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PETITIONER: B. L. GOEL

       Vs.

RESPONDENT: STATE OF U.P. & ORS.

DATE OF JUDGMENT17/10/1978

BENCH: SARKARIA, RANJIT SINGH BENCH: SARKARIA, RANJIT SINGH CHANDRACHUD, Y.V. ((CJ) UNTWALIA, N.L. REDDY, O. CHINNAPPA (J) SEN, A.P. (J)

CITATION:  1979 AIR  228            1979 SCR  (2)  82  1979 SCC  (2) 378

ACT:      U.P. Higher  Judicial Service  Rules, 1953-Rules 20 and 23-Appellant a promotee to post of District Judge-Government created  posts   of  District   Judges.  for  absorption  of promotees-Three direct recruits confirmed as District Judges against    these    vacancies-Appellant    not    confirmed- Notifications declaring confirmations-Validity of.

HEADNOTE:      Under the  U.P. Higher  Judicial  Service  Rules,  1953 appointments to  the posts of Civil and Sessions Judges were made by promotion from the members of the U.P. Civil Service (Judicial Branch)  and by direct rccruitment. Rule 20 of the Rules dealing with seniority provided that seniority in each of the  two classes of posts shall be determined by the date of confirmation in that class of post. Rule 23 provided that a probationer  shall be  confirmed in his appointment at the end of his period of probation if the Governor was satisfied that he was fit for confirmation.      The appellant  who was  appointed as  a Civil  Judge in 1955, was  promoted as  officiating Civil and Sessions Judge in July,  1960. Respondents  3 to 5 who were direct recruits to the  post of  Civil and Sessions Judges joined service In May/June, 1966.      For the  purpose of absorbing the promoted officers the Government converted 22 temporary posts into permanent posts of Civil and Sessions Judges with effect from April 1, 1966. Three  out   of  those   posts  were   given  to  the  three respondents,  who   were  direct  recruits,  and  they  were confirmed in  the posts  with effect from May/June, 1968. In twelve other  posts, twelve  promotees were  confirmed  with effect from  April 1,  1966, but  the appellant  was not  so confirmed though  he had  been continuously officiating as a Civil and  Sessions Judge since July, 1960. He was confirmed as Civil  and Sessions  Judge with  effect from  January  1, 1969. He  was eventually  confirmed in  the post of District and Sessions Judge with effect from February 1, 1973.      The three  respondents were later appointed as District and Sessions Judges. By a Notification dated March 19, 1975,

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they  were   confirmed  in  those  posts  with  effect  from July/August, 1972.  The Notification  dated  July  22,  1977 issued by  the High  Court, showed  the three respondents at serial Nos. 31 and 32 of the list and the appellant at No.38 and the  dates of confirmation were shown as August 25, 1972 in respect  of three  respondents  and  March  18,  1973  in respect of the appellant.      The High  Court allowed  the appellant’s  writ petition and quashed  the Notifications dated March 19, 1975 and July 22,  1971   insofar  as   they  related   to  the  dates  of confirmation of  the appellant and the respondents. The High Court on the administrative side was directed to redetermine the dates  of their  confirmation as  District and  Sessions Judges and  their inter-se seniority in accordance with Rule 20. 83      In appeal  it was,  inter alia,  contended on behalf of the appellant  that  the  22  permanent  posts  having  been created with  effect from  1-4-1966 for permanent absorption of promotees  who had  been officiating  prior to  that date four a  period of more than three years, (Respondents 3 to S who were  not even  in service  on that  date, could  not be absorbed against  any of  those vacancies, and the appellant who had  put in  nearly six years of service in the Cadre on the date  when the  three respondents  were appointed, could not be  denied confirmation  with effect from April 1, 1966; that apart from greater length of service, the appellant has an excellant,  unblemished record  of service;  and  in  the circumstances, the confirmation of the appellant with effect from  date later than those assigned to Respondents 3, 4 and S is unfair, arbitrary and discriminatory.      Allowing the appeal, ^      HELD:  The   main  criteria   to  be   considered   for confirmation of  officers officiating in the Higher Judicial Service of the State are:           (i) Availability of a substantive vacancy/post.           (ii) Suitability for the post. [92C] Here, a  substantive post  of Civil  and Sessions  Judge was available  to   the  appellant  from  April  1,  1966,  when Respondents 3,  4 and  5 had  not even been appointed to the service in any capacity. By April 1, 1966, the appellant had put in service as officiating Civil and Sessions Judge for a period exceeding  5 years  and 9 months. There is nothing on record to  suggest that  by or  on April 1, 1966, he was not suitable for  confirmation as  Civil and  Sessions Judge, or later, as  District and  Sessions Judge  when a post in that grade became  available to  him. In  the circumstances,  the impugned Notification  dated March  19, 1975  issued by  the Government, inasmuch  as it  did not accord to the appellant the same  treatment which had been meted out to twelve other promoted officers  who were confirmed with effect from April 1, 1966,  is not  based on  any intelligible. differentia or reasonable principle,  and as such, cannot be sustained. The same  comments   apply  mutatis  mutandis  to  the  impugned Notification, dated July 22, 1977, issued by the High Court. Once it  is found that the Notification dated March 19, 1975 cannot be  sustained, The foundation for fixing the dates of confirmation and  determining relative seniority of District and Sessions Judges will also crumble. [92D-G]      The entire  matter therefore,  requires reconsideration by the  High Court  in the  exercise  of  its  powers  under Article 235 of the Constitution. [93A]

