Rajasthan High Court - Jaipur

Smt. Pushpa Kochar And Ors. vs The Rajasthan High Court And Ors. on 17 July, 2001

Equivalent citations: 2001(3)WLC269, 2002(3)WLN174

Bench:
N.P. Gupta
,
H.R. Panwar

JUDGMENT

Rajesh Balia, J.

1. Through this writ petition, the petitioners, who are six in number challenge the validity of the consolidated seniority list (Annexure/4) dated 28.4.1999 of the Officers of Rajasthan Judicial Service (for short 'R.J.S.) manning different posts in the hierarchy of R.J.S. as on 31.5.1998.

2. The present writ petition has come up for hearing before us on a reference having been made by a Division Bench of this Court vide its order dated 9.1.2001.

3. In the first instance, two provisional seniority lists were published on 13.7.1998 inviting abjections thereto. One provisional seniority list [Annexure/1] related to Officers holding posts of Civil Judge [Senior Division] cum Additional Chief Judicial Magistrates and another provisional seniority list [Annexure/2] pertained to the Civil Judges [Junior Division] cum Judicial Magistrates. The provisional seniority list [Annexure/1] has been prepared on the basis of the respective date of promotion of the Officers from the post of Munsifs now designated as Civil Judges [Junior Division] to the posts of Civil Judges now designated as Civil Judges [Senior Division] whereas the provisional seniority list [Annexure/2] has been prepared on the basis of the date of initial appointment as Munsifs now named as Civil Judges [Junior Division] cum Judicial Magistrates and on the basis of the date of confirmation making their appointment as substantive.

4. The Officers of Rajasthan Judicial Service holding the posts of Civil Judges [Senior Division] on the basis of the aforesaid two seniority lists were to be considered enblock senior to the persons included in the seniority list of the Civil Judges [Junior Division] and their inter se seniority was fixed on the basis of continuous officiation on the post since the date of appointment by promotion.

5. On certain objections being raised by different officers of Rajasthan Judicial Service on different grounds, only a consolidated seniority list [Annexure/4] dated 28.4.1999 was published showing seniority lists of all the incumbents holding the posts encarded in the Rajasthan Judicial Service in hierarchy, on the basis of the date of their recruitment to the post of Civil Judge [Junior Division] and on the basis of the date of their confirmation making their appointment substantive irrespective of the fact that after appointment of the posts of Civil Judges [Junior Division], the Officers have been promoted to the next higher post of Civil Judges [Senior Division] on different dates as per the provisions of Rajasthan Judicial Service Rules, 1955 for the time being in force.

6. The relative position of date of appointment as Munsif and promotions in next higher post of the petitioners and respondents in the present case has been shown by the petitioners in the Schedule appended to the writ petition. It has also been shown in the Schedule Annexure R1/1 filed alongwith the reply to the writ petition on behalf of respondent No. 1. The only variation is that subsequent to the issue of the final seniority list, date of promotion of respondent No. 9 Shri A.K. Khandelwal has been corrected from 30.5.1998 to 7.7.1997. The respective position in seniority has been shown in Annexure/4. The following table reveals consolidating the details of appointment as Munsif, as Civil Judge cum C.J.M. and respective place in seniority arranged as per Annexure/4:

PARTICULARS OF PETITIONERS
____________________________________________________________________________
S. Name Pett. Date Date of Date of S.No. at
No. of promo- grant which
Appoint- tion as of seniority
No. ment ACJM selecti- assigned
as on as per
Munsiff grade Anx.4
____________________________________________________________________________

1. Smt. Pushpa Kochar 1 19.7.85 26.5.93 4.4.98 110

2. Raj Kamal Gaur 2 19.7.85 26.5.93 4.4.98 111

3. Atulkumar Chatterji 3 19.7.85 26.5.93 4.4.98 114

4. Manoj Kumar Vyas 4 19.7.85 24.5.94 4.4.98 144

5. Ashok Kumar Vyas 5 30.3.88 9.7.96 4.4.98 175

6. Uma Shanker Vyas 6 16.4.90 18.11.97 4.4.98 212
____________________________________________________________________________
PARTICULARS OF RESPONDENTS
____________________________________________________________________________
S. Name Respon- Petitio- Date of Date of Date of
No. dents ner Promo- grant at
No. Appoint- tion as of which
ment as ACJM select- seniority
Munsiff ion assigned
g rade as per
Anx.4
____________________________________________________________________________

1. Keshav Dev Gaur 2 25.10.72 13.6.99 ------ 3

2. H.P. Agarwal 3 05.06.76 9.4.96 ------ 5

3. A.K. Suroliya 4 31.12.81 9.4.96 4.4.98 84

4. P.K. Mathur 5 19.07.85 13.6.99 ------ 118

5. Pradeep Jain 6 19.07.85 ------ ------ 121

6. Lal Chand Songara 7 19.07.85 13.6.99 ------ 131

7. K.P. Meena 8 19.07.85 ------ ------ 138

8. Arun Khandelwal 9 22.07.89C 7.7.97 ------ 197
____________________________________________________________________________

7. The petitioners as well as respondents No. 2 to 9 were initially appointed to the post of Munsif [Civil Judge (Junior Division)] in Rajasthan Judicial Service as per the particulars given above. As on the date of the impugned final seniority showing seniority of Members of Rajasthan Judicial Service as on 31.5.1998, all the petitioners were promoted to posts of Civil Judge on the respective date shown against their name. The respondents No. 2,5,6,7 and 8 were not promoted as Civil Judge [Senior Division] at all and only respondents No. 3,4 and 9 had been promoted to the post of Civil Judge [Senior Division], on the date subsequent to petitioners. No. 1 to 4. In the final seniority list, the date of promotion of respondent No. 9 as Civil Judge cum ACJM was shown as 30.5.1998, upon consideration of his representation, it was corrected to 7.7.1997, vide order dated 2.6.1999. The order dated 2.6.1999 interestingly, says about refixing seniority of Arun Kumar Khandelwal amongst Civil Judges cum ACJMs as per his altered date of promotion, contrary to stand taken of only one seniority of R.J.S. on the basis of date of recruitment to post of Munsif, Thus, according to above details, the respondents No. 2,3 and 4 are placed above all the petitioners. Respondents No. 5 to 8 are all placed above petitioner Nos.4 to 6 and junior to petitioner Nos.1 to 3. Respondent No. 9 is placed above petitioner No. 6 but below all other petitioners No. 1 to 5.

8. It also appears that respondents No. 2 to 9 have been arrayed as parties as respondents, the interest of those who have been assigned higher seniority than those who had moved ahead of them by superseding by promotion to next higher post In the service. Respondents do not complete the list the beneficiaries of principle of determining seniority of R.J.S. adopted by respondent No. 1.

9. If the contention of the petitioners that seniority is interlinked with promotion is accepted, then the petitioners No. 1 to 4 would rank senior to all the respondents No. 2 to 9. Petitioner No. 5 Ashok Kumar Vyas would rank senior to respondents No. 2, 5, 6, 7, 8 and 9 and a junior to respondents No. 3 and 4 and petitioner No. 6 will also be senior to respondents No. 2,5,6,7 and 8.

10. While the provisional seniority list Annexures 1 and 2 were prepared on the premise as contended by the petitioners showing seniority of the Civil Judges [Senior Division] separately than seniority of the person holding the post of Munsifs only In the cadre, whereas the final seniority has been prepared as notice above on the basis of date of appointment on the post of Munsif as per the contention of respondents No. 2 to 9.

11. Aggrieved with the aforesaid common seniority list [Annexure/4] not taking note of the fact that Officers of Rajasthan Judicial Service who have been recruited to the post of Civil Judge [Junior Division] at a particular point of time, subsequently as a result of promotional exercise founded on equality of opportunity Under the Rules applicable to them in the same service have been put on the higher level of the ladder In the service on the higher post. In other words, notwithstanding earlier appointment to the next higher post on the basis of promotional exercise made under the same Rules, by a common process from same source viz., Civil Judge [Junior Division], inter se seniority of all the officers was maintained at the same level as per their appointment to the post of Munsif [Civil Judge (Junior Division)]. The effect of this seniority list is that for promotional exercise to the next higher service i.e. to the Rajasthan Higher Judicial Service, the Apex position in Judicial Service of State, which also is on the basis of seniority cum merit from amongst the Members of the Rajasthan Judicial Service, the members of Service standing on lower step of ladder in the same service, shall be considered prior to those who have moved ahead of them to higher steps, permitting them to forgleap, notwithstanding earlier supersession in a process of attainment of higher position on the basis of equal opportunity.

12. The reflection of provisional seniority list and, the final seniority list prepared is dismeterically opposite on the legitimate expectancy of consideration for promotion to Rajasthan Higher Judicial Service. If the seniority list of the Officers of the Rajasthan Judicial Service is prepared separately for the Civil Judges [Senior Division] and the Civil Judges [Junior Division] by placing Civil Judges (Senior Division] enblock on higher pedestal than the Civil Judges [Junior Division], it would result in considering the Civil Judges [Senior Division] who had gained promotion in the lower service prior to those who have not attained such promotion in order of their inter se seniority on higher post. On the other hand, if the final seniority list reflects position of all the Officers of Rajasthan Judicial Officer holding different posts by putting them on the ground level at the point of appointment to the lowest post of Munsif, it will result in considering a person who has been appointed to the service on the lowest post earlier prior to the person who has been appointed to such post in service later, notwithstanding the fact that at the time of consideration for promotion to the R.H.J.S., the person who has entered earlier in service has not been found suitable for one or another reason fit for even being promoted to the next higher post within the Rajasthan Judicial Service yet he will be considered for still higher post in priority to those persons who were found suitable for promotion and so promoted.

SCHEME OF RULES:

13. It may be noticed that before the nomenclatures of Civil Courts were changed by amending the Rajasthan Civil Courts Ordinance, 1950, the initial post to which appointment was made was known as Munsif and on conferment of powers of Judicial Magistrate under the
Criminal Procedure Code
, 1973, he was being designated as Munsif. At the time of framing the Rajasthan Judicial Service Rules, 1955, only one post was envisaged in the Rules and the cadre consisted of only one class of Officers namely, Munsif. The court of Munsif has now been redesignated as Civil Judge [Junior Division] as a result of the aforesaid amendment in the Rajasthan Civil Courts Ordinance, 1950 and the initial recruitment post under the Rajasthan Judicial Service is that of Civil Judge [Junior Division] cum Judicial Magistrate, though nomenclatures in the Rajasthan Judicial Service Rules, 1955 have not so far been changed and continue to be Munsif. The civil court of next higher jurisdiction was earlier designated as Civil Judge, which now redesignated as Civil Judge [Senior Division].

14. It is not in dispute that within the Rajasthan Judicial Service, a Munsif stands on the lowest level of the hierarchy of posts within the service ladder and the Civil Judge stands on a step above him and so also, a Senior Civil Judge so long as posts existed stood a step above the Civil Judges. In the current nomenclatures, the post of Civil Judge [Junior Division] is at the lowest rung of the ladder in the Rajasthan Judicial Service and the post of Civil Judge [Senior Division] earlier known as Civil Judge stands a step above it. The source of recruitment to the post of Civil Judge [Senior Division] is exclusively from amongst the Civil Judges [Junior Division] by way of promotion on the basis of seniority cum merit Under Rule 7-B of the Rules of 1955.

15. Subsequent to the promulgation of the Rajasthan Judicial Service Rules, 1955, the advancement in career within the cadre was envisaged from time to time by inserting Rules 7A, 7-B and 7C in the Rajasthan Judicial Service Rules, 1955. According to the scheme of the Rajasthan Judicial Service Rules, 1955, initially an Officer Is recruited and appointed to the post of Munsif [now redesignated as Civil Judge [Junior Division] by direct recruitment through a competitive examination conducted by the Rajasthan Public Service Commission. Appointment to the post of Civil Judge [Senior Division], is made by the High Court by way of promotion from amongst the Officers holding substantively the post of Munsif on the basis of seniority cum merit. With these amendments, Sub-rule [3] was also substituted to Rule [1] of the A Rajasthan Judicial Service Rules, 1955 alongwith insertion of Rule 7-C vide Notification dated 21.3.1978 with effect from 1.4.1974 when the
Criminal Procedure Code
, 1973 came into force which envisaged setting up of the criminal courts by the nomenclatures of Judicial Magistrates and Chief Judicial Magistrates.

16. Under Rule 7-B, it is envisaged that appointment to the posts of Senior Civil Judges shall be made by the Court by promotion from amongst the officers holding the posts of Civil Judges on the basis of seniority cum merit. Rule 7A was inserted vide Notification dated 10.2.1969 and Rule 7B was inserted vide Notification dated 1.9.1968. However, Rule 7-C was inserted later on envisaging appointment to the posts of Civil Judges-cum-Chief Judicial Magistrates by promotion from amongst the Officers holding posts of Senior Civil Judges-cum-Judicial Magistrates 1st Class; Civil Judges-cum- Judicial Magistrates 1st Class; and Munsifs and Judicial Magistrates 1st Class on the basis of merit after taking the seniority into consideration.

17. It is to be noticed that in the Rajasthan Judicial Service Rules, 1955, further promotion from the post of Civil Judge [Civil Judge (Senior Division)] to the post of Senior Civil Judge was also envisaged and a Munsif was not at all eligible to be considered for promotion to the post of Senior Civil Judge. Only source of appointment to Senior Civil Judge, by promotion was Civil Judge [Senior Division] on the basis of seniority cum merit. Thus, determination of seniority of Civil Judge, independent of seniority as Munsifs was required to be made by necessary implication. The post of Senior Civil Judge continues to find place in the Rajasthan Judicial Service Rules, 1955 though since 1969, all the extant posts of Senior Civil Judges were upgraded to the posts of Additional District and Sessions in the cadre of Rajasthan Higher Judicial Service [RHJS] and no new posts were created in the cadre of Rajasthan Judicial Service by the name Senior Civil Judge and therefore, as on today, no exercise is being undertaken for promotion from the posts of Civil Judges to the posts of Senior Civil Judges as envisaged Under Rule 7-B of the Rules since 1969.

18. Rule 22 lays down the rule of determining seniority of persons appointed to service. Recruitment to the Rajasthan Higher Judicial Service [RHJS] is being made under the Rajasthan Higher Judicial Service Rules, 1969. In exercise of the powers conferred by
Article 233
and the proviso to
Article 309
of the Constitution of India and all other powers enabling him in this behalf, the Governor of Rajasthan made the Rajasthan Higher Judicial Service Rules, 1969 in consultation with the High Court of Judicature for Rajasthan in respect of R.H.J.S. for giving effect to the principles formulated by the High Court for making appointments, postings and promotions to the cadre of District Judges and to provide for other ancillary matter.

19. "District Judge" has been defined in Rule 3[d] of the R.H.J.S. Rules, 1969, to include Additional District Judge, Sessions Judge and Additional Sessions Judge.

20. Rule 8 of the Rules of 1969 provides for sources of recruitment by promotion from amongst the members of the Rajasthan Judicial Service; or by direct recruitment from the advocates who have practiced in the Court or Courts subordinate thereto for a period of not less than seven years.

21. Thus, apart from direct recruitment from amongst the Advocates, the source of recruitment to the Rajasthan Higher Judicial Service is also by way of promotion from amongst the Members of Rajasthan Judicial Service. Rule 8 of the Rules of 1969 deals with criterion for selection and it lays down that for the purpose of recruitment to the service by promotion Under Clause [i] of Rule 8 the selection shall be made on the basis of seniority cum merit from amongst the members of the Rajasthan Judicial Service who are eligible for such promotion Under Rule 11.

22. The actual text of relevant rules referred to above forms part of this order as Schedule.

CONTENTIONS:

23. It is in the aforesaid back ground and the scheme of the Rules, the present petition has been filed to challenge Annexure/4, the consolidated seniority list dated 28.4.1999 and promotions effected on that basis.

24. The precise point that has been raised by the petitioners in this case is that where there exist within a service different level of achievements and advancement through promotions, the inter se seniority of the members of the Rajasthan Judicial Service cannot remain static as on the date of entry to the service as Munsif [Civil Judge (Junior Division) cum Judicial Magistrate]. Promotions and seniority interlinked with promotion is an important facet of right of equality Under
Article 14
and equality of opportunity in the matter of employment Under
Article 16[1]
of the Constitution. According to the contention raised by the respondents and on which determination of seniority vide impugned order dated 28.4.1999 has been made, a person, who has been appointed by direct recruitment as Munsif, the lowest post in the service and in first step on the entry, earlier shall remain senior with a prior right of consideration to R.H.J..S., notwithstanding he has not been found suitable or superseded otherwise, within the service for promotion to next higher posts viz., Civil Judge [Senior Division] or Senior "Civil Judge or Civil Judge cum Chief Judicial Magistrate. This will not be wholly anomalous and unacceptable result but will also violate fundamental right guaranteed Under
Articles 14
and
of the Constitution by treating unequals as equals.

25. The controversy, about the interpretation of Rule 22 hovers around a static seniority based on the date of appointment as Munsif or Civil Judge [J.D.] irrespective of promotions within the R.J.S. Service V/s a seniority linked with promotion flows from the Scheme of Rules. The ancillary issue is if seniority linked promotion within service is accepted, whether theory of eclipse or catch up rule applies in all cases where a person senior in lower post joins at the same level by promotion within R.J.S., or does not apply at all or is applicable only in case of accelerated promotion for one or another reason which depends not on the basis of general consideration based on equality of opportunity but because of existence of some fortuitous circumstance?

