Judgment Untwalia, J. 1. This is an application under Article 226 of the Constitution of India, which involves the question of determination of seniority of the petitioners vis-avis respondents 2 to 4; the first respondent is the Government of Bihar. It also raises an important constitutional question as to whether the State Government are competent to determine the seniority of an officer belonging to the Superior Judicial Service (hereinafter called the Service) or whether it is within the competence and power of the High Court to take a final decision on their administrative side in that regard. 2. There are three petitioners in this writ application. Their case is that three vacancies in the post of Additional District and Sessions Judges occurred between 1958 and 31st of January, 1959. On the 14th of March, 1959 respondent No. 1 advertised the said three posts borne on the cadre of the Service to he filled up by direct recruitment from the Bar in accordance with Rule 5 (a) of the Bihar Superior Judicial Service Rules, 1946 (hereinafter called the Rules). On or before the 31st of March, 1959 the petitioners along with some others applied for being appointed to the posts. Eventually they were so appointed on 21-4-1960. They were confirmed in the posts of Additional District and Sessions Judge in April, 1961. Their case further is that respondents 2 & 3 were never promoted from the post of Sub-Judge which they were holding substantively to the post of Additional District and Sessions Judge according to law and although there was no vacancy in any such post on the 17th of June, 1959, the Government of Bihar by their order dated the 6th of September, 1960, a copy of which is Annexure "D" to the writ application, which order was never published in the Bihar Gazette, purported to upgrade the post of the Deputy Registrar of the Patna High Court, which post Shri Chandrika Prasad Sinha, respondent No. 2, was holding and that of the Secretary, Bihar Legislative Assembly, which post was held by Shri Enayetur Rahman, respondent No. 3, retrospectively with effect from the 17th of June, 1959, till those posts were held by them. The intention of the said upgrading was to indirectly confer seniority on respondents Nos. The intention of the said upgrading was to indirectly confer seniority on respondents Nos. 2 and 3 by giving them fictitious officiation in a post in the service for the purpose of placing them in a more advantageous position man that of the petitioners in the matter of promotion and other service benefits. The said upgrading was done even in contravention of the recommendation of the Patna High Court, which was only for a limited upgrading of the said posts for a short period of 3 months 14 days, i.e., from the 17th June to 1st October, 1959, purely in fulfilment of the requirements of the next below rule as Shri Jitendra Narain, respondent No. 4, started officiating in a temporary leave vacancy in a post of Additional District Judge from the 17th of June, 1959. When respondent No. 2 was appointed as District and Sessions Judge on 25-4-1961, the petitioners felt surprised on their apparent supersession by respondent No. 2. On inquiries they learnt towards the end of August, 1961, that respondents 2 and 3 had somehow been treated as senior to them and that the seniority list of the Service had also been altered by placing respondents 2 and 3 over the petitioners. A true copy of the seniority list is Annexure E to the writ application. 3. The petitioners case proceeds further thus. They also came to know that respondent No. 4 who had been appointed as Additional District Judge on the 19th of September, 1960 long after the petitioners appointment and was thus junior to them had made a representation to the Government claiming seniority over them on the ground that respondents 2 and 3 had been allowed retrospective fictional promotion as Additional District Judge with effect from the 17th of June, 1959 even though there was no vacancy in the cadre then. On the 3rd of September, 1961, the petitioners made representation to the Government both against the aforesaid illegal seniority of respondents 2 and 3 and the seniority claimed by respondent No. 4. In February, 1968, the petitioners came to know that the Government had rejected their representation and they had also illegally decided that respondent No. 4 should be placed above them in the seniority list even though he was to be junior to the petitioners for other purposes of the service. In February, 1968, the petitioners came to know that the Government had rejected their representation and they had also illegally decided that respondent No. 4 should be placed above them in the seniority list even though he was to be junior to the petitioners for other purposes of the service. The petitioners case is that respondent No. 4 was working on the post of a Sub-Judge all along during the relevant period except for the brief period of 3 months 14 days when he had officiated in a temporary leave vacancy from 17-6-1959 to 1-10-1959. He reverted to the post of the Subordinate Judge from 2-10-1959. During the period in question some of his judgments delivered as Sub-Judge were subject-matter of appeal before the District Judge. The petitioners also state that the Patna High Court had recommended for rejecting the representation of respondent No. 4 for giving seniority to him and the Governments decision is against the recommendation of the High Court. 