JUDGMENT R. M. Sahai, J. - In this petition filed by a District Judge the short question that arises for consideration is if petitioners seniority was correctly determined under U. P. Higher Judicial Service Rules, 1975. 2. Admittedly petitioner, topper of batch of 1957 examination of Munsif ship, was appointed as Additional Munsif in February, 1959, confirmed in February 1961. promoted as Civil Judge in 1968 and as Civil and Sessions Judge in 1971 under U P. Higher Judicial Service Rules 1953 which provided two sources of recruitment one by promotion from members of U P. Civil Services (Judicial branch) and other direct recruitment Procedure for recruitment by promotion was provided by rule 13. Filed of eligibility was confirmed to officers who had put in not less than seven years of service or were drawing more than Rs.700 as salary. Selection was to be made on merit by a Selection Committee which was to meet at least every third year. Appointment to the grade of District and Sessions Judges was to be made under Rule 6 by the Governor in consultation with the Court. Therefore, the Higher Judicial Service In 1953 comprised of Civil and Sessions Judge and District and Sessions Judges. In 1974 the cadre of Civil and Sessions Judges was abolished by U.P. Higher Judicial Services (Abolition of Cadre of Civil and Sessions Judges) Rules, 1974 with effect from 8th May, 1974 and all the Civil and Sessions Judges became Additional District and Sessions Judges Consequently petitioner also became temporary Additional, District and Sessions Judge with effect from 8th May 1974. In 1975 U. P Higher Judicial Services Rules 1975 were enforced designating the status of services as state service class in consisting of one single cadre comprising of District and Sessions Judge, Additional District and Sessions Judge and Additional Sessions Judges from amongst member of U P. Judicial Officers Services Recruitment to the Service is to be made by direct selection and promotion from Nyayik Sewa and Judicial Magistrates. Rule 20 laid down that promotion from Nyayik Sewa shall be made on seniority cum-merit After selection is made by Court the appointment is made under Rule 22 by the Governor on the occurrence of substantive vacancy by taking candidates from the lists in the order in which they stand in the respective lists of promotees, direct recruits and officers from cadre of Judicial Magistrates. Sub rule (3) of Rule 22 provides that appointment of temporary vacancy or in officiating capacity shall also be made by the Governor in consultation with the court. Rules 23 and 24 deal with probation and confirmation and Rule 26 deals with seniority. From rules what appears is that appointment for temporary or officiating capacity in Higher Judicial Service is made by the Governor in consultation with the Court from amongst the members of Nyayik Sewa And whenever appointments to the substantive vacancies are to be made selection committee as contemplated in Rule 16 is nominated by the Chief Justice which after considering the Character Rolls and other material on record, makes recommendations from amongst the officers working temporarily for being appointed in substantive vacancies. This recommendation of the selection committee is placed before Full Court which either accepts or rejects the same. In case of acceptance the officer is promoted against substantive vacancy and after successful probation period he is confirmed. 3 After enforcement of the Rules in 1975 a selection committee was constituted for making recruitment's to the Higher Judicial Service as provided in the Rules. Recruitment was to be made against 51 substantive vacancies. Out of those 51 vacancies 28 posts were allotted to the U. P. Nyayik Sewa, 15 to Judicial Magistrate Services and 8 posts were to be filled by direct recruitment. For filling vacancies from U. P. Nyayik Sewa the selection committee considered the names of the officers who were at that time working as temporary Additional District and Sessions Judge and recommended the names of 56 officers for substantive appointments. The committee did not find 7 officers including the petitioner fit for being appointed substantively. Recommendation of the committee was accepted in its Full Court meeting held on 28th March, 1976. It approved 28 officers out of list of 56 officers while 7 officers, including the petitioner, were left out. The 28 officers who were approved for appointment in substantive vacancies were confirmed by Full Court in its meeting held on 30th April, 1977. As regards officers too had not been recommended to the substantive posts in 1976 their names were not placed before the Court in April 1977. The 28 officers who were approved for appointment in substantive vacancies were confirmed by Full Court in its meeting held on 30th April, 1977. As regards officers too had not been recommended to the substantive posts in 1976 their names were not placed before the Court in April 1977. In pursuance of resolution of Full Court a notification was issued on 26th May, 1977 confirming aforesaid officers In the next meeting held on 5th November, 1977 the petitioner was confirmed as Additional District and Sessions Judge. As a consequence of petitioners confirmation in November 1977 he was put below those officers who had been confirmed on 30th April, 1977. 4. It was argued on behalf of opposite-parties that in fact the petitioner was liable to be reverted yet the Court permitted him to continue to work temporarily as Additional District and Sessions Judge. But he cannot, by that, claim seniority over these officers who had been confirmed earlier than him As has been mentioned appointment against temporary vacancy is also made by Governor on recommendation of the Full Court is in effect a substantive appointment against a temporary vacancy. An officer appointed against temporary vacancy has as much a right to continue on it as a person appointed against substantive vacancy. He has the same right as a permanent employee except that so long he is not appointed substantively either by an order or under rules he has no lien on the post nor does he acquire any legal right. Therefore, where promotion is made to higher grade by virtue of seniority and merit, even though temporarily, then reversion to substantive vacancy not because of administrative exigency but unsuitability or inefficiency may result not only in loss of seniority is substantive post but it may jeapardise chances of promotion as compared to him juniors. If it he so taken it becomes penal and has to be preceded by procedure established under law. The argument, therefore, that petitioner could have been reverted cannot be accepted. Mere non-selection for substantive appointment could not automatically result in reversion as appointment to higher judicial service is made by Governor on recommendation of Court. Non-selection to a substantive post is itself a loss as chances of further promotion etc., are jeodardised. The argument, therefore, that petitioner could have been reverted cannot be accepted. Mere non-selection for substantive appointment could not automatically result