judges, Second Grade, they were continued without any break in service till they were confirmed in service As we have already mentioned, even the seven permanent posts that fell vacant during the years 1974 and 1975 and reserved to be filled by direct recruitment were held by the respondents till the direct recruits assumed charge iu January, 1977.

9. Under Art. 236 of the Constitution of India, the expression District Judge is defined as including Judge of a City Civil Court, Additional District Judge, Joint District Judge, Assistant District Judge, Chief Presidency Magistrate, Additional Chief Presidency Magistrate. Sessions Judes, Additional Sessions Judge and Assistant Sessions Judge. The Andhra Pradesh Higher Judicial Service consists of two categories—

(1) Category 1: District and Sessions Judges…First Grade and

(2) Category II: Dsitrict and Sessions Judge — Second Grade, including the Additional District and Sessions Judges. Rule 2 under which appointments are made to Category II provides for appointment by transfer from among Sub-Judges in the Andhra Pradesh State Judicial Service, and sub-rule (2) of Rule 2 specifies that 33 ⅓% of the total number of permanent posts shall be filled or reserved to be filled by direct recruitment, The rules are silent as to whether the cadre strength consists of only permanent posts or of permanent and temporary posts. But provision is made in Rule 5 that all first appointments and reappointments of persons under reversion to Category II shall be made by the Governor. Only in the case of appointees by transfer, question of reversion arises when they are appointed in temporary posts and not in the case of direct recruits who can be appointed only in permanent post. So the appointment by transfer of a Sub-Judge to a temporary post of a District aid Sessions Judge. Second Grade shall have to be made by the Governor under these Rules.

10. This position becomes more clear when we read Rules 1 and 2 closely. The Additional District and Sessions Judges are included in Category 1 and under Rule 2 the appointment of Sub-Judges to Category II is not restricted only to the permanent posts unlike in the case of direct recruits where the proviso to sub-rule (2) of Rule 2 prescribes that 33 ⅓% of the total number of permanent posts shall be reserved to be filled by direct recruitment. On a harmonious reading of Rules 1, 2 and 5 it appears to us that the service consists not only of permanent District and Sessions Judges Grades I and II but also of temporary District Judges Grade II as they fall within the description of Additional District and Sessions Judges. Rule 2 of the General Rules in A.P State and Subordinate Service Rules provides that the provisions of the Special Rules, prevail over the provisions of the Andhra Pradesh State and Subordinate Service Rules if there is repugnancy between them to the extent of such repugnancy. So, when it was intended that the appointments to temporary as well as permanent posts should be made under the Special Rules, the principles underlying a temporary appointment under Rule 10(a)(i) or a temporary promotion under Rule 37 of the Andhra Pradesh State and Subordinate Service Rules cannot be imported into the appointment under the Special Rules.

11. The provisions of Article 233 of the Constitution stipulate that the Governor shall make appointment of a District Judge in consultation with the High Court and the same is provided in Rule 5 of the Special Rules. The constitutional provision does not draw any distinction between a regular appointment and a temporary appointment and between a permanent post and a temporary post and that is why it is provided in Rule 5 that whether it be the first appointment or reappointment on reversion, every appointment to the category of District and Sessions Judges Grade II shall be made by the Governor in consultation with the High Court. The Governor is empowered to make an appointment only in consultation with the High Court.

12. Then, we have to see whether the rules specify any principle or criterion for making the appointment to Category II. Clause (a) of rule 2 provides that appointment to Category I shall be made by promotion from Category II and clause (b) states that promotion shall be made on grounds of merit and ability. In the case of appointment to Category II by transfer from among Sub-Judges, the rules are silent about the method to be followed in making such appointment. So we have to consider whether the High Court can evolve its own method of testing the suitability or fitness of a Subordinate Judge for appointment by transfer as a District Judge, Second Grade and fix the criterion for that purpose. So far as this question is concerned it is no longer res integra. The Supreme Court laid down in Hari Datta v. State of Him. Pra., (1980) 3 SCC 189 : AIR 1980 SC 1426, that where the rules are silent, the High Court can formulate the criterion on the basis of which the Subordinate Judges can be appointed as District and Sessions Judges, Second Grade. It was held that whether it be merit-cum-seniority or seniority-cum-I fitness, in either case it would not be violative of Art. 233 or Art. 14 or 16. The High Court passed a resolution on August 2, 1957 that the selection for promotion from Sub-Judges to District Judges should be according to the seniority unless there were good reasons for overlooking a senior officer for promotion. This criterion is being followed by the High Court ever since then. Following that principle only, the High Court recommended the names of the respondents for appointment by transfer as District and Sessions Judges, Second Grade, having found them fit for such appointment. Accepting the recommendation of the High Court, the Governor appointed them on a temporary basis. The same procedure is followed by the High Court even in respect of regular appointments. In this connection, it was contended by the learned counsel Shri Y. Suryanarayana as will as Sri. A.V Koteswara Rao, the petitioner in W.P No. 12282 of 1985 that the appointment by transfer to the post of Second Grade District Judge could be made only on the basis of merit-cum-ability seniority being taken into consideration when merit and ability were almost equal, as in the case of promotion and the method of selection adopted by the High Court in the appointment of the respondents was illegal and improper. In support of this contention they placed reliance on a decision of a Division Bench of this Court in Samba Murthy v. State of Andhra Pradesh, (1972) 1 Andh WR 44. We are not able to understand how this decision helps them. The Division Bench categorically observed at page 47 as follows:—