4. The petitioners attack the order of the State Government contained in their letter dated the 6th September, 1960 (Annexure D), the seniority list (Annexure E) and the decision of respondent No. 1 to place respondent No. 4 also above the petitioners on various grounds which, as formulated by Mr. Basudeva Prasad, learned Advocate for the petitioners, at the time of the hearing of the writ application, may be stated thus -- (i) The seniority list (Annexure E) has been framed in contravention of the provision of law contained in Rule 16 (e) of the Rules. (ii) The order of the State Government dated 6-9-1960 contained in Annexure D to the writ application as also the order of the State Government dated 24-1-1968, a copy of which is Annexure B to the counter-affidavit of respondent No. 4, giving fictitious officiation with retrospective effect is ultra vires and illegal. (iii) There was no vacant post of an Additional District Judge available before 1-11-1959 and, therefore, creation of new posts for respondents 2 and 3 by the State Government was ultra vires Article 166 of the Constitution read with Rule 14 (2) of the Rules of Executive Business and Item 3 (c) of the 3rd Schedule appended to the said Rules. (iv) There was no vacancy available in the post of Additional District Judge for respondent No. 4 in the promotees quota between 1-11-1959 and 19-9-1960. (iv) There was no vacancy available in the post of Additional District Judge for respondent No. 4 in the promotees quota between 1-11-1959 and 19-9-1960. (v) Respondents 2 and 3 having never been appointed to the substantive post of Additional District Judge in accordance with Rules 5 and 15 of the Rules, their seniority cannot be determined with reference to Rule 16 (e). (vi) The seniority of respondents 2 to 4 having been fixed without any basis in law and in an illegal and arbitrary manner infringes the fundamental rights of the petitioners in the matter of their employment under Article 16 (1) of the Constitution. (vii) Under Article 235 of the Constitution, it is the exclusive power of the High Court on their administrative side to promote Subordinate Judges to the posts of Additional District Judge and to determine the seniority of a Judicial Officer; the State Government, as against the decision or recommendation of the High Court, had no power to determine the seniority of respondent No. 4 and give him a place over the petitioners. 5. In pursuance of the rule issued to the respondents, cause has been shown on behalf of the State Government, respondent No. 1, by their learned Counsel Mr. M.C. Chagla Mr. J.C. Sinha, appeared for respondent No. 2 and Mr. K.P. Verma, learned Government Advocate, appeared for respondent No. 4; nobody appeared separately for respondent No. 3. All the points urged by Mr. Basudeva Prasad, learned Counsel for the petitioners, were combated by one Counsel or the other. I shall deal with their argument in my judgment while discussing the points involved in the case. But before I do so, it would be convenient to refer to certain facts from the various affidavits filed by the parties and their annexures. 6. In accordance with Rule 3 (1) of the Rules, the strength of the Service, which means the Bihar Superior Judicial Service, and the number and character of the posts are as specified in the Schedule to the Rules. Under Sub-rule (2) of Rule 3 "the State Government may, from time to time, after consultation with the High Court amend the said Schedule". Under Sub-rule (2) of Rule 3 "the State Government may, from time to time, after consultation with the High Court amend the said Schedule". In March, 1959, when three posts were advertised to be filled up by direct recruitment from the Bar under Clause (2) of Article 233 of the Constitution, the sanctioned strength of the Service was-- District Judges 14 Registrar, High Court 1 Secretary, Law Department 1 __________________________________________________________________ Total 16 Additional District Judges 18 Deputy Secretary, Law Department 1 __________________________________________________________________ Total 19 As mentioned in paragraph 7 of the counter-affidavit filed on behalf of the State of Bihar on 27-2-1968 two posts of Additional District Judge consequent upon the amendment of the Bengal, Agra and Assam Civil Courts Act, 1887, whereby the pecuniary jurisdiction of appeal before the District Judge had been raised from Rs. 5,000 to Rs. 9,999, were created for a period of one year in the first instance and the creation of the posts was approved by the State Government on 5-5-1959. Two temporary posts of Peripatetic District and Sessions Judge were created for a period of two years and the creation of the posts was approved by the State Government on 24-4-1959. On 25-4-1959, however, the Registrar of the High Court wrote a letter to the Chief Secretary of the Government (vide Annexure X/l to the counter-affidavit of respondent No. 2) that he had been directed to say that a few short-term leave vacancies had occurred in the cadre of the Additional District and Sessions Judges consequent upon four of them proceeding on leave for the periods noted against their names, which varied from 5-2-1959 to 11-7-1959, and as the Sessions file in some districts was getting out of control due to paucity of officers, the Court proposed to fill in the leave vacancies by promotion of Subordinate Judges. Having carefully considered the records of service of the Subordinate Judges due for promotion, the Court recommended the names of Sarvashri C.P. Sinha, E. Rahman, J. Narain (respondents Nos. 2 to 4) and Sharda Prasad for being promoted to act temporarily as Additional District and Sessions Judges. Since the Courts were engaged in various important administrative works and tackling heavy arrears, the then Honble the Chief Justice desired to retain the services of respondent No. 2 as Deputy Registrar. 