JUDGMENT 1. - The petitioner entered the Rajasthan Judicial Service on 21.9.1967. He was promoted as Chief Judicial Magistrate on 9th May, 1975. In the year 1979, the petitioner's case was considered for promotion to the Rajasthan Higher Judicial Service (R.H.J.S.) along with others and on being found suitable for promotion by the Full Court, he was promoted to the RHJS on the basis of his regular selection. However, the order dated 17.3.1979 indicated that the promotion was on officiating basis, nevertheless the fact remains that this appointment by promotion was based on his regular selection in accordance with the rules. In this order dated 17.3.1979, the petitioner's name was order dated 17.3.1979, the petitioner's name was shown at SI. No. 2. the petitioner's case is that this appointment was against a vacancy on substantive post and therefore, it was a case of regular appointment. While the petitioner was holding the post in RHJS, on the basis of the order dated 17.3.1979 (Annexure-1 with the writ petition), an order was passed on 21.12.1984 posting the petitioner from R.H.J.S. to R.J.S. as the Chief Judicial Magistrate. It is the case of the petitioner that before posting him as the Chief Judicial Magistrate, neither any opportunity nor an action inspired notice was given to him and even adverse remarks for the years 1980-1982 were conveyed to him later on. The petitioner had challenged this order dated 21.12.1984 by way of filing a writ petition before the Supreme Court but the same was dismissed. It is the case of the petitioner that Civil Writ petition No. 614/85 which has filed before the Supreme Court by the present petitioner was heard along with other matters and by a short order dated 13.3.1985, the writ petitions were dismissed. The contents of the order dated 13.3.1985 passed by the Supreme Court in Civil Writ Petition No. 614/85 are reproduced as under: "Upon hearing counsel the Court made the following order: All the writ petitions are dismissed. The transfer petitions are allowed and writ petitions pending in the High Court of Rajasthan are withdrawn to this Court and are dismissed. Signed order is placed on the file." 2. The transfer petitions are allowed and writ petitions pending in the High Court of Rajasthan are withdrawn to this Court and are dismissed. Signed order is placed on the file." 2. The charges and the allegations which had formed the basis for affecting the order dated 21.12.1984 against the petitioner, were then made the subject matter of an enquiry under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (in short 'the CCA Rules') and a charge sheet was issued to the petitioner on 23rd July, 1986 proposing an enquiry under Rule 16 of the CCA Rules, against him. The detailed enquiry under Rule 16 of the CCA Rules, resulted into the petitioner's exoneration and on that basis, the order dated 25.10.1988 was passed exonerating the petitioner. Thereafter, the petitioners case was reconsidered for his promotion to the RHJS and upon being found suitable in Full Court meeting, an order was passed on 16.5.1990 again promoting the petitioner to RHJS. The petitioner then submitted representation, from time to time, the first one being dated 11.10.90 and the last one being dated 5.11.98, contending inter alia therein that on 17.3.1979 he had been promoted on the basis of regular selection; an order was passed in the year 1984 posting him as the Chief Judicial Magistrate because an enquiry under Rule 16 of the CCA Rules was proposed; and whereas that enquiry had resulted into his exoneration, he was entitled to be restored to the position at which he had reached in the year 1979 in the RHJS. It was also been stated that a provisional seniority list was issued in the meanwhile on 31.7.1998 with regard to the holders of the posts in the RHJS and against this provisional seniority list also, the petitioner made representation because in this list, the position has not been assigned to him as per his first appointment to RHJS by way of promotion which was given to him way back on 17.3.1979 but seniority had been assigned to the petitioner on the basis of order dated 16.5.1990. The petitioner was thus made to run down by a period of eleven years notwithstanding his exoneration in the enquiry on the basis of the allegations of which, the order dated 21.12.1984 was passed against him. The petitioner was thus made to run down by a period of eleven years notwithstanding his exoneration in the enquiry on the basis of the allegations of which, the order dated 21.12.1984 was passed against him. For the purpose of considering the representations against the provisional seniority list dated 31.7.98, the High Court constituted