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Such exercise of power on the part of the State is not unknown in service jurisprudence. Even assuming that such a power did not exist in Rule 31 of the Rules, the same can be traced to Rule 39 of the Rules, as noted hereinbefore."

Sometimes, it happens that quota of promotees are not filled up for years to come and appointment of direct recruits are also sometimes delayed. The direct recruits under the well settled proposition of law are entitled to claim seniority from the date of their resumption of duty or appointment. While preparing seniority list in case roster is applied on 1:1 basis between promotees and direct recruits and vacancies of promottes are of much earlier year then it creates anomaly and may amount to placement in the seniority list over and above the selectees of earlier year vacancies. To remove this anomaly R.K. Sabharwal case (supra) provides 40-point roster which has been affirmed by Hon'ble Supreme Court in All India Judges Association case (supra). Their lordship in the case of All India Judges Association (supra) has provided 40-point roster strictly keeping in view the quota of promotees and direct recruits. The observations made by Hon'ble Supreme Court in the case of All India Judges Association (supra) case in para 29, are reproduced as under:

"29. ... The 40-point roster has been considered and approved by this Court in R.K. Sabharwal v. State of Punjab. One of the methods of avoiding any litigation and bringing about certainty in this regard is by specifying quotas in relation to posts and not in relation to the vacancies. This is the basic principle on the basis of which the 40-point roster works. We direct the High Courts to suitably amend and promulgate seniority rules on the basis of the roster principle as approved by this Court in R.K.Sabharwal case as early as possible. We hope that as a result thereof there would be no further dispute in the fixation of seniority. It is obvious that this system can only apply prospectively except where under the relevant rules seniority is to be determined on the basis of quota and rotational system. The existing relative seniority of the members of the High Judicial Service has to be protected but the roster has to be evolved for the future. Appropriate rules and methods will be adopted by the High Courts and approved by the States, whenever necessary by 31.3.2003."

65.Hon'ble Supreme Court in the case of B.S. Mathur (supra), had relied upon the directions issued in the All India Judges Association (supra) with regard to 40-point roster, as held in R.K. Sabharwal case (supra). Their lordship had provided 40-point roster keeping in view the reservation made for direct recruits and promotes within their respective quota. While directing to amend the Delhi High Judicial Service Rules, in consonance with the directions issued by the Hon'ble Supreme Court in All India Judges Association II (supra), provided that till Rules are amended, the principle of "continuous length of service" shall be applied to determine seniority of the officers of Delhi Higher Judicial Service.

67.In the present case, admittedly, the regular vacancies of promotes with regard to the year 1992-94 was filled up in the year 1996 in pursuance to which, the promotes resumed duty in the same year. Regular appointment of promotees and the direct recruits were done in the year 1998. Accordingly, there appears to be breakage of principle of "quota and rota". In case the appointments is not done within the same year, then roster of 1:1 basis shall make direct recruit senior to promotees appointed against the vacancy of earlier year (1992-94), which does not seem to be intention of legislature while providing roster system. The roster can very well apply in case the promotes and direct recruits are appointed in the same recruitment year against their respective vacancies but in case promotes are officiating on temporary post against their promotional post within their quota and join earlier to direct recruits, then seniority may not be prepared by applying the roster. Various pronouncements of Hon'ble Supreme Court (supra) are to remove such anomalies. That is why, their lordships of Hon'ble Supreme Court in the case of Judges Association (supra), directed to amend the Rules throughout the country with regard to promotes and direct recruits providing 40-point roster relying upon R.K. Sabharwal case (supra).