JUDGMENT 1. - Since common question is involved in both the writ petitions, hence are being decided by present order. 2. Question arises for consideration is as to whether if an Officer was in service on the date from which benefit of selection scale has to be granted, but denied from right of consideration on the premise of he being not in service/retired on the date, the post in selection scale having become available? 3. Petitioner (Swaroop Krishna Agrawal), as alleged, joined service on having become member of Rajasthan Judicial Service in May, 1970; and was promoted to the post of Additional District Judge in May, 1985 and was given rank of District Judge vide order dated 11/08/1987 and while holding the post of District Judge, took voluntary retirement w.e.f. 16/11/1997 on having become a judicial member of Central Administrative Tribunal, where from he finally retired. 4. However, Judicial Officer junior to him in the cadre of Rajasthan Higher Judicial Service ("RHJS") namely Shri Jagdish Lal Jat, was granted benefit of selection scale w.e.f. 01/07/1996 vide order dated 23/03/2005 (Ann.7). 5. Petitioner (Radhey Shyam Gupta) as alleged, joined service on having become a member of Rajasthan Judicial Service on 25/10/1972 and on being promoted became a member of RHJS on 13/07/1988 and on having attained age of superannuation retired from service on 31/12/2000. However, Shri SNP Dave, junior to him in the cadre of Rajasthan Higher Judicial Service ("RHJS") was granted benefit of selection scale w.e.f. 29/09/1996 vide order dated 23/03/2005 (Ann.7). 6. Both the petitioners appeared in person and jointly submit that they were senior to Shri Jagdish Lal Jat & Shri SNP Dave, in the cadre of RHJS who were granted benefit of selection scale w.e.f. 01/07/96 & 29/09/1996 respectively pursuant to State Government order dated 07/05/2003 (Ann.1) on completion of five years' continuous service in the RHJS cadre subject to suitability for grant of selection scale; as such could not have been deprived from their right of consideration; and the decision taken by respondents for not having considered the petitioners on the premise of they being not in service on having retired from service prior to vacancies being available at a later stage vide order dated 07/05/2003 which is wholly arbitrary and their action is in violation of Art.14 & 16 of the Constitution. 7. 7. Petitioners further submit that both of them made representations apprising the respondents about their grievance that despite being eligible pursuant to State Government order dated 07/05/2003 (Ann.1) & senior in the cadre of RHJS and entitled for selection scale atleast from the date of their juniors (named supra) having been granted vide order dated 23/03/2005 (Ann.7), their candidature was not taken note of by respondents; while on the contrary, without examining their eligibility for grant of selection scale, their grievance was rejected on the premise that posts of selection scale were limited having fallen vacant on year-wise basis from 1996-97 pursuant to order dated 07/05/2003 and by that time, those posts were filled up by the judicial officers having been granted selection grade posts. The petitioners further submit that the reasons assigned by respondents while rejecting their representations smack of arbitrariness and is not legally sustainable being in violation of Art.14 of the Constitution. 8. In reply to writ petition, respondents averred that appointment to the posts of selection scale is governed by R.23 of RHJS Rules, 1969 and is made on the basis of merit - taking note whereof, it was finally resolved by Committee in its report dated 30/03/1998 that the service record of judicial officers with 5 outstanding/very good remarks with no adverse entry in preceeding seven years be considered for assessing their merit for grant of selection grade; which was approved by Full Court resolution dated 30/04/1999 & 01/05/1999. 9. However, vide order dated 07/05/2003 (Ann.1), while implementing directions given by Apex Court vide order dt. 21/03/2002 in Writ Petition (Civil)-1022/1989 (All India Judges Association & Ors. v. Union of India) read with recommendations of 1st National Judicial Pay Commission dated 11/11/1999 pursuant to cabinet order No.75/2002 dated 21/08/2002, the State Government ordered ad infra: "1.4 (d) Selection Scale: The members of the Rajasthan High Court Judicial Service shall be eligible for promotion, permanently, to twenty five percent of the effective strength of the RHJS Officers w.e.f. 1st July, 1996 in the selection grade on completion of not less than five years of continuous service in the cadre. The twenty five percent of the effective strength in the RHJS was/is:- Year Posts Years Posts 1996-1997 46 1997-1998 49 1998-1999 48 1999-2000 51 2000-2001 47 2001-2002 57 2002-2003 71 2003-2004 71 (II) PROMOTION to the selection grade shall be made on merit and suitability in all respect with due regard to seniority and no member of the service shall be entitled as of right to such promotion." 10. Taking note whereof, respondents averred that the year-wise strength of posts in selection grade stood revised vide order dated 07/05/2003 and according to revised strength of posts, a committee constituted by the Chief Justice examined service record of eligible judicial officers in the cadre of RHJS falling within zone of consideration so as to recommend names of suitable officers for selection scale of RHJS. It has also been averred that the Committee considered the record of eligible RHJS Officers falling within zone of consideration including officers who were previously considered but were not granted selection scale, as per criteria approved by Full Court resolution dated 30/04/1999 viz. consideration of record of judicial officers for seven years with 5 outstanding or very good remarks with no adverse entry for assessing their merit; but such of RHJS officers having retired prior to availability of vacancy at relevant time were not taken into consideration by the Committee; and since petitioners stood retired on 15/11/1997 (after noon) & 31/12/2000, their candidatures were not considered for grant of selection scale by respondents; and their representations were rejected on the premise that since they stood retired prior to availability of vacancies having arisen at relevant time, their candidature was not considered for grant of selection scale. 