A.L.VAIDYA Vs. STATE OF H.P.

JUDGEMENT

(1.) The Petitioner and the fourth Respondent are promoted officers of the H.P. Higher Judicial Service. The first Respondent, State of Himachal Pradesh, is only proforma and it has not filed any reply to the writ petition. The second Respondent is the High Court of Himachal Pradesh and it has put in its defence to the writ petition by way of its affidavit dated 25th September, 1985. Originally, Anr. member of H.P. Higher Judicial Service, Sh S.S. Ahuja, a direct recruit, was impleaded as the third Respondent and he had also filed his reply affidavit dated 26th August, 1985, Unfortunately, during the pendency of the writ petition, Sh S.S. Ahuja has died on 18th September, 1985(sic) and the Petitioner moved a Civil Misc. Petition No. 375 of 1990 to delete his name from the array of the Respondents. The application was allowed on 25th April, 1990. Later at the request of the fourth Respondent, he was allowed to file his reply affidavit dated 19th September, 1990. Rejoinders to the replies filed by Respondents No. 2, 3 and 4 are also on record.

(2.) When the writ petition was taken up for final hearing on 24th April, 1992, it was urged on behalf of the fourth Respondent that as a consequence of the death of Sh S.S. Ahuja and the order of deletion of his name, the writ petition has become infructuous as the controversy of fixation of seniority of promotee officers vis-a-vis the direct recruit has ended According to him, the only controversy that remains is the determination of seniority between the Petitioner and the fourth Respondent for which Clause (ii) of the proviso to Rule 12 of the Himachal Pradesh Higher Judicial Service Rules, 1973 (hereinafter called 'the Rules of 1973') is very clear that their seniority in the Himachal Pradesh Judicial Service as it stood immediately before their confirmation is to be maintained. As admittedly, the fourth Respondent is senior to the Petitioner in the Himachal Pradesh Higher Judicial Service, he will continue to be senior to him in the Himachal Pradesh Higher Judicial Service. At this, time was sought on behalf of the Petitioner to consider the effect of deleting the name of Sh. S.S. Ahuja from the array of Respondents and to take necessary steps, if any. Thereafter, on 24th April, 1992, the Petitioner filed Civil Misc. Petition No. 623 of 1992 for recalling the order dated 25th April, 1990 passed in Civil Misc. Petition No 375 of 1990 and bringing on record the Legal representatives of late Sh. S.S. Ahuja as proper parties. On this application, notices were issued to the legal representatives of late Sh S.S. Ahuja whose names and addresses were given in the application. This application was opposed by the fourth Respondent as well as by the legal representatives of late Sh. S.S. Ahuja by filing separate replies thereto. After hearing the parties, it was ordered to decide this application alongwith the writ petition. Before we record our decision on this application, we would like to state the respective case of the parties.

(3.) By separate notification dated 30th October, 1980, (Annexures 'A' and 'B' to the petition), the Governor Himachal Pradesh was pleased to appoint the Petitioner and the fourth Respondent to the H.P. Higher Judicial Service by promotion from the H.P. Higher Judicial Service with effect from the date they would assume charge of the post to which they might be posted by the High Court. On the other hand, vide notification dated 20th February, 1981 (Annexure 'C to the petition) late Sh. S.S. Ahuja, an Advocate of the High Court of Himachal Pradesh, was also appointed to the H.P. Higher Judicial Service as a direct recruit with effect from the date of his assuming charge in the Sessions division to which he might be posted by the High Court. The High Court of Himachal Pradesh issued posting order of the Petitioner and the fourth Respondent vide notification dated 3lst October, 1980 (Annexure 'D' to the petition). Under Clause 3 of this Notification, it was provided: