Point of Law : In case ingredients for filing complaint under Section 138 of NI Act are in existence, then presumption is there, as provided under law, and to rebut the same, definitely, evidence would be required, which would be possible only in the trial Court.

ORDER :

Both these Writ Petitions are founded on identical facts and raise common questions of law. They were, therefore, heard together and are being disposed of by this common judgment.

2. The petitioners have prayed for direction to the respondent Himachal Pradesh High Court to create cadre of Civil Judge (Senior Division) with effect from 01.07.1996 in accordance with directions of the Supreme Court in All India Judges Association vs. Union of India and Others, (2002) 4 SCC 247, and order of the Supreme Court dated 24.08.2016 passed in I.A. No. 334/2014 in W.P.(C) No. 1022/1989 and grant them all consequential benefits. Further prayer is made that the respondents be directed to follow the post based roster system with effect from 31.03.2003 in conformity with the report of its two-Judge-committee and declare the petitioners senior to the respondents No. 3 and 4 and grant all consequential benefits to them including one for consideration for elevation as Judges of this Court. Further prayer is made that seniority list circulated with effect from 01.01.2005, particularly seniority list dated 18.01.2018, showing petitioners junior to respondents No. 3 and 4, be quashed and set aside.

Preliminary Facts:

3. Petitioner S.C. Kainthla in CWP No. 2061/2018 was appointed as Sub Judge on 01.02.1984. He was promoted to the cadre of District & Sessions Judge on 26.12.2006. He has upon attaining the age of superannuation retired as District and Sessions Judge on 31.12.2019. Petitioner Rajeev Bhardwaj in CWP No. 2292/2018 was also appointed as Sub Judge on 01.02.1988. He was promoted to the cadre of District & Sessions Judge on 27.10.2009 against Limited Competitive Examination (LCE) quota of 25% after he qualified such examination. Initial appointment of both the petitioners was made under the Himachal Pradesh Higher Judicial Service Rules, 1973 (for short, ‘Rules of 1973’), in which ratio of promotees and direct recruits to the Higher Judicial Service was 2:1. Respondent No. 3 Sushil Kukreja was appointed to the cadre of District & Sessions Judge as a direct recruit on 18.05.2004, respondent No.4 Virender Singh was appointed to the cadre of District & Sessions Judge by way of direct recruitment on 07.12.2006. Respondent No. 5 Chirag Bhanu Singh was appointed to the cadre of District & Sessions Judge by direct recruitment on 17.09.2006, whereas respondent No. 6 Arvind Malhotra was in the same way appointed to the cadre of District & Sessions Judge by way of direct recruitment on 23.10.2009.

4. Civil Writ Petition No. 2061/2018 filed by petitioner S.C. Kainthla and Civil Writ Petition No. 2292/2018 filed by petitioner Rajeev Bhardwaj were dismissed by Single Bench of this Court on 01.05.2019 on the ground of delay and laches, acquiescence, misjoinder of different causes of action and also on various other preliminary objections. Letters Patent Appeals No. 33/2019 and 39/2019 filed against the aforesaid judgment were decided by split verdict vide order dated 11.03.2020. When however the matter was referred to third Judge, petitioner Rajeev Bhardwaj in CWP No. 2292/2018 (subject matter of LPA No. 33 of 2019) filed Writ Petition (Civil) No. 1465/2020 before the Supreme Court seeking direction not to proceed on the recommendation made by the Collegium of the High Court till disposal of LPA No. 33 of 2019. The Supreme Court, vide order dated 15.02.2021 passed in the said petition, directed to transfer LPA No. 33 of 2019 to Supreme Court immediately upon the delivery of the judgment by the learned third Judge but not later than 30.03.2021. The third Judge, by order dated 24.03.2021, partly allowed the LPAs. The High Court of Himachal Pradesh filed SLP (C) No. 13840-13843 of 2021 against the judgments dated 11.03.2020 and 24.03.2021 passed in LPAs No. 33 and 39 of 2019. Respondents No. 5 and 6 in the LPAs also filed SLP (C) No. 8863-8866 of 2021 challenging the judgments passed in both the LPAs. Writ Petition (Civil) No. 1465/2020 was dismissed as w