JUDGMENT

SARKARIA, J.:—Respondents 1, 2 and 3 herein made an application under Article 226 of the Constitution alleging that the decision of the Bihar State Government fixing the seniority of Respondents 4 below Shri C. P. Singh (Respondent 5) and Shri E. Rehman (Respondent 6) and above the applicants, in the cadre of Bihar Superior Judicial Service was illegal and ultra vires. They prayed for a writ of mandamus, direction or order quashing the same and directing the State Government to revise the applicant s seniority vis-a-vis the opposite parties, (Respondents 4, 5 and 6 herein).

2. The applicants also challenged the upgrading of the posts of Deputy Registrar, Patna High Court and the Secretary, Bihar Legislative Assembly with effect from June 17, 1959 till the posts were held by Respondents 5 and 6, respectively. 405

3. A Full Bench of the High Court, partly allowed the writ application and quashed the order of the State Government placing Respondent 4 below Respondents 5 and 6 in seniority. The material facts were these :

4. Respondents 4, 5 and 6 were appointed as Munsifs on the same date under one notification. On April 25, 1959, these three officers were holding the posts of Subordinate Judges. Prior to that date four posts of Additional District and Sessions Judges fell vacant. On April 25, 1959, the High Court, after considering the service records of the Sub-ordinate Judges due for promotion, recommended Respondents 4, 5 and 6 and Shri Sharda Prasad for promotion as Additional District and Sessions Judges in those vacancies. Respondents 5 and 6 on that date were acting as Deputy Registrar, Patna High Court and Secretary, Bihar Legislative Assembly, respectively, and since the release of Respondent 5 from that post was not in public interest, the High Court recommended temporary upgrading of that post. It further recommended that Respondent 6 should act as Additional District and Sessions Judge in the second longer vacancy and in case the State Government did not think it proper to relieve him, the post of Secretary, Bihar Legislative Assembly should be upgraded. Respondent 4 was recommended to be promoted as Additional District and Sessions Judge in the third longer vacancy. He joined in the promoted rank on June 17, 1959 and continued in it till October 1, 1959. Before the actual officiation by Respondent 4 in the promoted rank, the Government by its letter, dated August 5, 1959, had approved the creation of two posts of Additional District and Sessions Judges for a period of one year in the first instance, consequent on the amendment of Bengal, Agra and Assam Civil Court Act. 1887.

5. On May 22, 1959, the Government sanctioned the cremation of two posts of Peripatetic District and Sessions Judges for a period of two years. Thus, between April 25, 1959 and June 17, 1959 four extra posts of Additional District and Sessions Judges were created, and were available for the persons found fit and due for promotion from, the cadre of Subordinate Judges. On August 17, 1959, the High Court, recommended Sarvshir A. N. Sahay, R. B. P. Sinha, C. P. Singh (Respondent 5) and E. Rahman (Respondent 6) for promotion as Additional District and Sessions Judges. It, however, made it clear that since Respondents 5 and 6 could not be relieved from the posts of Deputy Registrar, High Court and Secretary, Legislative Assembly, they should continue in these posts after the same had been upgraded. The High Court further recommended that in view of the heavy arrears two more posts of Additional District and Sessions Judges be created for the period for which Respondents 5 and 6 were to continue on the posts they were then holding.

6. Ten more posts of additional District and Sessions Judges fell vacant between November 1, 1959 and April 6, 1960. thus, there were, in all, fourteen vacancies in the posts of Additional District and Sessions Judges, to one of which Respondent 4 could and should have been appointed, if there was no administrative or