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JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 911 of 1978.      Appeal by  Special Leave  from the  Judgment and  order dated 12-12-1977 of the Allahabad High Court (Lucknow Bench) in Writ Petition No. 1283 of 1976      R.K.Garg, V.  J. Francis,  Madan Mohan and D.K Garg for the Appellant.      G. N.  Dikshit and O.P. Rana for Respondents Nos. 1 and 2. 84      S. N  Andley, B.  P. Maheshwari  and  Sures  Sethi  for Respondents 3 and 5.      Yogeshwar Prasad,  Mrs. Rani  Chhabra  and  Miss  Meera Bali, for Respondent No. 4.      P. C.  Bhartari and  R. P.  Kathuria for the Intervener (B. S. Yadav and Ors.)      The Judgment of the Court was delivered by      SARKARIA,J.- This  appeal by  special leave is directed against a judgment dated December 12, 1977 of the High Court of Allahabad.      The appellant  herein, Shri  B. L.  Goel, is a District and Sessions  Judge and  as such  a Member  of  U.P.  Higher Judicial Service.  The sanctioned  permanent strength of the Higher Judicial Service was 82. It comprised (i) 37 posts of District and  Sessions Judges and (ii) 45 Civil and Sessions Judges, including  five posts  of leave reserve. The service includes substantive  posts as  well as temporary posts. The appointments to  the posts  of Civil and Sessions Judges are made from two sources:           (a) By  promotion from  the members  of  the  U.P.      Civil Service (Judicial Branch); and           (b) By  direct recruitment after consultation with      the Court (vide Rule 5).      Under Rules  13 and  17 of  the U.P.  Higher.  Judicial Service 1953  (hereinafter referred  to as  the 1953  Rules) waiting lists  were to  be prepared of the persons found fit for promotion  or appointment to the higher service. Rule 19 provided that  the Governor shall, on receipt from the Court of the  waiting lists  prepared under  Rules 13 and 17, make appointment to  the service on the occurrence of substantive vacancies. Para  2 of  Rule 19  provide d  that the Governor could  make   appointments  in   temporary  or   officiating vacancies of  the persons  who were eligible for appointment by promotion  and whose names were borne on the waiting list on force prepared under Rule 13. Rule 21 fixed the period of probation for direct recruits at two years. Rule 22 provided that the  probation could be extended for a specific period. On satisfactory  completion of  his period  of probation,  a direct recruit  was entitled  to be  confirmed. No period of probation was fixed in the case of promotees. Rule 20, which is being impugned, originally, ran as follows:           "20. Seniority.-Subject  to the provisions of rule      31, seniority  in each  of the  two classes of posts in      the  Services  shall  be  determined  by  the  date  of      confirmation in that class of post; 85           Provided that  if in any class of the post, two or      more persons  are confirmed  on the  same  date,  their      seniority will  be determined according to the order in      which their confirmation has been notified;           Provided  further  that  in  the  case  of  direct      recruits, their inter se seniority will be fixed in the      same order  in which  their names  appear in  the  list