“Admittedly there is no specific rule either in the State and Subordinate Service Rules or in the Forest Rules. It cannot also be in doubt that in the absence of any rule, recruitment by transfer can be on the basis of seniority or can also be on the basis of selection.”

13. However in that case, having found that the post of Assistant Conservator of Forests was within the purview of the Public Service Commission, the learned Judges held, following Rule 4 of the Andhra Pradesh Service Commission Rules of Procedure, that in the case of recruitment by transfer from Subordinate Service to a State Service, the Commission was bound to consider the claims of as many candidates as were eligible in it's opinion for such transfer and in such a case recruitment by transfer could not have been made on the basis of seniority. We, therefore, do not see any force in the contention of the learned counsel that appointment by transfer on the basis of seniority-cum-fitness was illegal and improper.

14. It was vehemently argued by the learned counsel for the petitioners that the regularisation of the services of the respondents in July, 1978 was illegal and improper being contrary to the Special Rules as well as the State and Subordinate Service Rules. It was their submission that the services of a person appointed in a temporary post could not be regularised and that in any event if a temporary appointment of a person in a temporary post was already made under Rule 20(a), question of appointment of the same person on a regular basis under the very same Rule 2(a) could not arise when he was still continuing in the temporary post. Drawing our attention to Rule 23fa) of the Andhra Pradesh State and Subordinate Service Rules it was pointed out by Sri A.V Koteswara Rao that when the High Court requested the Governor to regularise the services of the respondents, it had in mind Rule 23(a) and if it were so, the subsequent appointment should be treated as a fresh appointment and the service from the date of such appointment alone should be taken into consideration. Before we deal with this contention, we have to bear one thing in mind. Rule 4 of the Special Rules prescribed probation for a period of one year only for those who were appointed otherwise than by transfer. So persons appointed by transfer need not be put on probation. In such a case we are not able to understand how Rule 23(a) of the State and Subordinate Rules which dealt with commencement of probation from the date of subsequent appointment or from such earlier date as the appointing authority might have determined, will be applicable in this case. It is no doubt true that the respondents were appointed in the first instance on a temporary basis. But when some permanent vacancies hod arisen the High Court requested the Governor to regularise their services for the purpose of their confirmation in the service. As we have already mentioned, almost all the temporary posts were continued and many of them were even made permanent in course of time. So, the Governor, appointed the respondents on a regular basis in consultation with the High Court. In support of their contention that reguiarisation was not a form of appointment and that under the guise of reguiarisation a person could not be appointed on a regular basis with retrospective effect, the learned counsel cited two decisions of the Supreme Court in R.N Nanjundappa v. T. Thimmaiah, (1972) 1 SCC 409 : AIR 1972 SC 1767 and Ramendra Singh v. Jagdish Prasad, 1984 Supp SCC 142 : AIR 1984 SC 885. In the former case, the respondent Thimmayya was appointed through the Public Service Commission by the Mysore Government as an Assistant Geologist in the grade of Rs. 125-175. He was sent on deputation as the Vice-Principal of the Kolar Gold Fields School of Mines. When the then principal of School of Mines who was employed on a part time basis on an allowance of Rs. 200 p.m left, in 1958 the respondent who was Vice-Principal and was also doing the duties of principal had been appointed as Principal with effect from 22nd July, 1958 in the grade of Rs. 500-30-800 by an order dated 25th September, 1958. On 3rd April, 1959 the State Gcwernment in modification of the notification on 25th September, 1958 appointed the respondent as temporary officiating Principal with effect from 15th February, 1958. The Mysore Education Department Services (Technical Education Department) (Special Recruitment) Rules, 1967 regularised the appointment of the respondent in the following terms:

“Notwithstanding any rule made under the proviso to Articlc 309 of the Constitution of India, or any other rules or Order in force at any time Dr. T. Thimmaiah, B. Sc. (Hons.) Ph. D (Lond.) F.G.S shall be deemed to have been regularly appointed as Principal, School of Mines, Gorgaum, Kolar Gold Fields with efiect from 15-2-1958.”

