JUDGMENT 1. - The petitioner Sharad Chandra and two others have sought relief by an appropriate writ of mandamus for setting aside the promotion of respondent No. 3 to 11 in the cadre of Rajasthan Higher Judicial Service and in alternative they have prayed that they may be promoted in the cadre of Rajasthan Higher Judicial Service from the date their juniors have been promoted with all consequential benefits. It was further prayed that the respondent No. 1 be restrained from giving posting order of respondent No. 11 on the post of Addl. District Judge in pursuance of the order dated 20.2.92 till the petitioners are not promoted in the cadre of Rajasthan Higher Judicial Service. 2. In pursuance of the show cause notice issued by learned Single Judge on 23.4.92, respondents have filed their reply separately. Respondent No. 7 also filed reply alongwith counter claim and prayed that Rule 22 of Rajasthan Judicial Service Rules, 1955 (hereinafter referred to as the Rules of 1955) be declared ultra vires. The learned Single judge vide his order dated 11.12.92 observed that since the vires of Rule 22 of Rajasthan Judicial Service Rules, 1955 was under challenge, the matter was placed before the Division Bench. The Division Bench consisting of Hon'ble Justice Shri M. C. Jain and Hon'ble Justice Shri R.S. Verma after hearing the case finally, are equally divided in opinion as to the decision on main controversy and referred the matter to the Hon'ble Chief justice with a request to constitute a Bench of one or more Judges, to decide the question, which runs as under:- "Whether in the facts and circumstances of the case the petitioner regained their original seniority (Rules 19 and 22, RJS, Rules) of the R. J. S. as soon as they got promotion in the cadre of the Civil Judge-cum-Addl. Chief Judicial Magistrate ? If so, whether the petitioners were entitled to get promotion earlier in RI-IJS on the basis of such seniority ?" 3. It has come up before me for decision of the said question and finally heard on 10.2.94. 4. Mr. Joshi, learned counsel for the petitioners has submitted that while interpreting Rule 22 the reasonings given by Hon'ble R. S. Verma, J. is correct and is the only interpretation. He has submitted that Rule 22 does not envisage separate seniority for the purpose of different cadres of Rajasthan Judicial Service. 4. Mr. Joshi, learned counsel for the petitioners has submitted that while interpreting Rule 22 the reasonings given by Hon'ble R. S. Verma, J. is correct and is the only interpretation. He has submitted that Rule 22 does not envisage separate seniority for the purpose of different cadres of Rajasthan Judicial Service. He has also submitted that the interpretation given by Hon'ble M. C. Jain J. is not correct for the reasons that Hon'ble M. C. Jain, J. has erred in reading Rule 22 with Rule 7 (a) (b) and (c) whereas it should be read with Rule 34 and 41-A because Rule 7(a) (b) and (c) relate to promotion only. He has also submitted that in the Rules, Rule 22 is the only rule which governs the seniority and in that too the word used is 'service' and not 'cadre'. He has further submitted that the Hon'ble M. C. Jain, J. has wrongly relied on Joginder Nath's case which according to him is not applicable, he submitted that in that case Solicitor General conceded the principle and that was a case of promotion from one service to another service whereas the case in hand relates to promotions in service. He has also submitted that Hon'ble M.C. Jain, J. has not considered the case of G.C. Jain Vs. State of M.P., AIR 1981 SC 511 and Veer Pal Singh Chauhan & Ors. Vs. Union of India & ors., 1987 (4) Administrative Tribunal Cases 685 , which was relied upon by him. 5. Mr. Mridul, learned counsel for the respondents No. 3, 4, 5, 8, 9 and 11 has submitted that Hon'ble M. C. Jain, J. has rightly interpreted Rule 22 and the Hon'ble R. S. Verma, J. has wrongly proceeded on the ground that this is a fortuitous circumstance whereas on the contrary the appointment/promotion of the respondents is a right which arose to them in view of Article 16(4) of the Constitution and it is not a concession or privilege, this is something which is available to them as a matter of right. He has also submitted that the basic principle of law is that principle provision will be read in such a manner that it does not fall foul of the fundamental right, if that being the position and for this reason when the higher and lower are sought to be put at par that will result in discrimination as it will be making unequals equals and discrimination also occurs when unequals are made equals which violates Article 14 of the Constitution of India. Lastly he has submitted that in view of the provisions of Cr.P. C., the C. J. M. and A.C.J.M. have more powers than the Munsif, and they have more responsibilities. He has further submitted that in view of the decision of Supreme Court in Indira Sawhncy's case reservation shall continue for a period of 5 years and it is already made operative protectively and not retrospectively therefore, what has come to them by promotion will not be undone. 