2 to 4) and Sharda Prasad for being promoted to act temporarily as Additional District and Sessions Judges. Since the Courts were engaged in various important administrative works and tackling heavy arrears, the then Honble the Chief Justice desired to retain the services of respondent No. 2 as Deputy Registrar. Since his promotion had become due, it was recommended that he should not be made to suffer any pecuniary loss on account of the fact that he could not be spared. The Court, therefore, recommended that the status and emoluments of the post of the Deputy Registrar should be temporarily upgraded so long Shri C.P. Sinha continued to hold the post and remained eligible to officiate as an Additional District Judge. The next longer vacancy was recommended for Shri E. Rahman who was on deputation in the Bihar Legislative Assembly Department. He was also not being spared from there although he had become due for promotion to the rank of Additional District Judge. The Court, therefore, recommended that either he should be relieved or that the Government may consider the desirability of temporarily upgrading his post till June, 1959. Shri J. Narain was working as Under-Secretary in the Law Department but since the State Government had already agreed to relieve him of the said assignment, he was recommended to be promoted to act as Additional District Judge in the third longer vacancy and posted to Dumka as such. Shri Sharda Prasad was recommended to be promoted to act as Additional District Judge in the fourth vacancy to be posted as Additional Judicial Commissioner, Ranchi, where he was already working as a Subordinate Judge. Its not quite clear from the records of this case as to what happened in cases of other leave vacancies. But what is definite and clear is that Shri J. Narain officiated in a leave vacancy as Additional District Judge at Dumka from 17-6-1959 to 1-10-1959; the lower Courts were closed for the Annual Puja Vacation from 2-10-1959 to 7-11-1959, and the 8th of November, 1959 was a Sunday. 7. The next letter to which a reference is necessary to be made is Annexure X/2 to the counter-affidavit of respondent No. 2. It is dated 17-8-1959. 7. The next letter to which a reference is necessary to be made is Annexure X/2 to the counter-affidavit of respondent No. 2. It is dated 17-8-1959. The Registrar of the Court wrote this letter to the Chief Secretary of the Government in reply to latters letter dated 29-5-1959 to say that there were four vacancies in the cadre of Additional District Judge -- two occurring on the appointment of two Peripatetic District Judges for a period of two years and two new posts having been created for Additional District Judges. It seems in pursuance of the Government decision taken on 24-4-1959 and 5-5-1959 referred to in paragraph 7 of the counter-affidavit, a letter was written by the Government to the High Court on the 29th May, 1959, to fill up the four vacancies. The Court suggested in their letter dated 17-8-1959 the names of four persons to be promoted to act as Additional District Judges until further orders. They were Sarvashri Achyutanand Sahay, Rash Bihari Prasad Sinha, Chandrika Prasad Sinha and Enayetur Rahman. The first two were not found fit on the earlier occasion although they were senior to the latter two. But this time, finding them fit, the Court recommended their names also for promotion. While recommending the names of Sarvashri A.N. Sahay and R.B.P. Sinha to be promoted to act as Additional District Judges in two of the vacancies, in regard to the other two vacancies, the Courts recommendation was that Shri C.P. Sinha and Shri E. Rahman be promoted to act as Additional District Judges, but for the reasons mentioned in Courts letter dated the 25th April, 1959 the posts of the Deputy Registrar of the Court and the Secretary of the Legislative Assembly held by them should be upgraded. In other words, this time the upgrading was suggested not in the leave vacancies but as against the substantive posts till they could be relieved of their special jobs. In the meantime, it was recommended, two more posts of Additional District Judges be created for that period. 8. The State Government sent their reply on 7-3-1960 to Courts letter dated 17-8-1959. Many vacancies, however, occurred during the interval on the retirement of District Judges and appointment of Additional District Judges in their places. In the meantime, it was recommended, two more posts of Additional District Judges be created for that period. 8. The State Government sent their reply on 7-3-1960 to Courts letter dated 17-8-1959. Many vacancies, however, occurred during the interval on the retirement of District Judges and appointment of Additional District Judges in their places. The Registrar of the Court, therefore, wrote to the Chief Secretary of the Government on 3-3-1960 (Annexure X/5 to the counter-affidavit of respondent No. 2) even before the receipt of the Governments reply dated 7-3-1960 to their letter dated 17-8-1959, that seven vacancies had occurred on the appointment of seven Additional District Judges as District Judges and one due to retirement of one Additional District Judge between 1-12-1959 and 6-2-1960, and the ninth vacancy was caused by the appointment of Shri M.P. Verma, as he then was, as District Judge of the newly created judgeship of Singnbhum, which was created on 4-2-1960. As against these nine posts, recommendations had already been made to the Government to fill five posts -- three by direct recruitment from the Bar