Judgment S. K. Homochaudhuri, J. 1. In this petition under Article 226 of the constitution of India, the petitioner has approached this court with the grievance that he has been unjustly and arbitrarily superseded in the matter of promotion to the post of sheristedar by Respondent No.4 and, thereafter, in the matter of supertime scale as well as promotion to the post of Sheristedar by respondent No.5. 2. With a view to appreciate the petitioners case and to decide the controversy, it is necessary to state the relevant facts in brief. The petitioner was appointed in the establishment of the Munger Judgeship as Clerk on and from 22.9.1958 while respondent Nos.4 and 5 were appointed to the said post in the munger Judgeship on and from 13.2.1958 and 1.11.1965, respectively. The petitioner was confirmed to the post of Clerk in the year 1969, but respondent No.4 although appointed earlier to the petitioner to the post of clerk, not having passed the departmental examination, was confirmed with effect from 13.3.1972. After bifurcation of the Judgeship of munger, Begusarai Judgeship was created and the petitioner, Respondent No.4 and Respondent No.5 opted for Begusarai Judgeship. A gradation list of Class III employees at Begusarai Judgeship was prepared, in which the petitioner was assigned seniority above Respondent No.4. Respondent No.4 submitted representation, which was rejected by the district Judge by order dated 4.7.1978. Thereafter, Respondent No.4 made an appeal by way of representation before the High Court, on the administrative side, but the said respresentation was also rejected by order dated 4.3.1989. Both petitioner and Respondent No.4 were promoted to the posts of Upper division Clerk on 1.4.1974 and, thereafter, in the Junior Selection grade posts in the cadre of Clerks. On 30.6.1990, the petitioner was communicated adverse comment in respect of his A. C. R. , against which he made representation before the high Court, on the administrative side, praying for expunction thereof. The said representation of the petitioner has not yet been disposed of. Following the death of Kadir hussaini, District Judges Sheristedar, respondent No.4 was promoted to the post of Sheristedar superseding the petitioners claim, although the petitioner was senior to him as per gradation list. The petitioner preferred an appeal on 20.2.1991 against the order of supersession before the High Court, on the administrative side. Following the death of Kadir hussaini, District Judges Sheristedar, respondent No.4 was promoted to the post of Sheristedar superseding the petitioners claim, although the petitioner was senior to him as per gradation list. The petitioner preferred an appeal on 20.2.1991 against the order of supersession before the High Court, on the administrative side. In the meantime, by order No.106 (M) dated 1.10.1992 (a copy whereof is annexed and marked as Annexure 7 to the writ petition), respondent No.5 was promoted to the post of Supertime Selection grade superseding 5 persons, including the petitioner. According to the petitioner, he has been unjustly and arbitrarily superseded in the matter of promotion to the post of Sheristedar by Respondent No.4 and in the matter of supertime selection grade by Respondent No.5. 3. Respondents have filed separate counter-affidavits. In the counter-affidavit filed on behalf of respondent No.2, the Registrar, high Court of Judicature at Patna, it is contended that the appeal of respondent No.4 against the fixation of his seniority below the petitioner was rejected by the High court on the adminsitrative side by order dated 4.3.1989. It is also contended that a representation, made by the petitioner before the High court on the administrative side against the order dated 8.2.1991 of the District Judge, Begusarai, appointing Respondent No.4 to the post of Sheristedar, was disposed of and the order was communicated on 24.2.1994 as follows : "with reference to the correspondence resting with your letter No.1246, dated 14.9.93, on the subject noted above, i am directed to say that the court have been pleased to order that no interference is necessary in view of subsequent retirement of the persons concerned. "the petitioner may be informed accordingly. Service Book in two Vols. along with P. C. R. of Sri Kaushal Kishore Singh and service Book along with P. C. R. in two vols. of Sri Gonu Pathak, Sheristedar (since retired) received with your letter no.1544, dated 20.7.91, are being returned herewith. " 4. In the supplementary counter-affidavit filed on 26.4.1994 on behalf of Respondent No.3, it is contended that promotion of Respondent No.5, rajdeo Singh, to supertime selection grade was made on merit after consideration of service, records of all other staff by the then District judge, Begusarai. in paragraphs 4 and 5 of the supplementary counter-affidavit, respondent No, 3 has contended as follows: "4. in paragraphs 4 and 5 of the supplementary counter-affidavit, respondent No, 3 has contended as follows: "4. That respondent No.5 filed a representation on 24.4.1990 to provide him one of the post of Supertime Selection grade by placing him senior in rank of the seniority list of the existing Senior selection Grade Assistants and while forwarding his application to this Hon ble court for consideration, respondent No.5 was considered the best reliable person in the work of Nazarat. " "5. That it is further stated that rajdeo Singh, respondent No.5, was appointed to officiate in the Senior Selection grade to work as District Nazir by order dated 3.3.1984. Subsequently by order No.105 (M) dated 28.9.92/1.10.92 the oficiating period of respondent No.5 from 3.3.1984 to 31.10.1986 was treated to be substantive and accordingly he was appointed in Senior Selection Grade w. e. f.3.3.1984. " In the second supplementary counter-affidavit filed on behalf of respondent No.3 on 8.9.1994, it is contended that Respondent No.5 has been appointed as acting Sheristedar. in the judgeship with effect from 21.2.1994 in view of his superior record of service in comparison to others including the petitioner. 