6. Mr. Bhoot, learned counsel for the respondent No. 7 has submitted that some of the facts which were not pleaded in the writ petition, reply or rejoinder but even then Hon'ble Verma, J. has considered them and on the basis of imaginary and hypothetical examples of his own has come to the conclusion that the seniority acquired by the respondents is eclipsing seniority which is against the principles of the service jurisprudence particularly when the proposition of law has been admitted by him, and has erred in holding that such seniority is only emphemeral in nature, therefore, the interpretation given by him was rightly not considered to be correct by Hon'ble Milap Chandra Jain, J. He has also submitted that Hon'ble Milap Chandra Jain J. has taken the correct view that in the absence of any rule on promotion, seniority will be counted from the higher cadre and not from the entry in the service, which is the only interpretation. He has also submitted that this case is squarely covered by the decision of the Supreme Court rendered in Karam Chand Vs. Haryana State Electricity Board and Ors., AIR 1989 SC 261 , He has relied on Registrar, High Court of M.P. Vs. B.A. Nigam, AIR 1973 SC 1201 . He has also submitted that this case is squarely covered by the decision of the Supreme Court rendered in Karam Chand Vs. Haryana State Electricity Board and Ors., AIR 1989 SC 261 , He has relied on Registrar, High Court of M.P. Vs. B.A. Nigam, AIR 1973 SC 1201 . He has also relied on' and 6, and submitted that in view of these decision the hypothetical examples created by Hon'ble Verma, J. which are the foundation of arriving at the conclusion by him, are of no avail and even they are wrong as in those decisions their lordships had held that seniority will not be revived. 7. Mr. N.P. Gupta, learned counsel for the respondent No. 1 has submitted that Hon'ble Verma, J. has positively found that the Rule 22 cannot be given literal interpretation because it will lead to absurd result and in this situation a meaningful interpretation should be given to the same and the interpretation given by Hon'ble Justice Milap Chandra Jain, is the only interpretation of Rule 22. He has relied on Registrar, M.P. High Court Vs. B. A. Nigam (AIR 1973 SC-1201) , which according to him is the most nearest case. 8. Mr. Udawat, learned Addl. Advocate General has submitted that though pay scale of some of the Munsifs is equivalent to some of the A.C.J.M./C.J. Ms. but he has supported the view taken by Hon'ble Milap Chandra Jain, J. 9. Heared learned counsel for the parties and perused the judgment as well as the relevant provisions of law, so also the case law cited at Bar. 10. As the facts and the case law have been discussed elaborately in. the judgment, I do not consider it necessary to repeat them. 11. The Rajasthan judicial Service Rules, 1955 have been framed in exercise of the powers conferred by Article 234, read with Article 238, and proviso to Article 309, of the Constitution of India regulating recruitment to posts in, and the conditions of service of persons appointed to, the Rajasthan Judicial Service. A perusal of Rule 1 (3) that they shall apply to the members of the service consisting of Civil Judges-cum-Chief Judicial Magistrates, Civil Judges-cum-Additional Chief Judicial Magistrates, Senior Civil Judges, Munsiffs and Judicial Magistrates and all of them of course belong to one service i.e. Rajasthan Judicial Service but hold different class of posts therein. A perusal of Rule 1 (3) that they shall apply to the members of the service consisting of Civil Judges-cum-Chief Judicial Magistrates, Civil Judges-cum-Additional Chief Judicial Magistrates, Senior Civil Judges, Munsiffs and Judicial Magistrates and all of them of course belong to one service i.e. Rajasthan Judicial Service but hold different class of posts therein. So, according to the existing provisions of the R. J. S. Rules, the initial recruitment to the service, is made at the level of Munsif. Besides the cadre of Munsif the other cadre consists of Civil Judge, Senior Civil Judge and Civil Judge cum Chief Judicial Magistrate. The cadre of Senior Civil Judge is now extinct. The Munsiffs are now promoted to the post of Civil Judge cum A.C.J. Ms. and C.J. Ms. The relevant rule which governs promotion runs as under:- "7A Appointments to the posts of Civil Judges : Appointments to the post of Civil Judges shall be made by the Court by promotion from amongst the Officers holding substantively the posts of Munsifs on the basis of seniority-cum-merit. 7B Appointments to the post of Senior Civil Judges:-Appointments to the post of Senior Civil Judges shall be made by the Court by promotion from amongst the officers holding the posts of Civil Judges on the basis of seniority-cum-merit. 