and two by promoting respondents Nos. 2 and 3, by upgrading their posts as already desired in the Courts letters dated 25-4-1959 and 17-8-1959. The Court had recommended the names of the three persons from the Bar to be appointed as Additional District Judges in their letter dated 1-10-1959. The said recommendation was in regard to the three petitioners. Out of the nine vacancies, five were thus recommended to be filled up. In regard to the remaining four vacancies, it was stated that the Court had decided that they should also be filled up" by direct recruitment. It may be stated here that under Rule 6 of the Rules, of the posts in the cadre of the Service two-thirds were to be filled by promotion and one-third by direct recruitment. The decision of the Court to fill up the remaining four vacancies by direct recruitment had been communicated to the Government in the Courts letter dated 10-2-1960. Even though the vacancies occur earlier, due to practical difficulties, some of which are unavoidable, the recruitment from the Bar takes a long time -- sometimes 2 to 3 years. The decision of the Court to fill up the remaining four vacancies by direct recruitment had been communicated to the Government in the Courts letter dated 10-2-1960. Even though the vacancies occur earlier, due to practical difficulties, some of which are unavoidable, the recruitment from the Bar takes a long time -- sometimes 2 to 3 years. It was, therefore, stated in the letter that the Court did not think it advisable to keep those four posts vacant and proposed to fill them by promotion of Subordinate Judges for the time being as a temporary arrangement so that the work might not suffer; when direct recruitment of officers from the bar would be finalised namely, the four in respect of which yet the advertisement and other formalities had to be gone into, four of the junior officers who might be officiating as Additional District Judges would have to revert for the direct recruits if no fresh vacancies in the cadre would occur in the meantime. The names of four Subordinate Judges thus recommended for promotion were Sarvashri J. Narain (respondent No. 4), Sharda Prasad, Durga Prasad Sinha No. 1 and Bhanu Prakash Pandey. The Court also reminded the Government in their letter dated 24-3-1960 (Annexure X/6 to the counter-affidavit of respondent No. 2) referring to the Courts letter dated 3-3-1960 that although the Courts recommendation for appointment of three Additional District Judges from the Bar were made as far back as in October, 1959 in Courts letter dated 1-10-1959, Governments orders had not been received till then; the delay would very much affect the future career of the Bar Judges, meaning thereby the three petitioners whose names had already been recommended, and not the four who were to be appointed in the last four vacancies out of nine, in the matter of their seniority under Rule 16 (e) of the Rules. The Court, therefore, recommended to the Government that the appointment of the aforesaid three Bar Judges should be made earlier than the appointment of the Service Judges, namely, the four recommended in the Courts letter dated 3-3-1960, so that the interest of the Bar Judges may not be adversely affected. It appears that eventually the notification appointing the petitioners to the three posts was issued on 21-4-1960. 9. It appears that eventually the notification appointing the petitioners to the three posts was issued on 21-4-1960. 9. The State Government wrote to the Court on 7-3-1960 (Annexure X/3 to the counter-affidavit of respondent No. 2) in reply to the latters letter dated 17-8-1959. The delay caused -- and sometimes unavoidably in correspondence between the High Court and the State Government -- at times causes some dislocation in the matter of seniority not generally amongst those who come by promotion but vis-a-vis the direct recruits as their appointment naturally takes a long time. The Government informed the Court in their letter that Sarvashri A.N. Sahay, and R.B.P. Sinha, Subordinate Judges, had been appointed to act as Additional District Judges against the newly created two posts consequent on the amendment of the Bengal, Agra and Assam Civil Courts Act, 1887. In regard to the Courts recommendation for promotion of Sarvashri C.P. Sinha and E. Rahman to act as Additional District Judges in the chain of appointment of two Peripatetic District and Sessions Judges, they were informed that Sarvashri K.P. Sinha and S.M. Hassan, retired District and Sessions Judges, however, were re-employed as Peripatetic District and Sessions Judges with effect from the 15th February and 1st February, 1960. There were other vacancies from earlier dates, for which recommendation of the Court was awaited. The Court was, therefore, requested to suggest the dates from which and the vacancies against which Sarvashri C.P. Sinha and E. Rahman were then proposed to be promoted to act as Additional District Judge so that steps for upgrading of the posts of the Deputy Registrar of the Court and the Secretary, Bihar Legislative Assembly Department, could be taken on receipt of the Courts reply. It may be made clear here that two posts of Peripatetic District and Sessions Judges had been added to the cadre in May, 1959 but the posts could be filled up only in February, 1960 by re-employment of the two retired District and Sessions Judges. Although the Court, in substance and in effect, had already complied with the request made by the State Government in their letter dated 7-3-1960 when the former had written their letter on 3-3-1960, the formal reply to the letter dated 7-3-1960 was sent by