26. It has been contended by the learned Counsel for-the petitioners in the first instance that the two issues have been concluded finally by the Division Bench decision of this Court in Sharad Chandra and Ors. v. Rajasthan High Court and Ors. [D.B. Civil Writ Petition No. 2218 of 1992, decided on 17.2.1994] and the same having been affirmed by the Supreme Court in Kailash Chand Joshi's case [supra], that Officers promoted to the next higher post within the Rajasthan Judicial Service will rank enblock senior to the Officers not so promoted and after promotion, seniority on the basis of appointment on lower post in the service cannot be maintained and also that amongst promotees to higher post, an earlier promotees would rank senior to the later promotee notwithstanding their inter se seniority in the lower rank, the final seniority list [Annexure/4] is contrary to the said pronouncement on the interpretation of Rajasthan Judicial Service Rules particularly Rule 22 in the context of other Rules holding it to be providing seniority interlinked with promotion. It has also been alleged that even otherwise on merit, the same result should follow else it would result in treating unequals as equals resulting in violation of Arts. 14 and 16[1] of the Constitution of India.

27. In this connection, it was also urged without prejudice to the earlier submissions, that Rules do not bring such anamolous position into existence by if that is the result of Rule 22 of the Rules then either the said Rules be read down in the manner that it does not result in violation of fundamental rights guaranteed Under
Articles 14
and
of the Constitution of India and if that is not possible then it be declared ultra vires the Constitution of India.

28. Ancillary to this basic premise, if necessary, a prayer for striking down Rule 7C of the Rajasthan Judicial Service Rules, 1955 has also been made if it results in anamolous situation making the rule unworkable or results in breach of equality clause Under
Article 16[1]
read with
Article 14
of the Constitution of India.

29. On the other hand, it has been contended by the learned Counsel for the respondents that only question raised and decided in Sharad Chandra's case was of inter se seniority of parties thereto on promotions, after all of them have been promoted, it was required to be adjusted by applying doctrine of eclipse, by treating the earlier promotions of juniors merely fortuitous. The question about promotees ranking above the persons manning the lower posts was not at all considered and decided in that case. Whatever has been decided by this Court in Sharad Chandra's case merged into the decision of Supreme Court.
The decision in the aforesaid Division Bench as upheld by the Supreme Court has later been expressly held to be incorrect by a constitutional bench of the Supreme Court in
Ajit Singh v. State of Punjab and Haryana
1997(7)SCC-209 [hereinafter to be referred to as
Ajit Singh-II
's case] and is no longer a good law on the interpretation of Rule 22. The only view possible is that there being only one service, i.e. Rajasthan Judicial Service and only one seniority list is envisaged Under Rule 22 of the Rules, there can be only one seniority of the Members of the Rajasthan Judicial Service from the date of their substantive appointment on recruitment as Munsifs and subsequent promotion within the Service is only a temporary phase not affecting the inter se seniority of the Officers of the Rajasthan Judicial Service once determined on recruitment to lowest post whether promotion subsequent thereto is by way of regular exercise or accelerated promotion.

30. It may be noticed that as on that date the impugned final seniority list [Annexure/4] was published, the decision in
Ajit Singh and Ors. v. State of Punjab and Ors.
had not come into existence. Therefore, the question of, High Court in its administrative side taking that judgment into consideration, while determining the final seniority list could not arise.

The final seniority list [Annexure/4] was published on 28.4.1999 whereas the Judgment in
Ajit Singh-II
's case [supra] was pronounced on 16.9.1999].

31. Referring to this controversy, the reply to the writ petition filed on behalf of the High Court may be noticed:

16/18 That the contents of paras 16 to 18 are not admitted the manner same are stated. The Judment rendered by the Division Bench of this Hon'ble Court in Sharad Chandra's case relates to the controversy in between the candidates belonging to the Reserve category and General Category. The Judgment rendered by the Hon'ble Supreme Court in K.C. Joshi's case is no more a good law in view of the latest decision of the Hon'ble Supreme Court in Ajeet Singh v. State of Punjab . In the afroesaid decision in Ajeet Singh's case, the Hon'ble Supreme Court has specifically considered the ratio laid down in K.C. Joshi's case and it has been specifically held that the same cannot be accepted as correct in view of the legal position stated in the Judgment. Moreover, a bare perusal of the Judgment of the Hon'ble Supreme Court in K.C. Joshi's case goes to show that while dealing with Rule 22 of the R.J.S. Rules, the Hon'ble Supreme Court has in-advertantly read something in the Rule which is not there. While dealing with the proviso to Rule 22 the Hon'ble Supreme Court observed that,..... the proviso, however says that where more than one person is promoted by an order of the same date, their seniority in the promoted category shall be the same in the lower category to which they are appointed through the Public Service... whereas the Proviso to Rule 22 of the R.J.S. Rules simply does not deal with the promotion. It only provides that seniority of candidates, appointed to the service, shall in case of appointment of more than one person to the service, by an order of the same date follow the order in which they have been placed in the list prepared by the Commission Under Rule 19. Be that as it may the fact remains that the Judgment of the Hon'ble Supreme Court in K.C. Joshi's case stands overruled by the latest judgment of the Hon'ble Supreme Court in Ajeet Singh's case.

This contention was also reiterated by other respondents during the course of arguments.

CONSIDERATION BY COMMITTEE:

32. On the requirement of the Court, the minutes of the proceedings of the Administrative Committee were produced before us to find how the matter has been considered by the Administrative Committee while dealing with this question, before, making its recommendations.
In the report, after prefacing about the Constitution of the Committee, the Committee referred to the material considered by it which include the principles laid down in Indira Sawhney R.K.Sabrwala and Veerpal Singh Chauhan, State of Bihar v. Madan Prasad 1976(
1) SCC-316, G.C. Gupta v. N.K. Pandey
and many other decisions of the Supreme Court and Rule 22 of the Rules, the Committee recorded its conclusion as under:

In view of the above discussion and after taking into consideration the mode and manner in which promotions of officers to higher posts from lower posts were made in the R.J.S. from time to time, the Committee is of the considered view that the original seniority of R.J.S. Officers, as determined by the Raj. Public Service Commission in the list prepared Under Rule 19, is relevant to and makes the basis for, the fixing of the inter se seniority of R.J.S. Officers under, and for the purposes of Rule 22 of the R.J.S. Rules, 1955. Promotions made Under Rules 7A, 7B or 7C do not go to alter, modify, amend or disturb that original seniority of the officers. Therefore, the Committee does not consider it necessary to further examine the position of the promotions made in R.J.S. from time to time.

33. Before proceeding further, the Administrative Committee recorded its conclusion on the interpretation of Rule 22 of the Rules and decided that it is not necessary to further examine the position of the promotions made in Rajasthan Judicial Service from time to time. Until reaching this conclusion, there is no reference to the decision in Sharad Chandra's case(supra) or in Kailash Chandra Joshi's case (supra). The Administrative Committee ultimately drew its conclusions on page 252 of the report as under:

To conclude the discussion, made so far in this report, the Committee is of the considered opinion that inter se seniority of the R.J.S. Officers (including of those R.J.S. Officers who have since been appointed in R.H.J.S. by promotion and whose inter se seniority in R.J.S. shall have a bearing upon the determination of their inter se seniority in R.H.J.S.), is required to be determined Under Rule 22 of R.J.S. on the basis of the principles enumerated herein below:

THE PRINCIPLES

(1) Seniority of those Officers who have been appointed in R.J.S. in substantive capacity or deemed to have been appointed in such capacity, shall be determined;

(2) Periods of probation, extended probation or delayed confirmation shall be counted towards seniority.

(3) Punishments including censure, withholding of increments with or without cumulative effect or of promotion for definite or indefinite period or periods shall not disturb the inter se seniority as determined by the RPSC Under Rule 19 of RJS.

(4) Promotions to higher posts or category or gang of higher scales of pay or grades made Under Rule 7A, 7B or 7C or in pursuance of some administrative or executive directives or instructions as the case may be, shall not be considered to have conferred seniority upon the promoted officer vis-a-vis the officers not so promoted.

(5) Supersessions shall not disturb the basic seniority assigned to an officer Under Rule 19.

(6) Accelerated promotions to the officers of the reserved category shall not confer upon them, unless, held otherwise by decisions of the High Court and/ or the Supreme Court, consequential accelerated seniority vis-a- vis the seniority of general category officers.

(7) Securing of more marks by an officer of the general category than those secured by the officers of the reserved category, in the competitive examination, shall not confer upon the office of the general category seniority over and above the officer of the reserved category.

The inter se seniority of the members of RJS (including promotees RHJS Officers), is, therefore, to be determinated Under Rule 22 of the RJS accordingly. The objections filed by the officers who are presently members of RJS as per the provisional seniority list shall be decided in the light of the principles set out above."

34. The reference to the decision in Kailash Chandra Joshi's case (supra) find place in the report while considering the question as to what is the true effect of reservation rule in Rajasthan Judicial Service and whether accelerated promotion of a member of reserved category by application of rule of roster conferred upon him accelerated seniority in the promoted category also over and above the officers belonging to general category in the lower grade or post who is promoted to the same higher grade or post subsequently. While considering the decision in Kailash Chandra Joshi's case [supra] in the light of the limited controversy, the 'Administrative Committee' opined:

In view of the above discussion the Committee is of the opinion that accelerated promotions granted to Reserved category RJS Officers on the basis of application of rule of reservation/roster do not confer upon them consequential accelerated seniority in the promoted category. This shall however not affect the seniority of those officers of the reserved category whose cases stand covered by the decision of the Hon'ble Supreme Court in the case of Indira Sawhney and Veerpal Singh Chauhan and also of those whose seniority in RHJS stands protected either by virtue of the decision in of the High Court or of the Hon'ble Supreme Court in their own cases. Point No. 0011 is decided by the Committee accordingly.

35. The Division Bench decision of this Court in Sharad Chandra's case [supra] [D.B. Civil Writ Petition No. 2218 of 1994, decided on 17.2.1994] was considered by the Committee in the following manner:

However, the inter se seniority of such officers, belonging to the general category and the reserved category, as are the member of RJS as on 31.5.1998, shall be determined in the service as a whole and not in any promoted class/grade/group on the basis of their 'panel positions' i.e. their inter se merit positions in the relevant select lists. In forming such a view the Committee seriously considered the decision of the Hon'ble High Court in the case of Sharad Chandra and others 1994 (2) WLC (Raj.) 356 wherein Shri Sharad Chandra and two others, then in RJS had challenged the promotions of the respondents in RHJS. The petitioners had contended that they were seniors to the respondents in the RJS and therefore, they might also be promoted to RHJS from the date their juniors were promoted. Since there was a difference between the learned Judges of the Division Bench, the point of difference was referred for decision to the third Hon'ble Judge who held that in case of promotion in the cadre of Civil Judge cum ACJM promotions do not regain their original seniority in RJS.

On a thorough and critical examination of the promotions made from the lower ranks/posts to the higher posts/ranks in RJS the Committee has noted that no uniform patter/formula/principle etc. was adopted in grant of promotions and that promotions were even given to the junior officers in the lowest category of Munsifs to that of the highest posts of CJMS, bypassing the stage of promotion to the middle category of Civil Judges, then existing in RJS at all the relevant times and that too, on adhoc basis without considering the cases of senior officers. It has also been noted that office did not draw the lists of Officers, while seeking promotions to higher posts, according to their inter se seniority Under Rules 19/22 of RJS and did not place correct facts before the Full court in correct manner. In the opinion of the Committee, a seniority list is different from a civil list or Gradation list or a ranking list lvide Chander Mohan's case (AIR 1966 SC 1987). Preparation of a seniority list and not a civil list or ranking list required the study of not only the RJS Rules, as a whole, but also a comperative study of the sister Service Rules for RPS and RAS officers in whose cases, the promoted category/cadre/group in itself makes a separate class for the purpose of determination of inter se seniority of the same service which is not the position in RJS Rules, 1955 and the Committee has done that.

SHARAD CHANDRA'S CASE:

36. We have noticed above that according to petitioners, the question about operation of Rule 22 of the Rajasthan Judicial Service Rules, 1955 is interlinked with promotion at each levels of higher posts in the Service. It is governed by the interpretation to Rules accepted by Sharad Chandra's case. On the other hand, the respondents have contended that the issue was not at all directly in issue in Sharad Chandra's case [supra]. That has also been the view expressed by the Administrative Committee that the controversy was confined to inter se seniority after promotion to the post of Civil Judge between all the Officers so promoted and the issue as noticed by us above was not the subject matter of the writ petition and therefore, the said decision is not relevant for the purpose of deciding the seniority as per the Rules. That is also the pleas taken by respondent No. 1 as noticed by us above.

37. Since considerable arguments have been advanced by the respondents to overlook the earlier decision. The first question which arises for our consideration is that whether the controversy in Sharad Chandra's case [supra] was limited as has been contended by the respondents or was directly on the issue raised in this petition mainly that only one seniority list is envisaged Under Rule 22 of the Rajasthan Judicial Service and all promotions being granted to any person on the next higher post, he does not stand in order of seniority in the Rajasthan Judicial Service over and above the person continue to remain in the lower post and what is the effect of Ajeet Singh-II's ease [1999 [7] SCC-209] on the ratio of Sharad Chandra's case [supra] as affirmed by the Supreme Court in Kailash Chandra Joshi's case [supra] in appeal. We shall discuss the case in some detail.

38. Having given careful consideration to the rival contentions and after perusing the aforesaid decision closely time and again as suggested by the learned Counsel for the parties, we are unable to agree with the contention of the respondents and with the opinion expressed by the Administrative Committee.

39. After noticing this decision, which was a judicial pronouncement of a Division Bench of this Court and could not have been brushed aside on any ground whatsoever, and take upon itself to interpret the rule independently by considering the efficacy of judicial pronouncement on its administrative side as an appellate authority. The Administrative Committee while taking the decision on administrative side left at that without considering its impact on the consideration of determining seniority in the light of that judgment which was a binding precedent.

FACTS OF CASE AND THE CONTENTIONS RAISED IN SHARAD CHANDRA'S CASE [SUPRA]:

40. We may notice that D.B. Civil Writ Petition No. 2218 of 1992 was filed by three petitioners viz., Sharad Chandra, Murarilal Sharma and Kailash Chandra Joshi.

41. Challenging the promotions granted to respondents No. 3 to 11 in the said writ petition in the cadre of Rajasthan Higher Judicial Service from Rajasthan Judicial Service. The petitioners as well as respondents No. 3 to 11 were all appointed as Munsifs in the Service on different dates, on that premise whether as per date of appointment or as per ranks in the select list prepared by RPSC in the case of same selection, petitioners No. 1 and 2 were senior to respondents No. 3 to 11 and petitioner No. 3 was senior to respondents No. 5 to 11 as Munsif. However, respondents No. 3 to 11 have all been promoted to the posts of Civil Judges [Senior Division] cum Additional Chief Judicial Magistrates prior to petitioners No. 1 and 2 and respondents No. 5 to 11 have been promoted as Civil Judges [Senior Division] prior to petitioner No. 3 Kailash Chandra Joshi. Because respondents No. 3 to 11 have been promoted earlier than the petitioners on the posts of Civil Judges [Senior Division] within Rajasthan Judicial Service, they were treated senior to the Officers who have been promoted to the posts later than them or have not been so promoted. Further consideration for promotion to RHJS took place on that basis and respondents No. 3 to 11 were all promoted prior to petitioners.

42. Before promotions of respondents incumbents to the R.H.J.S., the petitioners were also promoted as Civil Judges "[Senior Division] on different dates which we shall refer shortly while considering the said Judgment in detail. The incidental issue raised was that respondents No. 2 to 11 who belonged to Scheduled Caste or Scheduled Tribe and were promoted earlier to the petitioners on the basis of the roster point and not on the basis of a general consideration of candidature for promotion on seniority cum merit basis, or in other words, had received accelerated promotions against reserve quota shall not get accelerated seniority amongst promotees to same level, but shall be subject to doctrine of eclipse and catch up rule qua promotees against general vacancies, and will be required to be readjusted on the basis of their inter se seniority on lower post.

43. Firstly, it was heard by a Division Bench consisting of Hon'ble Milap Chandra and Hon'ble R.S. Verma, JJ. As the Division Bench comprising of Hon'ble Milap Chandra and Hon'ble R.S. Verma, JJ. differed on conclusions, it was referred to Hon'ble Mr. Justice N.K. Jain, J. [as he then was]. Hon'ble N.K. Jain, J. agreed with the view expressed by Hon'ble Milap Chandra, J. and that view formed the majority decision.

44. In the first instance, we may notice the decision of Hon'ble R.S. Verma, J. which according to the respondents lay down the correct law. The factual matrix of the case was noticed by the Hon'ble Judge as under:

Petitioners as also respondents No. 3 to 11 were initially recruited to the post of Munsifs in the RJS as per particulars given below and were promoted to higher cadre of Civil Judge cum ACJMs. Respondents were eventually promoted to RHJS.