7C Appointments to the post of Civil Judges-cum-Chief Judicial Magistrate : Appointments to the posts of Civil Judges-cum-Chief Judicial Magistrates shall be made by the Court by promotion from amongst officers holding posts of Senior Civil Judges cum Judicial Magistrates I Class, Civil judges cum Judicial Magistrates I Class, Munsiffs and Judicial Magistrates I Class on the basis of merit, after taking the seniority into consideration." Rule 7-A provides for promotion from Munsif to post of Civil Judge on the basis of seniority-cum-merit. Rule 7-B provides for promotion to the cadre of Senior Civil Judges on the basis of seniority cum merit from amongst Civil Judges. Rule 7-C provides for promotion to the Civil Judges cum C. J. Ms. from amongst officers holding posts of Senior Civil Judges-cum-Judicial Magistrates I Class and Judicial Magistrates I Class on the basis of merit after taking the seniority into consideration. 12. Rule 7-C provides for promotion to the Civil Judges cum C. J. Ms. from amongst officers holding posts of Senior Civil Judges-cum-Judicial Magistrates I Class and Judicial Magistrates I Class on the basis of merit after taking the seniority into consideration. 12. In the case in hand the respondents No. 3 to 11 were promoted on the basis of roster to the post of Civil Judge cum A.C.J.M. and before the respondent No. 3 to 11 were promoted to the RI-IJS, the petitioners were also promoted to the cadre of Civil Judge-cum-A.C.J.M. It may be stated that the posts of Munsif, Civil Judge cum A.C.J.M. and Civil Judge cum C.J.M. are different cadres for which authorities are competent to provide as many cadres as it choose. The status of the Civil Judge cum A. C. J. M. is different with that of the Munsif. Similarly there is a change in the duties and powers of Civil judge cum C. J. M. with that of the Civil Judge cum A. C. J. M. Chief Judicial Magistrates and Additional Chief Judicial Magistrates have been vested with more powers than the Munsifs by the Code of Criminal Procedure. In view of this, it is clear that these different cadres of Rajasthan Judicial Service viz. Munsif, Civil Judges-cum-Additional Chief Judicial Magistrates and Civil Judges-cum-Chief Judicial Magistrates are different and cannot be equated with each other. This position has not been disputed by Mr. Joshi. 13. So far as the question of seniority which has been referred to this Court is concerned, the controversy is narrow but it has far reaching effects amongst the members of Rajasthan Judicial Service. To resolve the controversy, it would be advantageous to read Rule 22, which runs as under : "22 Seniority:-Subject to the other provisions of these rules seniority in the Service shall be determined by the date of the order of substantive appointment to the service : Provided that the seniority of candidates appointed to the Service shall, in the case of appointment of more persons than one to the Service by an order of the same date, follow the order in which they have been placed in the list prepared by the Commission under rule 19." According to Rule 22, seniority requires to be determined from the date of the order of substantive appointment, which is subject to the other provisions of the rules. A bare perusal of the said rules, clearly makes out that on promotion to higher cadres as provided in Rules 7-A, 7-B & 7-C which were introduced subsequently how the seniority will be determined is not provided by a specific rule, which is not in dispute and the matter is to be examined in view of Rule 22 as it exists and while answering the question it is to be seen whether the seniority acquired by the respondents No. 3 to 11 is only 'ephemeral in nature'. The Law relating to inter-se seniority in a cadre is well settled if there is a rule indicating the manner in which such seniority is to be field that is binding and the inter-se seniority shall be fixed in accordance with rules but in the absence of such and specific rules, the length of service is the basis for fixing inter-se seniority. It is also settled that the general principle of seniority is that whosoever gets promotion on the higher post his seniority on the post would be reckoned from the date of his promotion and accordingly a person gets promotion his seniority will be considered on the promotional post from that date. A bare perusal of this Rule 22 clearly provides that there is nothing in the scheme of rule about revival of seniority of lower post on getting promotion in the higher cadre post. The provision of statute and rule and as per dictums of the various authorities of the Supreme Court, the rule of interpretation that ordinarily the words used by the legislature have to be given a literal and grammatical meaning but if that meaning makes a provision meaningless or creates doubt then of course, the courts cannot become mere spectator and they will have to interpret the words in the manner with furtherance of the object of the Act. 14. Admittedly, the respondents No. 3 to 11 were promoted to higher cadre before the petitioners on the basis of roster. The promotion so given to them is a regular promotion as the incumbents so promoted can only be reverted after holding disciplinary enquiry or they are awarded punishment on any count whatsoever. Further on their promotion it cannot be called a concession or privilege rather it is their right which flows from the Constitution in view of Article 16(4). 