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    prepared by the Selection Committee under rule 17."      Rule 23 dealt with confirmation. It provided:           "23.  Confirmation.-(1)  A  probationer  shall  be      confirm ed  in his appointment at the end of his period      of probation  or at  the end  of the extended period of      probation, if the Governor, after consultation with the      Court, is satisfied that he is fit for confirmation.           (2) All  confirmations under  this rule  shall  be      notified in the the official Gazette." D      The appellant  was appointed  to the U.P. Civil Service (Judicial Branch)  on September  13, 1948  on the basis of a competitive examination  held by  the  U.P.  Public  Service Commission. He was posted as Civil Judge in the same service in January  1955.  He  was  appointed  by  promotion  as  an officiating Civil and Sessions Judge in U.P. Higher Judicial Service in  July 1  960. Respondents  3, 4  and 5 are direct recruits. They  were appointed  on probation  on  Civil  and Sessions Judges  and joined the service on May 31, 1966, May 27, 1966 and June 1, 1966, respectively.      The constitutional validity of the 1953 Rules providing for appointment  to U.P.  Higher Judicial Service first came up for  consideration before  this Court in 1966, in Chandra Mohan v  state of  U.P.(1) wherein it was held that the 1953 Rules  providing   for  recruitment   of   District   Judges particularly rules  5, 8,  13, 17  and 19 of the U.P. Higher Judicial  Service   Rules  1953,   were  invalid   as   they contravened  the   mandate  of   Article  233(1),  and  that consequently, the  appointments of  persons appointed  under those Rules including the appellant and respondents 3, 4 and S to  the U.P  Higher Judicial Service were unconstitutional and invalid. The appointments of persons appointed under the 1953 Rules, including the appellant and respondents 3, 4 and S were,  however. validated  by the  Constitution (Twentieth Amendment) Act,  1964, which  inserted Article  233A in  the Constitution.      (l) A.T.R. 1966 S.C. 1987. 86      By a  notification dated  March 31,  1969 the  Governor confirmed respondents  3, 4  and 5  as  Civil  and  Sessions Judges with  effect from May 31, 1966. May 27, 1966 and June 1, 1966, respectively. Again by a Notification dated May 31, 1969 they  were confirmed  with effect  form the same dates. These Notifications  were superseded  by Notification  dated July 19, 1974. The dates of confirmation of the respondents, however, remained unchanged. This notification was cancelled by Government notification dated August 26, 1974.      The Government  by its  order (G.O.  No.  870/7-AI-503) dated June  19, 1971,  created by conversion of the existing temporary posts,22  permanent  posts  of  Civil  &  Sessions Judges with  effect from  June  1,1969,  for  absorbing  the promoted officers,  who had been continuously officiating as Civil & Sessions Judges for more than three years.      Subsequently, by  its G.O. 2693/VII-A-Niaya/503/70. the Government in  partial modification  of its G.O., dated June 19, 1971,  directed that  the creation of 22 permanent posts of Civil  & Sessions  Judges shall have effect from April 1, 1966. This  Notification shows  that all  these posts/courts continuously existed on temporary basis from different dates ranging between July 22, 1949 to August 8.1962.      Consequent upon the creation of 22 permanent posts with effect from  April 1.  1966, the  Governor on March 19, ]975 issued a Notification in supersession of the earlier ones.      Although all the 22 permanent posts created with effect from April  1,1966 according  to the Government Notification were meant  for absorption  of promotees only three of those