15. This rule was challenged by the appellant on various grounds—

(a) that the respondent was governed by the Mysore Service Regulations, 1943, the Mysore State Civil Services (General Recruitment) Rules, 1957 as well as the Mysore Education Department Services (Technical Education Department) Recruitment Rules, 1964;

(b) that the respondent was in Class III service and his appointment amounted to promotion from Class III to Class I. If so it is by two limitations: (1) it has to be on the basis of merit and suitability with due regard to seniority from among persons eligible for promotion, and (2) it has to be on the basis of seniority-cum-merit from among persons eligible for promotion. Considering those contentions the Supreme Court held—

“………. Article 309 speaks of rules for appointment and general conditions of service. Reguiarisation of appointment by stating that notwithstanding any rules the appointment is regularise strikes at the root of the rules and if the effect of the reguiarisation is to nullify the operation and effectiveness of the rules, the rule itself is open to critism on the ground thai it is in violation of current rules. Therefore the relevant rules at the material time as to promotion and appointment are infringed and the impeached rule cannot be permitted to stand to operate as a regularisation of appointment of one person in utter defiance of rule requiring consideration of seniority and merit in the case of promotion and consideration of appointment by selection or by competitive examination.”

16. It was further observed:

“The reguiarisation is bad for the following reasons:

First, reguiarisation is not itself a mode of appointment. Secondly the modes of appointments are direct recruitment or selection or promotion or appointing for reasons to be recorded in writing an officer holding a post of an equivalent grade by transfer from any other service of the State. The Government did not contend it to be a case of promotion. If it were a case of promotion it would not be valid because it would be a promotion not on the basis of seniority-cum-merit but a promotion of some one who was in Class III to Class I. Even with regard to appointment under Rule 16 by transfer of person holding an equivalent grade the appointment would be offending the rules because it would not be transfer from an equivalent grade. Again, merit and seniority could not be disregarded because the respondent was not in the same class as the Principal of the School of Mines. The pay of Principal was Rs. 500-800 whereas the respondent was getting a salary of Rs. 165 in the grade of Rs. 125-165 plus an allowance of Rs. 75.”

17. In those circumstances the learned Judges held that the reguiarisation of the services of the respondent was illegal. In the later case Ramendra Singh v. Jagdish Prasad, by orders dated 18th August and 26th September, 1964 the Chief Engineer appointed, among others, twelve persons working as Sub-Overseers in the department, as temporary Overseers on their passing the Diploma examination from the date of publication of their results of the diploma in the Mechanical/Electrical Engineering examination. A provisional gradation list of Overseers was prepared and certain Overseers who felt aggrieved by the provisional list made representations and eventually a revised gradation 1ist dated 17th November, 1973 was prepared. Some of the aforesaid tweleve persons were promoted as Mechanical Sub-Divisional Officers by an Order dated 13th March, 1974. The revised gradation list dated 17th November, 1973 and the two orders dated 18th August and 26th September, 1964 appointing the aforesaid persons as temporary Overseers with retrospective effect and the order dated 13th March, 1974 promoting some of them as Mechanical Sub-Divisonal Officers were challenged. The Supreme Court held that the aforesaid 12 persons could not be appointed:

“with retrospective effect so as to affect the seniority of the other Employees. Therefore the orders dated 18th August and 26th September, 1964 which purported to appoint the Sub-Overseers as temporary overseers from the date of publication of their result were clearly violative of Articles 14 and 16 inasmuch as the other aggrieved employees had already been appointed as Overseers by selection committee constituted under the relevant rules.”

18. In our view the above referred two decisions have no application to the facts of this case. In the instant case, the respondents were appointed by the Governor as the District and Sessions Judges Grade II, at the initial stage on a temporary basis. They continued in those posts till they were regularly appointed. The initial appointment as well as the regular appointment were made on the basis of the recommendation of the High Court. All the respondents were fully qualified to hold the posts of District and Sessions Judges Grade II. They were the senior-most persons in the cadre of Sub-Judges when they were recommended by the High Court for appointment by transfer as District Judges Grade II. Obviously no period of probation was prescribed for them on their appointment to Category II under the Special Rules, having regard to their long experience as Sub-Judges. When permanent posts became available, for the purpose of their absorption on a regular basis in Category II. the High Court requested the Governor to regularise their services. That is how the respondents came to be regularly absorbed in the service in Category II. The reguiarisation of the services of the respondents so effected is not contrary to any of the Rules governing the service and as such cannot be said to be illegal.