15. The promotion so given to them is a regular promotion as the incumbents so promoted can only be reverted after holding disciplinary enquiry or they are awarded punishment on any count whatsoever. Further on their promotion it cannot be called a concession or privilege rather it is their right which flows from the Constitution in view of Article 16(4). 15. A question about applicability of provision of reservation for Scheduled Caste/Scheduled Tribes provided under Rule 9 of the Rules on the promotional post by inserting subsequently the Rule 7-A, 7-B and 7-C under the Rules, came up before the Division Bench of this Court in Beharilal Gupta Vs. State of Rajasthan & Others, D.B.C. Writ Petition No. 697/83 decided on October 29, 1986 , in which it was held that the word 'recruitment' has no special significance and can mean that a Munsif is recruited by holding a competitive examination while a Civil Judge, Senior Civil Judge, or Civil judge cum Chief Judicial Magistrate is recruited by making an appointment to the post by promotion from the junior posts. After considering the provisions of Rules, it has been held that the Reservation for Scheduled Caste/Scheduled Tribe shall also apply in the case of appointment on the promotional post and not only at the time of initial recruitment to the post of Munsif. However, in the case in hand the petitioners and respondents No. 3 to 11 have already been promoted, which is not under challenge. 16. The Apex Court in C.C. Padnabham & Ors. Vs. The Director of Public Industries, 1980 (2) SLR 599 (SC) has laid down that promotion means appointment to a new post in higher category of the same service with higher grade. 17. Reference may also be made to Desoola Rama Rao & Anr. Vs. State of A.P., AIR 1985 SC 857 , wherein their lordships of the Supreme Court have held as under: "The law relating to inter-se seniority in a cadre is well settled. If there be a rule indicating the manner in which such seniority has to be fixed, that is binding. In the absence of such a rule, length of service is the basis for fixing inter-se seniority. The High Court has found and there is no longer any dispute, that respondents 3 & 4 have put in longer service than the appellants in the post of Assistant Engineer. In the absence of such a rule, length of service is the basis for fixing inter-se seniority. The High Court has found and there is no longer any dispute, that respondents 3 & 4 have put in longer service than the appellants in the post of Assistant Engineer. In that view of the matter, the State Government was right, and the High Court appropriately approved it, that the appellants would rank below respondents No. 3 and 4 in the cadre and the promotional benefit would be given to them after the claim of respondents 3 and 4 has been duly considered." 18. In view of the above, on getting promotion certainly the cadre do change and according to Rule 22, the seniority requires to be determined by the date of the order of substantive appointment, so when the posts are not interchangeable, obviously experience gained by a Munsif, the initial post, cannot be equated with that of ACJM/CJM having more power & responsibility and for the purpose of determining seniority these cadres cannot be put at par since on getting promotion the cadres do change and according to Rule 22, the seniority requires to be determined from the date of the order of 'substantive appointment'. That is what the plain & simple theory applicable is that is a person gets promotion certainly he acquires a new seniority in that cadre on his substantive appointment by way of promotion and the person promoted later on would get lower position in the seniority on the promotional cadre post. Therefore, the harmonious construction of the aforesaid rule would lead to the conclusion that the provisions of seniority that it shall be determined by the date of the order of the substantive appointment to the service shall mean the seniority in each rank and post of service.Even both the learned Brother Judges have also observed that the officers in the cadre of Munsifs cannot claim parity nor can they be equated with the cadres of Civil Judge cum A. C J. Ms. Likewise Civil Judge cum A. C. J. M. cannot claim parity or equation with the cadre of Civil Judge cum C. J. Ms. After considering the decision rendered in Lalit Mohan Deb & Ors. Vs. Likewise Civil Judge cum A. C. J. M. cannot claim parity or equation with the cadre of Civil Judge cum C. J. Ms. After considering the decision rendered in Lalit Mohan Deb & Ors. Vs. UOI, AIR 1972 SC 995 , wherein their lordships of the Supreme Court have observed that it is well recognised that a promotion post is a higher post with a higher pay. It has also been observed by Hon'ble Verma, J. at para 14 that 'it is obvious that Civil Judge cum C. J. M. is a higher post/cadre as compared to post/cadre of Civil Judge cum ACJM and post/cadre of Civil Judge cum ACJM is higher to that of Munsif.' Thus, in view of the above discussion and in the absence of there being any rule providing 'ephemeral seniority' or revival of seniority, 1 have no hesitation in holding that since the respondents No. 3 to 11 were senior in higher cadres, they will rank senior to the petitioners promoted later on to those cadres. 