S.No. Name of Officer Year of Date of Seni- Date of Date of
Exami- appoint- ority Appoint- Promo-
nation ment ment tion as
as RHJS
ACJM
1. Sarvashri 1975 12.05.75 29 11.08.87 .....
Murarilal
[Petitioner No. 2]
2. Sharad Chandra 1975 12.05.75 30 11.08.87 .....
[Petitioner No. 1]
3. Rajaram Verma 1975 12.05.75 33 21.10.83 29.5.88
Respondent No. 3]
4. U.C. Barupal 1975 12.05.75 34 17.09.85 7.1.92
[Respondent No. 4]
5. Kailash Chand 1975 05.06.76 8 11.08.87 .....
[Petitioner No. 3]
6. R.K. Songara 1975 29.11.76 25 17.09.86 7.1.92
Respondent No. 5]
7. M.L. Nogiya 1975 29.11.76 25 17.09.86 7.1.92
[Respondent No. 6]
8. B.R. Bhooria 1975 29.11.76 35 29.10.85 7.1.92
[Respondent No. 7]
9. R.C. Sargara 1975 29.11.76 36 11.11.85 7.1.92
[Respondent No. 8]
10. Brij Mohan 1978 13.12.78 7 11.11.85 7.1.92
[Respondent No. 9]
11. B.L. Meena 1978 13.12.78 16 17.09.85 7.1.92
[Respondent No. 9]
12. D.S. Meena 1980 16.07.80 7 11.11.85 20.2.92
[Respondent No. 9]

45. The above table shows that all the said respondents were junior to petitioner Murarilal and Sharad Chandra while respondents No. 5 to 11 were junior to petitioner K.C. Joshi. RJS Rules provide for reservation in favour of SC/ST candidates in initial recruitment, respondents No. 3 to 11 got promoted to the cadre of Civil Judge cum ACJM much earlier than the petitioners who could be promoted to this cadre only on 11.8.1987. Consequently, respondents No. 3 to 7 were promoted to RHJS much earlier than the petitioners.

46. The contention which the learned Judge noticed for consideration was as under:

Shorn of necessary details, the case of the petitioners is that by virtue of Rule 22 of RJS Rules, the petitioners No. 1 and 2 maintained their respective seniority over respondents No. 3 to 11 in the RJS while petitioner No. 3 maintained such seniority over respondents No. 5 to 11. Hence, petitioners No. 1 and 2 were entitled to be promoted to RHJS on basis of their respective seniority in accordance with Rules 8 and 11 to 13 of RHJS Rules in preference to respondents No. 3 to 11 and petitioner No. 3 was entitled to be promoted in preference of respondents No. 5 to 11, who were junior to them in the RJS, though had been promoted to the cadre of Civil Judge cum ACJM much earlier.

Rule 8 of RHJS Rules does not lay down that an RJS Officer should have served as Civil Judge cum ACJM for promotion. Rule 11 of RHJS Rules lays down condition of seven years of service in the RJS. It was also pleaded that cadre of Civil Judge cum ACJM was only an intermediary one and promotion to such cadre could not alter the seniority, which the petitioners had acquired at their appointments. It was submitted that Rule 22 of RJS Rules was not violative of equality clauses of the Constitution and was valid.

47. The contention made on behalf of the respondents was noticed by the learned Judge as under:

The stand of all the respondents is that petitioners having lagged behind in promotion to the cadre of Civil Judge cum ACJMs, lost their seniority in favour of respondents No. 3 to 11 who acquired higher seniority by virtue of their earlier promotion to the cadre of Civil Judges cum ACJMs and hence were rightly promoted to RHJS on the basis of their seniority in the higher promotional cadre. Alternatively, respondent No. 7 has pleaded that if literal interpretation to Rule 22 of RJS Rules is to be applied it would be violative of Articles 14,15 and 16 of the Constitution of India and may be declared as ultravires of the Constitution.

From the aforesaid, it is apparent that the controversy raised on behalf of the respondents and the petitioners in Sharad Chandra's case [supra] is almost the same which has been raised in this case. The only difference is that in Sharad Chandra's case [supra], the respondent No. 1 i.e. High Court in its administrative side determined the seniority by applying the principle that higher in ladder ranks in the service above the lower in ladder and amongst the persons standing higher in ladder who reaches first the higher rung is senior to those who reaches that rung later in time by exercise of promotion. The petitioners in that case were those who had not been assigned seniority over the earlier promotees though they were senior in the lower rung of the ladder and the respondents were those who were though juniors to the petitioners as Munsifs have stolen a march over them in service by securing promotion earlier than them and had been assigned seniority by the High Court on the basis of date of promotion to the post. Petitioners claimed a common seniority list on the basis of appointment as Munsifs Under Rule 22, and alternatively to be restored to Inter se seniority of lower rank by applying doctrine of eclipse. The respondent No. 1 High Court has supported the seniority linked with promotion and denied operation of doctrine of eclipse so as to require recasting of seniority on juniors joining the seniors on higher post. It will be seen that High Court in its administrative side has taken a U turn in its stand which it has successfully taken in earlier list of Sharad Chandra's case on the very same issue.

48. We may notice that the interpretation as manifested by the High Court in its consideration of seniority Under the rules in Sharad Chandra's case [supra] and the stand taken by earlier promotees was very much founded on the principle that any other view would result in treating unequals as equals resulting in violation of Arts. 14 and 16 of the Constitution of India.

49. Second contention which was before the Court in the particular facts and circumstances of the case was that the petitioners and respondents in that case as is apparent from the above tabular statement have been promoted to the posts of Civil Judges cum ACJMs before any one of them was considered for further promotion to RHJS. All the petitioners in the aforesaid case were from general category and all the respondents were from reserved category. It was for that reason the promotions of respondents to the posts of Civil Judges prior to the petitioners were not result of a rule operating on principle of equality of opportunity of considering candidature, equality of opportunity of promotion on the basis of seniority cum merit of all the candidates generally coming within the Zone of consideration, but the respondents have been promoted to the next higher post on the basis of accelerated promotion against reservation quota. In that context, the plea raised was:

As stated already, RJS Rules provide for reservation for SC/ST candidates both at the level of initial recruitment on the post of Munsif as also on the promotion post of Civil Judge cum ACJM. If in pursuance of such a provision, a junior officer belonging to reservist category gets promoted to the higher cadre in service and the senior belonging to general category is bye- passed, it is difficult to see why the junior promoted to higher category should not take higher seniority in such category even though only temporarily over his senior belonging to general category, who has not been promoted to the higher cadre with him.

50. Thus, it is apparent that, apart from the question that there ought to be only single seniority in RJS Under Rule 22 on the basis of date of appointment as Munsifs in the service was the fundamental question raised.

OPINION OF HON'BLE R.S. VERMA, J.

51. While considering the Rules, Hon'ble Verma, J. categorically found:

It is obvious that Civil Judge cum CJM is a higher post/cadre as compared to post/cadre of Civil Judge cum ACJM and post/cadre of Civil Judge cum ACJM is higher to that of Munsif.

52. After considering Rule 22 of the Rajasthan Judicial Service Rules, he further held:

A literal meaning given to these Rules of course supports the construction placed on these rules by learned Counsel for the petitioners and apparently these Rules provide for and speak of 'seniority in the service.' However, the literal meaning placed in these rules may result in, absurd or illogical situations. If literal interpretation is given, then senior officers who have been superseded for incompetence, inefficiency or for lack of merit, would still claim seniority over officers, who though juniors, have superseded them on account of better merit, competence or efficiency.

Likewise, officers whose promotions were deferred on account of punishment and thus, lost their seniority vis a vis juniors, who were promoted during such period of deferment, would claim seniority afresh over those who have superseded them. In my opinion, a wholly literal construction on the above provisions would be out of place and tone and would not subserve the best interest of the two services or for that matter, the best interests of the society.

This is true that Rule 8 and Rules 11 to 13 of RHJS Rules do not prescribe that an RJS Officer to be promoted to RHJS need be a Civil Judge cum CJM or Civil Judge cum ACJM. According to literal interpretation, even a Munsif would be eligible to compete with officers, who have been promoted to higher cadres and this will result in unequals being treated as equals and would also militate against the objectives of efficiency, competence and excellence of performance in the said fields. However, this is only a very remote possibility, purely hypothetical and conjectural and may never materialise.

Thus, it is clear that as on date there are three distinct cadres extant today viz., that of [i] Munsif [ii] Civil Judge cum ACJM [iii] Civil Judge cum CJM. Cadre of Munsif is the lowest in the rung. Cadre of Civil Judge cum ACJM is the intermediary rung and the cadre of Civil Judge cum CJM is the top rung. Officers in the cadre of Munsifs cannot claim parity nor they be equated with the cadres of Civil Judge cum ACJMs. Likewise, Civil Judge cum ACJM cannot claim parity or equation with the cadre of Civil Judge cum CJMs.

53. Thus, reaching the conclusion that there is a hierarchy of posts within the Rajasthan Judicial Service and on attaining the higher post, one becomes senior to all persons standing in the lower rung of the ladder, the learned Judge addressed himself to the second question whether on promotion to the next higher post, the inter se seniority is eclipsed temporarily by the junior persons having been promoted earlier for whatever reason to be revived when senior joins him in the higher cadre by promotion later on. The learned Judge examined this question as under:

Now, I may consider the core question if seniority at the time of initial recruitment continues to inhere in an employee, notwithstanding that a junior has frogleapsed to a higher post or cadre in the same service. I may readily recongnize that seniority is a valuable incidence of service. It is the basic foundation for consideration of an employee for further promotions. However, this general rule is not altogether inviolable. There are well recognized exceptions in which an employee may lose, even though, temporarily, his initial seniority in the matter of promotion. One example would be imposition of a penalty of deferment of promotion. The period during which promotion of an officer has been deferred, results in forogleaping of juniors over him, if found fit for promotion. The other well recognized exception is when a senior gets superseded because of his inefficiency, incompetence or lack of merit. In such an event also, a junior forgleaps over his senior and the senior is bye- passed. To my mind these two situations can also be compared to a situation when a junior jumps the queue by operation of law as well.

54. The learned Judge, after referring different instances of junior's getting promotions earlier than seniors, further examined the issue as under:

This supersession by operation of law of a senior, for all intents and purposes, would have the same effect, as supersession on other counts.

To my mind a combined reading of Rules 7 to 7C and Rule 22 of RJS Rules and Rule 8 and Rules 11 to 13 of RHJS Rules goes to show that when a Munsif is superseded by his juniors, for any reason whatsoever his juniors so promoted, do acquire a new but ephemeral seniority in the particular cadre and as soon as such senior Munsif is promoted to that very higher cadre, his original seniority in the service which inheres in him as of right is revived and, if any promotion to still higher cadres or a higher service take place after such promotion, he deserves to be considered according to his revived seniority in service which inheres in him permanently by virtue of the statutory Rules; this seniority got eclipsed or suspended only till he was not promoted to such a higher cadre. The original seniority is not lost permanently because of a supersession at one stage. This interpretation alone would be in consonance with the dictates of excellence in performance of duties and balancing the same with deleterious effects on the morale of an officer, if he is allowed to be bye-passed, time and again on the basis of an ephemeral and newly acquired seniority in a higher cadre, based on fiction of law and not based on any rule in the relevant service Rules, that by promotion to a higher cadre an officer acquires new seniority.

55. On ultimate analysis, the learned Judge summed up his opinion as under:

Summing up, I find that RJS Rules though make provision for higher cadres and promotions thereto, do nor make any provision for separate seniority in these higher cadres. A new seniority is acquired in the higher cadres by fiction of law created by Judge made law. RHJS Rules also do not lay down that before promotions to RHJS, and RJS Officer should have held a particular post or should have served in a particular post. All that is required for promotion is that the RJS Officer must have served for seven years in RJS. On promotion of a junior to higher cadre, whether by way of supersession or by operation of roster law, he does acquire a new seniority in the higher cadre but such seniority is only ephemeral in nature. No sooner, the senior so bye-passed, attains the very cadre in which the junior is serving, his original seniority, in service, which inheres in him because of statutory service Rules, revives and he having been brought at part with his juniors, is entitled to consideration for further promotion to RHJS along with such juniors.

56. The ratio of this decision as we have understood in nut-cell is as under:

1. That the Rajasthan Judicial Service consisted of three posts in the hierarchy namely, Munsif; Civil Judge cum ACJM and Civil Judge cum CJM;

2. That the lowest rung of the ladder is the post of Munsif, from which promotions are being accorded to the post of Civil Judge cum ACJM and then to the post of Civil Judge cum CJM, the higher rung of the ladder.

3. That on being promoted to the higher post, a person acquires new seniority and becomes senior to a person standing on the lower post irrespective of his seniority in the lower post.

4. That acquisition of new seniority by dint of promotion to the higher post over the persons senior to him on the junior post only results in eclipsing the inter se seniority originally fixed until the senior person joins the junior on the same higher post later on.

5. That when a senior person joins a junior person on the higher post later on where inter se seniority on the lower post revives.

6. That on the principle of revival of inter se seniority, no difference is made out whether his earlier promotion is by dint of operation of a general rule of promotion or by dint of accelerated promotion on account of operation of roster point for reserved category.

7. That after the persons Joining on the higher post, the consideration for RHJS from amongst the persons in the higher post is on the basis of seniority on the higher post albeit, their interse seniority to be fixed on the basis of seniority on the basis of appointment to the post of Munsif.

On this premises, Hon'ble R.S. Verma, J. partly accepted the writ petition and directed the respondent High Court to reassign due seniority to the petitioners over respondents No. 3/5 to 11 in the cadre of Civil Judges cum ACJMs and then consider the cases of the petitioners for promotion to RHJS w.e.f. the date/dates from which their respective juniors viz., respondents No. 3/5 to 11 were appointed to RHJS.

57. In coming to this conclusion, Verma, J. has held that accelerated promotions to the next higher post was not fortuitous and par with supersession of seniors on account of punishment suffered or on account of efficiency or lack of merit and doctrine of temporary eclipse applies in all cases.

OPINION OF HONBLE MR. MILAP CHANDRA, J.

58. The other member of the Division Bench namely, Milap Chandra Jain, J. agreed with Verma, J. On 1st three conclusions summed by us above. He held as under:

It is also clear from Rule 7C and
Sections 12
and
of the Code of Criminal Procedure, 1973 that the posts of Civil Judge-cum-Chief Judicial Magistrates are higher in cadre than posts or Civil Judges-cum-Judicial Magistrates.

59. Milap Chandra Jain, J. also agreed with the view of Verma, J. that on promotion of a junior officer to a higher cadre, he acquires a new seniority in the higher cadre. He recorded his opinion as under:

The person who is promoted earlier in the lower cadre is entitled for consideration for promotion in the next higher cadre earlier that the persons who fail to get promotion in the lower cadre though senior to him.

60. Thus, agreeing on both the issues that on promotion to the higher post, a promotee acquires a new seniority and placed on the higher rung of the ladder and has to be considered for future promotions earlier then the persons not so promoted and remained on the lower post though on the lower post, such persons were senior. He also agreed with Verma, J. that promotion against roster point reservation for members of the Scheduled Castes or Scheduled Tribes earlier than the petitioners was not fortuitous. However, the difficulty in agreeing with the observations that when a Munsif is superseded by his juniors for any reason, his juniors acquire a new but ephemeral seniority only and as soon as such senior Munsif is also promoted to that higher post, his original seniority in the service revives. Milap Chandra, J. opined that in no circumstance, doctrine of eclipse can be applied in determining seniority on the promotion post. He said:

there is no provision in the Rajasthan Judicial Service Rules providing that on promotion to the higher cadre of RJS, the seniority of the senior person [not promoted earlier] would get restored. There is also no provision providing elipsing of the seniority. Even if there would have been such a provision, it would have been hit by Arts.14 and 16 of the Constitution of India.

With this conclusion Milap Chandra Jain, J. was of the opinion that the writ petition deserves to be dismissed and the petitioners are not entitled to any relief.

OPINION OP HONBLE MR. N.K. JAIN, J.

61. As a result of the above difference of opinion, the matter was referred to third Hon'ble Judge i.e. Hon'ble N.K. Jain, J. [as he then was]. It may be noticed that there being no difference of opinion, reference arose only because of difference of opinion on second question.

62. Hon'ble N.K. Jain, J. also agreed with the view that on promotion to the higher post, a person acquires new seniority and the person on the lower post cannot claim parity with the person running on the higher post. He recorded his findings as under:

Even both the learned Brother Judges have also observed that the officers in the cadre of Munsifs cannot claim parity not can they be equated with, the cadres of Civil Judge cum A.C.J. MS. Likewise Civil Judge cum A.C. J.M. cannot claim parity or equation with the cadre of Civil Judge cum C.J.Ms. After considering the decision rendered in
Lalit Mohan Deb and Ors. v. UOI
wherein their lordships of the Supreme Court has observed that it is well recognised that a promotion post is a higher post with a higher pay. It has also been observed by Hon'ble Verma, J. at para 14 that 'it is obvious that Civil Judge cum C.J.M. is a higher post/cadre as compared to post/cadre of Civil Judge cum ACJM and post/cadre of Civil Judge cum ACJM is higher to that of Munsif.

63. Thus, reaching on the decision that Officers in the cadre of Munsifs cannot claim parity nor can be equated with the cadre of Civil Judge cum ACJMs in unanimity with other two learned Judges, N.K. Jain, J. reached his conclusion on the issue of difference of opinion as under:

On getting promotion certainly the cadre do change and according to Rule 22, the seniority requires to be determined by the date of the order of substantive appointment, so when the posts are not interchangeable, obviously experience 'gained by a Munsif, the initial post, cannot be equated with that of ACJM/CJM having more power and responsibility and for the purpose of determining seniority these cadres cannot be put at par since on getting promotion the cadre do change and according to Rule 22, the seniority requires to be determined from the date of the order of 'substantive appointment. That is what the plain & simple theory applicable is that if a person gets promotion certainly he acquires a new seniority in that cadre on his substantive appointment by way of promotion and the person promoted later on would get lower position in the seniority on the promotional cadre post. Therefore, the harmonious construction of the aforesaid rule would lead to the conclusion that the provisions of seniority that it shall be determined by the date of the order of the substantive appointment to the service shall mean the seniority in each rank and post of service.