a high level committee. This Committee observed that whereas the promotion which was given to the petitioner on 17.3.1979 was based on a regular selection and was accorded by the competent authority in accordance with the rules, the said promotion was regular in nature and could not be treated as adhoc/officiating. Yet, in the final seniority list of RHJS officers which was issued on 28.4.99, the petitioner was not assigned correct seniority position, which should have been accorded to him on the basis of his date of regular, promotion as 17.3.1979 instead of 16.5.90. A view was taken that though the petitioner had been substantively appointed in RHJS along with or before his juniors, in view of the his reversion to the lower post in the RJS, his seniority cold not be restored. The petitioner thereupon submitted yet another representation on 19.8.1999 but this representation was rejected as per the communication dated 24.11.99 that his representation against the final seniority list had been considered and filed. 3. At this juncture, the petitioner approached this Court by way of filing the present writ petition on 4.1.2000 claiming seniority in RHJS from 17.3.1979 and that the communication dated 24.11.99 be set aside. 4. Notices of this petition were issued to the respondents on 28.4.2000. Thereafter, when the matter came up before the court on 14.7.2000, time was granted to the respondents to file reply and an order was also passed that the matter shall be listed for final hearing. 5. On behalf of the High Court, reply to the writ petition was filed on 23.9.2000 to which a rejoinder dated 29.11.2000 was filed. 6. The seniority disputes in Rajasthan Judiciary were also considered by Justice Naolekarr Committee and in Part-II of the report o this Committee, consisting of Hon'ble Mr. Justice RR Naolekar, Hon'ble Mr. Justice RK. Tewari and Hon'ble Mr. Justice M.A.A. Khan, the case of the present petitioner was considered at pages 36 to 42. A copy of this volume of the report was produced before us. Justice RR Naolekar, Hon'ble Mr. Justice RK. Tewari and Hon'ble Mr. Justice M.A.A. Khan, the case of the present petitioner was considered at pages 36 to 42. A copy of this volume of the report was produced before us. In this Report, the Committee has observed as under: "In so far as the first contention of Shri Bansal is concerned, the factual position with regard to the nature of vacancies and the procedure adopted and followed by the Full Court in the process of appointment of Shri Bansal in RHJS were the same as have been found by us in sufficient detail in the case of Shri BD Gupta (Supra). Suffice it to say that the vacancies had been determined vide office note dated 1.8.78 and such vacancies were reported to be permanent in nature, character and duration. The confidential rolls, and the judgments of Shri Bansal and fourteen others were examined by the Promotion Committee and then certain officers including Shri Bansal were recommended for appointment in RHJS on the basis of seniority-cum-merit as required by Rule 12 of the RHJS Rules. Thus, the procedure laid down by Rule 13 was followed by the Full Court in the matter of appointment of Shri Bansal and some other officers in RHJS against permanent vacancies. Therefore, on examination of his case, Shri Bansal is found to have been appointed in substantive capacity against a permanent vacancy. With regard to the second contention of Shri Bansal relating to the merits of his reversion from the higher post of ADJ in RHJS to a lower post of CJM in RJS the Committee, on the detailed discussion made and for reasons recorded on the point in the case of Shri BD Gupta (No. 2) (supra), is of the opinion that the reversion of Shri Bansal, on facts and in law, amounted to "reduction in rank", consequently attracting the provisions contained in Article 3fl of the Constitution. The form of the order whereby Shri Bansal was appointed in RHJS and stating that his appointment had been made on officiating basis against temporary post and the form of the order reverting him to a substantive post in the RJS from the higher post of ADJ in RHJS, which post he was holding in substantive capacity and which was permanent in nature, character and duration, did not represent the correct position of facts and hence, are not decisive on the point. ......Judged in the light of the law laid down by the Apex Court in the above cases, the case of reversion of Shri Bansal from the post of ADJ in RHJS, which post he was holding in substantive capacity, to the lower post of CJM in RJS, amounted Io "reduction in rank" attracting the provisions of Article 311 of the Constitution of India. Since before his reversion, neither