ORDER 1. The instant writ petition has been filed by the petitioner by making following prayers:- (a) By an appropriate writ, order or direction the representations dated 8.8.2003, 20.8.2004 and 26.8.2013 may kindly be accepted and the petitioner may be allowed to change his cadre from Liftman to Junior Judicial Assistant from 8.8.2003 and the order passed by the Rajasthan High Court dated 4.9.2003 (Annexure-4) dated 2.9.2004 (Annexure-5) and 29.8.2014 (Annexure-6) may kindly be quashed and set aside. (b) by an appropriate writ, order or direction the respondents may be directed to change cadre of Technical staff Lift Operator to that of Junior Judicial Assistant from earlier dates i.e. from the date of publication of the order dated December 5,2002 or from the date when he was confirmed to the post of Liftmen (Lift Operator) on 8.7.2004 and the order allowing change of cadre may be revised and the date of order promoting the petitioner to the post of Judicial Assistant may also be revised. 2. The petition was initially filed by the petitioner seeking a direction to change his cadre of Technical Staff Lift Operator to Junior Judicial Assistant from earlier dates. The petitioner amended his writ petition and as such, the earlier order passed by the respondents, rejecting the representation of the petitioner, has been put to challenge. 3. Learned counsel appearing for the petitioner Mr.Daksh Pareek submitted that the petitioner was initially appointed as Liftman by an order dated 09.07.1996 and the petitioner came to be confirmed on the post of Liftman by an order dated 08.07.2004. 4. Learned counsel for the petitioner submitted that before confirmation of the petitioner, he had submitted his representation for change of his cadre by submitting an application and such representation of the petitioner came to be rejected by an order dated 04.09.2003. 5. Learned counsel submitted that the petitioner again submitted an application for change of his cadre on 20.08.2004 and the same representation was again rejected by the respondents by an order dated 02.09.2004 and further the petitioner was asked to desist from writing again and again in respect of change of his cadre from Liftman to Junior Judicial Assistant. 6. Learned counsel submitted that the petitioner again submitted an application for change of his cadre by submitting representation dated 26.08.2013 and the representation was again rejected by an order dated 29.08.2014. 7. 6. Learned counsel submitted that the petitioner again submitted an application for change of his cadre by submitting representation dated 26.08.2013 and the representation was again rejected by an order dated 29.08.2014. 7. Learned counsel submitted that a joint representation was submitted by the petitioner alongwith other persons and as such, the petitioner was asked to file a separate representation for change of his cadre and on such demand being made by the respondents to file a separate representation, the petitioner filed his separate representation dated 08.12.2015. 8. Learned counsel submitted that by an order dated 13.04.2016 representation of the petitioner was considered in a positive manner and as such, the respondents allowed the petitioner to change his cadre from the post of Liftman Operator to the post of Junior Judicial Assistant against the vacancies of 15% quota of Technical Staff in the cadre of Junior Judicial Assistant as per the Rajasthan High Court Staff Service Rules, 2002 (hereafter 'the Rules of 2002'). 9. Learned counsel submitted that the petitioner came to be further promoted on the post of Judicial Assistant in pay matrix L-8 by an order dated 27.04.2018. 10. Learned counsel submitted that the petitioner after his confirmation had served a notice for demand of justice on the respondents to change his cadre from the post of Liftman Operator to that of Junior Judicial Assistant with retrospective effect and to grant all the consequential benefits to the petitioner. 11. Learned counsel submitted that when no heed was paid to the request of the petitioner, he has approached this Court. 12. Learned counsel for the petitioner Mr.Daksh Pareek has made following submissions:- 1. The change of cadre of the petitioner with effect from 13.04.2016 is arbitrary and the appointment of the petitioner is required to be treated as 'Junior Judicial Assistant' with retrospective effect and the appointment has to relate back of the petitioner i.e. from initial date of appointment. Learned counsel submitted that the 'relate back theory' will be applicable in the present facts of the case and since respondents have not considered relationship of the petitionerEmployee with the present employer right from the first date of appointment, the arbitrary action of the respondents is to be declared bad in the eye of law. 2. Learned counsel submitted that the 'relate back theory' will be applicable in the present facts of the case and since respondents have not considered relationship of the petitionerEmployee with the present employer right from the first date of appointment, the arbitrary action of the respondents is to be declared bad in the eye of law. 2. The Rule 6 of the Rules of 2002 provides for determination of vacancies and the Appointing Authority is required to determine on 01st April every year, the actual number of vacancies occurring during the financial year. Learned counsel submitted that had the respondents determined the vacancies in each year, case of the petitioner would have been considered against the earlier available vacancies for the purpose of his first appointment on the post of Junior Judicial Assistant. 