64. N.K. Jain, J. further recorded his opinion as under:

In the absence of their being any rule providing 'ephemeral seniority' or revival of seniority, I have no hesitation in holding that since the respondents No. 3 to 11 were senior in higher cadres, they will rank senior to the petitioners promoted later on to those cadres.

With this conclusion, N.K.Jain, J. disagreeing with Verma, J. held that the petitioners did not regain their original seniority when they got appointment by promotion on the post of Civil Judge and the petitioners were not entitled to be considered for promotion to Rajasthan Higher Judicial Service on the basis of seniority as per date of appointment as Munsif.

WHETHER RESPONDENT'S CONTENTIONS ABOUT SHARAD CHANDRA'S CASE AND KAILASH CHAND JOSHTS CASE VALID?

65. Thus, from the aforesaid analysis of the opinions expressed independently by each of the learned Judges of this Court in Sharad Chandra's case [supra], it is apparent that the question was directly and substantially in issue was whether only one seniority list is envisaged of all the members of RJS holding different posts in hierarchy Under Rule 22 of the Rules for the purpose of promotion to RHJS in the cadre of RJS and intermediary promotions within RJS are to be ignored. On this aspect of the matter, all the three Hon'ble Judges were unanimous in their view that on promotion to a higher post, the promotee acquires a new seniority and the persons continuing on the lower post cannot be equated or treated in parity with the promotees for the purpose of consideration for promotion to RHJS from RJS. In other words, the unanimous opinion of the Hon'ble Judges of this Court deciding that case was that a promotee to a higher post will always rank senior to a person standing on the lower ranks or from which promotion has taken place for promotions from RJS to RHJS.

66. On the other question, which arose only because first question was answered in the negative and the difference of opinion existed was that while R.S. Verma, J. held that on promotion to the next higher post, whatever may be the circumstances in which prior promotion of a junior has taken place, when an Officer who was senior in the lower post, joins his junior at that post, on promotion to the higher post later on their inter se seniority as in the post of Munsifs revives irrespective of the fact whether the appointment by promotion on equality of opportunity was as a result of general promotion or because of accelerated promotion due to operation of roster point posts for reserved for SC/ST/OBC or for any other fortuitous circumstance. The principle of elipse was applied and the distinction between the persons superseded in the ordinary course of promotional exercise whether on account of penalties having been imposed or on account of finding not suitable because of inefficiency or lack of merit was rejected and it was opined that in all circumstances, the persons who join in the same higher post stands equal and their inter se seniority on the lower post revives. In other words, principle of seniority linked with promotion was rejected in all circumstances.

67. On the other hand, the other two Hon'ble Judges also did not draw any distinction on that account and held that new seniority acquired as a result of promotion to the next higher post is to be reckoned on the basis of period of offcation on the post and those who are promoted earlier will rank always senior to those who have been promoted later, irrespective of the difference in the circumstance by which promotion has been granted. To say differently majority opined rule of seniority linked with promotion universally without any exception by treating promotion under the Rules not to be fortuitous in any circumstance.

68. We, therefore, hold that the decision in Sharad Chandra's case which was a judicial verdict of this Court directly governing the question of determination of seniority, in all its aspect on interpretations of Rule 22 and not only of the petitioners, who were all general candidates and promoted to the next higher posts vis a vis persons promoted to the higher post earlier to them within the Rajasthan Judicial Service on roster points reserved for reserved posts, for the purpose of their consideration to RHJS from amongst holders of higher post in the RJS, but primarily to determine on principle whether for promotion to RHJS from RJS, to which all members of RJS were eligible only one seniority is to be maintained of all the incumbents holding different posts in the RJS as per initial appointment to the post of Munsif and consideration for promotion to RHJS must proceed on that basis only, in order of seniority irrespective of position within RJS, they hold, higher or lower. The controversy was unanimously answered, without much difficulty against promotees being placed equals to non-promotees for consideration of promotion to RHJS as per seniority as Munsifs ignoring the promotions.

69. Therefore, the Hon'ble Members of the Administrative Committee, in our opinion, were not justified in ignoring the decision of this Court in Sharad Chandra's case which was duly affirmed on appeal by the Supreme Court. If the question that was decided by High Court and not appealed against, or if agitated before Supreme Court but not decided resulting in deemed rejection, ratio remained unaffected.
Moreover, we may notice, it has not been urged before us even in the alternative, that if on promotion, the promotees acquire new seniority, the doctrine of eclipse will apply in all cases, as the position has been settled by
Ajit Singh-II
's case [supra], which we shall refer to shortly.

70. The next ground which is now pressed into service is that the decision in Sharad Chandra's case as affirmed in Kailash Chandra Joshi's case stands overruled by the decision of Supreme Court in Ajeet Singh [II] v. State of Punjab .

71. The decision in Ajeet Singh[II] v. State of Punjab [supra] could not have been taken into consideration by the Administrative Committee inasmuch as that Judgment in Ajeet Singh's case had not come into existence at the time when the Administrative Committee was considering this matter. The Hon'ble Members of the Administrative Committee were, therefore, not right in accepting the objections raised on behalf of the respondents and others contrary to the aforesaid decision of this Court in Sharad Chandra's case, as affirmed by the Supreme Court in Kailash Chandra Joshi's case [supra] and further contrary to the stand which the High Court itself has taken in the aforesaid decision in Sharad Chandra's case [supra] successfully. The High Court having already taken the stand in the judicial proceedings with success, it was not open for the High Court on its administrative side to turn round and take a different view of the matter by considering the entire scheme of the Rules as if it was deciding the issue de novo on a clean slate or by examining the validity of conclusions reached in above decision and hold, contrary to the binding decision of this Court in which this Court itself was a party. With utmost respects, the learned Members of the Administrative Committee did not appreciate the controversy and the import of the aforesaid decision in Sharad Chandra's case [supra] and it was not open for them to have undertaken interpretation of Rule 22 and take a different view of the matter, and act on principle that a Munsif though not promoted, yet if he is senior to person promoted as Civil Judge, as a Munsif, he will be senior as Member of RJS and will be considered ahead of such promotees for promotion to RHJS from RJS dwelling on scheme of other Rules. We shall presently see that the view is not only contrary to binding decision but contrary to very constitutional scheme of having judicial service and fundamental right of equity in the matter of employment.

72. There is no doubt about the fact that the aforesaid decision was made subject matter of appeal before the Supreme Court in Kailash Chandra Joshi's case [supra], one of the unsuccessful petitioner in Sharad Chandra's case [supra]. Obviously, petitioner Kailash Chandra Joshi was aggrieved with the findings recorded by this Court in Sharad Chandra's case [supra] only to the extent which had gone against him. The Rajasthan High Court could not have raised any cross-objection to the finding that the Munsif would always rank junior to a Civil Judge for the purpose of consideration for promotion to RHJS notwithstanding he may have been senior as Munsif to person promoted as Civil Judge. So also, the other respondents were also not opposed to the decision on that issue. But the mere fact that one of the petitioners was aggrieved with the unanimous finding of this Court in Sharad Chandra's case [supra] could not alter the position. That judgment has been subjected to appeal and was affirmed by the Supreme Court. The Judgment of the Supreme Court could not have been distinguished or side tracked by finding some ground or alleged errors in the judgment of the Supreme Court as have been sought to be made in all as well as in the reply filed by the respondent.

73. We regret to observe that an attempt has been made by learned Counsel for all the respondents to urge that the Judgment of Supreme Court was erroneous or per incurium by wrongly reading the rule, a contention which is not open to be made, even otherwise, without the decision of the Supreme Court, the Administrative Committee was otherwise, not entitled to take a different view than that has been pronounced by this Court which has not been revoked or modified. Unless the decision of this Court was reversed or set aside by the Supreme Court, merely because in appeal against that Judgment only one point was expressly discussed and judgment of High Court was affirmed on that point, does not result in reversal of other finding or to affect adversely the ratio and binding force of other findings and its force as a precedent on such issue left untouched by the Supreme Court. In such event, the Judgement of Supreme Court will be considered as a precedent only in respect of question expressly considered and decided by it and ratio thereof will operate as binding precedent Under
Article 141
of the Constitution, but for the parties to that Us, the judgment of lower court stands merged in all its aspect in the order of superior court and stand bound by all those findings of lower court also which have not been set aside.

74. At any rate, on the totality of controversy raised before it, after considering the scheme of Rules, the Court has held in Katiash Chand Joshi's case [supra] that inter se seniority of persons promoted shall be governed by continuous officiation and shall not be subject to adjustment by applying rule of catch up and give effect to doctrine of eclipse. Thus, unless it can be said that the above view of Rule 22 has been overruled by latter decision of Supreme Court, it was not open for any authority to settle the seniority under RJS Rules differently from that. The substance of view taken by the Committee and pressed by respondents is that notwithstanding finality of judgment of Supreme Court that Rules of 1955 envisage promotion linked seniority by reverting to determine seniority with reference to appointment to the lowest post of Munsif alone, making a senior promotee against junior in the service.

75. Whatever view may be taken, it is not possible to sustain the contention that Administrative Committee of this Court could reach a different conclusion in interpreting Rule 22, than what has been reached by the Court in Sharad Chandra's case, notwithstanding detailed and minute consideration of rules at great length.

WHETHER DECISION IN
AJIT SINGH'S II
CASE (
AJIT SINGH v. STATE OF PUNJAB
) OVERRULES KAILASH CHAND JOSHI'S CASE IN ITS ENTIRETY OR ONLY PARTLY?

76. In connection with the aforesaid decision, first question that invites attention is the contention of the respondents that the decision of this Court in Sharad Chandra's case [supra] as affirmed by the Supreme Court in Kailash Chandra Joshi's case [supra] stands overruled or nullified by the decision of the Supreme Court in Ajeet Singh-II's case [supra], which is a direct case over ruling the ratio laid down in the earlier decisions.

77. Having carefully considered the contentions raised by the learned Counsel for the parties and a close reading of the decision of Supreme Court in Ajeet Singh-II's case [supra] we find our answer to be in the negative.

78. We shall now consider the effect of Ajeet Singh-II's case [supra]. A careful reading of the aforesaid judgment reveals that it nowhere militates against the basic principle that a person on the higher rung cannot be treated at par with a person on the lower rung for the purpose of promotion to the still higher post. To hold otherwise results in treating unequals as equals in violation of Arts. 14 and 16 of the Constitution of India. The principle has been invigarated with emphatic reaffirmation on principle that to treat unequals' as equals results in breach of fundamental rights guaranteed Under
Articles 14
and
16[1]
of the Constitution of India and results in severe discrimination. The only deviation which has been made in Ajeet Singh's case [supra] is to carve out an exception in the cases where promotion to the next higher post in all cases is not be way of general procedure of promotion founded on equal opportunity but where some of the persons have been promoted against the general quota as per ordinary rule of promotion and others have got accelerated promotions because of the operation of roster system by evaluating the formula known as 'catch up formula' referring to inter se seniority between the two class of promotees to the same post, which shall vouch that an accelerated promotion founded as fortuitous circumstance of birth mark will not result in accelerated seniority also.

79. A Constitutional Bench of the Supreme Court in Ajeet Singh-II's case [supra] was considering the interlocutory applications moved by the State of Punjab seeking clarification about the ratio laid down in
Ajit Singh Januja v. State of Punjab
[hereinafter to be referred to as
Ajit Singh-I
's case].

In
Ajit Singh-I
's case [supra], a group of appeals had arisen in the circumstances that a question was raised before the Punjab High Court in the context of promotions granted to the members of the scheduled Castes and Scheduled Tribes by operating roster system. Certain members of Scheduled Castes and Scheduled Tribes were also promoted on the higher post not from the constituency of the members of the reserve class but from the general constituency finding their place in the promotional post by competing on merit in the general category.

The Punjab Govt. issued a Circular that those SC/ST or backward class employees appointed or promoted against reserve points on the basis of their merit/seniority should not be counted for the purpose of reservation but that reservation point should be carried over to the next point on the roster and filled by a candidate/employee belonging to Scheduled Castes/Backward Classes so that the deficiency of representation in service is made up. The Punjab and Haryana High Court in the case of
Joginder Singh v. Punjab Govt.
[1982(2)SLR 307] held:

that for working out this percentage the promotees/appointees in this cadre whether on the basis of reservation or otherwise, have to be taken notice. In the light of this conclusion of ours, we hold that any promotions of the members of the Scheduled Caste and Backward Classes made beyond prescribed limit on the basis of above noted instructions of the Govt. are void and honest.

80. One of the appeal arose out of
the said judgment
before the Supreme Court. The question that was raised in the said appeal before the Supreme Court was that when reservation quota was complete, the candidates belonging to reserve category could not further be appointed or promoted irrespective of the fact that they ave secured promotion by way of finding place on competition with the general candidates, or they have found place in the employment/promotion through competition limited to the members of the reserve category.

That issue has been referred to the Full Bench of the High Court and the Full Bench of the Punjab and Haryana High Court in the case of
Jaswant Singh v. The Secretary to the Govt. of Punjab
(1989) 4 SLR 257 held:

That non-consideration of Scheduled Castes candidates against general category posts for purpose of appointments or promotions will be hit by
Articles 14
, 15
and
of the Constitution.

81. It was also observed that there was no bar to the appointment/promotion of more number of members of Scheduled Castes. The members of the Scheduled Castes appointed on merit or promoted on seniority cum fitness basis shall not be taken into consideration for working out the reserved percentage. The High Court also said that roster points were seniority points. Thus, the Full Bench of the Punjab & Haryana High Court overruled the view taken by the same High Court in the aforesaid
Joginder Singh
's case [supra].

However, before these matters were heard, the Supreme Court had an occasion to consider the decisions of Punjab High Court in
Joginder Singh
's case [supra] and
Jaswant Singh
's case [supra] in
R.K. Sabharwal v. State of Punjab
, wherein it has been observed as under:

When a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at the reserve points are to be filled from amongst the members of reserve categories and the candidates belonging to the general category are not entitled to be considered for the reserved posts. On the other hand, the reserve category candidates can compete for the non-reserve posts and in the event of their appointment to the said posts, their number cannot be added and taken into consideration for working out the percentage of reservation.

82. On the second issue as to whether once the post ear-marked for Scheduled Castes/Scheduled Tribes/backward classes are filled and reservation are complete, roster can operate any further, the Court held:

When the total number of posts in a cadre are filled by the operation of the roster than the result envisaged by impugned instructions is achieved. In other words, in a cadre of 100 posts, when the posts earmarked in the roster for the Schedule Caste and Backward Classes are filled the percentage of reservation provided for the reserve categories is achieved. We see no justification to operate the roster thereafter. The 'running account' is to operate only till the quota provided under the impugned instructions is reached and not thereafter. Once the prescribed percentage of posts is filled, the numerical test of adequacy is satisfied and thereafter, the roster does not survive.

83. With this conclusion, the Court has held that after operation of the roster and running account comes to an end, they had to be filled in from the category to which the posts belonging in the roster. Balancing the case of right to equal opportunity in the matter of employment among the candidates belonging to general category and the members of the reserve category, the Court held:

It must be remembered that the equality of opportunity guaranteed by Clause [1] is to each individual citizen of the country while Clause [4] contemplates special provision being made in favour of socially disadvantaged classes. Both must be balanced against each other. Neither should be allowed to eclipse the other, For the above reason, we hold that for the purpose of applying the rule of 50% a year should be taken as the unit and not the entire strength of the cadre, service or the unit as the case may be.

84. With the aforesaid background of the decision of the Punjab High Court and the Supreme Court in
R.K. Sabharwal
's case [supra], the controversy raised in
Ajit Singh-I
's case was whether after the members of Scheduled Castes/Tribes or Backward Classes for whom specific percentage of posts have been reserved and roster has been provided have been promoted against those posts on the basis of 'accelerated promotion' because of reservation of posts and applicability of the roster system, can claim promotion against general category posts in still higher grade on the basis of their seniority which itself is the result of accelerated promotion on basis of reservation and roster? In other words, the question was whether the roster point fixed for accelerated promotion also becomes a seniority point, for further promotion to next higher post ahead of those who join the same level later through general route.

85. Before answering the aforesaid question, the Court took notice of the decision in
R.K. Sabharwal
's case [supra], wherein the Court has treated the members of the Scheduled Castes and Backward Classes in two categories i.e. those who are appointed or promoted having competed with general category candidates on merit and those who are appointed/promoted on basis of reservation and roster.

86. On the basis of the premises of the aforesaid principle
laid down by
the Supreme Court in
R.K. Sabharwal
's case[supra], the Court observed as under:

If the contention of the respondents is accepted as has been done by the High Court that such appointees/promotees can be considered against posts meant for general category candidates merely because they have become senior on basis of accelerated promotions then, according to us, that exercise shall amount to circumventing the judgment of the Constitution Bench of this Court in the
Sabharwal
's case, because for all practical purposes the promotions of such candidates are being continued like a running account although the percentage of reservation provided for them has been reached and achieved. Once such reserved percentage has been achieved and even the operation of the roster has stopped, then how it will be permissible to consider such candidates for being promoted against the general category posts on the basis of their acceleratred promotion, which has been achieved by reservation and roster.

87. The Court also considered the later decision in the case of
Union of India v. Virpal Singh Chauhan
, wherein B.J. Jeevan Reddy, J. speaking of the Court has said:

Hence the seniority between the reserved category candidates and general candidates in the promoted category shall continue to be governed by their panel position. We have discussed hereinbefore the meaning of the expression "panel" and held that in case of non-selection posts, no "panel" is prepared or is necessary to be prepared. If so, the question arises, what did the circular/letter dated August 31, 1982 mean when it spoke of seniority being governed by the panel position? In our opinion, it should mean the panel prepared by the selecting authority at the time of selection for Grade 'C'. It is the seniority in this panel which must be reflected in each of the higher grades. This means that while the rule of reservation; gives accelerated promotion, it does not give the accelerated-or what may be called, the consequential-seniority.

