JUDGMENT

S.B. Sinha, J.—The Appellants herein are assistants working in the High Court of Gujarat. Their promotion to the post of Section Officer was due. There were 25 vacancies in the post of Section Officer. A written examination was held for the said purpose. All the assistants eligible therefor appeared at an written examination. 29 employees did not obtain the requisite marks for appearing at the viva-voce examination. They filed a writ petition before the Gujarat High Court which was numbered as SCA No. 351 of 1998.

2. 19 of them although cleared the written test but did not do well in viva-voce. They filed a writ petition before the High Court which was numbered as SCA 1298 of 1999.

3. The post of Section Officer is a selection post. The terms and conditions of service are governed by Gujarat (Recruitment and Conditions of Service of Staff) Rules, 1964 (for short “the 1964 Rules”). Rule 38 of the 1964 Rules relates to promotion which is set out hereunder :

“38.(1) Promotions shall be made on merit, but seniority in the cadre shall be ordinarily taken into account as far as possible. A person, however, may receive special promotion for recognized merit irrespective of the grade