19. It was next contended that the Governor being the appointing authority he alone had the power to confirm the respondents and the order of confirmation passed by the High Court was violative of Rule 29 of the Andhra Pradesh State and Subordinate Service Rules and that in any event only approved probationers could be confirmed in service under that rule and the respondents not being the approved probationers were not entitled to be made the full members of the service. This contention is stated only for being rejected. Under Article 235 the control over the District Courts and the Courts subordinate thereto is vested in the High Court Once a person was appointed to be the District Judge by the Governor as provided under Article 233 and the Special Rules made under the proviso to Article 309, the entire control over them thereafter vested in the High Court and once the persons were so appointed, the act of appointment was complete and nothing more remained to be done. As such, the Supreme Court observed in Punjab and Haryana High Court v. State of Haryana, (1975) 1 SCC 843 : AIR 1975 SC 613 that the function of confirmation vested in the High Court under Article 235. So, there could not be any dispute that the order of confirmation made by the High Court was quite legal andjvalid. We equally see no force in the contention that the respondents who were not approved probationers could not have been appointed as full members of the service. As we have already mentioned, the Special Rules prescribed period of probation only to persons appointed otherwise than by transfer and it was obviously for the reason that they had already gained sufficient experience by being members of the State Judicial Service and their appointment as District and Sessions Judges Grade II was only by way of transfer from one State service to the other.

20. It was vehemently urged that the quota fixed between the direct recruits and the appointees by transfer under the proviso to sub-clause (2) of Clause (a) of Rule 2 of the Special Rules necessarily implied the application of the rule of rotation not only at the time of appointment but also at the time of confirmation and determination of seniority and that the respondents who were appointed on regular basis subsequent to the appointment of the petitioners were disentitled to claim seniority over them. In this context it was asserted that under the rule fixing the quota, an appointee by transfer would not be entitled to hold a post reserved to be held by a direct recruit when a direct recruit was available to hold such a post and any such appointee by transfer should have to be pushed down for the subsequent years to occupy a post in their quota. It is a well accepted principle enunciated by Supreme Court in various decisions that a promotee or a transferee has no right to hold a post reserved for a direct recruit if such direct recruit is available for appointment. But in the instant case none of the petitioners is deprived of the right to hold a post reserved for direct recruits. The question is whether the rule of quota can be applied at the stage of confirmation and fixation of inter se seniority. Only in Rule 2 which deals with appointment, provision is made for quota. In no other rule is there any mention of quota. On a close scrutiny of the Special Rules in particular rules (2) and (6) it is apparent that the quota fixed under the proviso to sub-clause (2) of Clause (a) of Rule 2 is intended to be applied only at the stage of appointment and at no other subsequent stage. The proviso under which quota has been fixed does not lay down any principle of rotation. The stress of the argument is on the observance of the rule of quota at the stage of determination of seniority. Let us recapitulate the facts relevant for appreciation of his argument. Some of the respondents were initially appointed to Category II in the year 1974 and the rest of them were appointed subsequently but prior to the appointment of the petitioners. Each one of the respondents was continuously on duty in - the post of the District and Sessions Judge, Grade II till he was confirmed. The petitioners were recruited after the appointment of the respondents and they assumed charge in January, 1977. Prior to their appointment direct recruitment was made in the year 1973. Thus no appointment by direct recruitment was made for more than three years prior to their appointment. So all those posts reserved to be filled by direct recruitment were held during that period, by the respondents. Similarly for a period of about four years there was no direct recruitment from January, 1977 till January, 1981 when the petitioner in Writ Petition No. 12282 of 1985 was appointed. As held by the Supreme Court, whether the quota system has to be observed not only at the stage of initial recruitment but also at the stage of confirmation and determination of seniority is not a matter of abstract law but will depend on the wording of the rules and the scheme of the rules under consideration.

