R. M. Sahai, J. - (1.) In this petition filed by a District Judge the short question that arises for consideration is if petitioners seniority was correctly determined under U. P. Higher Judicial Service Rules, 1975.
(2.) Admittedly petitioner, topper of batch of 1957 examination of Munsif ship, was appointed as Additional Munsif in February, 1959, confirmed in February 1961. promoted as Civil Judge in 1968 and as Civil and Sessions Judge in 1971 under U P. Higher Judicial Service Rules 1953 which provided two sources of recruitment one by promotion from members of U P. Civil Services (Judicial branch) and other direct recruitment Procedure for recruitment by promotion was provided by rule 13. Filed of eligibility was confirmed to officers who had put in not less than seven years of service or were drawing more than Rs.700 as salary. Selection was to be made on merit by a Selection Committee which was to meet at least every third year. Appointment to the grade of District and Sessions Judges was to be made under Rule 6 by the Governor in consultation with the Court. Therefore, the Higher Judicial Service In 1953 comprised of Civil and Sessions Judge and District and Sessions Judges. In 1974 the cadre of Civil and Sessions Judges was abolished by U.P. Higher Judicial Services (Abolition of Cadre of Civil and Sessions Judges) Rules, 1974 with effect from 8th May, 1974 and all the Civil and Sessions Judges became Additional District and Sessions Judges Consequently petitioner also became temporary Additional, District and Sessions Judge with effect from 8th May 1974. In 1975 U. P Higher Judicial Services Rules 1975 were enforced designating the status of services as state service class in consisting of one single cadre comprising of District and Sessions Judge, Additional District and Sessions Judge and Additional Sessions Judges from amongst member of U P. Judicial Officers Services Recruitment to the Service is to be made by direct selection and promotion from Nyayik Sewa and Judicial Magistrates. Rule 20 laid down that promotion from Nyayik Sewa shall be made on seniority cum-merit After selection is made by Court the appointment is made under Rule 22 by the Governor on the occurrence of substantive vacancy by taking candidates from the lists in the order in which they stand in the respective lists of promotees, direct recruits and officers from cadre of Judicial Magistrates. Sub rule (3) of Rule 22 provides that appointment of temporary vacancy or in officiating capacity shall also be made by the Governor in consultation with the court. Rules 23 and 24 deal with probation and confirmation and Rule 26 deals with seniority. From rules what appears is that appointment for temporary or officiating capacity in Higher Judicial Service is made by the Governor in consultation with the Court from amongst the members of Nyayik Sewa And whenever appointments to the substantive vacancies are to be made selection committee as contemplated in Rule 16 is nominated by the Chief Justice which after considering the Character Rolls and other material on record, makes recommendations from amongst the officers working temporarily for being appointed in substantive vacancies. This recommendation of the selection committee is placed before Full Court which either accepts or rejects the same. In case of acceptance the officer is promoted against substantive vacancy and after successful probation period he is confirmed.
(3.) After enforcement of the Rules in 1975 a selection committee was constituted for making recruitment's to the Higher Judicial Service as provided in the Rules. Recruitment was to be made against 51 substantive vacancies. Out of those 51 vacancies 28 posts were allotted to the U. P. Nyayik Sewa, 15 to Judicial Magistrate Services and 8 posts were to be filled by direct recruitment. For filling vacancies from U. P. Nyayik Sewa the selection committee considered the names of the officers who were at that time working as temporary Additional District and Sessions Judge and recommended the names of 56 officers for substantive appointments. The committee did not find 7 officers including the petitioner fit for being appointed substantively. Recommendation of the committee was accepted in its Full Court meeting held on 28th March, 1976. It approved 28 officers out of list of 56 officers while 7 officers, including the petitioner, were left out. The 28 officers who were approved for appointment in substantive vacancies were confirmed by Full Court in its meeting held on 30th April, 1977. As regards officers too had not been recommended to the substantive posts in 1976 their names were not placed before the Court in April 1977. In pursuance of resolution of Full Court a notification was issued on 26th May, 1977 confirming aforesaid officers In the next meeting held on 5th November, 1977 the petitioner was confirmed as Additional District and Sessions Judge. As a consequence of petitioners confirmation in November 1977 he was put below those officers who had been confirmed on 30th April, 1977.;