the Court on 10-5-1960 (vide Annexure X/4 to the counter-affidavit of respondent No. 2). Although the Court, in substance and in effect, had already complied with the request made by the State Government in their letter dated 7-3-1960 when the former had written their letter on 3-3-1960, the formal reply to the letter dated 7-3-1960 was sent by the Court on 10-5-1960 (vide Annexure X/4 to the counter-affidavit of respondent No. 2). In this letter it was pointed out that nine vacancies had occurred in the posts of Additional District and Sessions Judge from 9-11-1959 to 6-2-1960, eight on the appointment of the Additional District Judges to the post of District Judges and one on the retirement of an Additional District Judge. In this letter, therefore, the Court stated that Shri C.P. Sinha and Shri E. Rahman should be appointed to act as officiating Additional District Judge against any two of the nine vacancies which had occurred in the cadre of the Additional District and Sessions Judges from a date with effect from which their posts were upgraded. The Court also reiterated their request made in their letter dated 17-8-1959 that two temporary ex-cadre posts of Additional District Judges may be sanctioned at an early date for a period until Sarvashri C.P. Sinha and E. Rahman continue to hold their respective posts, meaning thereby the posts of the Deputy Registrar of the Court and the Secretary, Legislative Assembly Department. 10. In this background, I shall now refer to the impugned order of the State Government contained in their letter dated 6-9-1960 (Annexure D to the writ application) to the Accountant-General, Bihar. The first paragraph of this letter reads as follows:- - "I am directed to say that the State Government have been pleased to upgrade the posts of Deputy Registrar Patna High Court and Secretary, Bihar Legislative Assembly Secretariat held by Sarvashri Chandrika Prasad Sinha and Enayetur Rahman respectively in the rank and scale of pay of the Additional District and Sessions Judge with effect from the 17th June, 1959 till posts are held by them." It is manifest that the Under-Secretary to the Government, who wrote the above letter, communicated the order of the State Government to the Accountant- General that they have been pleased to upgrade the two posts held by respondents Nos. 2 & 3 in the rank and scale of pay of Additional District and Sessions Judge with effect from the 17th June, 1959, till posts were held by them. 2 & 3 in the rank and scale of pay of Additional District and Sessions Judge with effect from the 17th June, 1959, till posts were held by them. I may dispose of two short points here. During the course of argument, Mr. Basudeva Prasad endeavoured to show that there was no order of the State Government made in accordance with the procedure prescribed by the Rules of Executive Business. In reply Mr. M.C. Chagla, learned Counsel for the State, informed us that the order had been passed by the State Government after the matter was placed before, and considered by, the Council of Ministers as required by the Rules of Executive Business. But since this point was not taken in the petition, no specific reference has been made in the counter-affidavit of the State that the order had actually been passed in accordance with the Rules of Executive Business. We did not feel inclined to pursue this matter as we felt satisfied that the question of fact not having been specifically raised by the petitioners did not require any investigation. The second point which I would like to dispose of here is that it is not correct to say that the High Court had recommended the upgrading of posts held by respondents Nos. 2 and 3 for a limited period of 3 months 14 days, i.e., from 17-6-1959 to 1-10-1959. Even assuming it was possible to take this view, on the wordings or the letter dated 25-4-1959 written by the Registrar of the Court, it is abundantly clear that the recommendation made later in the subsequent letters was for upgrading the posts till they were held by respondents 2 and 3. The Governments order contained in Annexure D and extracted above is clear enough in that regard. The question as to whether it could take effect from the 17th June, 1959 will be discussed hereinafter. 11. It is undisputed that respondent No. 4 reverted to, worked on, the post of the Subordinate Judge from 2-10-1959 until he was appointed Additional District Judge in the substantive vacancy on 19-9-1960. 12. The question as to whether it could take effect from the 17th June, 1959 will be discussed hereinafter. 11. It is undisputed that respondent No. 4 reverted to, worked on, the post of the Subordinate Judge from 2-10-1959 until he was appointed Additional District Judge in the substantive vacancy on 19-9-1960. 12. It would appear from the Supplementary Affidavit filed on behalf of the State of Bihar on 20-11-1968 that respondent No. 4 made a representation to the State Government on 10-4-1961 praying for fixation of his seniority just below Shri E. Rahman in the cadre of Additional District Judges and allowing him seniority with effect from 1-11- -1959. Two other representations dated 21-10-1961 and 3-8-1961 were also filed by the said respondent No. 4. The matter remained pending before the High Court and the Government were informed of their opinion in their letter 20-8-1964. The Court recommended the rejection of the representations. The State Government finding themselves not in a position to agree with the opinion expressed by the Court wrote back on 5-8-1965 requesting the Court to reconsider the matter. The Court in their letter dated 18-1-1966 informed the