19. Now, I consider the arguments advanced by the learned counsel for the parties on the reasonings given by Hon'ble Brother Judges. Though both the learned Brother Judges were also agreeable with the proposition of law and even Hon'ble Verma, J. at para 20 has observed as under : "However, the literal meaning placed in these Rules may result in absurd or illogical situations... "The interpretation of the aforesaid Rules, made in a literal fashion is bound to frustrate the aforesaid objectives so also the interpretation put by the respondents may also frustrate the objective. However, more on this aspect later." Both the Brother Judges have also held that "the promotions of the respondents No. 3 to 11 to higher cadres earlier that that of the petitioners was not fortuitous but at the same time Brother Hon'ble Verma, J. on the basis of hypothetical example at para 30 has arrived at a different conclusion, relevant pare 30 reads as under:- "Let me take an hypothetical case. An officer 'A' gets superseded by his junior, 24 in number in 1991; however, he improves his performance over the years and in 1993 joins the bandwagon of the juniors who had earlier superseded him in the lower cadre. He further improves his performance over the years and in 1985 promotions are made to a still higher cadre/service. An officer 'A' gets superseded by his junior, 24 in number in 1991; however, he improves his performance over the years and in 1993 joins the bandwagon of the juniors who had earlier superseded him in the lower cadre. He further improves his performance over the years and in 1985 promotions are made to a still higher cadre/service. If the rule of newly acquired seniority in the cadre is to be employed in perpetuity, the juniors would still bye-pass hi, but if his original seniority is allowed to be revised, he has a chance of being promoted to the higher cadre and this promotion may further be a shot in his arm to impel him to improve further his efficiency and performance..... The first promotion of the juniors was in recognition of their better merit but should this perpetuity come in the way of 'A' so as to dampen his spirits for ever. To my mind, adopting this approach would be counter productive and would not be conducive towards achievement of the ideal of excellence. If this rule is strictly enforced, a person superseded once, would go on being superseded in perpetuity and this may destroy his faith altogether in himself......" The conclusion arrived at by him while applying theory of eclipse seniority Hon'ble Verma, J. has held at para 31 as under: "To my mind, a combined reading of Rules 7 to 7-C and Rule 22 of RJS Rules goes to show that when a Munsif is superseded by his juniors, for any reason whatsoever his juniors so promoted, do acquire a new but ephemeral seniority in the particular cadre and as soon as such senior Munsif is promoted to that very higher cadre, his original seniority in the service which inheres in him as of right is revived and ..... ...;this seniority got eclipsed or suspended only till was not promoted to such a higher cadre. The original seniority is not lost permanently because of a supersession at one stage." The conclusion so arrived at that when a Munsif is superseded by his juniors, for any reason whatsoever, his juniors so promoted, do acquire a new but 'ephemeral seniority in the particular cadre' which as contended by Mr. The original seniority is not lost permanently because of a supersession at one stage." The conclusion so arrived at that when a Munsif is superseded by his juniors, for any reason whatsoever, his juniors so promoted, do acquire a new but 'ephemeral seniority in the particular cadre' which as contended by Mr. Bhoot is self contradictory because the so-called promotion made earlier in time when was not held to be fortuitous in nature how the same can be termed and interpreted as temporary, ephemeraliat nature i.e. lasting for sometime particularly when the ultimate effect of these two expressions in the given case so far as the seniority of the candidates promoted earlier on roster point is the same, though they are two different words having different meanings. Further Brother Verma, J. has observed in para 30 that once superseded officer on account of inefficiency should not be allowed to be superseded, is also against the well-settled law in view of State of U.P. Vs. Onkar Nath Tandon & Ors., AIR 1993 SC 1171 , wherein it has been held if a junior supersedes a senior on merit basis his senior cannot claim seniority in higher cadre on his being promoted at a subsequent date. Apart from that the conclusion so arrived at on the basis of said example in para 30 is contrary to the conclusion arrived at by the learned Judge at para........which runs as under:- "One example would be imposition