Judgment

OZA, J.:- These writ petitions filed by the petitioners challenge the inter se seniority of the officers in the higher judicial service coming from two sources; i) promoted from the judicial service and ii) others who are directly recruited from the Bar.

2. The petitioners are officers of the State Judicial Service who have been promoted on various dates to the higher judicial service and posted as Additional District Judges or some of them were posted as Civil and Sessions Judges before 1974 as in 1974 the post of Civil and Sessions Judge has been abolished and the higher judicial service for the State of Uttar Pradesh was constituted.

3. According to the petitioners they were promoted to officiate as Additional District and Sessions Judges on various dates and they continue to officiate as such, they were confirmed and on their confirmation they have been given the seniority not from the date of their continuous officiation but from some other date chosen by the High Court arbitrarily. And because of which, they have been put in the seniority list much below those officers appointed by direct recruitment and who were appointed much after the petitioners. According to the petitioners, they were promoted on various dates shown against their names and they have also shown the dates on which they were confirmed :

S. No. Pet. Name Date of joining PCS (J) Nyayika Sewa Date of promotion & continuous officiation in HJS on Addl. Distt. & Sessions Judge Date of confirmation Date of vacancy in which confirmed

1. P.K. Dixit 1-3-61 9-9-73 24-1-81 1-10-78

2. A.N.Gupta 1-3-61 22-9-73 24-1-81 1-10-78

3. B.K. Srivastava 1-3-61 29-3-74 24-1-81 30-4-79

4. I.S. Mathur 1-4-62 24-5-74 24-1-81 31-7-79

5. Taj Shanker 1-4-62 16-8-76 24-1-81 1-1-80

6. R.N. Sarkar 17-4-61 16-8-76 29-10-83 1-1-80

7. S.P. Agarawal 2-3-63 3-1-77 29-10-83 1-1-80

8. A.K. Srivastava 1-3-63 3-1-77 29-10-83 1-1-80

4. In this list they have also shown the date of the vacancy on which they were proposed to be confirmed.

5. It is also contended on behalf of the petitioners that in 1975 the pre sent rules for recruitment of the judicial officers in the higher judicial service came into force. Before these rules were brought into force, the earlier rules were declared to be bad and in substance, therefore, before these rules were brought into force, there was no provision for direct recruitment to the higher judicial service. It is contended that all the vacancies existing on the date on which these rules (1975 Rules) came into force have to be filled in by promotion. And while confirming and giving the dates for the purposes of seniority, the High Court ought to have prepared a fist of vacancies existing on the date on which these Rules (1975 Rules) came into force and confirm all those who were officiating as Additional District and Sessions Judges or Civil and Sessions Judges on this date in all those vacancies. And if this was done, these petitioners who were appointed before 1975 could have been confirmed on those vacancies and in that event they could not have been confirmed in the vacancies occurring in 1978, 1979 and 1980.

6. It is not disputed that out of these petitioners first four were promoted in 1973 and 1974 and on the date on which these rules came into force, they were already functioning as Civil and Sessions Judges as the designation of Additional District Judges was not there.

7. In the written affidavit filed by the High Court, it is not disputed that before these rules were brought into force, all the posts which were available on the date. on which these rules came into force have to be filled in by promotion as till that date there was no rule requiring direct recruitment. But unfortunately, the High Court in their return have not mentioned the exact number of vacancies existing on that date also the number of officers who were officiating on that date as Civil and Sessions Judges or Additional District and Sessions Judges who were entitled to be included