B.R. Gavai, J.

Rule returnable forthwith. Heard finally by consent.

2. The petitioners, who are employees in Group "D" on the establishment of Respondent No.1, have approached this Court praying for quashing and setting aside that part of Rule 29(b) of the Bombay High Court Appellate Side Service Rules, 2000 (hereinafter referred as to "the Rules of 2000") which provides for upper age limit for promotion to the posts of Clerks, Section Writer/Typist and the proviso thereto which restricts the number of promotees to 10% of the vacancies in any year of recruitment.

3. The facts are not much in dispute. Twenty petitioners herein have been appointed on various posts in Group "D" category on various dates. The petitioners contend that, if the provisions of Rule 29 of the Rules of 2000 are read as it is, the petitioners and the similarly circumstanced employees in Group "D" category would be left at the mercy of the Registrar of the High Court and the Hon'ble Chief Justice with regard to their promotions, irrespective of they possessing requisite qualification. It is also the contention of the petitioners that, by now, 'the right to promotion' has been held to be 'the fundamental right of an employee' and Rule 29 totally denies the same to the petitioners. The petitioners also contend that they are discriminated as against those who are similarly circumstanced.

4. We have extensively heard Mr. A.A. Naik, learned Counsel for the petitioners, Mr. A.S. Jaiswal, learned Senior Counsel on behalf of High Court Administration and Mrs. Bharti Dangre, learned Government Pleader and Mr. D.P. Thakare, learned Additional Government Pleader on behalf of the respondent/State.

5. Mr. A.A. Naik, learned Counsel for the petitioners submits that, perusal of Sub-Rule (b) of Rule 29, would reveal that the Registrar, with the prior approval of the Hon'ble Chief Justice, may promote any driver or employee from Group "D" post who has put in minimum three years of continuous service in the post of Clerk, Section Writer/Typist subject to fulfilment of eligibility conditions as mentioned in clause (a) of Rule 29. The learned Counsel submits that, as such, no procedure is prescribed as to in what manner the promotions would be made. It is said that the matter is left at the entire discretion of the Hon'ble Chief Justice and the Registrar. He submits that, under Article 229 of the Constitution of India, absolute powers are vested with the Hon'ble Chief Justice for making appointment of Officers and staff of the High Court and the same is done in order to prevent interference by the Executive. It is submitted that, however, while exercising the power, the Hon'ble Chief Justice is also required to follow mandate of Articles 14 and 16 of the Constitution of India.

6. The learned Counsel for the petitioners further submits that the proviso which restricts number of promotions to 10% of the vacancies in any restricted year is also violative of Article 14 of the Constitution of India. The learned Counsel, relying on the Government Resolution dated 10.5.2005, submits that the State Government itself, vide the said Resolution, has provided that 25% of the posts in Group "C" category be earmarked for filling up the said by promotion from Group "D" employees. It is submitted that, by subsequent resolution dated 14.1.2016, the said 25 % reservation has now been increased to 50%.

7. The learned Counsel submits that the duties which are to be exercised by the Clerks etc. in the High Court and by the Clerks working in the State Government departments are almost identical and there is no reason as to why the provisions which are made in respect of the employees of the State Government and the High Court should be discriminative. The learned Counsel submits that the salary of both the set of the employees comes from the same public exchequer and as such, there is no reason as to why they should not be given equal treatment.

8. The learned Counsel further submits that the Hi