Judgment

UNTWALIA, J. :- The four petitioners in this petition under Article 32 of the Constitution of India are working as Additional District and Sessions Judges in the Delhi Higher Judicial Service at Delhi. Their prayers in this writ petition are to strike down Rules 9 (a) and 11 of the Delhi Judicial Service Rules, 1970 as being ultra vires and violative of Articles 14 and 16 of the Constitution and to declare Rule 8 of Delhi Higher Judicial Service Rules, 1970 as void and unconstitutional. Their further prayer is to quash the fixation of the seniority of the petitioners and respondents 3 to 6 and to place petitioners 1 to 4 above respondents 3 to 5 and petitioners 2 to 4 above respondent 6 in the gradation of seniority in Delhi Judicial Service and Delhi Higher Judicial Service.

2. All the four petitioners originally belonged to the Punjab Civil Service Judicial). Shri Joginder Nath, petitioner No. 1 joined the said service on 2-7-1956, Shri D. C Aggarwal, petitioner No. 2 on 2-7-1957, Shri S. R. Goel, petitioner No. 3 on 8-7-1957, and Shri P. L. Singla, petitioner No. 4 on 10-10-l958. Prior to 1966, the Union Territory of Delhi for the purposes of administration of justice was included within the territorial jurisdiction of the erstwhile Punjab High Court and Presiding Officers of the Courts at Delhi were posted by transfer from the State of Punjab. There was no separation of Executive and Judiciary. The Magistrates were selected on ad hoe basis from the States of U. P. and Punjab and were posted to work as such at Delhi. Later on, on creation of the States of Punjab and Haryana the officers of Punjab and Haryana Civil Service (Judicial) cadre used to be posted in Delhi against all Judicial posts. A separate High Court for Delhi was constituted on the 31st October, 1966. The arrangement in regard to Judicial officers in the lower Courts however continued as before. In 1969 under the Union Territories (Separation of Judicial & Executive Functions) Act, the magistracy in Delhi was split up into two parts with effect from 2-10-1969. Some magistrates of the State Civil Service, Executive Branch, were transferred to work under the superintendence and control of the High Court of Delhi while others were assigned Executive duties and remained under the control of the Delhi Administration as before. In pursuance of the Scheme of separation aforesaid, respondents 3 to 5 who were working as Judicial Magistrates from before were appointed as Chief or Additional Chief Judicial Magistrates under the aforesaid Union Territories Act of 1969. They were formerly Officers of the U. P. Judicial Officers Service. Respondent No. 6 was a member of the Haryana Civil Service (Judicial). Respondents 3 to 5 were performing the functions of Revenue Officers and Judicial Magistrates in U. P. and thereafter in Delhi.

3. The petitioners case is that on 27-8-1970 the Lt. Governor of Delhi, respondent No. 2 as Administrator of the Union Territory framed Delhi Higher Judicial Service Rules, 1970 and Delhi Judicial Service Rules, 1970 under Article 309 of the Constitution read with certain notifications of the Government of India, Ministry of Home Affairs. A Selection Committee was constituted in accordance with Rule 7 of the Delhi Judicial Service Rules. On the basis of the recommendations of the Selection Committee, respondent No. 2 made appointment of officers by way of initial recruitment to the Delhi Judicial Service under Rule 8. 61 officers were selected. It may however, be stated here that as per the statement in the counter-affidavit filed on behalf of respondent No. 2 only 49 officers joined. The petitioners 1 to 4 were placed in the seniority list of the Delhi Judicial Service at serial Nos. 6, 9, 12 and 13 respectively while the respective serial Nos. assigned to respondents 3 to 6 were 1, 2, 4 and 7. It would thus be seen that respondent No. 6 was junior to petitioner No. 1 but senior to petitioners 2 to 4 and respondents 3 to 5 were shown as