88. With this premise, the Supreme Court in
Ajit Singh-I
's case [supra] laid down:

Once the quota is full and roster has stopped for members of the Scheduled Castes and Backward Classes in respect of whom reservation has been made and roster has been prescribed then their case for promotion to still higher grade against general category posts have to be crutch". They cannot be promoted only on basis of their accelerated seniority' against the general category posts.
In
R.K. Sabharwal
's case it was said that the candidates belonging to Scheduled Castes who compete on their own merit along with general category candidates then they are not to be counted within the percentage of reservation made for such candidates in the service, because they have competed with the general category principle which has been enunciated by the Constitution Bench in the aforesaid case shall be applicable whenever a member of Scheduled Castes or Backward Classes has got accelerated promotion to a higher grade and is to be considered for' further promotion to still higher grade against general category posts. The accelerated promotions are to be made only against the posts reserved or roster prescribed. There is no question pf that benefit being available when a member of Scheduled Castes or Backward Classes claims" promotion against general category posts in the higher grade. It need hardly be pointed out that such candidates who are members of the Scheduled Castes or Backward Classes and have got promotion on basis of reservation and application of roster before their seniors in the lower grade belonging to general category, in this process have not superseded them, because there was no inter se comparison of merit between them. As such when such seniors who belong to general category, are promoted later it cannot be said that they have been superseded by such members of Scheduled Castes or Backward Class who have been promoted earlier.

While considering them for further promotion against general category posts if the only fact that they have been promoted earlier being members of Scheduled Castes or Backward Class is taken into consideration, then it shall violate the equality clause and be against the view expressed not only in the case of
R.K. Sabharwal
[supra] by the Constitution Bench, but also by the 9 Judges Bench in the case of Indra Sawhney (supra) where it has been held that in any cadre reservation should not exceed beyond 50%.
The 50% posts already being reserved against which promotions have been made then any promotion against general category posts taking into consideration that they are members of the Schedule Castes or Backward Classes, shall amount to exceeding the limit fixed in the case of Indra Sawhney (supra).

89. In coming to this conclusion, the Court also took into consideration the 9 Judges Bench decision of the Supreme Court in Indra sawhney v. Union of India 1992 (Supp) 3 SCC-217, wherein the Court has rejected the contention that handicap to reserved category of class be provided as all levels of promotion, for the reason that it will result in vertical divide of administrative apparatus to the detriment of efficient administration and to the larger interest of nation, apart from resulting in reverse discrimination. The Court said in Indra Sawhney's case [supra]:

We see no justification to multiply 'the risk', which would be the consequence of holding that reservation can he provided even in the matter of promotion. While it is certainly just to say that a handicap should be given to backward class of citizens at the stage of initial appointment, it would be a serious and unacceptable inroad into the rule of equality of opportunity to say that such a handicap should be provided at every stage of promotion throughout their career. That would mean creation of a permanent separate category apart from the mainstream- a vertical division of the administrative apparatus. The members of reserved categories need not have to compete with others but only among themselves. There would be no will to work, compete and excel among them. Whether they work or not, they tend to think their to promotion is assured. This in turn is bound to generate a feeling of despondence and 'heart-burning' among open competition members. All this is bound to affect the efficiency of administration. Putting the members of Backward Classes on a fast-track would necessarily result in leapfrogging and the deleterious effects of "leapfrogging" need no illustration at our hands. At the initial stage of recruitment reservation can be made in favour of backward class of citizens but once they enter the service, efficiency of administration demands that these members too compete with others and earn promotion like all others; no further distinction can be made thereafter with reference to their "birth-mark", as one of the learned Judges of this Court has said in another connection. They are expected to operate on equal footing with others. Crutches cannot be provided throughout one's career. That would not be in the interest of efficiency of administration nor in the larger interest of the nation.

90. The Court in the final conclusion in
Ajit Singh-I
's case [supra] concurred with the view expressed in
Union of India v. Virpal Singh Chauhan, J.T.
[supra].

In
Virpalsingh
's case [supra], it has been opined:

That seniority between the reserved category candidates and general candidates in the promoted category shall continue to be governed by their panel position i.e. with reference to their inter se seniority in the lower grade. The rule of reservation gives accelerated promotion, but it does hot give the accelerated consequential seniority'. If a Scheduled Caste/Scheduled Tribe candidate is promoted earlier because of the rule of reservation/roster and his senior belonging to the general category candidate is promoted later to that higher grade the general category candidate shall regain his seniority over such earlier promoted Scheduled Caste/Tribe candidate. As already pointed out above that when a Scheduled Caste/Tribe candidate is promoted earlier by applying the rule of reservation/roster against a post reserved for such Scheduled Caste/Tribe candidate, in this process he does not supersede his seniors belonging to the general category. In this process there was no occasion to examine the merit of such Scheduled Caste/Tribe candidate vis-a- vis his seniors belonging to the general category. As such it will be only rational, just and proper to hold that when the general category candidate is promoted later from the lower grade to the higher grade, he will be considered senior to a candidate belonging to the scheduled caste/tribe who had been given accelerated promotion against the post reserved for him. Whenever a question arises for filling up a post reserved for Scheduled Caste/Tribe candidate in still higher grade then such candidate belonging to scheduled caste/tribe shall be promoted first but when the consideration is in respect of promotion against the general category post in still higher grade then the general category candidate who has been promoted later shall be considered senior and his case shall be considered first for promotion applying either principle of seniority cum merit or merit cum seniority. If this rule and procedure is not applied then result will be that majority of the posts in the higher grade shall be held at one stage by persons who have not only entered in service on basis of reservation and roster but have excluded the general category candidates from being promoted to the posts reserved for general category candidates merely on the ground of their initial accelerated promotions. This will not be consistent with the requirement or the spirit of
Article 16(4)
or
Article 335
of the Constitution.

91. Thus, the Court affirmed the view of the Pull Bench of Punjab and Haryana High Court in Jaswantsignh v. Secretary to Govt. of Punjab (1989) 4 SLR-257.
The aforesaid decision in
Ajit Singh- I
's case [supra] clearly shows that there was no question about considering the persons standing in the lower level continuing to be senior to the persons promoted to the higher level for the purpose of further promotion by dint of their panel position at the entry point. It was not even given a blinking consideration that a person who has been promoted to the next higher post in the service can ever be considered as standing at the same level of seniority for the purpose of further promotion in the service career, they are to be promoted. This premise was taken to be beyond the pail of doubt that a person who has been promoted and placed at a higher rung of the ladder in the service acquires a right to be considered in priority to the person who has not stepped on the same rung of the ladder.

The aforesaid decision in
Ajit Singh-I
's case (supra) also reflects in no uncertain terms that the basic premise held by all the three learned Judges who have decided Sharad Chandra's case had proceeded on the premise that no difference exists between the person who have been promoted to the next higher post by way of consideration generally on the basis of merit amongst the general category of candidates by superseding persons senoir in the lower level because of the bad record or because of consideration of comperative merit, one is found to be more meritorious on the one hand and the persons who got accelerated promotion merely because of the operation of roster system by consideration confined to the constituency of the members of the reserve category.

This premise on the basis of which all the three Judges of this Court have proceeded viz., there is no distinction between promotion through general rule or through operation of roster point was not found to be correct by the Apex Court either in the case of
R.K. Sabharwal
[supra] or in the case of
Virpal Singh Chauhan, J.T
's case [supra] or in
Ajit Singh-I
's case [supra].

92. The Court made it clear that accelerated promotions on the next higher post solely on the basis of operation of reservation policy does not result in accelerated seniority also and a person who joins later from amongst the general category candidates in such cases cannot be considered to be a person who has been superseded by the members of the reserve category, who is not considered competitive with him while securing early promotion on the basis of roster point. Thus, the view taken by R.S. Verma, J. to the extent that all those employees who have attained promotion on the next higher post whether by dint of general competition or by way of accelerated promotions were to be treated at par and their inter se seniority will be on the basis of their seniority on the lower level was not held to be correct. The Court confined the doctrine of eclipse only to class of accelerated promotions through operation of reserved quota and applied catch up formula to revive inter se seniority of lower level on promotions vis a vis latter class. So also the conclusion reached by the other two Hon'ble Judges deciding Sharad Chandra's case [supra], who held diametrically opposite that in all cases, promotion being not fortuitous, each promoted employee, irrespective of the fact whether it is by dint of his consideration amongst general candidates in the ordinary course on the principle applicable to all the members of the service or whether the person has reached the higher rung of the ladder only because of operation of roster system resulting in accelerated promotion will rank senior to a person who has joined the rank later notwithstanding that senior person in the lower rung has joined the higher post solely because of his exclusion on account of operation of roster system. The Court confined the operation of Revival of seniority rule to accelerated promotion by treating it to be fortuitous depending on birth mark, which will not amount to supersession, as will be the case in other cases of general consideration founded on equal opportunity.

93. The court held the position to be unacceptable being violative of Arts. 14 and 16[1] of the Constitution of India and balanced the equality by holding that while a person who has attained promotion on the basis of general consideration on the promotions granted to the general category of posts would retain his seniority on the basis of his earlier promotion to the persons who have been promoted later but a person who has secured accelerated promotion would not retain his seniority vis a vis his "seniors in the lower post after they join together on the higher post. In other words, the principle of eclipse of seniority and catch up rule was confined only to the class of persons who were excluded from consideration earlier on account of accelerated promotions granted to the persons junior to them because of operation of reservation policy depending on birth mark. Their inter se seniority on reaching the same step at higher level was required to be reflected in the same order as they held at in the lower rung of the ladder but the later promottee promoted on the basis of seniority/merit/seniority cum merit having been superseded earlier would not regain his seniority of the lower level in relation to the persons who had been promoted earlier in the general category of posts by way of superseding their seniors after due consideration on grounds other than accelerated promotion.

94.
In this case obviously, no reference was made to Kailash Chandra Joshi case [supra], which was decided after the decision in
Ajit Singh-I
's case [supra].

95. After the decision in
Ajit Singh-I
's case [supra], as discussed above, a bench of equal strength has struck a discord and note in Jagdishlal v. State of Haryana and has taken the view as was expressed by R.S. Verma, J. in Sharad Chandra's case [supra].
In coming to this conclusion in Jagdishlal's case [supra], the Supreme Court observed that right to promotion is a statutory right and it is not a fundamental right whereas
Article 16[4-A]
read with
Articles 16[1]
and
guarantees a right to promotion to the candidates belonging to reserve category.
The decision in Jagdishlal's case [supra] was followed in
Ashok Kumar Gupta v. State of U.P.
.

96. In the aforesaid circumstances, three applications for clarification were moved by the State of Punjab in Ajeet Singh's case, which was decided in Ajeet Singh-II's case , wherein it was contended that the, roster point promotees'[i.e. a reserved candidate at Level-I who is promoted to Level-2 at the roster point meant for such promotion] namely, the reserved candidates cannot claim seniority on the basis of continuous officiation on the higher post vis a vis a candidate from general category, who was senior to such promotee on later post, joins him on higher post. On the basis of the contentions of the parties, the following four main points arose for consideration before the Supreme Court:

[1] Can the roster-point promotees [reserved category] count their seniority in the promoted category from the date of their continuous officiation vis-a-vis general candidates who were senior to them in the lower category and who were later promoted to the same level?

[2] Have Virpal and Ajit Sing-I been correctly decided or has Jagdish Lal been correctly decided?

[3] Whether the 'catch up' principles contended for by the general candidates are tenable?

[4] What is the meaning of the 'prospective' operation of Sabharwal and to what extent can Ajit Singh I be prospective?

97. While dealing with the nature of right to be considered for promotion in the context of fundamental rights Under
Articles 14
and
16[1]
and the nature of the rights of the reserved candidates Under
Articles 16[4]
and
16[4-A]
, the Court held that
Article 14
and
Article 16[1]
are closely connected. They deal with individual rights of the person.
Article 14
demands that 'State shall not deny to any person equality before the law or the equal protection of the laws'.
Article 16[1]
issues a positive command that 'there shall be equality of opportunity for all citizens in matter relating to employment or appointment to any office under the State'. The court further held:

The word 'employment' being wider, there is no dispute that it takes within its fold, the aspect of promotions to posts above the stage of initial level of recruitment.
Article 16(1] provides to every employee otherwise eligible for promotion or who comes within the zone of consideration
, a fundamental right to be 'considered' for promotion. Equal opportunity here means the right to be 'considered' for promotion. If a person satisfies the eligiblity and zone criteria but is not considered for promotion, then there will be a clear infraction of his fundamental right to be 'considered' for promotion, which is his personal right.

98. With this premise, the Court emphasised that:

Where promotional avenues are available, seniority becomes closely interlinked with promotion provided such a promotion is made after complying with the principle of equal opportunity stated in
Article 16[1].

For example, if the promotion is by rule of seniority-cum-suitability', the eligible seniors at the basic level as per seniority fixed at that level and who are within the zone of consideration must be first considered for promotion and be promoted if found suitable. In the promoted category they would have to count their seniority from the date of such promotion because they get promotion through a process of equal opportunity. Similarly, if the promotion from the basic level is by selection or merit or any rule involving consideration of merit, the senior who is eligible at the basic level has to be considered and if found meritorious in comparison with others, he will have to be promoted first. If he is not found so meritorious the next in order of seniority is to be considered and if found eligible and more meritorious then the first person in the seniority list, he should be promoted. In either case, the person who is first promoted will normally count his seniority from the date of such promotion. [There are minor modifications in various services in the matter of counting of seniority of such promotees but in all cases, the senior most person at the basic level is to be considered first and then the others in the line of seniority.] That is how right to be considered for promotion and the 'seniority' attached to such promotion become important facets of the fundamental right guaranteed in
Article 16(1].

99. Thus, the Court overruled the view expressed in
Ashok Kumar Gupta
's case [supra] and Jagdishlal's case [supra] that promotion is only a statutory right, for coming to the conclusion that affirmative action must stop where reverse discrimination begins.
The Court reiterated the view expressed by Krishna Iyer, J. in Akhil Bhartiya Soshit Karamchari Sangh [Railway] v. N.M. Thomas that the remedy of 'reservations' to correct inherited imbalances must not be overkill.

100. On this premise, considering the effect of promotion on roster point meant for reserved class on seniority, the Court considered the cases of
State of Punjab v. Hiralal
;
Karam Chand v. Haryana State Electricity Board
(1989) Supp.
(1) SCC-342 and Kailash Chand Joshi v. Rajasthan High Court which were relied on by the reserved candidates, for contending that once they reach the higher level earlier by operation of roster point for reserve candidates, which is also a format of regular promotion, their seniority vis a vis junior candidates who joined promotion post later on ought not be disturbed and the rule of seniority according to continuous officiation on post must be adhered to.

101. The Court referring to the decision in
State of Punjab v. Hiralal
[supra] said:

that
State of Punjab v. Hiralal
's case [supra] was decided in the light of the law
laid down in
G.M., S.E. Rly. v. Rangachari wherein the court had no occasion to consider any circular prescribing seniority to the roster promotees and, therefore, it was of little assistance.

102. So far as the case of Karamchand v. Haryana State Electricity Board [supra] is concerned, the Court stated:

that there was only a limited dispute, which was whether his case fell within the "exception" in Rule 9 which related to 'temporary' promotees who would not get seniority upon such temporary promotion. The contention of the Board that he was a temporary promotee was not accepted by this Court [Supreme Court] on the facts of the case. No question of seniority vis-a-vis a general candidate arose.

The Court observed:

that there are indeed certain observations that seniority of the reserved candidates had to be counted from the date of regular promotion, which, in our opinion, are not correct. No question of
Article 16[1]
or seniority as against a general candidate arose. The case is distinguishable.

103. Relying on
Kailash Chand Joshi
's case [supra], the Court made the following observations:

There are two aspects of this decision. Firstly, the Court did not notice that once the general candidate, the appellant, who was senior to the respondents reached the level of Civil Judge, the position would be different. Such a principle, in fact, came to be laid down shortly thereafter in
Union of India v. Virpal Singh
by the same learned Judge who decided
Kailash Chand Joshi
's case [supra]. Secondly, it was not noticed that Rule 22 relating to seniority from the date of continuous officiation was closely interlinked with the promotional rule based on equal opportunity.

104. From the aforesaid, it is apparent that in
Ajit Singh-II
's case [supra],
Kailash Chand Joshi
's case [supra] was referred to by the learned candidates only for the purpose of contending that roster point promotees will get and retain seniority over the general candidates who, though senior in lower post, reach that level later but before further promotion of the reserved candidate to next higher level.

The cases referred to by the reserve candidates including the case of
Kailash Chand Joshi
[supra] had been dealt with by the Supreme Court in the aforesaid context and from the aforesaid reproduction of the view of the court, it is clear that
Kailash Chand Joshi
's case on the issue of assigning seniority on the higher post on the basis of continuous officiation irrespective of the fact that the candidates belonging to reserve class had secured accelerated promotion due to fortunates circumstance of their birth mark, by dint of operation of roster point and not by way of general promotional exercise was not examined in the light of
Article 16[1]
of the Constitution of India and said that the Court did not notice this fact in its earlier decision in
Kailash Chand Joshi
's case that Rule 22 of the Rajasthan Judicial Service Rules relating to seniority was closely interlinked with the promotional rule based on equal opportunity.