in reversion as appointment to higher judicial service is made by Governor on recommendation of Court. Non-selection to a substantive post is itself a loss as chances of further promotion etc., are jeodardised. Normally reversion to substantive vacancy of temporary or officiating employees does not amount to reduction in rank nor it entails any penal consequences even if it is for unsuitability or inefficiency but if the reversion due to rules operate prejudicially to employee then exception has been made. In Malultiv v. State, AIR 1962 SC 8 , the Supreme Court approved the observation in P. L. Dhingra case that, 'if however he has no right to the particular rank, his reduction from officiating higher rank to his substantive rank will not ordinarily be punishment. But the mere fact that the servant has no title to the post or the rank and the Government has, by contract expressly or impliedly, or under the rules. the right to reduce him to a lower rank does not mean that an order of reduction of a servant to a lower post or rank cannot in any circumstance be punishment. P.C. Wadhwa v. Union of India, AIR 1964 SC 423 , is more or less a complete answer to the argument that petitioner being only a temporary Additional District Judge could have been reverted. The principle laid down in Dhingras case was extended to reversion from officiating rank and it was observed : "In the case before the appellant has not only suffered a loss of pay which was inevitable on reduction in rank but he has also suffered loss of seniority as also postponement of future chances of promotion to the senior scale. It is thus obvious that petitioner could not have been reverted as Civil Judge and in no case without affording any opportunity. 5. Coming to the principal question of seniority it depends on construction of Rule 26. It is thus obvious that petitioner could not have been reverted as Civil Judge and in no case without affording any opportunity. 5. Coming to the principal question of seniority it depends on construction of Rule 26. Proviso second to sub-rule (1) (a) of Rule 26 is material, therefore, it is extracted below : "Seniority of the officers promoted from the Nyayik Sewa vis-a-vis the officers recruited from the Bar shall be determined from the date of continuous officiation in the service in the case of promoted officers and from the date of their joining the service in the case of direct recruits Where the date of continuous officiation in the case of an officer promoted from the Nyayik Sewa and the date of joining the service in the case of a direct recruit is the same the promoted officer shall be treated as senior : Provided that where any officer is not found fit for confirmation and is not confirmed in his turn, the officiating period or the probationary period, as the case may be, prior to the date of decision taken by the High Court in this behalf shall not be taken into account for purposes of computing the period of continuous officiation or for purposes of working out the date of joining of the service, as the case may be." 6. According to the proviso continuous period of officiation prior to confirmation shall not be taken into account for determining seniority if the officer is not found fit for confirmation and is not confirmed in his turn. Therefore, for applicability of this proviso what has to be seen is whether officer was not found fit for confirmation and further if he was not confirmed in his turn. As stated earlier the petitioner was not found fit for substantive appointment in 1976 When cases of 28 officers were taken up petitioners case was not taken up as he had not been recommended for substantive appointment, therefore, there was no question of his not being found fit for confirmation. It is admitted even in counter-affidavit that no such order was passed It is further not disputed that the petitioner who had not been found fit for being promoted to substantive vacancy in 1976 was confirmed in November 1977. Prior to this in April 1977 his case was not placed before Full Court. It is admitted even in counter-affidavit that no such order was passed It is further not disputed that the petitioner who had not been found fit for being promoted to substantive vacancy in 1976 was confirmed in November 1977. Prior to this in April 1977 his case was not placed before Full Court. In any case no order was passed that he was not fit for confirmation As at no point anterior to November 1977 he was not found fit for confirmation proviso did not apply. It was argued by learned standing counsel that petitioner was not confirmed in his turn, therefore, he was rightly placed below those who were confirmed earlier than him The argument overlooks that the proviso applies not only when an officer is not confirmed in his turn but he should not be found fit for confirmation. Further the argument proceeds on misconception. Although recruitment to higher judicial service is made under Rule 20 by promotion of members of Nyayik Sewa and their appointments of substantive vacancy is to be made by Governor under Rule 22, according to seniority but in actual practice an officer has to undergo selection twice once for promotion against temporary vacancy and then Tor appointment in substantive vacancy. Before an officer is confirmed in substantive vacancy he has to be placed on probation under Rule 23 and it is only after successful completion of probation period that he is confirmed under Rule 24. Therefore, an Additional District and Sessions Judge who is not recommended by Court for promotion against a substantive vacancy is not on probation, therefore, the question of his confirmation or non-confirmation cannot arise. Consequently when petitioner was not found fit for appointment to substantive vacancy in the meeting Veld on 20th March, 1976 his case was not and could not be put up for confirmation before Full Court in April 1977 As such no order was passed nor it could be passed, declaring that petitioner was not fit for confirmation As a matter of fact even when be cannot found fit for appointment in substantive vacancy in 1970 it could not be deemed that he was not found fit for confirmation for the simple reason that till than he was not appointed against substantive vacancy. Non-selection for appointment on substantive vacancy under the rules could not result in non-confirmation in his turn. Non-selection for appointment on substantive vacancy under the rules could not result in non-confirmation in his turn. Proviso to Rule 26, therefore, stood excluded seniority amongst confirmed officers, therefore, had to be determined on continuous officiation. As in continuous officiation petitioner undisputedly was senior to Sri D.K. Agarwal the Court on the Administrative Side committed an error in placing below him. 7. In the result this petition succeeds and is allowed. Seniority list issued by opposite-party No 2 on 25th November, 1979 is quashed. A direction is issued to opposite-party No. to prepare a fresh seniority list placing petitioner at serial number 154 in the gradation list above Sri D. K. Agarwal. Petitioner shall be entitled to its costs.