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posts were  given to  the three direct recruits, respondents 3, 4  and S  (S/Shri R.  C. Bajpai,  Rikheshwari Prasad  and Behari Ji  Das) who were shown as confirmed with effect from May 31,  1968, May  27, 1968 and June 1, 1968, respectively, the  dates   on  which   they  completed  their  two  years’ probation. Against  12 of  those posts,  12  promotees  were confirmed as  District and  Sessions Judges with effect from April 1,  1966. The  appellant  was  not  one  of  those  12 promotees  who  were  so  confirmed  although  he  had  been continuously officiating  as Civil  and Sessions Judge since July 1960  and the  direct recruits/Respondents  3, 4  and 5 were appointed  to that  cadre about  six years  later.  The appellant was  however shown, along with others as confirmed with effect from January 1, 1969.      The appellant was appointed as officiating District and Sessions Judge  under Government  Notification dated January 9,  1974   with  the  rider  that  the  seniority  would  be determined later  on. This  Notification  was  cancelled  by Notification dated July 17, 1974 whereby the 87      appellant was  confirmed on  the post  of District  and Sessions Judge with effect from February 1, 1973.      Respondent 3,  4 and  5 were  appointed as District and Sessions Judges,  and confirmed  as  such  by  a  Government Notification dated January 9, 1974. These Notifications were cancelled and  replaced by  fresh Notifications from time to time. The  last Notification  Issued by the State Government confirming the  appellant and  respondents 3,  4  and  5  as District and  Sessions Judges  is of  March 19,  1975. Under this Notification,  the appellant  was confirmed with effect from February  1,1973 while  respondents 3,  4  and  5  were confirmed with effect from July 16, 1972, August 8, 1972 and August 25, 1975, respectively.      On July  22, 1977,  the High  Court in  exercise of its powers under  Article 235  of  the  Constitution,  issued  a Notification confirming  certain officers  as  District  and Sessions Judges  in order of seniority from the dates and in the vacancies  shown against  their names. the appellant was shown at Serial No. 38 and respondents 3, 4 and 5 at Serial] Nos. 30, 31 and 32, respectively. While the appellant’s date of confirmation  was mentioned  as May 18, 1973, respondents 3, 4  and 5  were shown as confirmed with effect from August 25. 1972.      The  appellant  challenged  the  validity  of  all  the Notifications issued by the State Government relating to his confirmation as  also of  respondents 3, 4 and 5 on the post of Civil  and Sessions  Judge as  well as  on  the  post  of District and Sessions Judge by a writ petition under Article 226  on   these  grounds:   (1)  That   these  orders   were discriminatory and  therefore, violative  of Articles 14 and 16 of  the Constitution;  and (2)  that the  Governor had no power to  confirm Civil  and  Session  Judges  and  District Judges, as  the same  power being a part of ’control’ vested exclusively in  the High  Court under  Article 235,  (3) The appellant, also,  (by amending  his writ  petition) impugned the validity  of Notification  No. 670  dated July  22, 1977 issued by  the High  Court during  the pendency  of the writ petition, (4) It was also contended on the authority of this Court in  S. B.  Patwardhan v.  State of Maharashtra(1) that the rule  requiring determination  of the  seniority  to  be governed by  the date of confirmation is Unconstitutional as it   made    seniority   dependent   upon   the   fortuitous circumstances of confirmation, and where a cadre consists of both  permanent   and  temporary   employees,  the  date  of confirmation  cannot   be  an   intelligible  criterion  for