any disciplinary enquiry was held against him, nor was he given an opportunity of being heard, reversion order was bad in law, non-est and ineffective qua rights of Shri Bansal to hold a post in RHJS. Coming now to the third contention of Shri Bansal, that the dismissal of his writ petition by the Supreme Court in limine would not operate as res judicata in his case and therefore, he should be deemed to be retaining his seniority at No. 1, on the basis of his appointment in RHJS in the year 1979 earlier to the appointment of Shri K.L. Vyas (No. 1) in the year 1980 and that of Shri B.D. Gupta (N. 2) in the year 1983, the Committee fails to ignore and overlook the fact that the case of reversion of Shri Bansal was, as informed by him, examined by the Apex Court in its special jurisdiction. As stated earlier, despite requests and efforts made by us, neither Shri Bansal nor the Registry placed before the Committee a copy of the relevant order of the Hon'ble Supreme court so as to enable us to appreciate the contention of Shri Bansal in right perspective. As stated earlier, despite requests and efforts made by us, neither Shri Bansal nor the Registry placed before the Committee a copy of the relevant order of the Hon'ble Supreme court so as to enable us to appreciate the contention of Shri Bansal in right perspective. Since this fact has come to the knowledge of the Committee that the matter of reversion of Shri Bansal had been taken to the Apex Court and that the writ petition of Shri Bansal was dismissed, allegedly in limine, we, sitting on administrative, side, hesitate to restore the seniority to Shri Bansal on the basis of acceptance of his first two contentions, as discussed above. But for this fact, the Committee would have placed the seniority of Shri Bansal at No. 3 below Shri B.D. Gupta (No. 2) in the final seniority list of the RHJS Officers. In the cases of Kishan Lal v. State of J&K (1994) 4 SCC 422 and Kirloskar Brothers v. Employees' State Insurance Corporation (1996) 2 SCC 682 relied upon by Mr. Bansal, it was held that an order passed in violation of the principles of natural justice is void and that the dismissal of SLP without laying any law, does not operate as res judicata in other case. For the reasons stated above and being conscious of our sitting on behalf of the Full Court in administrative capacity, we decline to ignore and overlook the fact of dismissal of Shri Bansal's petition, particularly when we have not been able to know the extent of judicial review exercised by the Apex Court in the matter of reversion of Shri Bansal. In view of the above, we decline to interfere with the seniority assigned to Shri Bansal in the provisional seniority list, which is subject to modification as a result of acceptance of rejection of the claims of other officers, if any, claiming seniority above Shri S.K. Bansal. However, in view of the discussion made here in above Shri S.K. Bansal, shall be considered and deemed to have been appointed in RHJS in substantive capacity in a permanent post w.e.f. the date he was reappointed in RHJS in 1990. The objection/representation of Shri S.K. Bansal is disposed of in the manner stated above." 7. Mr. However, in view of the discussion made here in above Shri S.K. Bansal, shall be considered and deemed to have been appointed in RHJS in substantive capacity in a permanent post w.e.f. the date he was reappointed in RHJS in 1990. The objection/representation of Shri S.K. Bansal is disposed of in the manner stated above." 7. Mr. Paras Kuhad learned counsel for the petitioner has made the following submissions : (i) Admittedly, the promotion which was accorded to the petitioner in RHJS in the year 1979 was a promotion based on regular selection and therefore, there was no question of his reversion in the year 1984 without following the procedure prescribed under the Rules; (ii) Even if it is assumed, without admitting, that the petitioner cannot fall back to the legality, correctness, validity and propriety of the order which was passed against him in the year 1984 because he failed before the Supreme Court, still the benefits of his promotion made in the year 1979 could not be denied for the purpose of seniority for the simple reason that the order dated 21.12.84 posting the petitioner as the Chief Judicial Magistrate in Rajasthan Judicial Service from Rajasthan Higher Judicial Service was passed on the basis of and in the context of certain allegations which were made the subject matter of enquiry under Rule 16 of the CCA Rules subsequent to the passing of the order dated 21.12.84 and in that enquiry, the petitioner had been exonerated. Once he had been exonerated in enquiry under Rule 16 of the CCA Rules and thereafter, he was again promoted to RHJS in the year 1990, this promotion should have been ante dated from 17.3.1979 and the petitioner's seniority should have been accordingly restored and for the purpose, dismissal of the writ petition by the Supreme court cannot come in his way. 8. in support of his submissions as aforesaid, Mr. Paras Kuhad, learned counsel for the petitioner has cited the following cases before us : 9. 