3. Learned counsel submitted that the Division Bench of this Court in D.B. Writ Petition (Parole) No.7578/2005 titled as Ramesh Sharma Vs. The State of Rajasthan & Ors. vide order dated 16.03.2011, has considered the similar issue and benefit of absorption has been granted to employees who were earlier working as Telex Operator and later on, adjusted on the post of LDC. 13. Learned counsel submitted that on parity also the case of the present petitioner is required to be considered for giving him similar relief. 14. Per contra, learned counsel for the respondents Mr.Prateek Kasliwal submitted that the present petition may not be entertained by this Court, as the petition suffers from delay and laches. 15. Learned counsel submitted that the petitioner has assailed the orders, which were passed by the respondents in the year 2002, 2003 & 2004, rejecting the representations of the petitioner for change of his cadre. 16. Learned counsel for the respondents submitted that the petitioner is also blowing hot and cold together, as on the one hand he had sought his change of cadre by submitting an application in the year 2015 and after change of his cadre and taking benefit, now wants to assail the orders which were passed by the Authorities. 17. Learned counsel for the respondents submitted that the petitioner does not have any vested right to be considered for appointment for change of his cadre. 18. 17. Learned counsel for the respondents submitted that the petitioner does not have any vested right to be considered for appointment for change of his cadre. 18. Learned counsel submitted that as per Notification dated 05.12.2002 issued by the respondents, in reference to the appointments to be made on the post of Junior Judicial Assistant/Enquiry Clerk/Record Weeder, discretion has been granted only to the Hon'ble Chief Justice by way of absorption of Technical Staff by having 15% quota of the total number of vacancies. 19. Learned counsel submitted that as per second proviso to the said notification, the Hon'ble Chief Justice after considering the available vacancies, if has used his discretion, no insistence should be allowed to be made by the petitioner to claim his absorption from back date. 20. Learned counsel submitted that the petitioner was initially appointed on the post of Liftman and his pay scale was same as that of LDC. 21. Learned counsel submitted that the petitioner has not suffered in any manner on account of his change of cadre and right from initial appointment of the petitioner, he was drawing the similar pay scale, which was paid to LDC. 22. Learned counsel further submitted that as far as issue of determination of vacancies is concerned, Rule 6 of the Rules of 2002 provides for determination of vacancies every year. However, determination of vacancies is in respect of appointments, which are to be made by the Appointing Authority and the same could not be applicable in respect of power conferred on Hon'ble The Chief Justice for having discretion of filling up of 15% posts from Technical cadre. 23. Learned counsel submitted that the petitioner is incorrectly drawing applicability of Rule 6 viz-a-viz Rules provided in notification dated 05.12.2002. 24. Learned counsel submitted that the petitioner has already been working on the promoted post of Judicial Assistant from the last more than four years and now by change of cadre, the entire issue relating to seniority and pay scale of other employees will also be affected. 25. We have heard learned counsel for the parties and perused the material available on record. 26. It would be appropriate to quote Rule 6 of the Rules of 2002 and notification dated 05.12.2002 issued by Hon'ble The Chief Justice. '6. 25. We have heard learned counsel for the parties and perused the material available on record. 26. It would be appropriate to quote Rule 6 of the Rules of 2002 and notification dated 05.12.2002 issued by Hon'ble The Chief Justice. '6. Determination Of Vacancies.- (1) (a) Subject to the provisions of these Rules, the Appointing Authority shall determine on 1st April every year, the actual number of vacancies occurring during the financial year. (b) Where a post is to be filled in by a single method as prescribed in the rules or Schedule- I, the vacancies so determined shall be filled in by that method. (c) Where a post is to be filled in by more than one method as prescribed in the Rules or Schedule-I, the apportionment of vacancies, determined under clause (a) above, to each such method shall be done maintaining the prescribed proportion for the overall number of posts already filled in. If any fraction of vacancies is left over, after apportionment of the vacancies in the manner prescribed above, the same shall be apportioned to the quota of various methods prescribed in a continuous cyclic order giving precedence to the promotion quota. 'Provided that while selecting the candidates for the post in direct recruitment, so advertised, the appointing authority may, on occurrence of additional vacancies, not exceeding 50% of the advertised vacancies, also select suitable persons to meet such additional requirement.'5 (2) The Appointing Authority shall also determine the vacancies of earlier years, yearwise which were required to be filled in by promotion, if such vacancies were not determined and filled earlier in the year in which they were required to be filled in.' B. Notification dated 05.12.2002 'HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ORDER Jodhpur, December 5, 2002 Estt/ H.C./2001/378.