Government that they did not see any reason to reconsider their previous view. The matter was again thoroughly examined by the Government and then eventually the order was made on 24-1-1968 in favour of respondent No. 4 by the State Government. A copy of this order is contained in Annexure B to the counter-affidavit of respondent No. 4 filed on 27-9-1968. It is better to quote the order of the State Government contained in the letter dated 24-1-1968 written by the Under-Secretary to the Registrar of the High Court -- "I am directed to refer to your letter No. 501 dated 18-1-1966 on the subject noted above and to say that after a careful consideration of the case of Shri Jitendra Narain at present District and Sessions Judge of Dhanbad, the State Government have been pleased to decide that Shri Narain shall rank immediately below Shri Enayetur Rahman and above Sarvashri Madan Mohan Pd., Rameshwar Pd. Sinha and Chandra Shekhar Prasad Singh, the direct recruits from the Bar in the cadre of the Superior Judicial Service, and for this limited purpose, he will be deemed to have been officiating as Additional District and Sessions Judge with effect from 1st November, 1959, Sri Narain may kindly be informed accordingly." 13. Sinha and Chandra Shekhar Prasad Singh, the direct recruits from the Bar in the cadre of the Superior Judicial Service, and for this limited purpose, he will be deemed to have been officiating as Additional District and Sessions Judge with effect from 1st November, 1959, Sri Narain may kindly be informed accordingly." 13. In order to decide various contentious questions raised in this writ application, it is first necessary to refer to certain other provisions of the Rules. Rule 4 says-- "Every post in the cadre of the service shall be filled by a person -- X X X X X (iii) who is appointed a member of the Bihar Superior Judicial Service under Rule 5." Rule 5 provides for appointment to the Service by direct recruitment or by promotion from amongst the members of the Bihar Civil Service (Judicial Branch). Rule 15 says that a member of the Service appointed by direct recruitment shall be on probation for a period of one year and shall not be confirmed unless he is found to be suitable in every respect for appointment to the Service; but promoted officers appointed against substantive vacancies in the cadre should forthwith be confirmed in the service. Then comes Rule 16 which may, for the sake of convenience, be called the fixation of seniority rule. It does not in term say who will fix or determine the seniority, it merely lays down certain rules for fixation or determination of seniority. Under Clause (a) of Rule 16 seniority inter se of direct recruits shall be determined in accordance with the date of their substantive appointment to the Service, and under Clause (b) seniority inter se of promoted officers shall also be determined in accordance with the dates of their substantive appointments to the Service. Clauses (c) and (a) relate to the fixation of seniority inter se of direct recruits when appointed at one time and seniority inter se of officers promoted from the Subordinate Judicial Service at one time. In this case there is no dispute, and could not be any, that respondents Nos. 2 and 3 had rightly ranked senior to respondent No. 4, in the post of the Superior Judicial Service. The question relates to the seniority of the petitioners, the three direct recruits, vis-a-vis respondents Nos. In this case there is no dispute, and could not be any, that respondents Nos. 2 and 3 had rightly ranked senior to respondent No. 4, in the post of the Superior Judicial Service. The question relates to the seniority of the petitioners, the three direct recruits, vis-a-vis respondents Nos. 2 and 3 who may be placed in one category and respondent No. 4 whose case, as I shall presently show, is different from that of the other two. The proviso to Rule 16 (e) says that "when a direct recruit and promoted officer are appointed on the same date, the promoted officer shall be senior to the direct recruit." This also is not the position here. We are concerned in this case with the interpretation of the main part of Clause (e) of Rule 16 which reads thus:- - "Seniority of direct recruit vis-a-vis promoted officer shall be determined with reference to the dates from which they may have been allowed to officiate continuously, in posts in the cadre of the Service or in posts outside the cadre on identical time-scale of pay and of equal status and responsibility or in posts of higher scale of pay and of higher responsibility in or outside the cadre:" One of the contentious questions raised at the Bar in reeard to the interpretation of Clause (e) of Rule 16 is as to what is the meaning of the expression "may have been allowed to officiate continuously" occurring in the said clause. Argument on behalf of the State and respondent No. 4 was that a notional, continuous officiation in a post in the cadre of the service or outside it will give preference to the promoted officer in the matter of seniority over the direct recruit provided there were vacancies in which he could or might have been allowed to officiate continuously. I am not prepared to accept this argument. In my opinion, the expression aforesaid means actual and continuous officiation and not a fictional or notional one. The expression "may have been allowed" must mean "may have been allowed as a fact"; it cannot mean that because of the vacancies being there in the posts a subsequently promoted officer could or might have been allowed to officiate continuously earlier. Such an interpretation would lead to