5. Respondent No.5 in his counter-affidavit has contended that while the petitioner was appointed in senior selection grade with effect from 1.4.1984, he was appointed in senior selection grade with effect from 3.3.1984 by order dated 28.2.1992 and he became senior to the petitioner in that grade and as such he was rightly appointed in the supertime scale by the impugned order before the petitioner. Respondent No.5 further contended that in consideration of his good records of service, he was posted as Nazir by order dated 3.3.1984. In the year 1988, he made a representation before the then District Judge for allowing him the payment of officiating pay of senior selection grade and the then District Judge referred the matter to the High Court and the High court, on the administrative side, by letter dated 30.9.1988, intimated the district Judge that the District Judge being the head of the department, was competent to grant officiating pay to any clerk of the Civil Court if deputed to officiate on a superior post involving assumption of duties or responsibilities of greater importance under the relevant provisions of the Bihar Service Code. Thereafter, respondent No.5 was appointed as senior selection grade clerk retrospectively on and from 3.3.1984. 6. Thereafter, respondent No.5 was appointed as senior selection grade clerk retrospectively on and from 3.3.1984. 6. Learned counsel for the petitioner submitted that the service condition of promotion of Class HI and Class IV staff in the judgeship is governed by the Bihar Civil Court staff (Class III and Class IV Rules framed by the High Court in exercise of the power conferred under Article 235 of the Constitution of India. Rule 59 of the Rules provides that appointment to the higher grade of the ministerial establishment should ordinarily be made by seniority from lower grade provided the incumbent possesses the prescribed educational and other qualifications as laid down under the Rules or any other existing law. The petitioner, admittedly, passed all departmental examinations and is senior to Respondents No.4 and 5 and save and except that adverse comment in the A. C. R. communicated to the petitioner by order dated 30.6.1990, he was not communicated any adverse remark in his a. C. R. in respect of any year. The petitioner has been promoted regularly from lower division clerk to upper division clerk, and, thereafter, to junior selection grade and the senior selection grade in due time. Against the adverse remark communicated to the petitioner on 30.6.1990, the petitioner submitted an appeal before the High Court, on the administrative side, for expunction thereof and the representation/appeal has not yet been disposed of. It is well settled that if any representation against the adverse remark is not disposed of, during the pendency of the representation, the same adverse remark cannot be taken into consideration to deny promotion to the employee. As such, the promotion of Respondent no.4 to the post of Sheristedar by order dated 8.2.1991 is illegal and arbitrary and the petitioner is entitled to be promoted to the post of sheristedar with effect from 8.2.1991. Learned counsel further submitted that Respondent No.5 was provisionally promoted to senior selection grade clerk in the time scale of pay of Rs.785/-25-1135-EB-25-1210 with effect from 1.11.1986 because Shri Shambhu Paswan, Shri ganga Prasad Marar and Shri Anoop lal Paswan, who were senior to him, did not qualify in the court-fee stamp reporting test and they did not become eligible for promotion. Learned counsel for the petitioner submitted that the order dated 28th september/ 1st October, 1992, annexed as Annexure d/2 to the counter-affidavit filed on behalf of respondent No.5 treating the officiating period of working on the post of Nazir from 3.3.1984 to 31.10.1986 as substantive and appointing him to senior selection grade Assistant with effect from 3.3.1984, is wholly arbitrary, illegal and without jurisdiction and cannot be sustained. The promotion of respondent No.5 to the super time scale in supersession to the claim of the petitioner by order dated 1.10.1992 (Annexure 7 to the writ petition) with effect from 1.1.1986 is equally arbitrary and illegal and cannot be sustained. 