-In pursuance of Rules 4, 5, 7 & 22 of the Rajasthan High Court Staff Service Rules, 2002 and in supersession of all previous Orders issued from time to time in this behalf, Hon'ble the Chief Justice has been pleased to specify the following methods of recruitment and qualifications for appointment to the various posts specified in the second column of Schedule-I 67 appended to the said rules. PART -I A. MINISTERIAL STAFF (1)JUNIOR JUDICIAL ASSISTANT 68/ ENQUIRY CLERK/ RECORD WEEDER.- Recruitment to the post of Junior Judicial Assistant /Enquiry Clerk/Record weeder shall be made by direct recruitment after holding a competitive examination: Provided that 15% of the total number of vacancies of the Junior Judicial Assistant /Enquiry Clerk/Record Weeder in the Court shall be reserved for being filled in by promotion from amongst the class IV Employees who have put in five 69 years service in the establishment of the Court and possess the academic qualification of Senior Higher Secondary Examination (10+2) or its equivalent examination of the Rajasthan Secondary Education Board or equivalent examination from any University or Board, recognised by the Government, for the purpose: Provided further that 15% of the total number of vacancies of the Junior Judicial Assistant may be filled in at the discretion of the Chief Justice by absorption on request from amongst the technical staff on the establishment of the High Court provided that the candidate is Senior Higher Secondary Examination (10+2) or its equivalent examination of the Rajasthan Secondary Education Board or equivalent examination from any University or Board recognised by the Government for the purpose. 70 (i) EDUCATIONAL QUALIFICATIONS.- Candidate must be a graduate of any University established by law in India or equivalent examination from any University recognised by the Government for the purpose and must have basic knowledge of computer -71' 27. The first issue to be decided by this Court is in respect of legal right of the petitioner to claim his absorption from retrospective effect. 28. This Court, on bare perusal of Rule, finds that Hon'ble Chief Justice has been given a discretion by way of absorption from Technical Staff on the post of Junior Judicial Assistant, after considering the total number of vacancies of the Junior Judicial Assistant and only 15% of the total number of vacancies of Junior Judicial Assistant, can be filled on the sole discretion of the Hon'ble Chief Justice by absorption on request from amongst the technical staff on the establishment of the High Court provided they possess the requisite educational qualification. 29. 29. This Court finds that request made by the petitioner at earlier point of time was declined by the Appointing Authority and the moment the Hon'ble Chief Justice found that certain persons can be absorbed from Technical Staff to the post of Junior Judicial Assistant, decision was taken by issuing an order dated 13.04.2016 and accordingly, the petitioner on his request was allowed to change his cadre from the post of Liftman Operator to the post of Junior Judicial Assistant. 30. This Court further finds that the request for change of cadre made by the petitioner, at earlier point of time, was not considered and accordingly, he was informed. 31. This Court finds that if at earlier point of time, discretion was not exercised by the Hon'ble Chief Justice, no direction can be given by this Court to reopen the issue, as why, Hon'ble The Chief Justice at relevant time, did not exercise his discretion. 32. The submission of learned counsel for the petitioner that appointment of the petitioner has to relate back to initial request, suffice it to say by this Court that the theory of 'relate back' cannot be made applicable in the instant case, as the availability of vacancies and discretion of the Hon'ble Chief Justice has been used at appropriate time for considering the relevant Rule in mind. The absorption of the petitioner can also not be claimed as a matter of right and same is dependant on certain conditions like availability of vacancies in the cadre and there is an outer limit of 15% of total number of vacancies to be filled on the post of Junior Judicial Assistant by the Hon'ble Chief Justice by way of absorption. 33. The submission of learned counsel for the petitioner that there has been violation of Rule 6 of the Rules of 2002 as determination of the vacancies had not taken place at relevant time and as such, the petitioner has been deprived to get his absorption, suffice it to say by this Court that the Appointing Authority has to determine the number of vacancies, which are required to be filled during financial year and the method of recruitment as prescribed in the schedule, is required to be kept in mind. 34. 34. The submission of learned counsel for the petitioner that the Division Bench of this Court in the case of Ramesh Sharma (supra) has laid down the law that a person who has rendered service, his total length of service is required to be considered on the post of LDC. 35. This Court has gone through the judgment cited by the counsel for the petitioner and finds that in that case, the issue was not in respect of exercise of power by the Hon'ble Chief Justice under the Rules of 2002 and this Court further finds that the sanction was granted in that case in relation to absorption of that petitioner on the post of LDC and all the benefits were conferred on the basis of length of service as sanction granted by the State Government. 36. This Court finds that the above referred judgment is of little assistance to counsel for the petitioner. 37. This Court finds that the present writ petition lacks merit and as such, the same stands dismissed.