21. So let us examine the scheme of the Special Rules and the wording of the relevant rules 2 and 6 dealing with appointments, quota, and fixation of seniority. Rule 2 pertains to initial appointment to the higher judicial service, of both the appointees by transfer and the direct recruits. Under that rule, quota is fixed between the appointees by transfer and direct recuits in the ratio of 2: 1 There is no specific provision in the rules as to confirmation. But Rule 6 had prescribed that seniority in a category shall be determined with reference to the date from which a person was continuously on duty in that category. Nothing is mentioned in Rule 6 about observance of quota system for fixation of seniority. As we have already held, appointment to a temporary post in Category II can be made under the special rules. In such a case, if the rules of rota and quota are applied at the stage of determination of seniority, the persons appointed by transfer will be totally deprived of the benefit of their continuous service in the temporary posts and that will be directly contrary to the wording of Rule 6. Apart from that, if there was no direct recruitment for a period of three to four years and some of the persons appointed by transfer held the posts reserved for direct recruits during that period, will not be improper and unfair if the persons appointed by direct recruitment at a later stage are allowed to occupy place over and above those already holding those posts for a long time prior to the appointment of those direct recruits ?

22. The legal position in this regard has been clearly enunciated by the Constitution Bench of the Supreme Court in B.S Yadav v. State of Punjab & Haryana, 1980 Supp SCC 524 : AIR 1981 SC 561 on a review of the earlier pronouncements on the subject. In that case, Rule 8 of the Punjab and Haryana Superior Judicial Service Rules provided for quota between the promotees and direct recruits in the ratio of 2: 1. Rule 12 relating to fixation of seniority contained the provision that seniority shall be fixed with reference to the respective dates of confirmation. That rule was amended on 31st December, 1976. At present we are not concerned with the amended rule and it will be referred to at the appropriate stage when we deal with another aspect. Chief Justice Chandrachud speaking for the Bench observed as follows:

“This apart, the application of Rota system at the stage of confirmation is beset with practical difficulties. For example, if vacancies in the quota of direct-recruits cannot be filled for 2 or 3 years for the not uncommon reason that direct recruits are not available, and during that period several vacancies occur in the quota of promotees who have been officiating continuously for two or three years, can the postponement of the confirmation of such promotees against vacant post in their quota, until the direct recruits are appointed and become eligible for confirmation on completing the prescribed period of probation, be justified on any reasonable grounds Is it proper and fair to defer the confirmation of the promotees merely because direct recruits are not available at that point of time so as to enable the High Court to make confirmations from both the sources by rotation? This, precisely is what the High Court has done by the impugned notification dated 25-8-1976 and that is the reason why it has not confirmed ten more promotees in Punjab, for whom vacancies are available within the quota of promotees.

23. In A.K Subraman v. Union of India, (1975) 2 SCR 979 : (1975) 1 SCC 319 : AIR 1975 SC 483 the contention of the respondents that there is an implied rotational system involved the quota rule and that therefore the quota rule must also be applied at the stage of confirmation was rejected by this Court. It is true that it was observed in that case that when recruitment is from two or more sources, there is no inherent invalidity in introducing the quota system and working it out by the rule of rotation But that is not the question which we have to consider in the writ petitions before us. What is relevant is the decision of the Court (page 994 of SCR): (at pp. 264-65 of Lab IC) that the quota rule will be enforced at the time of initial recruitment and not at the time of confirmations. The Court observed that the tests to be applied for the purposes of promotion and confirmation are entirely different since there is a well recognised distinction between ‘promotion’ and ‘confirmation’.

24. In N.K Chauhan v. State of Gujorat, (1977) 1 SCR 1037 : (1977) 1 SCC 308 : AIR 1977 SC 251 : it was reiterated (pages 1051-1053) (of SCR) that having regard to the recent decisions of this Court, it could not be held that ‘quota’ is so interlocked with the ‘rota’ that where the former is expressly prescribed the latter is impliedly inscribed. One of us Krishna Iyer, J. while summarising the conclusions of the Court said:

“The quota rule does not, inevitably, invoke the application of the rota rule. The impact of this position is that sufficient number of direct recruits have not been forthcoming in the year since 1960 to fill in the ratio due to them and those deficient vacancies have been filled up by promotees, latter direct recruits cannot claim ‘deemed’ dates of appointment for seniority in service with effect from the time according to the rota or turn, the direct recruits vacancies arose.”

25. Seniority of promotees, according to this decision, could not be upset by later arrivals from the open market, save to the extent to which any excess promotees have to be pushed down.