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determining  seniority   as  between   direct  recruits  and promotees.      The  High  Court  has  however,  taken  the  view  that Patwardhan’s (supra)  is not  attracted to  the facts of the instant case  because in  the case  of U.P.  Higher Judicial Service, the matter stands concluded      (1) A.I.R. 1977 S.C. 2051, 88 by the  decision of  this Court  in Chandra Mohan’s case(l), wherein it  was held  that  it  is  open  to  the  competent authority to determine the seniority in accordance with rule 20 sans  the second proviso, supplemented by any other valid principles or rules. After an elaborate discussion, the High Court concluded:  "The Notification dated 17th July 1974 and Notification dated  19th March,  1975 issued by the Governor confirming the  petitioner and the opposite parties 3, 4 and 5, are  invalid and  ultra-vires inasmuch  as the  power  to confirm on  the post  of District  Judge vests  in the  High Court and  not in the Governor. The Notification of the High Court, dated  22nd July  1977, however,  meets the situation and  fills   up  the   lacuna  to  a  certain  extent.  This Notification has  been issued  by the High Court in exercise of its  powers under  Article 235 of the Constitution....The said Notification  of  the  High  Court  also  mentions  the respective dates  from which  they  stood  confirmed.  These dates are not founded on proper criteria and it appears that they were  not properly  fixed. Hence, that part of the said Notification of  the High  Court cannot  be sustained. Their dates of  confirmation shall  have to be redetermined by the High Court."      In the  result, the  High Court partly allowed the writ petition and  quashed the aforesaid Notifications dated July 17, 1974  and July  22, 1977  so far  as they  relate to the dates of  confirmation of  the petitioner  and the  opposite parties 3,  4 and 5. A direction was given to the High Court in its  administrative side,  to redetermine  the  dates  of their confirmation  as District  & Sessions Judges and their inter-se seniority  "in accordance  with rule  20  sans  the second proviso  of the  U.P. Higher  Judicial Service Rules, 1953, supplemented by any other valid principles or rules".      The  main  contentions  raised  by  Shri  R.  K.  Garg, appearing on be half of the appellant, are      (1) Rules  20 and  23 of  the 1953  Rules,  which  make determination  of   seniority  wholly   dependent  upon  the fortuitous circumstance  of confirmation  offend Articles 14 and 15 of the Constitution. (It is submitted that earlier in Civil Appeal  1703 of 1969 decided on April 19, 1976, he was obliged to  give up the plea because fundamental rights were then under  suspension and the broader protection of Article 14 was  not available  to him).  Reliance has been placed on Patwardhan’s case (ibid).      (2)  (a)   In  the  impugned  Notifications,  dates  of confirmations have  been fixed arbitrarily in a manner which unduly favours  the direct recruits (respondents 3, 4 and 5) and singles out the appellant pro      (I) A.I.R. 1976 S.C. 1482. 89 motee for  unfavourable treatment,  notwithstanding the fact that he  was Promoted  as Civil  and Sessions  Judge about 6 years prior  to the recruitment of Respondents 3, 4 and 5 to the same  cadre, and  had also  been promoted  to the senior grade of  the Service  as District  and Sessions  Judge, one year prior  to the  promotion of  these respondents  to that grade.      The  High   Court  has   not  properly   construed  the

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observation in this Court’s decision dated April 19, 1976 in C.A. 1703  of 1969, to the effect, that the seniority was to be determined  "in accordance  with rule  20 sans the second proviso of  the U.P.  Higher Judicial  Service Rules,  1953, supplemented by  any other  valid principles  or rules,". In that  observation   the  indication   was  clear   that  the confirmations  were  not  to  be  arbitrarily  made  but  in accordance with  valid and  fair criteria which would ensure that its consequences did not offend Articles 14 and 16. One of these  criteria would be the length of continuous service in the  cadre of  the Higher  Judicial Service.  Indeed, new Rules of  1975 adopt  this as  the  governing  criteria  for fixation of  inter se seniority in the service. According to Mr. Garg,  this criterion, based as it was on a principle of fairplay, could  be validly imported into the truncated Rule 20 of  1953 Rules,  in accordance with the broad observation of this Court in its decision in C.A. 1703 of 1969.      (b) In  any case,  the Government had while creating 22 permanent posts with effect from April, 1966, (by conversion of the  existing temporary  posts  held  by  promotees  into permanent ones)  as per Notifications (G.O. No. 870/7-AI-503 and G.C).  No. 2093/VII-A-Niaya/  503/70) declared  it as  a matter of  policy that all these posts are being created for permanent absorption  of promotes who have been continuously working against  temporary posts  in an officiating capacity for more  than three  years. Respondents  3, 4 and S had not even been  appointed (on  probation) to the service on April 1, 1966.  They entered  the service on May 31, 1966, May 21, 1966 and  June 1,  1966; while  on April 1. 1966, or even on the date  of respondents’  entry into service, the appellant had  put   in  about   six  years’   continuous  service  as officiating Civil and Sessions Judge. Thus, both as a matter of declared  policy and  fair principle, the appellant could not be  denied confirmation  with effect from April 1, 1966, against one  of those  22 posts, and none of the respondents could be  confirmed against  any of those 22 posts which had been made  permanent for  the purpose  of absorbing promotes who had put in officiating service for a period of more than three years.  Stress has been laid on the fact that apart ll from  greater  length  of  service,  the  appellant  has  an excellent,   unblemished   record   of   service.   In   the circumstances, therefore, the confir- 7-817 SCI/78 90 mation of  the appellant  with effect from a date later than those  assigned  to  Respondents  3,  4  and  5  is  unfair, arbitrary, and discriminatory.      As against  this,  Shri  Andley,  Learned  Counsel  for Respondents 3,  4 and  5 submits that the Respondents should be deemed  to have  been appointed  to the  service in 1964, when they  were selected for appointment to the service.- by the Select  Committee of the High Court and were recommended for appointment  to the  Government. The  Respondents, it is submitted, would  have been  appointed to  the  Service  and joined it  in 1964, but for the fact that Chander Mohan etc. in the  writ proceeding  obtained an  interim order from the Court, restraining  the Government  from  giving  effect  to their appointments,  and it was only on the vacation of that "stay" order in 1966, the respondents could join duty, which they did  in May  and June  1966. The  delay in  joining the service being  not due  to any  fault on  the  part  of  the Respondents,   for   the   purpose   of   confirmation   and determination of seniority, it would be but fair to take the date of  their appointment  as the  date on  which they were selected by  the Selection Committee in 1964 for recruitment