very anomalous, unjust and discriminatory results. The expression "may have been allowed" must mean "may have been allowed as a fact"; it cannot mean that because of the vacancies being there in the posts a subsequently promoted officer could or might have been allowed to officiate continuously earlier. Such an interpretation would lead to very anomalous, unjust and discriminatory results. As I have said above, it takes a considerable time even after the occurring of a vacancy in the post of the Service in making the appointment by direct recruitment from the Bar. By the time the appointment is finalised, the vacancy against which advertisement is made has to be and is filled up so that the work of the Courts may not suffer. Many other vacancies are likely to occur --and, as a matter of fact, occur before a member of the Bar is appointed to the service. Mr. Chagla also had to concede that such a notional or fictional officiation cannot be made available to a direct recruit merely because there were vacancies against which he could be appointed earlier. Since a direct recruit before his actual appointment was not holding any post under the Government, it is impossible to take the view that he could have been allowed to officiate continuously in a post in the cadre of the Service or outside it. The position of a man in the Subordinate Judicial Service is no better. He cannot be deemed to have officiated continuously in a higher post of Additional District Judge when actually he did work as a Subordinate Judge. He could not be empowered retrospectively to act as an Additional District Judge when, as a matter of fact, he acted as a Subordinate Judge. To give seniority to a promoted officer on the basis of a fictional or notional officiation will cause undue and patent hardship to a direct recruit. If at the time of his appointment there were a number of vacancies in the posts of the Service, all promoted officers -- promoted after him -- can take advantage of this fictional officiation and rank above him. On this basis not only respondent No. 4 but also the other three officers whose names were recommended for promotion in the letter of the High Court dated 3-3-1960 could and should have been given seniority over the petitioners. On this basis not only respondent No. 4 but also the other three officers whose names were recommended for promotion in the letter of the High Court dated 3-3-1960 could and should have been given seniority over the petitioners. This by itself explains the absurdity in the interpretation sought to be put on behalf of respondents 1 and 4 to Clause (e) of Rule 16. It may bear repetition to say that the petitioners applied for appointment against vacancies which occurred by 31st of January, 1959. They were appointed against three of the vacancies out of nine which had occurred from November, 1959 to February, 1960. And if they are. to be pushed down by the promoted officers appointed after them on the basis of the fictional or notional officiation, which as argued on behalf of respondent Nos. 1 and 4, can be made available only to the promoted officers and not to others, it will be, to my mind, grossly unjust and discriminatory to do so. Only under one circumstance a promoted officer can take advantage of his officiation in the post earlier than his substantive appointment and that is this. If he has been allowed to officiate in a leave vacancy and in continuation of such officiation, which also has the advantage of the note appended to the rule, namely,-- "A period of leave or the annual vacation of the Civil Courts will not be treated as an interruption for the purpose of this sub-rule", he is promoted to the substantive post, he will rank senior to the direct recruit appointed before the substantive appointment of the promoted officer but after he started officiating in the leave vacancy. To give more advantage than this, on the principle of a vacancy being there, to a promoted officer will be very anomalous. Respondent No. 4 officiated in a leave vacancy from 17-6-1959. If he could have been appointed to the substantive post on and from 9-11-1959, he could have ranked senior to any of the direct recruits who could have come in between the dates -- 17th of June and 9th of November, 1959. But when he was appointed sub-stantively to the post on 19th of September, 1960, it is difficult to fill up the long gap of about a year by this fictional or notional method as has been done by respondent No. 1 in his case. Mr. But when he was appointed sub-stantively to the post on 19th of September, 1960, it is difficult to fill up the long gap of about a year by this fictional or notional method as has been done by respondent No. 1 in his case. Mr. Chagla contended that the case of respondent No. 4 is not different from that of respondents 2 and 3. 14. The case of respondents 2 and 8, however, stands on a different footing. They were on special posts of Deputy Registrar of the High Court and Secretary of the Legislative Assembly. In the Governmental administration, taking recourse of the upgrading of posts, if it can be so done without doing violence to any other law or principle, is so common that it can almost be taken to be a settled practice or Rule to do so. In case of respondents 2 and 3, the State Government were pleased to upgrade the posts which they were holding from the 17th of June, 1959 till the posts were held by them. The result of the upgrading of the posts was that they were allowed actually to officiate continuously in the upgraded posts either in the cadre of the Service or in posts outside the cadre on identical time-scale of pay and of equal status and responsibility within the meaning of Clause (e) of Rule 16 of the Rules. The upgrading of a post stands on a footing quite obviously different from allowing fictional or notional officiation to a promoted officer as in the case of respondent No. 4. 