26. In Paramjit Singh Sandhu v. Ram Rakha, (1979) 3 SCR 584 : (1979) 3 SCC 478 : AIR 1979 SC 1073 it was held by this Court on a harmonious reading of Rules 3, 4, 6, B, and 10 of the Punjab Police Rules, 1959 that the quota rule was operative both at the time of initial recruitment and at the time of confirmation. We would like to clarify that case is not an authority for the proposition that whenever Service Rules provide for quota, the rule of rota must be read into the rule of quota. We are not laying down that the rules of quota and rota cannot co-exist. Service Rules may so provide or they may yield to such an interpretation. In that event, their validity may have to be tested in the total setting of facts. Therefore, whether the quota system has to be observed not only at the stage of initial recruitment but also at the stage of confirmation is not a matter of abstract law but will depend on the wording of the rules and the scheme of the rules under consideration. Any dogmatic assertion, one way or the other, is wrong to make. On a review of these authorities, all that we would like to say is that on a proper interpretation of the rules governing the Punjab and Haryana Superior Judicial Service, the rule of rota cannot be read into the rule of quota. In other words, the ratio of 2: 1 shall have to be applied at the stage of recruitment but cannot, on the language of the relevant rules, be applied at the stage of confirmation.

27. Having regard to the decision of the Supreme Court and the Andhra Pradesh Higher Judicial Service Special Rules we have no hesitation to hold that the rule of quota cannot be applied at the stage of determination of seniority under Rule 6.

28. We have now to deal with the other contention advanced on behalf of the petitioners that Rule 6 prescribing continuous duty as a criterion for fixation of seniority between the direct recruits and appointees by transfer is discriminatory, arbitrary and unreasonable and such is violative of Arts, 14 and 16 of the Constitution, Before dealing with this submission it will be useful to refer to some of the relevant decisions of the Supreme Court having relevancy in this regard. Krishna Iyer. J. speaking on behalf of the Court in N.K Chauhan v. State of Gujarat, (1977) 1 SCR 1037 : (1977) 1 SCC 308 : AIR 1977 SC 251 : said that seniority, normally was measured by length of continuous officiating service. Subsequently in S.B Patwardhan v. State of Maharashtra, (1977) 3 SCC 399 : AIR 1977 SC 2051 at p. 2068, Y.V Chandrachud, J.; as he then was, reiterated the same principle in the following terms:

“All other factors being equal continuous officiation in a non-fortuitous vacancy ought to receive due recognition in determining rules of seniority as between persons recruited from different sources, so long as they belong to the same cadre, discharge similar functions and bear similar responsibilities.”

29. In Baleswar Dass v. State of U.P, (1980) 4 SCC 226 : AIR 1981 SC 41 : Krishna Iyer, J. pointed out how in certain circumstances, no distinction can be made between the holder of a temporary post and the holder of a permanent post in the determination of seniority, in the following terms:

“We must emphasise that while temporary and permanet posts have great relevancy in regard to the career of Government servants, keeping posts temporary for long some times by annual renewals for several years, and denying the claims of the incumbents on the score that their posts are temporary makes no sense and strikes us as arbitrary, especially when both temporary and permanent appointees are functionally identified. If, in the normal course, a post is temporary in the real sense and the appointee knows that his tenure cannot exceed the post in longevity, there cannot be anything unfair or capricious in clothing him with no rights. Not so, if the post is, for certain departmental or like purposes, declared temporary, but it is within the ken of both the government and the appointee that the temporary posts are virtually long-lived. It is irrational to reject the claim of the temporary appointee on the nominal score of the terminology of the post. We must also express emphatically that the principle which has received the sanction of this Court's pronouncements is that officiating service in a post is for all practical purposes of seniority as good as service on a regular basis. It may be permissible within limits, for government to ignore officiating service and count only regular service when claims of seniority come before it, provided the rules in that regard are clear and categoric and do not admit of any ambiguity and cruelly arbitrary cut-off of long years of service does not take place or there is functionally and qualitatively, substantial difference in the service rendered in the two types of posts. While rules regulating condition of service are within the executive power of the State or its legislative power of the State or its legislative power under Proviso to Art. 309, even so, such rules have to be reasonable, fair and not grossly unjust if they are to survive the test of Arts. 14 and 16.”

30. A similar view was expresse? by Desai, J. in A. Janardhana v. Union of India, (1983) 3 SCC 601 : AIR 1983 SC 769 : regarding computation of service of the holder of a temporary post:

“Keeping in view the exigencies of service and the requirements of the State, temporary posts would be a temporary addition to the strength of the cadre, unless it is made clear to the contrary that the temporary posts are for a certain duration or the appointments to temporary posts are of an ad hoc nature till such time as recruitment according to rules is made. In the absence of any such provision, persons holding permanent posts and temporary posts would become the members' of the service provided the recruitment to the temporary post is legal and valid. Once the recruitment is legal and valid, there is no difference between the holders of permanent posts and temporary posts in so far as it relates to all the members of the service.”