of a penalty of dept. of promotion. The period during which promotion of an officer has been deferred, results in .....,.promotion. The other well recognised exception is when a senior gets superseded because of his inefficiency, incompetence or lack of merit. In such an event, also a junior frogleaps over his senior and the senior is bye-passed. To my mind, these two situations can also be compared to a situation when a junior jumps the queue by operation of law as well. As stated already RJS Rules provide for reservation for SC/ST candidates both at the level of initial recruitment on the post of Munsif as also on the promotional post of Civil Judge cum ACJM. To my mind, these two situations can also be compared to a situation when a junior jumps the queue by operation of law as well. As stated already RJS Rules provide for reservation for SC/ST candidates both at the level of initial recruitment on the post of Munsif as also on the promotional post of Civil Judge cum ACJM. If in pursuance of such a provision a junior officer belonging to reservist category gets promoted to the higher cadre in service and the senior belonging to general category is bye-passed, it is difficult to see why the juniors promoted to higher category should not take higher seniority in such category, even though only temporarily, over his senior belonging to general category, who has not been promoted to the higher cadre with him. To my mind, this supersession by operation of law of a senior, for all intents and purposes, would have the same effect, as supersession on other counts." In the said para, the learned Judge has recognised the principle of seniority observing that 'it is difficult to see why the juniors promoted to higher category should not take higher seniority in such category' but observed subsequently 'even though only temporarily' of which there is no basis. More so, in para 20, the learned Judge has discarded the interpretation put by the petitioner as well as by the respondents but despite that Rule 22 has not been held to be illegal and the same has been held legal. That apart for the sake of argument, if the interpretation put by the petitioner that the seniority acquired by the respondents is 'temporarily eclipsed' is accepted to give different interpretation, it will mean that Rule 22 is to be read differently in different contingencies, to new mind which will be meaningless and will frustrate the purpose and is apparently against the well settled principles of statute that the rule should be interpreted in such a manner which may fit in all circumstances : Furthermore, in para 21, the learned Judge has observed as under : "This is true that rule 8 and rules 11 to 13 of RHJS Rules do not prescribe that an RJS officer to be promoted to RHJS need be a Civil judge cum CJM or Civil Judge cum ACJM. According to literal interpretation even a Munsif would be eligible to compete with officers, who have been promoted to higher cadres and this will result in equals being treated as unequals and would also militate against the objectives of efficiency, competence and excellence of performance in the said fields. However, this is only a very remote possibility, purely hypothetical and conjectural and may never materialise." It is clear from the said para that the Hon'ble Verma, J. has himself half that according to literal interpretation even a Munsif would be eligible to compete with officers, who have been promoted to higher cadres and this will result in unequals being treated as equals but at the same time held that this is only a very remote possibility, purely hypothetical and conjectural and may never materialise. With great respect, I am not agreeable with this approach as the courts are not to see the result, though that may be remote. Further undisputedly in the case in hand the posts are not equal and if the interpretation put by the petitioner is accepted, the said remote possibility will certainly materialise and render it futile. In view of this when the learned Verma, J. while accepting the fact that junior persons, so promoted, do acquire a new seniority but while calling it to be a 'ephemeral seniority' is not in consonance with the rules. So, also by holding that on getting promotion, seniority gets revived and has applied the theory of eclipse is beyond the scope of rules and against the well settled principles of determination of seniority. The interpretation given by learned brother Verma, J. is beyond the intention of the Statute and the interpretation so taken by him is meaningless and also not in furtherance to achieve the object of constitutional provision of Reservation for Scheduled Caste/Scheduled Tribe.The argument of Mr. Joshi is that Hon'ble Verma, J. has rightly distinguished the case of Karmachand (supra) as there was exception to Rule 960, the same has no substance because this decision will not help to give interpretation of theory of 'temporarily eclipse' in the given facts of the case, particularly when their lordships of the Supreme Court held that exception does not apply as regular