15. I shall now consider what is the effect of the upgrading of the two posts held by respondents 2 and 3. They were performing duties in special posts. Although they had become due for promotion to the Superior Judicial Service the High Court as well as the Legislative Department felt the necessity of retaining their services. They were, therefore, not relieved to take their appointment in due course to the Service. Recommendations were made by the High Court for upgrading the two posts as early as in April and August, 1959. Even when clear substantive vacancies occurred, the same demand for upgrading their posts was repeated in the Courts letter dated 3-3-1960. The order of the State Government, however, was not issued prior to 6-9-1960. Recommendations were made by the High Court for upgrading the two posts as early as in April and August, 1959. Even when clear substantive vacancies occurred, the same demand for upgrading their posts was repeated in the Courts letter dated 3-3-1960. The order of the State Government, however, was not issued prior to 6-9-1960. When issued, it, in terms, upgraded the posts held by respondents 2 and 3 in the rank and scale of pay of Additional District and Sessions Judge. Under Sub-rule (2) of Rule 3 the State Government have the power, from time to time, after consultation with the High Court, to amend the Schedule appended to the Rules, fixing the strength of the Service and the number and character of posts. To my mind, the effect of the upgrading of the posts was to amend the Schedule appended to the Rules and include in it temporarily with effect from the 17th June, 1959 the posts of the Deputy Registrar and the Secretary of the Legislative Assembly till those posts were held by Respondents 2 and 3. That the Schedule could be amended retrospectively will be borne out by the decision of the Supreme Court in B.S. Vadera v. Union of India, AIR 1969 SC 118 . In that case, the Indian Railway Establishment Code had been issued by the President in exercise of the powers vested in him by the proviso to Article 309 of the Constitution. Rule 157 of the Code conferred full powers on the Railway Board to make rules of a general application to non- gazetted railway servants under their control. In exercise of the said power, the scheme (annexure 4 to the writ application before the Supreme Court) was actually framed on February 5, 1957 and the amended scheme (annexure 7) was framed on March 30, 1963. Both of them were made retrospectively effective from December 1, 1954, the date of the initial constitution of the Service under consideration there. In exercise of the said power, the scheme (annexure 4 to the writ application before the Supreme Court) was actually framed on February 5, 1957 and the amended scheme (annexure 7) was framed on March 30, 1963. Both of them were made retrospectively effective from December 1, 1954, the date of the initial constitution of the Service under consideration there. Considering the question whether the Railway Board had, while acting under Rule 157, power to make a rule--in that case the schemes-- giving effect from an anterior date, the Court by a unanimous judgment held that the Board had such power, because in absence of an Act of an appropriate Legislature under the main part or Article 309 the rule-making authority under the proviso has power to make a Rule both prospectively and retrospectively. Mr. Basudeva Prasad argued that the effect of the upgrading of the posts held by respondents 2 and 3 was to amend the Schedule appended to the Rules. If it was so, as I am inclined to think, it was, it could very well be done retrospectively. 16. Mr. Basudeva Prasad also contended that even though the Rules made under the proviso to Article 309 of the Constitution could be amended retrospectively, as held by the Supreme Court in B.S. Vaderas case, AIR 1969 SC 118 approving the Full Bench decision of the Allahabad High Court in Ram Autar Pandey v. State of U. P., AIR 1962 All 328 , the Government has no power to make changes in the service conditions of their personnel with retrospective effect by mere executive instructions, as held by the Punjab High Court in Suresh Kumar v. Union of India, AIR 1969 Punj and Har 257. The power to amend the Rule retrospectively was noticed in paragraph 19 of that judgment also not only with reference to the Full Bench decision of the Allahabad High Court but also the Full Bench decisions of the Kerala High Court in C.K. Madhvan Nair v. Registrar, High Court of Kerala, AIR 1968 Ker 17 and V. Hari Haran Pillai v. State of Kerala, AIR 1968 Ker 42 . In Suresh Kumars case, AIR 1969 Punj and Har 257 However, the seniority list of the lower division clerks prepared and approved earlier according to Government executive instructions was changed according to new instructions issued subsequently for fixing seniority amongst lower division clerks. In Suresh Kumars case, AIR 1969 Punj and Har 257 However, the seniority list of the lower division clerks prepared and approved earlier according to Government executive instructions was changed according to new instructions issued subsequently for fixing seniority amongst lower division clerks. As a result of this, the appellants before the Court were reverted and ranked lower in the scale. In such a situation, it was held on the facts of that case that-- "Rights which