Judgment

SARKARIA, J.:- This appeal by special leave is directed against a judgment dated December 12, 1977 of the High Court of Allahabad.

2. The appellant herein, Shri B. L. Goel, is a District and Sessions Judge and as such a Member of U. P. Higher Judicial Service. The sanctioned permanent strength of the Higher Judicial Service was 82. It comprised (i) 37 posts of District and Sessions Judges and (ii) 45 Civil and Sessions Judges including five posts of leave reserves. The service includes substantive posts as well as temporary posts. The appointments to posts of Civil and Sessions Judges are made from two sources:

(a) By promotion from the members of the U. P. Civil Service (Judicial Branch); and

(b) By direct recruitment after consultation with the Court (Vide Rule 5).

Under Rules 13 and 17 of the U. P. Higher Judicial Service Rules 1953 (hereinafter referred to as the 1953 Rules) waiting lists were to be prepared of the persons found fit for promotion or appointment to the higher service. Rule 19 provided that the Governor shall, on receipt from the Court of the waiting lists prepared under Rules 13 and 17 make appointment to the service on the occurrence of substantive vacancies. Para 2 of Rule 19 provided that the Governor could make appointments in temporary or officiating vacancies of the persons who were eligible for appointment by promotion and whose names were borne on the waiting list in force prepared under Rule 13. Rule 21 fixed the period of probation for direct recruits at two years. Rule 22 provided that the probation could be extended for a specific period. On satisfactory completion of his period of probation, a direct recruit was entitled to be confirmed. No period of probation was fixed in the case of promotees. Rule 20, which is being impugned, originally, ran as follows:-

"20. Seniority - Subject to the provisions of Rule 31 seniority in each of the two classes of posts in the Services shall be determined by the date of confirmation in that class of post :

Provided that if in any class of the post, two or more persons are confirmed on the same date, their seniority will be determined according to the order in which their confirmation has been notified.

Provided further that in the case of direct recruits, their inter se seniority will be fixed in the same order in which their names appear in the list prepared by the Selection Committee under Rule 17."

Rule 23 dealt with confirmation. It provided :

"23. Confirmation - (1) A probationer shall be confirmed in his appointment at the end of his period of probation or at the end of the extended period of probation, if the Governor, after consultation with the Court, is satisfied that he is fit for confirmation.

(2) All confirmation under this rule shall be notified in the Official Gazette."

3. The appellant was appointed to the U. P. Civil Service (Judicial Branch) on September 13, 1948 on the basis of a competitive examination held by the U. P. Public Service Commission. He was posted as Civil Judge in the same service in January 1955. He was appointed by promotion as an officiating Civil and Sessions Judge in U. P. Higher Judicial Service in July 1960. Respondents 3, 4 and 5 are direct recruits. They were appointed on probation as Civil and Sessions Judges and joined the service on May 31, 1966, May 27, 1966 and June 1, 1966 respectively.

4. The constitutional validity of the 1953 Rules providing for appointment to U. P. Higher Judicial Service first came up for consideration before this Court in 1966, in Chandra Mohan v. State of U. P., AIR 1966 SC 1987, wherein it was held that the 1953 Rules providing for recruitment of District Judges, particularly Rules 5, 8, 13, 17 and 19 of the U. P. Higher Judicial Service Rules 1953, were invalid as they contravened the mandate of Article 233 (1), and that consequently, the appointments of persons appointed under those Rules including the appellant and respondents 3, 4 and 5 to the U. P. Higher Judicial Service were unconsti