Very significantly, the Supreme Court in
Ajit Singh-II
's case positively stated Rule 22 of RJS Rules to be a rule for determining seniority interlinked with promotion.

115. Therefore, the Supreme Court
Ajit Singh-II
's [supra] case held that the observation in the above cases viz.,
State of Punjab v. Hiralal
[supra];
Kailash Chand Joshi v. Rajasthan High
Court [supra]; and
Karam Chand v. Haryana State Electricity Board
[supra] to the extent it was stated that the roster point promotees will get seniority over the senior general candidates who reach that level later but before further promotion of such reserved candidate, was not correct in view of the legal position stated in that judgment.

106. From the aforesaid discussion, it is apparent that there was no difference of opinion amongst all the three Hon'ble Judges of this Court deciding Sharad Chandra's case [supra] about the basic issue on which Sharad Chandra's case pronounced and that premise was not upset at any time by any court, that a person who has been promoted to the next higher post in the Service would rank senior to the person not so promoted and the seniority assigned by placing person who hold the posts of Munsifs only over the persons holding the posts of Civil Judges was obviously contrary to interpretation given by this Court and also resulted in breach of Arts. 14 and 16[1] of the Constitution by treating unequals as equals by not reading Rule 22 providing seniority interlinked with promotion.

107. All the three decisions of the Supreme Court viz.,
Ajit Singh-I
's case [supra] and
Virpal Singh Chouhan
's case [supra] and
Ajit Singh-II
's case [supra] leaves no doubt that so far as the candidates promoted in the general category whether they are members of the reserved class or not by way of common consideration through common process, their inter se seniority will be governed by the rule of continuous officiation and not by the rule of carrying seniority of the lower post on the higher post; and the principle stated in
Ajit Singh-I
's case[supra] and
Virpal Singh
's case [supra] was restated and read reaffirmed in
Ajit Singh-II
's case [supra] that a person who secures accelerated promotion on the fortuitous circumstance of birth mark only by dint of operation of roster point for the reserve candidates, will not be entitled for the accelerated seniority, in case a person senior in the lower level joins such accelerated promotee at the higher level, before he goes to the next higher level. In such cases, their inter se seniority shall be fixed on the basis of their seniority on the lower level from which they have reached the higher rung of the ladder.

This will be best illustrated illustration given on the principle of proper balancing of rights explained by the Supreme Court in
Ajit Singh- II
's case [supra], which reads as under:

In the light of the above discussion, the proper balancing of the rights, in our view, will be as follows:

The general candidates who are senior at Assistants' level [Level 2] and who have reached Superintendent Grade II [Level 3] before the reserved candidate moved to Level 4 [Superintendent Grade I], will have to be treated as senior at Level 3 also [Superintendent Grade II] and it is on that basis that promotion to the post of Level 4 must be made, upon first considering the cases of the senior general candidates at Level 3. If the cases of the senior general candidates who have reached Level 3 though at a later point of time, are not first considered for promotion to Level 4, and if the roster-point promotee at Level 3 is treated senior and promoted to Level 4, there will be violation of Arts. 14 and 16[1] of the Constitution of India. Such a promotion and seniority at Level 4 has to be reviewed after the decision of Ajit Singh [(1996)2 SCC-715. But if a reserved category candidate is otherwise eligible and posts are available for promotion to Level 4, they cannot be denied right to be considered for promotion to Level 4, merely because erstwhile seniors at the entry levels have not reached Level 3. What we have stated above accords in fact with what was actually stated in Ajit Singh [(1996) 2 SCC-715]. In that case, N.P. Singh, J. observed [SCC p.731, para 10]:

It also cannot be overlooked that at the first promotion from the basic grade, there was no occasion to examine their merit and suitability for purpose of their promotion.

That in our view, is the correct approach for balancing the fundamental rights Under
Article 14
and
Article 16(1)
on the one hand and the provisions relating to reservation in and
Article 16[4]
and
Article 16[4-A]
on the other."

OUR CONCLUSION:

108. As discussed above, in our opinion, the decision in Sharad Chandra's case [supra] as affirmed by the Supreme Court in
Kailash Chand Joshi
's case [supra] has not been upset so far the issue relating to a person on the higher post to be considered senior to the person in the lower post and on higher post, seniority is linked with promotion that is to say that earlier promotee shall rank senior to later promotee. It does not require reconsideration, in so far as this aspect of determining seniority is concerned.

However to the extent, it holds that promotion on roster point meant for reserved class is not furtuituous and shall also be subject to seniority on the basis of longer period of continuous officiation stands set at naught by decision in
Ajit Singh-II
's case [supra] and shall be governed by doctrine of eclipse and catch up formula as explained in
Ajit Singh-II
's case [supra].

CONSIDERATION ON FIRST PRINCIPLES:

109. Independent of above controversy we have examined the scheme of Rajasthan Judicial Service Rules:

1. From the vision of a common man, a promotion in service puts him at a higher step than the step on which he was standing before promotion, and he is ahead in further movement of his carrier than those who have not been so promoted at all, or those who have been promoted later on.

2. The judicial view of provision finds its expression in the dictum of Supreme Court in
State of Rajasthan v. Fateh Chand Soni
(1996)1 SCC-362.
The Court spoke through S.C. Agarwal, J.

In the literal sense the word 'promotee' means to advance to a higher position grade or honour. So also promotion means advancement or preferment in honour, dignity, rank or grade

3. We have to search for an answer, whether Rules in question do provide contrary to common perception for judicial vision of consequence of promotion.

110. On examination of the scheme of the Rules in the light of the well established principles, our conclusions on the merit are:

[i] Appointment within Service Rules from lower post to higher post by procedure/mode prescribed Under Rules of 1955 by promotion amounts to advancement to higher rank from lower rank carrying with it preferment in honour, dignity, rank or grade. On promotion a person cannot be treated equal with a person not so promoted.

[ii] that Rule 22 of the Rajasthan Judicial Service Rules governs the principle for settling seniority at all levels of the posts within the service;

[iii] that the seniority of the Officers posted as Munsif [now named as Civil Judge [Junior Division]; Civil Judge [now named as Civil Judge (Senior Division)] and Civil Judge cum Chief Judicial Magistrate [now named as Civil Judge (Senior Division) cum Chief Judicial Magistrate is to be determined separately;

[iv] that the Officers appointed to higher posts by promotion shall rank enblock senior to the persons on lower ladder of the posts and not promoted;

[v] that inter se seniority on each posts shall be with effect from the date of such appointment on the post;

[vi] that subsidiary to this, person appointed on a post in service on same date shall rank according to their ranking in merit list if it is a case of appointment by direct recruitment and if such appointment is by promotion from lower post to higher post, seniority of promotees of even date shall accord with their ranking in seniority on the lower post from which they have been promoted;

[vii] that condition No.[iv] is subject to exception that where a person has been promoted from the post of Munsif to the post of Civil Judge, as a result of accelerated promotion by operation of roster point earlier than the person senior to him as Munsif and where such senior candidates from general class joins him on the post of Civil Judge before he is further promoted, the inter se seniority between such promoted officers from general class and accelerated promotee on the reserve roster point shall be determined on the basis of their inter se seniority on the lower post of Munsif. Likewise on further promotion in the service, their inter se seniority shall be governed on the same principle; and

[viii] that when the case of promotion to RHJS from RJS shall be considered, the Civil Judges [S.D.] are to be considered in the first instance for promotion to RHJS and then Civil Judge [J.D.] shall be considered, in order of their respective seniority.

111. We shall now state our reason for the above conclusion in the light of contentions raised, rules governing the seniority, the scheme of Constitution about constitution of judicial service in a State and principle governing equality of opportunity in the matters of employment as embarked in Arts.14 and 16 of the Constitution.

112. It has been contended by the respondents that promotion to any higher post within Rajasthan Judicial Service is only a temporary and intermediary phase and it has no relevance so far as promotions from Rajasthan Judicial Service to Rajasthan Higher Judicial Service is concerned. However, they do not dispute that within the R.J.S., a person who has been promoted to the post of Civil Judge Under Rule 7A is senior to a person who is continuing in the Service on the post of Munsif and a person who has received further promotion within that Service is still higher in rank than the person working on the lower post but they contend that since there is only one rule of seniority i.e. Rule 22 of the Rules and it only postulates determination of seniority in service by the date of order of substantive appointment to the service, no two seniority in the service is envisaged, for the purpose of further promotion to Rajasthan Higher Judicial Service.

113. The contention is fraught with inner contradiction. On the one hand, it is conceded that separate seniority operates for different post within service in order or hierarchy of posts, yet the contention is rooted on premise that Rule 22 envisage only one seniority list. If Rule 22 requires only one seniority list, where in the room for different seniority for different posts within service, to be operated within the posts constituting Rajasthan Judicial Service. If that is true, and which is in consonance with common man's understanding that person on promotion stands superior to person not so promoted for future progress, where is the ground for traveling beyond the Rule and look at the RHJS Rules to prepare a separate list different from existing position within R.J.S. For determining seniority within service for which Rules are framed and cooperating that seniority for whatever purpose, seniority is to be considered and cannot be looked beyond the Rules under which service in constituted for having dual seniority for different purposes. RHJS Rules do not lay down principle governing seniority amongst members of RJS for operation of RHJS Rules. Seniority amongst RJS members has to be accepted as it operates within RJS for its members holding different posts in hierarchical order. We find no warrant for searching for formula of determining seniority of members of RJS outside RJS Rules and travel in the realm of RHJS Rules. As RHJS Rules provide for appointment to RHJS by direct recruitment from Advocates as well as by promotion from members of RJS, on the basis of seniority cum merit of members of RJS, it accepts the seniority of members of RJS as it operates with Rajasthan Judicial Service without laying its own formulae of determining seniority for the purpose of considering promotion to RHJS, seniority different from what and how it operates within RJS. The contention therefore, cannot be accepted on its face value.

114. On the other hand, as noticed by us above, the contention of the petitioners is that where there are avenues of promotions in service, the seniority becomes closely interlinked with promotion. If the promotion from the basic level is by rule of 'seniority cum suitability', the eligible seniors at the basic level as per seniority fixed at that level and who are within the zone of consideration must be first considered for promotion and be promoted if found suitable. Those who are not found suitable or meritorious as the criterion for promotion is provided in Rules stand superseded. In the promoted category, the incumbent would have to count their seniority from the date of such promotion because they get promotion through a process of equal opportunity. Similarly, if the promotion from the basic level is by selection or merit or any rule involving consideration of merit, the senior who is eligible at the feder level has to be considered and if found meritorious in comparison with others, he will have to be promoted first, if he is not found so meritorious, the next in order of seniority is to be considered and if eligible and more meritorious than the first person in the seniority list, he should be promoted. In either case, the person who is first promoted will normally count his seniority from the date of such promotion. That is how right to be considered for promotion and seniority attached to such promotion become important facets of fundamental right guaranteed in
Article 16[1].

115. It is contended that since there is hierarchy of posts within the service and it is not disputed and doubted that a person who has received promotion would rank at a higher level than a person who has not been so promoted and confined in the lower post postulates a separate seniority for different posts within the service, placing members of the Service at different level, yet when the question comes for promotion to RHJS from RJS, the service as a whole is one class and there seniority is only seniority as required Under Rule 22 of the Rules and, therefore, the order of consideration of the members of service for RHJS shall be the same in which they stand at different levels within the Rajasthan Judicial Service viz., a person who by dint of promotion stands on a higher footing at a higher level has to be considered in the first instance before the consideration reaches the person who is standing on the lower step and when stage comes, who is to be considered first out of the persons belonging to the class standing at the same level, the question of their inter se seniority is to be addressed in the light of Rule 22 of the Rules with effect from the date of appointment to that post in the service keeping in view, that their inter se seniority, if any person has been appointed by frogleaping as a result of accelerated promotion by operation of roster point meant for reserved class, the right of equalities to be balanced by not giving advantage of such fortuitous circumstance of birth mark. In that event, inter se seniority of the person who has been appointed earlier by reason of operation of roster point for reserved classes will have to be readjusted vis a vis a person who was senior on the lower post but could not be promoted earlier by reason of other persons getting promotions by some fortuitous circumstances, but reaches the same level before such prior appointees on account of such accelerated promotion leaves to the next higher post.

116. The, first question, therefore, arises for our consideration is whether the Rules of 1955 only provides for determination of seniority at the recruitment to post of Munsif in the service or Rule 22 of the Rules provides for seniority interlinked with promotion at all levels of appointment in service.

117. The term 'Service' has been defined in Rule 4[f] of the Rules, which provides that 'Service' means the Rajasthan Judicial Service [R.J.S.].

118. Rule 4[d] deals with 'Member of the Service' and it lays down that 'Member of the Service' means a person appointed in substantive capacity to a post in the cadre of the service under the provision of these Rules or of any rules or orders superseded by Rule.2.

119. Sub-rule [3] of Rule 1 of the Rules lays down that they shall apply to the members of the Service consisting of Civil Judge- cum-Chief Judicial Magistrate, Senior Civil Judge, Civil Judges, Munsifs and Judicial Magistrates.

120. Rule 22 of the Rules deals with 'seniority' and it reads as under:

Rule 22. Seniority. Subject to the other provisions of these rules Seniority in the service shall be determined by the date of the order of substantive appointment to the service.

Provided that the seniority of candidates appointed to the service shall, in the case of appointment of more persons than one to the Service by an order of the same date, follow the order in which they have been placed in the list prepared by the Commission Under Rule 19,

121. A perusal of Rule 22 of the Rules nowhere suggests that it provides or operates only for determining the seniority on appointment by direct recruitment to the service on the post of Munsifs.

122. The combined reading of Rules 4[d], 4[f], 1[3], 7, 7A, 7B and 7C of the Rules, unfolds the scheme in no uncertain terms. Definition of service Under Rule 4[f] provide nomenclature of service as RJS. Rule. 1 [3] provides soul to nomenclature by unfolding as to what constitutes Rajasthan Judicial Service by stating that it constitute of all the posts of which appointment under the Rules or
Cr.P.C
. is envisaged viz., Civil Judge cum C.J.M; [ii] Civil Judge cum A.C.J.M.; [iii] Senior Civil Judge; [iv] Civil Judge; (v) Munsifs; and (vi) Judicial Magistrates. Rule 4 (f) read with Rule (3) of the Rules leaves no room of doubt that service does not mean merely Munsifs but it -means different post in service as defined in Rule 1 (3) of the Rules, That is also apparent from, the term "Member of the Service" as defined in Rule 4(d) of the Rules which clearly lays down that a "Member of the Service" means a person appointed in substantive capacity to a post in the cadre of the service under the provision of these Rules or of any rules or orders superseded by Rule 2. Rules7,7-A, 7-B, and 7-C all provide for to different mode of appointment to a post constituted in service. Thus, where an appointment to any constituent post in service is envisaged, it is appointment to serviced for which determination of seniority has been envisaged Under Rule 22 of the Rules.

123. This takes us to the scheme of the Recruitment, which is dealt with in Part-III of the Rules. Rule 7 deals with "Source of Recruitment to the post of Munsifs" and it lays down that recruitment to the Service shall be made to the posts of Munsifs on the result of the competitive examination conducted by the Commission. Rule 7-A deals with appointments to the posts of Civil Judges, which provides that appointments to the posts of Civil Judges shall be made by the Court by promotion from amongst the Officers holding substantively the posts of Munsifs on the basis of seniority-cum- merit. Rule 7-B deals with appointments to the post of Senior Civil Judges and it lays down that appointment to the posts of Senior Civil Judges shall be made by the Court by promotion from amongst the officers holding the post of Civil Judges on the basis of seniority-cum merit. Similarly Rule 7-C of the Rules deals with appointment to the posts of Civil Judges-cum-Chief Judicial Magistrates and it lays down that appointments to the posts of Civil Judges-cum-Chief Judicial Magistrates shall be made by the Court by promotion from amongst Officers holding posts of (i) Senior Civil Judges-cum-Judicial Magistrate I Class; (ii) Civil Judge-cum-Judicial Magistrate I Class; and (iii) Munsifs and Judicial Magistrates I Class on the basis of merit, after taking the seniority into consideration.

124. Thus, it is apparent that promotion to the post of Civil Judge is envisaged from amongst the officers holding substantively the posts of Munsifs on the basis of seniority-cum- merit. Therefore, for the purpose of promotion from the posts of Munsifs to the posts of Civil Judges, the determination of seniority on the basis of the persons appointed in Service to the posts of Munsifs is envisaged so that they could be considered for promotion in that order. Likewise, for appointment to the post of Senior Civil Judge, which is also a post in the service, the constituency from which appointment can be made is the post of Civil Judges and again the criteria for promotion is on the basis of seniority-cum-merit. Therefore, it necessarily postulates determination of seniority of the candidates holding the posts of Civil Judges in service. It is only after a person is appointed on the post of Civil Judge in the Service, he becomes eligible and can be considered for appointment by promotion to the post of Senior Civil Judge in the order of his standing in the seniority of Civil Judges. We may notice here that the post of Senior Civil Judge has since been upgraded as Additional District Judge in Rajasthan Higher Judicial Service somewhere in the year 1969-70 and no new posts of Senior Civil Judges have been created to which Rule 7-B can be applied. But Rule has not been deleted. It helps in understanding the Rules. Moreso because its deletion would not have altered the scope of Rule 22 which existed while the Rule 7-B was alive. It makes clear that under the scheme of the Rules, maintaining of inter se seniority of the persons appointed on higher posts within the Service has been envisaged and the rule regarding determination of seniority is Rule 22 which clearly postulates determination of seniority be considering the date of appointment in the service, the date of appointment in the service, which in the context can only mean appointment to a post in the Service.