8. in support of his submissions as aforesaid, Mr. Paras Kuhad, learned counsel for the petitioner has cited the following cases before us : 9. In Keshav Deo and another v. State of U.P. and others reported in (1999) 1 SCC 280 , the question considered by the Supreme Court was as to whether the appellants in that case could be deprived of the benefit of their officiating services prior to the delay in granting approval for making them regular on the posts of Assistant Engineer, was attributable to the State and the Commission as the appellants were fully qualified to be appointed and approved as Assistant Engineers even on the date when they were appointed to officiate as such. In this case the Supreme court has also deprecated the inconsistent stands taken by the State Government and for taking a wrong stand before the Supreme Court when the SLP was filed by other affected persons. The conduct of the Government was held to be highly reprehensible and was found to be responsible for prolonging the dispute between the parties. 10. In Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra and others reported in (1990) 2 SCC 715 it was held that once an incumbent is appointed to a post according to rule, his seniority has to be counted form the date of his appointment and not according to the date of his confirmation. 11. As against it, the submissions made by Mr. Ajay Rastogi, learned counsel for the respondent is that 'once the petitioner's petition challenging the order dated 21.12.84 had failed before the Supreme Court, there was no question of falling back to the position as was obtaining on 17.3.1979 and he cannot claim the benefit of promotion to RHJS from any date earlier than 16.5.90 i.e. the date when he was promoted again. The petitioner's posting in RJS from RHJS in the year 1984 and his failure in the challenge to that order before the Supreme court, was by itself sufficient to deny him any benefit of RHJS for any period prior to his promotion again to RHJS in 1990. 12. We have considered the submissions as have been made before us, have gone through the pleadings of the parties and have also considered the law as has been laid down in the different cases which have been cited before us. 13. 12. We have considered the submissions as have been made before us, have gone through the pleadings of the parties and have also considered the law as has been laid down in the different cases which have been cited before us. 13. In our opinion, there is no doubt that the promotion which was accorded to the petitioner in the year 1979 was a promotion based on regular selection in accordance with the rules; and it is also an agreed position that the order dated 21.12.84 posting the petitioner as the Chief Judicial Magistrate in RJS was passed without any enquiry and without even an action inspired notice to him. Be that as it may, the fact remains that the petitioner challenged the order dated 21.12.84 by way of filing writ petition before the Supreme Court and he failed and therefore, it was not open for him to challenge the legality, correctness, propriety and validity of the order dated 21.12.84 before this Court in this writ petition and to that extent, we agree with the argument raised by the learned counsel for the respondent. However, the fact remains that after rejection of the petitioner's petition by the Supreme Court, the allegations in the context of which the order dated 21.12.84 was passed, were made the subject matter of an enquiry by the respondent itself and in that enquiry, the petitioner had been exonerated. Once the petitioner had been exonerated in the enquiry in the year 1988, his candidature for promotion to RHJS should have been considered on the premise that there was not material against him relating to any misconduct and in the year 1990, when he was again promoted to RHJS, his promotion ought to have been ante dated to 1979 as the material on the basis of which the order dated 21.12.84 was passed against him, became non-existence in 1988 with his exoneration in the enquiry which was subsequent in point of time to the rejection of his petition by the Supreme Court in 1985 and it is also clear that till the year 1979, there was no adverse remark against him and in fact, the