11. Officer-In-charge submits that both the petitioners were not in service & retired prior to State Govt. order dated 07/05/2003; as such were not considered for grant of selection scale; and the decision taken by the respondents is in conformity of Art.14 of the Constitution. 12. This Court has considered rival contentions made by both the parties appeared in person and with their assistance, examined the material on record. order dated 07/05/2003; as such were not considered for grant of selection scale; and the decision taken by the respondents is in conformity of Art.14 of the Constitution. 12. This Court has considered rival contentions made by both the parties appeared in person and with their assistance, examined the material on record. It remains un-controverted that both the petitioners were not considered by the respondents for grant of selection scale despite being eligible and senior on the date from which selection scale was granted to their respective juniors named (supra) only on the premise that they stood retired prior to availability of vacancies in the cadre of RHJS (selection grade) having fallen & stood revised pursuant to State Government order dated 07/05/2003 (Ann.1), which was issued while implementing order dt. 21/03/2002 passed by Apex Court in Writ Petition (Civil)-1022/1989 (All India Judges Association & Ors. v. Union of India) and so also recommendations of 1st National Judicial Pay Commission dated 11/11/1999 pursuant to cabinet order No. 75/2002 dated 21/08/2002. 13. However, as is evident from State Government order dated 07/05/2003 (Ann.1), posts in selection scale stood revised and re-determined on year-wise basis and as regards year 1996-97, 46 posts in selection scale became available pursuant to order dated 07/05/2003; and such officers having completed continuous service of five years in RHJS cadre were eligible for being considered for grant of selection scale; while as per criteria approved by Full Court resolution dated 30/04/1999, seven years' records of judicial officers were to be considered for assessing their merit for grant of selection scale. 14. 14. It goes without saying that officer having not less than five years' continuous service & being senior in RHJS cadre according to the seniority was eligible to be considered for selection scale w.e.f. 01/07/1996 or thereafter subject to their having fallen within zone of consideration, based on their record of service (supra) and right of consideration vested in favour of petitioners pursuant to State Government order dated 07/05/2003 against the year-wise vacancy of 1996-97 during which they were in service, for grant of selection scale from the date their juniors (Shri Jagdish Lal Jat & Shri SNP Dave) indeed were granted such benefit and their right of fair consideration could not have been divested by respondents only on the premise that they stood retired from service prior to vacancies being made available and strength of RHJS cadre (selection scale) being revised subsequently vide order dated 07/05/2003. 15. That apart, once vacancies stood revised by respondents on year-wise basis vide order dated 07/05/2003 (Ann.1) w.e.f. 01/07/1996 during which petitioners indisputably were in service and which is the date of consideration in regard to eligibility of RHJS officer from the date, selection scale was granted to the Officers junior to them in RHJS cadre. Indisputably, in instant case, both the petitioners were members of RHJS cadre on the date from which, benefit off selection scale has been granted to their juniors (supra). Shri Jagdish Lal Jat RHJS junior to petitioner (SK Agrawal) while Shri SNP Dave, RHJS junior to petitioner (Radhey Shyam Gupta) were granted selection scale w.e.f. 01/07/96 & 29/09/96 respectively, on which dates, each of petitioners was a member of RHJS service. It is not the case of respondents that either of petitioners was not holding eligibility on the date from which their juniors (supra) were granted benefit of selection scale. In considered opinion of this Court, petitioners had a fair right of consideration and denial thereof on the premise of their having retired prior to vacancies being made available & stood revised subsequently vide order dated 07/05/2003, is certainly in violation of Art. 14 & 16 of the Constitution and the action of respondents impugned herein deserves to be set aside. 16. Consequently, writ petitions succeed and are hereby allowed. 16. Consequently, writ petitions succeed and are hereby allowed. Rejection of grievance of petitioners for consideration for grant of selection scale from the date of their juniors having been granted vide orders dated 23/03/2005 (Ann.7) in regard to each of petitioners is hereby quashed & set aside. Respondents are directed to consider candidature of both the petitioners for grant of selection scale from the date their juniors named (supra) in the RHJS cadre and on consideration of their service record, if found suitable, they may be granted notional benefits of selection scale from the date of their juniors having been granted and their terminal benefits be revised as admissible under Pension Rules. No costs.Writ Petitions Allowed. *******