31. It was further observed at page 775:

“But, having done that we do propose to examine and, expose an extremely undesirable, unjust and inequitable situation emerging in service jurisprudence from the precedents namely, that a person already rendering service as a promotee has to go down below a person who comes into service decades after the promotee enters the service and who may be a schoolian, if not in embryo, when the promotee on being promoted on account of the exigencies of service as required, by the Government started rendering service. A time has come to recast service jurisprudence on more just and equitable foundation by examining all precedents on the subject to retrieve this situation.”

32. It was further observed that:

“In the absence of any other rule……… continuous officiation would be the only available rule for determining the inter se seniority……….”

33. The learned Judge emphasized at page 786 that:

“It is, therefore, time to clearly initiate a proposition that a direct recruit who comes into service after the promotee was already unconditionally and without reservation promoted and whose promotion is not shown to be invalid or-iilegal according to relevant statutory or non-statutory rules should not be permitted by any principle of seniority to score a march over a promotee because that itself being arbitrary would be violative of Arts. 14 and 16.”

34. The principle enunciated above has been reiterated in G.S Lamba v. Union of India, (1985) 2 SCC 604 : AIR 1985 SC 1019. In G.P Doval v. Chief Secy. Govt. of U.P, (1984) 4 SCC 329 : AIR 1984 SC 1527 the Supreme Court reiterated the principles referred to above in the earlier decisions in the following terms:

“Now if there was no binding rule of seniority it is well-settled that length of continuous officiation prescribes a valid principle of seniority. The question is from what date the service is to be reckoned? It was urged that any appointment of a stop-gap nature or pending the selection by Public Service Commission cannot be taken into account for reckoning seniority. In other words, it was urged that to be in the cadre and to enjoy place in the seniority list, the service rendered in a substantive capacity can alone be taken into consideration. We find it difficult to accept this bald and wide submission. Each case will depend upon its facts and circumstances. If a stopgap appointment is made and the appointee appears before the Public Service Commission when the latter proceeds to select the candidates and is selected, we see no justification for ignoring his past service ………. It is thus well-settled that where officiating appointment is followed by confirmation unless a contrary rule is shown, the service rendered as officiating appointment cannot be ignored for reckoning length of continuous officiation for determining the place in the seniority list. Admittedly, that has not been done and the seniority list is drawn up from the date on which the approval/selection was made by the Public Service Commission in respect of each member of the service, which is clearly violative of Art. 16 and any seniority list drawn up on this invalid basis must be quashed”

35. In O.P Singla v. Union of India, (1984) 4 SCC 450 : AIR 1984 SC 1595 : Chandrachud, C.J, following the principle laid down in S.P Patwardhan v. State of Maharashtra, observed:—

“It was held by this Court in that case that all other factors being equal, continuous officiation in a non-fortuitous vacancy ought to receive due recognition in fixing seniority between persons who are recruited from different sources, so long as they belong to the same cadre, discharge similar functions and bear the same responsibilities.”

36. From the decisions referred to above, it is very clear that where there is no statutory rule or the rule that prescribes quota has been deviated, seniority shall be determined on the basis of continuous officiation in a non-fortuitous vacancy. On a reading of the rule, it is evident that the service consists of not only permanent posts but also temporary posts. Rule 1 itself provides that Category II consists of District and Sessions Judges, Grade II including Additional District and Sessions Judges. Rule 2(a)(1) which deals with the appointment of the Subordinate Judges, by transfer, to be District and Sessions Judges, Grade II does not limit the | appointment only to permanent posts unlike Rule 2(a)(2) under which, the appointment of the direct recruits is hedged by a limitation restricting it to only permanent posts. On the other hand, Rule 5 which provides that the appointment and reappointment of persons under reversion to the category of District and Sessions Judges of Grade II shall be made by the Governor, gives a clear indication that Subordinate Judges can be appointed by transfer to be District and Sessions Judges Grade II under the special rules, even in irespect of temporary posts. From the facts of this case, cannot be said that the temporary posts in which the respondents were appointed were fortuitous or were created as a stop-gap arrangement. The temporary posts which were in existence at the time the respondents were appointed were there since a number of years and they were even made permanent subsequently. All the respondents though appointed in temporary posts in the beginning continued to hold the posts without break in service till they were confirmed. Their appointments on a temporary basis were made following the very same procedure that was followed in making regular appointments. The High Court considered the fitness of each one of the respondents and having been satisfied that they were suitable to be appointed as District and Sessions Judges Grade II by transfer, recommended to the Governor for their appointment. The Governor accepted the recommendation of the High Court and appointed them. The functions performed and the responsibilities discharged by them when they held temporary posts are identical to those performed by them after their confirmation. It is obvious that no provision has been made in the Special rule, prescribing period of probation for the appointees by transfer, in view of their long judicial experience as Sub-Judges. So the rule making authority intended to give weightage to the continuous service rendered by such persons even on a temporary basis and incorporated that intention in Rule 6. Had it not been so specified in Rule 6, the direct recruits who entered the service long after the appointees by transfer were appointed would have scored a march over them, in which case there might not have been any difficulty in declaring such rule as violative of Articles 14 and 16 of the Constitution of India being arbitrary and unreasonable.