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to the  Service. If  no stay  order issued  by the Court had intervened, the  Respondents would  have been entitled to be confirmed on  completion of  their two  years’ probation  in 1966,  Long   before  a  substantive  vacancy  could  become available to  the appellant.  It is  pointed out while these direct  recruits   were,   as   usual,   appointed   against substantive vacancies, on probation, the appellant and other promotes like  him were appointed against temporary posts on officiating basis  only, and  they (promotees)  could  claim confirmation only  when substantive  vacancies/posts  became available to  them. It is further argued that the intendment of Rule  8 of  the 1953  Rules was  that 25  per cent of the vacancies in  U.P. Higher  Judicial Service should be filled by direct  recruitment, and  this, according  to the learned Counsel implies  that confirmation  of direct  recruits  and promotes at  any given time should also be made in the ratio of 1:  3 by  rotation. It  is urged  that when the matter is considered from  this angle,  the en bloc confirmation of 12 promotes with  effect from  April l,  1966 followed  by  the confirmation of  the three direct recruits (respondents 3, 4 and 5)  with effect from May 30, 1968, May 27, 1968 and June 1968, was  neither improper,  nor arbitrary. Learned Counsel further maintains  that equities  are wholly  on the side of respondents 3,  4  and  S  who  are  not  younger  than  the appellant, and  this should  also be taken into account as a factor in their favour.      The last  but luke-warm  contention of  Shri Andley  is that it  is not  clearly borne out by the record that the 22 temporary posts, converted 91 into permanent  ones with  effect from  April 1,  1966, were created for  the purpose of absorbing the promotees only.      We do  not think  it necessary  to decide  the question with regard  to the  constitutional validity of Rules 20 and 23, because  this appeal  can be  disposed of  on the second ground  urged   by  Shri  Garg.  Before  dealing  with  that contention, it  is necessary  to have a clear picture of its factual premises. There is no dispute that the appellant was promoted as  officiating Civil  and Sessions  Judge in  July 1960, while  Respondents 3,  4 and  5 joined  the service as Civil and  Sessions Judges  on probation,  about  six  years later in  May/June, 1966.  We  are  unable  to  accept  Shri Andley’s argument  that the date of the Respondents’ C entry into service should be assumed as the date in 1964, when the Selection Committee  selected them for appointment. There is no warrant  for importing  such a  fiction. The  stark  fact remains that  respondents 3,  4 and  S joined the service in May/June 1966.      It is further an uncontroverted fact that the appellant was promoted to the senior grade as officiating District and Sessions Judge  about one  year prior  to  the  respondents’ promotion to that grade. It is further clear from the record (vide Paragraph  6 (g)  of the  affidavit  of  Shri  Radhika Raman, Under  Secretary to  the Government of Uttar Pradesh: Annexure IV  A to  the Rejoinder  Affidavit of Respondents 3 and 5  filed in  the High  Court as  also the  copies of the Notifications filed by the appellant in this Court) that the State Government  created (by  conversion  of  the  existing temporary posts/courts)  22 permanent posts/ courts of Civil and Sessions  Judges, under G.O. Nos. 870/7-1-503, dated 19- 6-1971  with  effect  from  1-1-69.  Later  on,  by  another Government order No. 2693/VII/A-Nyay 503/70, dated 3-3-1973, in modification of the earlier notification, the creation of the aforesaid  22 permanent posts was given effect from 1-4- 1966. By  the impugned  Government Notification of March 19,

