FAZAL ALI - (1.) THIS writ petition has had a chequered career and involves a competition regarding seniority between the petitioner G. R. Luthra and respondent No. 3 D. R. Khanna who were simultaneously recruited as members of the Punjab Judicial Service. The case appears to have travelled through various stages both in the High Court and in this court on different aspects. After hearing counsel for the parties in the view that we propose to take in this petition and also because respondent No. 3 has filed an affidavit that he would not press this Court for giving any decision regarding his seniority over the petitioner if the submission of respondent No. 3 regarding his appointment under the Delhi Higher Judicial Service is decided against him, it is not necessary of us to give any finding on the scope and ambit of Rule 6 (3) of the Rules.
(2.) IN view of these facts the controversy in this case has been very much narrowed down and the point for decision falls within a very narrow compass. IN order however to understand the question involved, it may be necessary to give a short history and a brief re'sume' of the manner in which the petitioner and respondent No. 3 were appointed and their vertical mobility in the hierarchy through which they had moved up. To begin with, both the petitioner and respondent No. 3 competed for entrance to the State Judicial Service of the undivided Punjab. The petitioner Luthra was appointed as far back as 7/08/1950 having obtained 4th position in the competitive examination and was appointed as Sub-Judge against a permanent post. Respondent No. 3 had also taken the same competitive examination but obtained a lower position (13th) and was appointed as Sub-Judge against a temporary post. Thus from inception three important facts are established : 1. That the petitioner had obtained a higher position in the competitive examination held for entrance to State Judicial Service whereas respondent No. 3 had obtained a lower position. This is important because under the Rules and the conventions the seniority of new recruits is normally governed by the place which they occupy in the competitive examination. 2. The petitioner Luthra was appointed on the 7/08/1950 whereas respondent No. 3 D. R. Khanna was appointed on the 23/11/1950 i.e. about 31/2 months later. Thus, even regarding the time of appointment, the petitioner entered the service prior to respondent No. 3 both having been appointed to the same service and having been recruited through the same competitive examination. 3. That while the petitioner Luthra was appointed against a permanent vacancy respondent No. 3 was appointed in the State Judicial Service only against a temporary post. This was also an important factor which has to be taken into consideration in order to determine the inter se seniority of the petitioner and respondent No. 3. Both the petitioner and respondent No. 3 were thus appointed as members of the Punjab Judicial Service in the undivided Punjab. So far as Delhi was concerned before the birth of the Haryana State it used to be a Judicial District of Punjab. Unfortunately, the services of the respondent No. 3 remained terminated due to medical unfitness between 13/03/1952 to 23/05/1965. But this gap is of no consequence because subsequently his medical unfitness was set aside in appeal and respondent No. 3 was reinstated with effect from the date of his appointment, namely, 23/11/1950.
(3.) ON the 9/03/1963 the petitioner Luthra was posted at Delhi as Sub-Judge. ON 1/11/1966 by virtue of reorganisation of Punjab, Punjab and Haryana became two separate States and some areas were transferred to Himachal Pradesh. As a result of the aforesaid reorganisation the services of the petitioner Luthra were allocated to the State of Haryana and that of respondent No. 3 Khanna to Punjab, but both the officers continued to be posted at Delhi and were Senior Sub-Judges. ON the same date, namely, 1/11/1966 Delhi High Court was created and came into existence. Shortly thereafter, on 5/11/1966 in a meeting of the Chief Justices of the Punjab and Haryana and Delhi High Courts a list of Judicial Officers to be absorbed in the Judicial Service to be constituted at Delhi was finalished and in the list of the Lower Judicial Service which appears at page 393 of the Paper Book the petitioner Luthra was placed at S. No. 4 whereas respondent No. 3 D. R. Khanna was placed at S. No. 6. Thus, the two High Courts clearly decided that in the new service the petitioner was to rank senior to respondent No. 3. This decision was a logical corollary of the history of the services of the petitioner and respondent No. 3, discussed above. The proceedings of the meeting are contained at pages 392-395 of the Paper Book in which the Courts decided to allocate one District and Sessions Judge for Delhi and 8 Additional District and Sessions Judges in the Higher Judicial Service and 39 Sub-Judges in the Lower Judicial Service. Both the petitioner and respondent No. 3 at that time fell in the third category. Thus, even though the petitioner and respondent No. 3 had for a short while been allocated to two different States, namely, one was allotted to Punjab and the other to Haryana, but with the coming into existence of the Delhi High Court both of them again joined the same service and their rank and seniority was throughout maintained. On 9/05/1967 the petitioner Luthra was appointed as Assistant Sessions Judge, Delhi, Respondent No. 3 was appointed as Assistant Sessions Judge on 21/02/1968, but it appears that by a letter dated 22/03/1971 written by the Registrar of the Punjab and Haryana High Court addressed to the Accountant General, Punjab, Simla respondent No. 3 was given pro forma promotion with effect from 24/06/1967. The pro forma promotion is related to vacancies in his parent State and has nothing to do with vacancies in or seniority where both were at the relevant time serving. This letter is annexed as annexure 2 appearing at pages 288-89 of the Paper Book. The petitioner Luthra was however given benefit of the next below rule as Additional District and Sessions Judge with effect from 28/07/1967. This unfortunate episode seems to be the sheet anchor of the argument of respondent No. 3 in claiming seniority over the petitioner. It is ture that by virtue of the letter referred to above respondent No. 3 was appointed as Additional District and Sessions Judge prior to the petitioner but since this appointment was made subject to the next below rule it is manifest that the seniorilty of the petitioner over respondent No. 3 was fully protected otherwise if in fact the responent No. 3 was to be given seniority over the petitioner, the question of giving benefit of the next below rule to the petitioner would not have arisen. The letter referred to above was passed by the order of the Chief Justice and the Judges of the High Court. In these circumstances, therefore, merely because respondent No. 3 got a pro forma promotion and was temporarily appointed as Additional District and Sessions Judge six months before the petitioner that will not make him senior to the petitioner. This fact is borne out by another circumstance. The petitioner was also appointed as Additional District and Sessions Judge on 25/11/1967 and while both the petitioner and respondent No. 3 were holding the same post at Delhi. The petitioner was confirmed as District and Sessions Judge in his parent State of Haryana on 2/10/1970. On the other hand, respondent No. 3 was appointed as Addl. District and Sessions Judge Delhi on 5-6-1968 and continued as Addl. District and Sessions Judge till 17-5-71. Respondent No. 3, however, was confirmed as Sub-Judge on 5-6-1968 but was confirmed as District and Sessions Judge Delhi several years after.;