petitioner had been found to be suitable in the year 1979 in regular election and was promoted as such. Adverse remarks of any year subsequent to 1979 could not have come in his way for promotion in the year 1979. Adverse remarks of any year subsequent to 1979 could not have come in his way for promotion in the year 1979. Therefore, we do not find any force in the submissions of Mr. Ajay Rastogi that merely because the writ petition filed by the petitioner before the Supreme Court challenging the order dated 21.12.84 was rejected, by the order which has been quoted in the earlier part of this order, as had been passed by the Supreme Court on 13.3.85 and because he could not challenge the validity of the order dated 21.12.84 now because of the Supreme court order dated 13.3.85, the petitioner could not agitate his claim for seniority from the year 1979 even if he had been exonerated subsequently in the enquiry. According to us, the petitioner had to suffer his posting to RJS from RHJS on the basis of the order dated 21.12.84 and it may not be open for him to challenge this suffering because his petition was rejected by the Supreme Court in the year 1985, nevertheless, after his exoneration in the enquiry in the year 1988, when the petitioner was promoted again to RHJS in the year 1990 and when he represented against the provisional seniority list that he should be assigned seniority from the initial date of his promotion to RHJS in 1979, his claim ought to have been accepted for the purpose of seniority. It cannot be said that the order dated 21.12.84 posting the petitioner from RHJS to RJS was passed without any basis and this basis was the allegations which were made the subject matter of enquiry; the petitioner has been exonerated in the enquiry, after a detailed enquiry. One fails to understand, that once the clean chit was given to the petitioner in the enquiry, on what basis, he could be deprived of the benefit of his regular selection/promotion to the RHJS in the year 1979 when the grounds on the basis of which the order dated 21.12.84 was passed, became non-existant the moment he was exonerated in the enquiry. The impact of the order dated 13.3.85 passed by the Supreme Court is that the petitioner has to suffer his posting to RJS from RHJS until he was promoted again but that impact cannot impinge upon his claim for seniority from 1979 because after the Supreme Court order dated 13.3.85, the petitioner had been exonerated in the year 1988, in the enquiry which was held against him washing out the grounds on the basis of which the order dated 21.12.84 was passed. It is unfortunate that repeated representations made by the petitioner in this regard did not yield any result and his representation against the provisional seniority list was rejected vide communication dated 24.11.1999 without assigning any reasons. 14. Seniority is a consequence of appointment and if it is found that the appointment by way of promotion as was given to the petitioner in the year 1979 should be found to be in order in view of the petitioner's exoneration in the enquiry, merely because promotion was again accorded to him in the year 1990 and at that time, he was not relegated to the position of 1979, could hardly be a ground to deprive the petitioner of his claim for seniority from 1979. The petitioner's claim for seniority from 1979 is a direct consequence of his promotion in the year 1979 itself for his regular selection and simply because he was promoted again in RHJS in the year 1990 and in between the order dated 21.12.84 intervened posting the petitioner to RJS from RHJS, he cannot be deprived of the seniority from 1979. The petitioner's claim for assigning him seniority from the year 1979 has been wrongly rejected by communication dated 24.11.99. 15. Up-shot of the aforesaid discussion is that this petition succeeds, the communication dated 24.11.99 is hereby quashed and set aside. The respondents are directed to assign seniority to the petitioner in RHJS treating him to be promoted in RHJS in terms of the order dated 17.3.79 and his name may be interposed in the provisional seniority list of RHJS as was issued on 31.7.1998 and finalised on 28.4.1999 in accordance with law, after affording an opportunity to all concerned who are likely to be effected. The petitioner shall also be entitled to all consequential benefits except financial benefits. 16. The writ petition is allowed in the terms as aforesaid. No order as to costs.Writ Petition Allowed. The petitioner shall also be entitled to all consequential benefits except financial benefits. 16. The writ petition is allowed in the terms as aforesaid. No order as to costs.Writ Petition Allowed. *******