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1975, against 12 of those 22 posts, twelve promoted officers shown at  Serial Nos.  24 to  35 were  confirmed with effect from 1-4-1966.  Against  the  next  3  of  those  22  posts, respondents 3, 4 and 5 were confirmed with effect from 31-5- 68, 27-5-68 and 1-6-68. Against the remaining seven promoted officers including the appellant, were confirmed with effect from January  1, 1969.  The first  proviso to Rule 8 of 1953 Rules  which   provided  for  a  quota  of  25%  for  direct recruitment and 75% for promotion, was specifically declared void by  this Court in Chandra Mohan’s case decided in 1966. That void  Rule, being  non-existent, was  not available for the purposes of confirmation etc. 92      After considering  the entire  material on  record  and hearing the  Counsel for the parties, including Shri Dikshit appearing for  the State,  we are  unable to appreciate, why the appellant  like 12  other  promoted  officers,  was  not confirmed with  effect from  April  1,  1966,  when  he  was continuously working as officiating Civil and Sessions Judge from July, 1960.      In the  case of promoted officers, the main criteria to be considered for their confirmation are:           (i) Availability of a substantive vacancy/post.           (ii) Suitability for the post.      Here, in  the case of the appellant, a substantive post was available  to him  with effect  from April 1, 1966, when respondents 3,  4 and  S had  not even  been  appointed,  on probation or  otherwise, to the service. By that date, April 1, 1966,  he had  put in  service as  officiating Civil  and Sessions Judge  for  a  period  of  5  years  and  9  months approximately. There is nothing on record to suggest that by or  on  April  1,  1966,  he  was  not  found  suitable  for confirmation. Why  was  he,  then,  not  accorded  the  same treatment  in   the  matter   of  fixing  the  date  of  his confirmation as  had  been  meted  out  to  twelve  promoted officers who  were confirmed  with effect from April 1, 1966 Shri Dikshit  has not  been able  to satisfy  us that in not allocating 1-4-66  to the  appellant  as  the  date  of  his confirmation, the  Government were  acting according  to any intelligible differentia or reasonable principle. Nor is any a principle  justifying  a  differential  treatment  to  the appellant  in   the  matter   of  fixing  the  date  of  his confirmation, discernible  from  the  impugned  Notification dated March 19, 1975, itself.      We are  therefore,  of  opinion  that  this  Government Notification dated  March 19,  1975 cannot, as it stands, be sustained and needs reconsideration .      The  same   comments  apply  mutatis  mutandis  to  the impugned Notification,  dated July  22, 1977,  issued by the High Court. Moreover, once it is found that the Notification dated March 19, 1975 cannot be sustained, the foundation for fixing  dates   of  confirmation  and  determining  relative seniority of District and Sessions Judges will also crumble.      Accordingly  we   allow  this  appeal,  set  aside  the impugned Notifications  dated March  19, 1975  and July  22, 1977 in  so far as they fix the dates of confirmation of the appellant vis-a-vis Respondents 3, 4 93 and 5,  both in  the junior  and senior  grade of  the  U.P. Higher Judicial  Service. The  High Court shall consider the matter afresh and refix and readjust, in the exercise of its powers under  Article 235  of the Constitution, the dates of the confirmation  of the appellant and the said respondents, at first,  in the  grade of  Civil and  Sessions Judges, and then in  the grade  of  District  and  Sessions  Judges,  in

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accordance with  law. There  will be no order as to costs in this Court. P.B.R.                                       Appeal allowed. 94