7. Learned counsel for Respondent No.3, on the other hand, submitted that the order dated 28th september/1st October, 1992, was passed in view of the direction of the High Court to pass appropriate order in regard to the claim of respondent No.5 for granting benefit for discharge of duties and responsibilities in higher post of nazir, and Respondent No.5 having been found very efficient and sincere in the discharge of his duties and responsibilities as Nazir-a post equivalent to senior selection grade post, was appointed to the senior selection grade with effect from 3.3.1984 by order dated 28.9.1992. The petitioners A. C. R. , is not satisfactory and there are adverse comments in his A. C. R. 8. Mr. Ram Balak Mahto, learned counsel for Respondent No.5, drew my attention to the order dated 8.2.1991, in which the District judge considered the case of the petitioner, Respondent No.4, Gonu pathak and others and submitted that it is apparent from the said order that the petitioner was once severely warned by order dated 17.7.1971 for not starting supplementary records in a G. R. case and was censured by order dated 6.8.1985 for gross negligence and carelessness in not incorporating the order of the High court. There is yet another adverse remark against him by the then District Judge. The post of Sheristedar is an important post and the petitioner having such adverse remark has rightly been denied promotion to the supertime scale and the Sheristedar. On the other, respondent No.5 has brilliant record of service and he had been holding the responsible post since 3.3.1984 and he was accordingly granted senior selection with effect from 3.3.1984 and, thereafter, promoted to the supertime selection grade. On the other, respondent No.5 has brilliant record of service and he had been holding the responsible post since 3.3.1984 and he was accordingly granted senior selection with effect from 3.3.1984 and, thereafter, promoted to the supertime selection grade. As such, no interference is called for with the impugned orders. 9. I have considered the submissions made on behalf of the petitioner and Respondents and perused the materials on record. On perusal of the impugned order dated 8.2.1991 (Annexure 5), by which respondent No.4 was selected and appointed as Sheristedar, I find that the cases of the petitioner, Respondent No.4, Respondent No.5 and others were considered by the District Judge. In view of the decision of the Hon ble Supreme Court in the case of Direct Recruit Class II Engg. Officers Association vs. State of maharashtra, reported in AIR 1990 supreme Court-1607, in which the Hon ble Supreme Court held that once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation, the District Judge held that Respondent No.4, who was appointed earlier to the petitioner, was senior to the petitioner. Besides, on merit, records of service of Respondent No.4 was superior to the petitioner. The District Judge also found that Respondent No.4 was going to retire shortly on 30.11.1993 and the petitioner might get chance in future. From the contents of the order dated 8.2.1991, I find that the petitioner was not adjudged unfit for his promotion to the post of Sheristedar. The High Court, on the administrative side, also did not interfere with the order as in the meantime, respondent No.4 had already retired from service. In view of the decision of the Hon ble Supreme Court in the case of Direct Recruit Class II Engg. Officers Association (supra), The respondent No.5 should be treated senior to the petitioner since he was appointed on regular basis according to rules in the ministerial service before the petitioner, notwithstanding, the orders passed by the District judge earlier on 4.7.1978 and by the high Court on 4.3.1969 rejecting the representation of Respondent No.4, against fixation of his seniority above the petitioner. As such, there is no infirmity in the impugned order dated 8.2.1991 (Annexure 5), which warrants interference. 10. As such, there is no infirmity in the impugned order dated 8.2.1991 (Annexure 5), which warrants interference. 10. As regards the impugned order dated 1.10.1992 (Annexure 7)purporting to appointing Rajdeo singh, Respondent No.5, provisionally to the supertime selection grade post with effect from 1.1.1986, I find force in the submission of the learned counsel for the petitioner that the impugned order has been passed arbitrarily superseding the petitioners claim in violation of the petitioners fundamental right as guaranteed under Articles 14 and 16 of the Constitution of India. Admittedly, the petitioner is much senior to Respondent No.5; inasmuch as while the petitioner was appointed in the year 1958, Respondent No.5 was appointed in the year 1965. Learned counsel for Respondents No.3 and 5 supported the impugned order on the ground that in view of the fact that Respondent No.5 had been continuously working on the important post of Nazir on and from 3.3.1984 and by Order No.105 (M) dated 28th September/1st October, 1992 (Annexure D/2 to the counter-affidavit of Respondent No.5) in consideration of his representation, the officiating period from 3.3.1984 to 31.10.1986 rendered by him was treated as substantive and he was appointed as senior selection grade Assistant with effect from 3.3.1984. Consequently Respondent no.5 became senior to the petitioner and others in the cadre of the senior selection grade Assistants and that in consideration of the merit and seniority, he was appointed in the supertime selection grade with effect from 1.1.1986. Respondent No.5, no doubt, worked as Nazir carrying higher responsibility during the period from 3.3.1984 to 31.10.1986 and the High court, on the administrative side, by order dated 30.9.1988 disposed of the representation directing as follows: "with reference to your letter, dated 29.1.1988 on the above subject, I am