125. Learned Counsel for the respondents have urged that Rule 7 envisage recruitment to service and that ought to be read in Rule 22 of the Rules. It is to be notices that Rule 22 is not confined with the determination of seniority only when a person because member of the service, by recruitment, but links it with appointment. It is with reference to the appointment in the service, his seniority is to be determined. The term 'Service' in this context refer to 'Service' constituted of the posts enumerated in Rule 1 (3) of the Rules. In other words, 'Service, is combined name given to group of posts to which persons are appointed. On parenthesis it can be reads as appointment to post of Civil Judge cum CJM; or Senior Civil Judge; or Civil Judge; or Munsif or Judicial Magistrate. Appointment on each post is appointment to the Service.

126. It is also of significance that Rule 7 speak of recruitment on the post of Munsif in service whereas in subsequent provisions, reference is to appointment on the post. Thus, the legislative authority being aware of difference between recruitment to service and appointment has deliberately not used the expression 'recruitment to service' in Rule 22 but has used 'appointment to service' which is of wider and flexible import. While word 'recruitment' denotes reference to fresh man or to furnish with fresh supply, thus emphasis is on fresh supply, of man; the word appointment denote significant action of nominating or placing a person in office. Such nomination may be of fresh man or of old hands to office concerned. The term 'recruitment' in the context of manning any office, means appointment of fresh person to any office, whereas appointment will denote manning an office in service either by new hand or by an old hand depending upon method of appointment adopted, a recruitment ordinarily denotes appointment of new person by directly, whereas the term 'appointment' is of wider import and includes appointment by direct recruitment as well as by promotion or by transfer or absorption or any other method known to law for the purpose of putting a man for discharging functions of an Office.

127. In this connection, attention may be invited to Basantilal Malhotra v. State , wherein the Court Explained distinction between recruitment and appointment and pointed out that the two words are not synonymous. The Court said:

The terms 'recruitment' and 'appointment' are not synonymous and connote different meanings. The term 'recruitment' connotes and clearly signifies enlistment, acceptance, selection or approval for appointment and not actual appointment or posting in service while 'appointment' means an actual act of posting a person to a particular office.

128. On earlier occasion, Punjab and Haryana High Court in
Gurdev Singh v. State of Punjab
1968 SLR-538 had said:

Recruitment is just an initial process which may lead to an eventual appointment in service, but two concepts of recruitment and appointment in service are separate and apart and clear line of distinction between them has been manifest by various rules....

129. Like view was expressed by Kerala High Court in
C. Murugan v. State of Kerala
[(1981) 2 SLR-620], wherein it was said:

The word 'recruitment' or recruited' has a connotation entirely different from the word appointment. Recruitment signifies enlistment, acceptance, selection or approval for appointment, all stages preceding appointment.

130. Our own High Court in Manmohan Kaushik v. State of Raj. [(1971) 2 SLR-88] explained the distinction as under:

The dictionary meaning of the word recruit is fresh supply of number of persons either on additional to previous number or to make up for the decrease. So recruitment is only for the purpose of making up to the deficiency which occurs in cadre, while appointment means on actual act of posting a person to a particular office.

The above precedents fortify us in our conclusion that 'the appointment to service' in the context means actual act of placing a person to a particular office, which is constituent of service and does not refer to replenishing of or enlishment of new person in service at lowest post as contended by the respondents. Else the expression recruitment to the service would have appropriately found place in Rule 22, a phrase which the farmers of rule have used distinct from appointment.

131. In this connection, much stress has been laid that while the aforesaid conclusion may be workable qua the Civil Courts, it would whither while operating Rule 7-C of the Rules of 1955. We may also notice here that Hon'ble R.S. Verma, J. has made certain disparating remarks by stating.

I may here state one significant fact, of which, I may take judicial notice. For some reason, the posts in the highest cadre of Civil Judges cum CJMs are not being filled by the Court and Civil Judges cum ACJMs placed in Selection Scale are being appointed by the Chief Justice as CJMs. To my mind, this is wholly irregular. Such Civil Judges may hold the office of CJM under the
Criminal Procedure Code
but would not at all fulfill the character of Civil Judge cum CJM which is a promotional post under RJS Rules. The post of Civil Judge cum CJM can be filled by the Court alone in accordance with the provisions of Rule 7-C of RJS Rules and not by the Chief Justice.

132. Rule 7-C does not use the expression 'ACJM' at all. Hon'ble Verma, J. with great respect was not right in inferring that the post of Civil Judge cum CJM is a promotional post from Civil Judge cum ACJM. Nor was he right in taking judicial notice of something as practice alleged to be followed in fact, when neither the issue was before Court, nor the respondent High Court was required to place on record the manner and procedure followed for appointment of Chief Judicial Magistrates when there was noting to suggest that appointments to the post of CJM were made contrary to rules and scheme of
Criminal Procedure Code
to which we shall presently address ourselves.

133. In the
Criminal Procedure Code
, 1973, the Constitution of Criminal Courts was envisaged in Chapter-II.
Section 6
of the Criminal Procedure Code. 1973 deals with classes of Criminal Courts and it reads as under:

6. Classes of Criminal Courts--Besides the High Court and the courts constituted under any law, other than this Code, there shall be in every State, the following classes of Criminal Courts, namely:

[i] Courts of Session,
[ii] Judicial Magistrates of the first class and, in any metropolitan area, Metropolitan Magistrates;

[iii] Judicial Magistrates of the second class; and

[iv] Executive Magistrates.

134.
Section 9
of the Criminal Procedure Code, 1973 envisages that there shall be a Court of Session for every session division and that every Court of Sessions shall be presided over by a Judge; to be appointed by the High Court. It also envisages that the High Court may also appoint Additional Session Judges and Assistant Sessions Judges to exercise jurisdiction in a Court of Session.
Section 10
provides that all Assistant Sessions Judges shall be subordinate to the Sessions Judges in whose Court they exercise jurisdiction.
Section 11
deals with courts of Judicial Magistrates. It envisages that in every district not being a metropolitan area, there shall be established as many Courts of Judicial Magistrates of the I Class and of the Second Class, and at such places, as the State Govt. may after consultation with the High Court by notification specify. It also enables the State Govt. after consultation with the High Court to establish for any local area, one or more Special Courts of Judicial Magistrates of I Class or of the Second Class to try any particular case or particular class of cases and where any such Special Court is established, no other court of Magistrate in the local area shall have jurisdiction to try any case or class of cases for the trial of which such Special Court of Judicial Magistrate has been established. Sub-section [2] of
Section 11
provides that the Presiding Officers of such Courts shall be appointed by the High Court. Very significantly Sub-section [3] of Section. 11 also provides that the High Court may, whenever it appears to it to be expedient or necessary, confer the powers of a Judicial Magistrate of the I Class or of the Second Class on any member of the Judicial Service of the State, functioning as a Judge in a Civil Court.

135.
Section 12
of the Criminal Procedure Code, 1973 provides for establishing court of Chief Judicial Magistrate and Additional Chief Magistrate. It lays down that in every district not being a metropolitan area, the High Court shall appoint a Judicial Magistrate of the I Class to be the Chief Judicial Magistrate. It also enables the High Court to appoint any Judicial Magistrate of the I Class to be an Additional Chief Judicial Magistrate and such Magistrate shall have all or any of the powers of a Chief Judicial Magistrate under the Code or under any other law for the time being in force as the High Court may direct.
Section 15
of the Criminal Procedure Code, 1973 deals with subordination of Judicial Magistrates. It lays down that every Chief Judicial Magistrate shall be subordinate to Sessions Judge and every other Judicial Magistrate shall, subject to the general control of the Sessions Judge, be subordinate to the Chief Judicial Magistrate and the Chief Judicial magistrate may from time to time make rules or give special order, consistent with this Code as to the distribution of business among the Judicial Magistrates subordinate to him, it is relevant to mention here that the Judicial Magistrates II Class or Executive Magistrates are not eligible to be considered for appointment to the post of Chief Judicial Magistrates.

136. Chapter-VI of the Constitution deals with Subordinate Courts.
Article 233
of the Constitution deals with appointment of District Judges and it specifically provides that appointment of persons, to be and the posting and promotion of District Judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State. It also envisages that a person not already in the service of the Union or the State shall only be eligible to be appointed a District Judge if he has been for not less than seven years an advocate or a pleaded and is recommended by the High Court for appointment.
Article 234
deals with recruitment of persons other than District Judges to the judicial service and it provides that appointments of persons other than District Judges to the judicial service of the State shall be made by the Governor of the State in accordance with rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State.
Article 235
of the Constitution deals with control over the subordinate courts and it specifically lays down that the control over the District Courts and the courts subordinate there to including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of District Judge shall be vested in the High Court but nothing in this article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under the law.
Article 236
provides that in this Chapter; [a] the expression 'District Judge' includes Judges of a City Civil Court, Additional District Judge, Joint District Judge, Assistant District Judge, Chief Judge of a Small Cause Court, Chief Presidency Magistrate, Additional Chief Presidency Magistrate, Sessions Judge, Additional Sessions Judge and Assistant Sessions Judge; [b] the expression 'Judicial Service' means a service consisting exclusively of persons intended to fill the post of District Judge and other civil judicial posts inferior to the post of District Judge. In other words, so far as the Scheme of Constitution is concerned, the Judicial Service of the State denotes service constituting posts of civil courts only, In this context, the Rajasthan Judicial Service in terms of
Article 236
of the Constitution for the purpose of Chapter-VI has reference to the service consisting of the posts of Civil Courts inferior to the District Judge. The term 'civil court' as defined in Rajasthan Civil Courts Ordinance means the court of District Judge, the Special Civil Court, the Court of Civil Judge and the Court of "Munsif.

137. Under the scheme of the
Code of Criminal Procedure
, 1973, the authority of appointing Judicial Magistrates and the Chief Judicial Magistrate exclusively vests in the High Court. It does not prescribe independently any eligibility criteria for appointing Judicial Magistrates-Ist class.
Section 6
of the Criminal Procedure Code, 1973 further envisages that the criminal courts envisaged in
Cr.P.C
. are besides the High Court and the courts constituted under any law other than this Code. From the perusal of Sub-section [3] of
Section 11
of the Criminal Procedure Code, 1973, it becomes clear that the High Court may confer the powers of a Judicial Magistrate of the I class or of the second class on any member of the judicial Service of the State functioning as a Judge in a Civil Court.

138. A combined reading of these provisions would go to suggest that the High Court in exercise of its authority Under Sub-section [3) of
Section 11
of the Criminal Procedure Code, 1973 is empowered to confrerr powers of the Judicial Magistrate first class and may constitute a class of person to be appointed on the post of Chief Judicial Magistrate Under
Section 12
of the Code. The mode of appointment in Rajasthan Judicial Service so far as civil courts are concerned has been provided in Rule 7, 7-A and 7-B of the Rules, which are all inferior to court of District Judge and has nexus with constitution of State Judicial Service consisting of civil courts as envisaged under the Constitution. In this connection, Rajasthan Higher Judicial Service refers to 'Service Rules constituting civil courts of the class of District Judges and Additional District Judges' Rule 7 of the RJS Rules provides that appointment to the Service shall be to the posts of Munsifs [now renamed as Civil Judge (Junior Division)]. Rule 7-A envisages that appointments to the posts of Civil Judges [now renamed as Civil Judge (S.D.)] shall be made by the court by promotion from amongst the officers holding substantively the posts of Munsif. As stated above, currently there is no post of Senior Civil Judge in Rajasthan Judicial Service. However, Rule 7-B has envisaged appointment to posts of Senior Civil Judge by promotion from amongst Civil Judge appointed Under Section 7-A on seniority cum merit basis. These provisions fulfil constitutional mandate.

139. Rule 7-C provides that appointment to the posts of Civil Judge cum Chief Judicial Magistrate shall be made by the court by promotion from amongst officers holding the posts of Senior Civil Judges cum Judicial Magistrate I Class, Civil Judges-cum-Judicial Magistrate I Class [now renamed as Civil Judge [SD] cum Additional Chief Judicial Magistrate] and Munsif [Civil Judge JD] cum Judicial Magistrate on the basis of merit after taking the seniority into consideration.

140. Coming to the inclusion of posts of Criminal Court as per the scheme of
Criminal Procedure Code
, notwithstanding including the post of Judicial Magistrate in the list of posts constituting service, no independent provision for appointment to the posts of Judicial Magistrates have been made under the
Code of Criminal Procedure
. Authority to appoint a Judicial Magistrate vest in the High Court and in High Court also, vest power to confer powers of a Judicial Magistrate on any member of State Judicial Service manning a civil court. The Code also envisage source of appointing a Chief Judicial Magistrate to be exclusively confined to the Judicial Magistrates of First Class. This explains the insertion of Rule 7-C in the Rules of 1955 with effect from 1.4.1973, the date with effect from
Criminal Procedure Code
, 1973 came into force.

141. Significantly Rule 7-C does not talk of appointment to the post of Chief Judicial Magistrate simplicitor but the post envisaged Under Rule 7-C is Civil Judge cum Chief Judicial Magistrate demonstrating that a Chief Judicial Magistrate must necessarily be a Civil Judge appointed as per Rule 7-A.

142. This makes it clear that by not making any provision for appointment on the post of Judicial Magistrate and describing the Officers holding the post of Judicial Magistrate I Class with the statute of the post half by him as a Judge of a civil court in order of hierarchy, the appointment to the criminal court of Judicial Magistrate has been envisaged to be by the High Court through conferment of powers of Judicial Magistrate I class to be exercised by a member of State Judicial Service as a Judge of civil court as per
Section 11
[3] of the
Cr.P.C
. and from amongst the hierarchy of member of judicial service holding post of a Judge of civil court. For the appointment to the post of Chief Judicial Magistrate Under
Section 12
of the Criminal Procedure Code by adopting merit cum seniority principle in discending order of hierarchy as of member of judicial service as a Judge of civil court exercising powers of Judicial Magistrate I Class; explains the description of college of eligible Judicial Magistrates described as [i] Senior Civil Judge cum J.M.;[ii] Civil Judge cum J.M.; and [iii] Munsif cum J.M. of the three presently post of Senior Civil Judge in Service does not exist. From amongst Civil Judge cum Judicial Magistrate and Munsif cum Judicial Magistrate, as discussed above under the rule, appointment of Judicial Magistrate being a matter of conferment of power Under
Section 11
[3] of the Code only, their seniority will have to be considered for promotion as per occupant of higher post to be considered en block above the person occupying lower post, and inter se seniority on respective echelon of service on the basis of continuous officiation vouch against the apprehension of the respondents about Munsif being considered prior to a Civil Judge for appointment as CJM or gaining seniority above Civil Judges inasmuch as if search for appointment reaches to the level of Munsifs, first thing required to be considered shall be appointment of a Munsif by promotion to post of Civil Judge and then his consideration for appointment as Chief Judicial Magistrate Under
Section 12
Cr.P.C. in order of his seniority as a Civil Judge.

143. This apart the interweaving of Chapter-VI of the Constitution conveys that a person in order to be appointed as District Judge either he ought to be an advocate or pleader of not less than seven years or be in judicial service of the State. Appointment in the former case shall be by direct recruitment on recommendation by the High Court for such appointment and in the latter case, it will be a case of a promotion of District Judge from the person holding a post inferior to a District Judge in Judicial Service of the State on recommendation of High Court Under
Article 233.

144.
Article 234
envisages appointment of persons other than District Judge to Judicial Service.
Article 236
which provides interpretation clause to Chapter-VI defines two expressions viz., 'District Judge' and 'Judicial Service', which read as under:

Article-236. Interpretation.--In this chapter

[a] the expression 'district judge' includes judge of a city civil court additional District Judge, Joint District Judge, Assistant District Judge, Chief Judge of a small cause court, Chief Presidency Magistrate, Additional Chief Presidency Magistrate, Sessions Judge, Additional Session Judge and Assistant Sessions Judge;

[b] the expression 'judicial service' means a service consisting exclusively of person intended to fill the post of District Judge and other civil judicial posts inferior to the post of District Judge.

145. Thus, Judicial Service is defined to mean firstly a service consisting exclusively of persons intended to fill the post of District Judge and secondly Civil Judicial posts inferior to post of District Judge. In other words, where two judicial service are constituted in a State one for appointment to posts inferior to post of District Judge, and another for appointment to posts inferior to post of District Judge, as is the case in Rajasthan, the latter judicial service ought exclusively consist of civil judicial post, providing source of appointment by promotion to District Judge named as Higher Judicial Service. Necessary implication is that other than an advocate or pleader of seven years or more, only a person who is already in judicial service is eligible to be appointed as District Judge in State and for that he must be employed in judicial service consisting of civil judicial posts. In other words, it is only in the employment on Civil Judicial Post under the judicial service of the State, which is relevant consideration of eligibility, for promotion of a person to be a District Judge. We have before us Rajasthan Judicial Service which includes civil judicial posts as well as criminal court posts. We also have Rajasthan Higher Judicial Service, which envisages appointment of a person to be a 'District Judge' on recommendation by High Court.

146. The framers of
Cr.P.C
. expressly envisage constitution of criminal courts besides the High Court and other Civil courts established under any law. We further notice that in Art 233, expression judicial service has not been used instead expression 'a person employed in service of Union or State' has been used. This leads to appointment of certain Officers not belonging to Judicial Service but to other service as District Judges on the recommendation of concerned High Court in some of the States. This lead to controversy as to true meaning of term 'Service' used in
Article 233.
In Chandra Mohan's case [supra], the Supreme Court gave quietus to any doubt about the meaning of expression 'Service' used in
Article 233[2].

