D. S. Tewatia, J. - (1.) This is the second time that the petitioners are approaching this Court on writ side for seeking redress regarding their placement in the seniority list qua the respondents, their first attempt on the writ side having proved abortive in the circumstances that would be presently recalled.
(2.) The petitioners were conditionally appointed clerks/typists by the Chief Justice of this Court the condition being to qualify in the Clerks' Examination. Almost all of them at one time or the other either cleared the said examination or were exempted from compliance of the aforesaid condition of their appointment. The appointments of all the clerks were made substantive after they had passed the qualifying examination. Thereafter, a dispute arose in regard to the fixation of their seniority in the clerks' grade qua other clerks who came to be appointed in the manner other than the manner in which the petitioners were appointed. The question that arose was whether the date of the continuous appointment of the petitioners was to be considered from their first date of officiating appointment or from the date on which they, in compliance with the condition imposed in the letter of appointment, cleared the qualifying test. A Division Bench of this Court on the administrative side came to the conclusion that such of the petitioners as had passed the qualifying test soon after their appointment, were to be considered in continuous service from they date they were appointed in officiating capacity. In case of other, who took inordinate time in passing the qualifying examination, it was held that their appointment was to take effect, for the purpose of rule 25 (a rule which deals with the fixation of inter se seniority of the members of the establishment of this Court appointed substantively on a given post) of the High Court Establishment (Appointment and Conditions of Service) Rules, 1952, hereinafter referred to as 'the Rules', from the date on which they cleared the qualifying examination. After some time, some of the petitioners approached this Court on the writ side through Civil Writ No. 54 of 1971 seeking redress against the Division Bench decision of this Court on the Administrative side. The Division Bench dismissed their writ petition on the ground that the petitioners not having challenged the said Division Bench decision of this court passed on the administrative side in the Supreme Cour*, the same became final and, therefore, they could not legally assail that order. The petitioners then sought relief from the Supreme Court under Art. 32 of the Constitution of India. Their Lordships while keeping the writ petition pending observed in the order dated 18-10-1978 that the High Court was not right in dismissing the petitioners' earlier petition on the ground that the decision of the Division Bench on the administrative side having become final the writ petition was not competent. Their Lordships thought that since certain administrative aspects of the matter were involved, it would be desirable that the petitioners should approach the High Court again on the writ side and seek on merits a judicial decision of the High Court which decision was to be made available to the Supreme Court for its consideration while dealing with the petitioner under Art. 32 of the Constitution of India. Their Lordships in that order required the High Court in specific to decide the following question:- "Whether the seniority of such persons should be reckoned from the date of their initial appointment or from the date on which they passed the test or were exempted from it - Before approaching the core of the controversy, it would be necessary to take note of the relevant rules having a bearing upon it.
(3.) Rule 10 pertains to recruitment and is in the following terms:- "10. Appointments to the Clerk's grade shall be made in accordance with seniority subject to efficiency as displayed by them while holding officiating post, from the list of accepted candidates which will be maintained in the office. Enrolment on this list of accepted candidates shall be made either by direct recruitment or by transfer from other establishments or by promotion of Restorers or as a result of competitive examination." Rule 25 deals with the fixation of seniority and is in the following terms: "25(1) A member of establishment of this Court appointed substantively to a post mentioned in Appendix 'A' shall take rank in order of seniority above every other member who began to serve continuously in the same class of post whether in an officiating or substantive capacity, on a date subsequent to the date on which he began to serve continuously? (2) An official shall be treated as having officiated in any post during any period in respect of which it is certified that he would have so officiating but for his absence on leave his tenure of a special appointment or other exceptional circumstances : If two or more members have held the same class of post from the same date, their seniority shall be determined by the Chief Justice." A perusal of rule 10 shows that clerk are to be recruited from a list of accepted candidates It also indicates four different methods for bringing the persons on the list of accepted persons These are (1) by direct recruitment, (2) by transfer from other establishments, (3) by promotion of restorers, and (4) as a result of a competitive examination. The Division Bench in its order on the administrative side had held that the Chief Justice was competent to bring persons on the accepted list directly. It was, however, mooted whether the Chief Justice was competent to impose any condition Before dealing with this proposition at this stage a sample of the condition attached in some cases to the appointment may be noticed from a sample appointment-letter. It runs in the following terms: "To ......... ......... ......... Please refer to your application for appointment as a Typist in this Court 2. You have been selected as a candidate for appointment as a Typist in the scale of ks. 60-4-80/5-120/5-175. plus such allowances as may be admissible from time to time, against temporary posts or leave vacancies etc. 3. It should be clearly understood that the appointment is purely on temporary basis and is subject to the condition that your service may be terminated at any time without notice, but in case you want to leave service, you must give one month's notice..................... 4............................... : .................................. your appointment as a typist/clerk will, however, be subject to the condition that you will not be promoted or confirmed or allowed increment unless and until you sit for the competitive test held in this court for the recruitment of clerks and that you are chosen as such. A perusal of the condition attached would show that till the incumbent was to clear the qualifying clerks' examination he was not to be appointed substantively nor was he to be given promotion nor any increment. It would also be clear from the perusal of the aforesaid appointment letter that no time was fixed in the order within which the condition of clearing the said examination was to be complied with. Such being the nature of the appointment, with respect, we are unable to comprehend as to on what criteria the Division Bench on the administrative side came to the conclusion that in the case of such of the officiating appointees, who cleared the qualifying test immediately or within a reasonable time, their officiating appointment was to take effect on the date they were first so appointed and in regard to others, who did not clear the said test within a reasonable time, their officiating appointment was to take effect from the date on which they passed the said test or the date on which they were exempted from the said test. ;