JUDGMENT

KULDIP SINGH, J.:—The petitioners and respondents 4 to 16 are District and Sessions Judges in the State of Andhra Pradesh. The petitioners are direct recruits whereas the respondents were promoted from the subordinate judiciary. The respondents were initially appointed on temporary basis in the year 1978/1979 but they were made substantive in the year 1983. The petitioners who were appointed substantively in the year 1981 claim seniority over the respondents by way of this petition under Article 32 of the Constitution of India.

2. The recruitment to the Andhra Pradesh Higher Judicial Service (the Service) is governed by the Rules called "The Andhra Pradesh State Higher Judicial Service - Special Rules" (the Special Rules). Rules 1, 2, 4 and 6 of the Special Rules which are relevant are as under:

"Rule 1. Constitution:- The service shall consist of the following categories:

Category-I :-District and Sessions Judges 1st Grade.

Category-II :- District and Sessions Judges, 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 Officers, Labour Courts and Additional District and Sessions Judges.

Rule 2. Appointments: - (a) Appointment to Category-I shall be made by promotion from Category-II and appointment to Category-II shall be made:

(i) by transfer from among

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

(ii) by direct recruitment from the Bar:

Provided that 33-1/3% of the total number of permanent posts shall be filled or reserved to be filled by direct recruitment.

Explanation :- In the determination of 33-1/3% of the total 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.

Rule 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.

Rule 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."

3. We may briefly notice the scheme of the Special Rules. R. 1 constitutes the Service. Category-I consists of District and Sessions Judges Ist grade and Category-II consists of District and Sessions Judges Second grade. R. 1 does not say that Service shall consist of only permanent posts. All the posts designated as District and Sessions Judges Second grade under Category-II are part of the service under R. 1. In other words, as and when a post of District and Sessions Judge Second grade is created - permanent or temporary - it becomes part of the Service under R. I of the Special Rules. R. 2 provides the method of appointment. Appointment to Category-I is from Category-II Appointment to Category-II is from two sources. By transfer from amongst the Subordinate Judges and by direct recruitment from the Bar. Proviso to R. 2 states that 33-1/ 3% of the total number of permanent posts shall be filled or reserved to be filled by direct recruitment. All the posts of District and Sessions Judges Second grade are part of the Service but quota for the direct recruits is provided only in the permanent posts. R. 6 of the Rules provides for the fixation of seniority. Under R. 6 the seniority of persons appointed to Category-I or Category-II posts is fixed on the basis of continuous length of service in their respective posts.

4. On the plain reading of the Special Rules the salient features of the Service can be culled out as under:

1. Rule 1 provides for the constitution of the Service. All the posts of District and Sessions