directed to say that the District and Sessions Judge being the Head of the department under Appendix-3 (Item No.20) of the Bihar Service Code is competent to grant officiating pay to any clerk of the Civil Courts, if deputed to officiate on a superior post, involving assumption of duties or responsibilities of greater importance, under the provisions of Rules 89 to 103 of the Bihar Service Code and to request you to dispose of the petition of Shri Rajdeo Singh in the light of the relevant rules of the Bihar Service Code, at your own end. " Rules 89 to 103 of the Bihar service Code only speak about giving financial benefit and not regularisation of appointment to the higher post, to which an incumbent is deputed to officiate. The District judge has, thus, acted illegally and without juridiction in passing Order no.105 (M) dated 28th Scptember/1st october, 1992, purporting to treat the officiating period from 3.3.1984 to 31.10.1986 as substantive and appointing Respondent No.5 in the cadre of the senior selection grade assistant with effect from 3.3.1984. That being so, Respondent No.3 also acted illegally and arbitrarily in passing the impugned Order No.106 (M) dated 1.10.1992 purporting to promote Respondent No.5 to the super Time Selection Grade post with effect from 1.1.1986. 11 Learned counsel for Respondents No.3 and 5 submitted that respondent No.5s service career was all along very efficient and brilliant, in consideration whereof, he was appointed to the higher post. According to Rule 59 of the rules, appointment to the higher grade of the ministerial establishment should oridinarily be made by seniority from lower grade. In the instant case, as already observed, under rules 89 to 103 of the Bihar Service code, the maximum benefit, that could be granted to Respondent No.5, was the financial benefit i. e. the benefit of pay scale of higher post, to which post he was officiating and not beyond that. But his appointment to the post of Senior Selection grade Assistant could not be given effect to from the date of his officiating the post carrying higher responsibilities superseding other persons, who are senior to him. Respondent No.5 was appointed by Order no.76 (M) dated 11th December, 1987, to senior selection grade post with effect from 1.11.1986 according to the seniority and that has been rightly done after consideration of the materials on record. He might be given benefit of the pay scale of senior selection grade for holding the post of nazir with effect from 3.3.1984, but his appointment to the senior selection grade on regular basis, would take effect from 1.11.1986 and not beyond that. He might be given benefit of the pay scale of senior selection grade for holding the post of nazir with effect from 3.3.1984, but his appointment to the senior selection grade on regular basis, would take effect from 1.11.1986 and not beyond that. The impugned order No.106 (M) dated 1.10.1992 passed by the District judge, Begusarai (Annexure 7) pur-porting to appoint Respondent No. to the supertime selection grade post with effect from 1.1.1986 is, there fore, whollyn arbitrary and illegal and cannot be sustained and consequently the appointment of respondent No.5 as acting Sheristedar on and from 21.2.1994 against the vacant post following the retirement of Respondent no.4, is also arbitrary and cannot be sustained. 12. For the reasons stated above, this petition is allowed and the impugned order bearing No.105 (M) dated 28th September/1st October, 1992 and Order No.106 (M)dated 1.10.1992 are quashed. 13. From the letter bearing No.1502 dated 29.10.1993 (Annexure- 12)it appears that there are three posts of supertime selection grade Clerks and at the time when the impugned order bearing No.106 (M) dated 1.10.1992 was passed, the vacant post in the supertime selection grade was existing. The petitioner being the seniormost in the senior selection grade, in terms of Rule 59 of the rules, he ought to have been accommodated in the supertime selection grade. Accordingly, I direct Respondent No.3 to consider the cases of the petitioner and other senior incumbents for appointment to the post of supertime selection grade on and from 1.1.1986 and fill up the posts in the cadre of the supertime selection grade and, thereafter, to consider the cases of the incumbents, who are appointed to supertime selection grade, for the appointment/promotion to the post of sheristedar as per the provisions of rule 59 of the Rules. Respondent no.3 shall complete the selection of the incumbents for their appointment to the three sanctioned posts of supertime selection grade and also to the post of District judges Sheristedar on regular basis within a period of one month from the date of receipt of a copy of this order. While considering the cases for the promotions of the employees, the adverse remark against an employee, in respect of which no communication is made or if communication is made, but a representation against that is pending, shall not be taken into consideration to deny him promotion to the higher post. While considering the cases for the promotions of the employees, the adverse remark against an employee, in respect of which no communication is made or if communication is made, but a representation against that is pending, shall not be taken into consideration to deny him promotion to the higher post. I make no order as to cost. Petition allowed.