37. It is urged on behalf of the petitioners that by so interpreting the rule as we have chosen to, the respondents who were appointed on a regular basis subsequent to the appointment of the petitioners will be treated as seniors and that will really be arbitrary and unresonable. When “continuous officiation” is accepted as a valid critertion for fixing seniority and the same principle has been incorporated in a rule we find it difficult to accept such a contention.

38. A rule similar to rule 6 of the Superior Judicial Service Rules of Punjab and Haryana was held to be constitutionally valid in B.S Yadav v. State of Haryana. The relevant rules referred to in that decision are extracted.

Rule (8):

“Recruitment to Service—

(1) Recruitment to the Service shall be made—

(i) by promotion from the Punjab Civil Service (Judicial Branch)

(ii) by direct recruitment.

(2) of the total number of cadre-posts, two third shall be manned by promoted officers and one-third by direct recruits:

Provided that nothing in this sub-rule shall prevent the officiating appointment of a member of the Provincial Civil Service (Judicial Branch) on any posts whieh is to be filled up by direct recruitment, till a direct recruit is appointed.”

39. Rule 12 reads as follows:

Rule 12:

Seniority — The seniority, inter se of the substantive members of the Service. Whether direct recruits or promoted officers, shall be determined with reference to the respective dates of their confirmation:

Provided that the seniority, inter se, of substantive members of the Service having the same date of confirmation shall be determined as follows:

(i) in the case of direct recruits the older in age shall be senior to the younger;

(ii) in the case of promoted officer, in accordance with the seniority in the Punjab Civil Service (Judicial Branch) as it stood immediately before their confirmation;

(iii) in the case of promoted officers and direct recruits, the older in age shall be senior to the younger.”

40. Rule 12 was subsequently amended on December 31, 1976 and the amended I rule reads as follows:—

“12 Seniority:

The seniority, inter se, of the members of the service, shall be determined by the length of continuous service on a post in the Service irrespective of the date of confirmation:

Provided that in the case of two members appointed on the same date, their seniority shall be determined as follows:

(i) in the case of direct recruits, the older in age shall be senior to the younger;

(ii) a member recruited by direct appointment shall be senior to a member recruited otherwise; and

(iii) in the case of members appointed by promotion, seniority shall be determined according to the seniorty of such members in the appointments from which they were promoted.”

41. Upholding the validity of the amended Rules 12 prescribing continuous service as a factor for determination of seniority, the Court categorically held as follows at page 586:

“We do not also see any constitutional or legal objection to the test of continuous officiation introduced thereby.”

42. Therefore, in view of the facts and circumstances of the case and the decisions referred to above Rule 6 cannot be said to be violative of Articles 14 and 16. For the reasons stated above, the respondents are entitled to claim seniority over the petitioner with reference to the respective dates from which they were on continuous duty. Therefore the petitioners in Writ Petition No. 52 of 1983 and Writ Petition No. 1968 of 1982 shall be placed immediately below the respondent No. 23 in the order of seniority.

43. So far as the petitioner in Writ Petition No. 12282 of 1985 is concerned, he cannot claim, on any basis, seniority over the respondents in Writ Petition No. 52 of 1983. He did not even implead the necessary parties likely to be affected in case the decision had gone in his favour. He was appointed by direct recruitment on January 12, 1981 and assumed charge on January 19, 1981, whereas most of the respondents in Writ Petition No. 52 of 1983 were even confirmed long before the petitioner was appointed. For the very same reasons stated above this writ petition also fails. His seniority shall be fixed in accordance with Rule 6. All the relevant records of the High Court were made available for perusal by the parties and as a matter of fact the panies perused such of those records which they thought were relevant.

44. In the result all the three writ petitions stand dismissed. But in the circumstances there shall be no ordes as to costs.

45. Petition dismissed.