147. Subba Rao, CJ speaking for the Constitution Bench in Chandra Mohan's case [supra] said:

[1] The source of recruitment are indicated in Cl.[2] thereof. Under Clause [2] of
Article 233
, two sources are given, namely, [i] persons in the service of the Union or of the State and [ii] advocate or pleader. Can it be said that in the context of Ch. VI of Part VI of the Constitution, the Union of the State or does it mean Chapter dealing with subordinate Courts, in which the expression' the service appears indicates that the service mentioned therein is the service pertaining to Courts. That apart
Article 236[2]
defines the expression 'judicial service' to mean a service consisting exclusively of persons intended to fill the post of district intended to fill the post of District Judge and other civil judicial posts inferior to the post of District Judge. If this definition, instead of appearing in
Article 236
, is placed as a clause before
Article 233[2]
, there cannot be any dispute that the service' in
Article 233[2]
can only mean the judicial service. The circumstance that the definition of 'judicial service' finds a place in a subsequent Article does not necessarily lead to a contrary conclusion. The fact that in
Article 233[2]
, the expression 'the Service' is used whereas in Arts. 234 and 235, the expression 'judicial service' is found is not decisive of the question whether the expression 'the service' in
Article 233[2]
must be something other than the judicial service, for the entire chapter is dealing with the judicial service. The definition is exhaustive of the service. Two expressions in the definition bring out the idea that the judicial service consists of hierarchy of judicial officers starting from the lowest and ending with District Judges. The expression 'exclusively' and 'intended' emphasise the fact that the judicial service consists only of persons intended to fill up the posts of District Judges and other civil judicial posts and that is the exclusively service of Judicial Officers. Having defined 'judicial service' in exclusively terms, having provided for appointments to that service and having entrusted the control of the said service to the care of the High Court, the makers of the Constitution would not have conferred a blanket power on the Governor to appoint any person from any service as a District Judge.

148. This completely fortifies us in our above conclusion and also that judicial service of a State as a whole consists of hierarchy of judicial officers starting from lowest post and ending with District Judge at Apex. Thus, pyramidical structure of judicial service with step by step hierarchy is manifest in the constitution of Judicial Service in its fullness and that criminal courts cannot be considered as providing source of recruitment by promotion to the post of District Judge from amongst the lower posts of Civil Judicial Courts and not from Criminal Courts. Hence appointment on the post of Chief Judicial Magistrate though required to be made as per
Criminal Procedure Code
, 1973, but not amongst the source of recruitment to the post of District Judges in the RHJS looses its relevance. In nutshell, the pryramid of judicial service in its full view shall be discording order as below, from District Judge at Top to Munsif at lowest.

3. District Judge :RHJS

2. Civil Judge [SD] :RJS

1. Munsif or Civil Judge (JDJ :RJS

and promotion also shall follow from step one to step two and step two to step three, it is not envisaged that a person can be allowed to frogleap to step three from step one by jumping over step two.

149. Here we also cannot fail to notice that Supreme Court in Satyanarayan v. High Court of Judicature for Allahabad [AIR 1985 SC 308] held that a person cannot be appointed as District Judge on the recommendation of the High Court overlooking the claims of all other persons in the subordinate judiciary contrary to Arts. 14 and 16 of the Constitution of India.

150. That makes important that rule of seniority has to read in the context of scheme of Constitution in structuring judicial service and in consonance with Arts. 14 and 16 of the Constitution.

151. That being the position of law relating to appointment to posts in judicial service we are fortified in reaching our conclusion on interpreting Rule 22 for determining seniority of person appointed to posts in judicial service in order of hierarchy of posts and in consonance with Arts. 14 and 16[1] of the Constitution as expounded by Supreme Court.

152. The designated member of service as Judge of civil courts having conferred with the power of Judicial Magistrate I Class, from which alone a person could be appointed as Chief Judicial Magistrate, provided he is also a Civil Judge, in effect. Rule 7-C enables the High Court to appoint a Chief Judicial Magistrate from Judicial Magistrates First Class on the basis of merit by taking into consideration seniority of such members in accordance with position he holds as a judge of civil court.

153. Adverting to appointment of Additional Chief Judicial Magistrates, one must notice the provision of
Section 12
[2]
Cr.P.C
. It provides not only for the appointment of Chief Judicial Magistrate but also envisages appointment of Additional Chief Judicial Magistrate by the High Court. Only a Judicial Magistrate can be appointed as Additional Chief Judicial Magistrate. On such appointment, the Additional Chief Judicial Magistrate shall have all or any of the powers of a Chief Judicial Magistrate under the Code or under any other law for the time being in force as the High Court may direct. Thus, for appointment as Chief Judicial Magistrate or Addl. Chief Judicial Magistrate, by High Court, only requirement is that person to be appointed must be a Judicial Magistrate I Class. No other condition is envisaged in the
Criminal Procedure Code
. The difference between the two posts lie in exercise of power and power, of superintendence. While a chief Judicial Magistrate exercises all power, exercisable by a CJM under the Code uninhibitedly but the power to be exercised by Addl. Chief Judicial Magistrate can be circumscribed to the extent directed by High Court; secondly in the matter of subordination, all Judicial Magistrates appointed Under
Sections 11
and
within the territorial jurisdiction of C.J.M. are subordinate to Chief Judicial Magistrate or Sub-divisional Magistrate, if any, appointed Under
Section 12
[3] but not under the Addl, Chief Judicial Magistrate. It is in the aforesaid scheme, no separate provision appeal's to have been made for appointing Addl. Chief Judicial Magistrates and the Rule 7-vC governs both the cases of appointment as Addl.C.J.M. as well as C.J.M.; by the same process.

154. Thus, it is clear that promotions to the posts of Civil Judge [now renamed as Civil Judge (Senior Division) are to be made by the court by promotion from amongst the officers holding substantively the posts of Munsifs on the basis of seniority cum merit. The term 'Court' has been defined in Rule 4[c] of the Rules of 1955, which specifically provides that 'Court' means the High Court of Judicature for Rajasthan. Thus, the observations made by R.S.Verma, J. that promotions to the posts of the posts in the highest cadre of Civil Judges cum CJMs are not being filled by the Court and Civil Judges cum ACJMs placed in Selection Scale are being appointed by the Chief Justice as CJMs are totally contrary to the relevant Rules and do not reflect the correct reading of the Rules. As a matter of fact, such promotions are envisaged to be made by the Court only and there is nothing to presume about any practice being followed contrary to rule. Presumption is otherwise.

155. Once that conclusion is reached, then the question of promotion from Rajasthan Judicial Service to Rajasthan Higher Judicial Service arises and the seniority in the cadre of Rajasthan Judicial Service requires to be considered for the purpose Of consideration of promotion to the post of Rajasthan Higher Judicial Service as that promotion is on the basis of seniority cum merit in Rajasthan Higher Judicial Service. In other words, a person standing on the Higher ladder in Rajasthan Judicial Service is to be considered senior to the persons standing on the lower step of the RJS structure by dint of operation of Rule 22 of the Rules of 1955 as that rule envisages seniority interlinked with promotion.

156. It may be apposite here to recall that in
Ajit Singh-II
's case [supra], a constitutional bench of the Supreme Court gave a cautious note by holding:

that Clause [1] of
Article 16
is a facet of
Article 14
and that it takes its roots from
Article 14.
The said clauses particularises the generality in
Article 14
and identifies, in a constitutional sense 'equality of opportunity' in matters of employment and appointment to any office under the State. The word' employment' being wider, there is no dispute that it takes within its fold, the aspect of promotions to posts above the stage of initial level of recruitment.
Article 16[1]
provides to every employee otherwise eligible for promotion or who comes within the zone of consideration, a fundamental right to be' considered' for promotion. Equal opportunity here means the right to be 'considered' for promotion. Equal opportunity here means the right to be 'considered' for promotion. If a person satisfies the eligibility and zone criteria but is not considered for promotion, then there will be a clear infraction of his fundamental right to be 'considered' for promotion, which is his personal right."

157. The Supreme Court also settled the controversy that seniority and promotions are not creatures of rules alone but promotions based on equal opportunity and seniority attached to such promotions are facets of fundamental rights Under
Article 16[1]
of the Constitution of India. The Court held:

Where promotional avenues are available, seniority becomes closely interlinked with promotion provided such a promotion is made after complying with the principle of equal opportunity stated in
Article 16[1].
For example, if the promotion is by rule of 'seniority cum suitability', the eligible seniors at the basic level as per seniority fixed at that level and who are within the zone of consideration must be first considered for promotion and be promoted if found suitable. In the promoted category they would have to count their seniority from the date of such promotion because they get promotion through a process of equal opportunity. Similarly, if the promotion from the basic level is by selection or merit or any rule involving consideration of merit, the senior who is eligible at the basic level has to be considered and If found meritorious in comparison with others, he will have to be promoted first. If he is not found so meritorious, then next in order of seniority is to be considered and if found eligible and more meritorious than the first person in the seniority list, he should be promoted. In either case, the person who is first promoted will normally count his seniority from the date of such promotion.

158. The above two propositions leave no room or doubt that where promotional avenues are available and promotions are to be based on equal opportunity Under
Article 16[1]
of the Constitution the attachment of seniority to such promotions from lower level or standing a level above than the lower level of the post cannot be ignored.

159. The Court took up the illustration for the purpose of proper balancing the rights of the promotion linked with seniority and balanced all the rights of the persons who have been promoted on the principle of seniority interlinked with promotion and observed as under:

In the light of the above discussion the proper balancing of the rights, in our view, will be as follows:

The general candidates who are senior at Assistants' level [Level 2] and who have reached Superintendent Grade-II [Level 3] before the reserved candidate moved to Level 4 [Superintendent Grade-I], will have to be treated as senior at Level 3 also [Superintendent Grade-II] and it is on that basis that promotion to the post of Level 4 must be made, upon first considering the cases of the senior general candidates at Level 3. If the cases of the senior general candidates who have reached Level 3 though at a later point of time, are not first considered for promotion to Level 4, and if the roster-point promotee at Level 3 is treated senior and promoted to Level 4, there will be violation of Arts. 14 and 16[1] of the Constitution of India. Such a promotion and seniority at Level 4 has to be reviewed after the decision of Ajit Singh [(1996) 2 SCC-715]. But if a reserved category candidate is otherwise eligible and posts are available for promotion to Level 4, they cannot be denied right to be considered for promotion to Level 4, merely because erstwhile seniors at the entry levels have not reached Level 3. What we have stated above accords in fact with what was actually stated in Ajit Singh [(1996) 2 SCC-715]. In that case, N.P. Singh, J. observed [SCC p.731, para 10]:

It also cannot be overlooked that at the first promotion from the basic grade, there was no occasion to examine their merit and suitability for purpose of their promotion.

That in our view, is the correct approach for balancing the fundamental rights Under
Article 14
and
Article 16[1]
on the one hand and the provisions relating to reservation in
Article 16[4]
and
Article 16[4-A]
on the other.

160. Uninfluenced by the earlier decisions, on examination of the scheme of the Rules in the light of the well established principles, our conclusions on the merit also are that Rule 22 of the Rajasthan Judicial Service Rules governs the principle for settling seniority at all levels of the posts within the Service; that the seniority of the Officers posted as Munsif [now named as Civil Judge [Junior Divisional; Civil Judge [now named as Civil Judge (Senior Division)]; and Civil Judge cum Chief Judicial Magistrate [now named as Civil Judge (Senior Division) cum Chief Judicial Magistrate is to be determined separately and the Officers posted to higher posts in service shall rank enblock senior to the persons holding lower posts in the service. Inter se seniority on each posts shall be with effect from the date of such appointment/promotion on the post by regular method of appointment to post whether by direct recruitment or by promotion subject to exception that where a person has been promoted from the post of Munsif to the post of Civil Judge, as a result of accelerated promotion by operation of roster point earlier than the person senior to him as Munsif does not give him accelerated seniority and where such senior candidates from general class joins him on the post of Civil Judge [S.D.] before he is further promoted, the inter se seniority between such promoted officers from general class and accelerated promotee on the roster point for reserved posts shall be determined on the basis of their inter se seniority on the lower post of Munsif. This principle would govern in setting out the seniority of the Members of the Service manning different posts within the Service which is in consonance with Rule 22 of the Rules In the light of the provisions of Arts. 14 and 16[1] of the Constitution of India balancing the rights of the general candidates as per the principle enunciated and restated in
Ajit Singh-II
's case [supra]. Likewise on further promotion in the service, their inter se seniority shall be governed on the same principle and when the case of promotion to RHJS from RJS is to be taken up in the first instance for promotion to RHJS, the Civil Judges [SD] shall be considered and then if vacancy remains, eligible Munsifs can be considered.

161. In this view of the matter, we see no reason to countenance the contention of the learned Counsel for the respondents that the observations of the Supreme Court about interpretation of Rule 22 of the Rules of 1955 giving effect to seniority closely interlinked with promotional rule was not founded on correct reading of Rule 22 of the Rules in fact.
In
Ajit Singh-II
's case [supra] the Supreme Court has put it tranchently commenting on
Kailash Chand Joshi
's case.

162. It was not noticed that Rule 22 relating to seniority from the date of continuos officiation was closely interlinked with the promotional rule based on equal opportunity. The contention of the learned Counsel for the respondents that the above conclusion of the Supreme Court appears, to be made not on the basis of correct reading of Rule 22 is to say the least, beyond the limits of permissible room of arguments.

163. In view of the aforesaid decision, we have no hesitation in reaching the conclusion that the decision in Sharad Chandra's case correctly lays down the law that the person on being promoted from the post of Munsif to the post of Civil Judge is to be considered higher in level in the Rajasthan Judicial Service. As a result of the above, the persons who have been promoted to the post of Civil Judge Under Rule 7-A are required to be considered higher in rank in the judicial service than those who have not been promoted from the post of Munsif to the post of Civil Judge for the purpose of further promotions. Likewise to each next promotion, they would rank higher than the persons standing on the lower step within the service. Rule 22 of the Rajasthan Judicial Service is closely interlinked with the promotional rule based on fundamental right to be offered equality of opportunity in the matter of employments which includes appointment by promotion and seniority interlinked with promotion a basic facet of Arts. 14 and 16[1] of the Constitution.

164. The persons appointed to the service on each posts have to be assigned seniority separately attached to the post be making it interlinked with the promotional exercise. Seniority interlinked with the promotional rule giving seniority from the date of continuous officiation from the date of appointment to post in service is related to the promotion based on equal opportunity. Where promotion to the next higher post is not based on equal opportunity but is a result of accelerated promotion on account of operation of roster point for reserved candidates, a person promoted earlier on the due for such accelerated promotion then a person senior to him in the lower rung of the ladder, the roster promotee will not get seniority over the senior candidates in the lower post where he reaches that level later but before further promotion of the reserved candidate, the objections made by the respondents that this catch up principle would lead frequent alteration of seniority list and would make the rule in workable at all also cannot be accepted in view of the decision in
Ajit Singh-II
's case [supra].

In this connection, we may end up with referring to the operation of catch up rule as reasoned by the Supreme Court in
Ajit Singh-II
's case [supra].

During the discussion under this 'cath-up' point- for purposes of convenience, - we take the example of the cadres of Ajit Singh [(1996) 2 SCC-715] i.e. there is roster-point promotion for reserved candidates for promotion from Level 1 to Level 2 and from Level 2 to Level 3. There is no roster for promotion from Level 3 to Level 4.

So far as the extreme contention of the general candidates that at Level 3, the roster candidate must wait at Level 3-before being promoted to Level 4--till the last senior general candidate at Level 1 reached Level 3, --we reject the same inasmuch as that will not amount to a reasonable balancing of the rights of the candidates in the two groups. Nor do we accept that posts must be kept vacant and no promotions of the roster candidates be made.

Other catch-up rule

As accepted in Virpal [(1995)6 SCC-684] [see SCC at p.702] and Ajit Singh [(1996)2 SCC-715] [see SCC at p. 729], we hold that in case any senior general candidate at level 2 [Assistant] reaches Level 3 [Superintendent Grade II] before the reserved candidate [roster point promotee] at level 3 goes further up to Level 4
in that case
, the seniority at Level 3 has to be modified by placing such a general candidate above the roster promotee, reflecting their inter se seniority at Level 2. Further promotion to Level 4 must be on the basis of such a modified seniority at Level 3, namely, that the senior general candidate of Level 2 will remain senior also at Level 3 to the reserved candidate, even if the latter had reached Level 3 earlier and remained there when the senior general candidate reached that Level 3. In cases where the reserved candidate has gone up to Level 4 ignoring the seniority of the senior general candidate at Level 3, seniority at Level 4 has to be refixed when the senior general candidate is promoted to Level 4 on the basis of when the time of reserved candidate for promotion to Level 4 would have come, if the case of the senior general candidates was considered at Level 3 in due time. To the above extent, we accept the first part of the contention of the learned Counsel for the general candidates. Such a procedure in our view will properly balance the rights of the reserved candidates and the fundamental rights guaranteed Under
Article 16(1] to the general candidates.

One of the objections before us and which appealed to the Full Bench in
Jaswant Singh
case was that this "catch-up" principle would lead to frequent alteration of the seniority list at Level 3. We do not find any difficulty in this behalf. The seniority list at Level 3 would have only to be merely amended whenever the senior general candidate reaches Level 3.

165. As a result, this petition succeeds and the final seniority list Annexure/4 is set aside and quashed. The respondent No. 1 in its administrative side shall now recast the seniority list by following the guidelines stated hereinabove as early as possible and give consequential effect there to.

166. There shall be no order as to costs.