appointment cannot be treated as purely temporary. Mr. Mr. Joshi has also relied on some of the observations of their lordships of Supreme Court made in Indra Sawhney's case 12, the relevant para relied upon by him reads as under:- "688. Constitutional, legal or moral basis for protective discrimination is redressing identifiable backward class for historical injustice. That is they are today, what they would not have been but for the victimisation. Remedying this and to balance the unfair advantage gained by others is the constitutional responsibility. But once the advantaged and disadvantaged the so-called forward and backward, enter into the same stream then the past injustice stands removed. And the length of service, the seniority in cadre of one group to be specific the forward group is not as a result or any historical injustice or undue advantage earned by his forefather or discrimination against the backward class, but because of the years of service that are put by an employee, in his individual capacity. This entitlement cannot be curtailed by bringing in again the concept of victimisation." With great respect, in my humble opinion, merely on the basis of said observations petitioners' contention can't be accepted & the said observations made by their lordships of the Supreme Court are not helpful to the petitioners as in that case ultimately their lordships of the Supreme Court held that ratio will be operative prospectively and also permitted to continue roster point for a period of five years and the respondents No. 3 to 11 whose promotion have already been made, cannot be challenged and petitioners cannot take any advantage out of the said observations. 20. So far as the contention of Mr. Joshi that Hon'ble Justice Milap Chandra Jain, has not considered the case of Virpal Singh Chauhan & Ors. Vs. Union of India & Ors. [(1987) 4 Administrative Tribunal Cases-685] , it is informed that the case of Virpal Singh (supra), has been overruled by a Full Bench of the Administrative Tribunal, which is not disputed by Mr. Joshi but he has claimed that S. L. P. of the same is pending before the Hon'ble Supreme court, therefore, in this situation the said decision is not helpful to the petitioner. As regards the case of G.C. Jain & Ors. Vs. Joshi but he has claimed that S. L. P. of the same is pending before the Hon'ble Supreme court, therefore, in this situation the said decision is not helpful to the petitioner. As regards the case of G.C. Jain & Ors. Vs. Divisional Rail Manager, 1986 (1) SLR 588 , it is not helpful to the petitioner as that was a case of further promotion in reservation quota which was already full. 21. The next argument of Mr. Joshi is that in Joginder Nath Vs. Union of India, 1975 (1)SLR 33 (SC) , was wrongly relied on by Hon'ble Justice Milap Chandra Jain, which was rightly distinguished by Hon'ble Mr. Justice R. S. Verma as that was a case of concession and the judgment proceeded on that basis. The petitioner cannot take advantage of that concession in interpreting the 'ephemeral seniority' particularly when the Solicitor General conceded that seniority would be same provided the promotion from the lower to higher service is at the same time, which cannot be disputed. 22. Mr. Joshi has lastly contended that Rule 22 should be read with Rule 34 and 41. Even if Rule 22 is read as suggested by Mr. Joshi then too it does not help in arriving at the interpretation of his choice and the contention has no substance. 23. No other point has been pressed before us. 24. Brother Hon'ble Justice Milap Chandra Jain has fully discussed the aspect in paras 5 to 11 and on considering the authorities of Hon'ble Supreme Court including B.A. Nigam's case(supra) and Karamchand's case (supra) has come to the conclusion that in the absence of specific provision in the relevant rules, seniority depends on the length of service put in a particular cadre. It has also been held that they (non-petitioners No. 3 to 11) were rightly appointed in the Rajasthan High Judicial Service earlier than the petitioners. I fully agree with the conclusion so arrived at by Hon'ble Mr. Justice Milap Chandra Jain, for the reasons already discussed. Hence, the decision of the Brother Hon'ble Verma, J. by giving the name 'ephemeral seniority' and the revival of seniority of the lower post by applying the theory of eclipsed is outside the scope of rules and against the well-settled principles of reckoning of seniority in the cadre from the date of substantive appointment. 25. Accordingly, the question referred is answered in negative. 25. Accordingly, the question referred is answered in negative. It is held that the petitioners do not regain their original seniority as soon as they got promotion in the cadre of Civil Judge-cum-Additional Chief Judicial Magistrate and the petitioners are not entitled to promotion earlier to Rajasthan Higher Judicial Service on the basis of Rajasthan Judicial Service Seniority. The question referred stands answered and the file be placed before Hon'ble the Chief Justice.Reference Answered in negative. *******