JUDGMENT

Anoop Chitkara, J. - After pronouncing dissenting verdicts, Ld. Division Bench could not state the points of difference in terms of clause 26 of Letters Patent, giving a cause to the 5th respondent to come up before this Court under Rule 5 of the APPELLATE SIDE RULES for the High Court of Himachal Pradesh read with Clause 26 of Letters Patent Constituting the High Court of Judicature at Lahore, and as made applicable to this Court, seeking to declare the reference to the third Judge as incomplete, and thus, return it for framing a proper reference on the points of difference between the divergent views, and in the alternative refer the matter to Hon'ble Chief Justice to pass necessary orders for constituting a full bench in terms of Rule 5 of APPELLATE SIDE RULES for the High Court of Himachal Pradesh.

2. The main question raised in the writ petitions relates to inter-se seniority dispute amongst three streams of Himachal Pradesh Higher Judicial Service, i.e.,

(i) The officers promoted on the basis of merit-cum-seniority under 50% quota (Appellant/Petitioner Mr. S.C. Kainthla);

(ii) The officers promoted on the basis of limited departmental competitive examination under 25% quota (Appellant/ Petitioner Mr. Rajeev Bhardwaj); and

(iii) The direct recruits under 25% quota. (Respondents 3 to 6).

3. The Petitioners/Appellants' grievance is that the direct recruits have exceeded their quota, and thus their appointment dehors the Himachal Pradesh Judicial Service Rules, 2004. Such an appointment would not confer any rights upon the respondents 3 to 6, and they cannot claim their seniority due to the reasons that the appointment itself exceeded their quota prescribed in the mandate of Hon'ble Supreme Court in All India Judges Association v. UOI , (2002) 4 SCC 247 .

FACTS:

4. The facts apposite to adjudicate this application, trace its origin to Nov 13, 1991, when Hon'ble Supreme Court referred the matter about pay and conditions of service of Judicial Officers to a Commission. In terms of the resolution dated 21.3.1996, Union of India constituted First National Judicial Pay Commission, headed by Justice K. Jagannatha Shetty, a former Supreme Court Judge. This commission is popularly known as Shetty Commission.

5. In 1999, the Himachal Pradesh Judicial Officers Association, along with some of its members, including the appellants, filed CWP No. 61/1999, wherein they assailed the seniority of directly recruited Additional District and Sessions Judges.

6. On 11.11.1999, Shetty Commission submitted its report, which led to the pronouncement by Hon'ble Supreme Court in All India Judges Association v. Union of India , (2002) 4 SCC 247 , with the following directions:

28. As a result of the aforesaid, to recapitulate, we direct that recruitment to the higher judicial service i.e., the cadre of District Judge will be:

[1](a) 50 per cent by promotion from amongst the Civil Judges (senior division) on the basis of principle of merit-cum-seniority and passing a suitability test;

(b) 25 per cent by promotion strictly on the basis of merit through limited competitive examination of Civil Judges (senior division) having not less than five years qualifying service; and

(c) 25 per cent of the posts shall be filled by direct recruitment from amongst the eligible advocates on the basis of the written and viva voce test conducted by respective High Courts.

[2] Appropriate rules shall be framed as above by the High Courts as early as possible.

29. Experience has shown that there has been a constant discontentment amongst the members of the higher judicial service in regard to their seniority in service. For over three decades, large number of cases have been instituted in order to decide the relative seniority from the officers recruited from the two different sources, namely, promotees and direct recruits. As a result of the decision today, there will, in a way, be three ways of recruitment to higher judicial service. The quota for promotion w