State Of ... vs Dr. Kishore Tandon And Ors.
2021 Latest Caselaw 5971 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

1.	Heard Dr. L.P. Mishra, learned counsel appearing on behalf of the State/appellants and Shri Anil Kumar Tiwari, learned Senior Advocate assisted by Shri Apoorva Tiwari, learned Counsel for the respondents. 

2. All the appeals have been preferred against the judgment and order dated 21.09.2017 passed by learned Single Judge in Writ Petition (S/S) No. 5828 of 2015 (Dr. Kishore Tandon & Ors. Vs. State of U.P. & Ors.) along with connected Writ Petition (S/S) No. 12598 of 2017 (Hari Shankar Nath Tiwari & Ors. Vs. State of U.P. & Ors.), on the ground that the directions issued by the learned Single Judge with regard to reopening of the appointment/regularisation of the Lower Division Assistants (hereinafter referred as "LDA") in U.P. Secretariat under U.P. Secretariat Upper Division Assistant & Lower Division Assistant (Regularisation of Officiating Promotion) Rules, 1990, are in utter violation of the directions issued by a coordinate Bench of this Court in Special Appeal No. 31 of 2005 vide judgment and order dated 8th May, 2015, which have been upheld by the Hon'ble Apex Court in SLP (C) No. 23254 of 2014 vide order dated 29.03.2017.

3. Factual matrix of the case is that the respondents-petitioners, who were selected and appointed through U.P. Public Service Commission on the post of Lower Division Assistant (hereinafter referred to as the ''LDA'), approached the writ Court with the grievance that the directions issued by the coordinate Bench of this Court in Special Appeal No. 31 of 2005 dated 8th May, 2015 were not followed at the time of preparation of seniority list dated 08.09.2015. Further, Rule 9(2) of U.P. Government Servant Seniority Rules, 1991 was also not considered. The prayer sought by the respondent-petitioners in the said writ petition was that the seniority list of LDA of U.P. Secretariat is liable to be set aside. They also prayed for mandamus commanding the appointing authority to redetermine the seniority of the respondent-petitioners and place them in the seniority list after serial no. 810. The prayers sought in the said writ petition are reproduced hereunder:

"(a) to issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 08.09.2015 and the final seniority list for the cadre of assistant review officer as contained in Annexure No. 1 to this writ petition;

(b) to issue a writ, order or direction in the nature of mandamus commanding the respondent nos. 1 to 3 to re-determine the seniority of the petitioner and place them in the seniority list after serial no. 810."

4. While placing the facts of the case, Shri L.P. Mishra, learned counsel for the appellants submitted that in the Secretariat of Uttar Pradesh, the ministerial staffs were regulated under the provisions of U.P. Secretariat Ministerial Staff Rules, 1942 (hereinafter referred to as ''Rules, 1942').

Due to exigency of service, the persons working on the posts of Typist, Telephone Operators, Tele Printer, Talex Operator/Junior Grade Clerk were allowed to officiate as LDA from 1st April, 1989 and were continuing as such. Similarly, persons substantively appointed as LDA were allowed to officiate in the capacity of Upper Division Assistant (for short the ''UDA'). Learned counsel for the appellants submitted that thereafter, in exercise of powers conferred under Article 309 of the Constitution of India, Hon'ble Governor vide Notification dated 23.07.1990 was pleased to frame Rules for regularisation/appointment of the persons officiating/working on the post of LDA as well as UDA in the U.P. Secretariat. The said Rule is known as U.P. Secretariat Upper Division Assistant & Lower Division Assistant (Regularisation of Officiating Promotion) Rules, 1990 (hereinafter referred to as Rules, 1990).

Further submission advanced by Dr. L.P. Mishra is that on 23.07.1990, total sanctioned strength of LDA was 1259 (808 permanent + 451 temporary). However, as on the said date, i.e., on 23.07.1990, total 2032 persons were working as LDA, (28 persons, who were holding substantive post of LDA and 2004 persons, who were working as officiating LDA), the State Government, with the intention to regularise all the 2004 persons officiating/working on the post of LDA, vide Office Memo dated 6th August, 1990 created 773 temporary posts of LDA in accordance with law. Learned special Counsel also submitted that the aforesaid Office Memo clarifies that creation of the aforesaid posts are made only with the intention to regularise all the persons officiating/working on the post of LDA and no fresh appointment would be made on these posts. It further clarifies that when the regular vacancy arises, the person regularised on the temporary post shall be shifted/merged on the said regular post and his vacant post would be abolished automatically. Learned counsel for the appellants also submitted that all 2004 persons were regularised on the post of LDA w.e.f. 23rd July, 1990 by way of separate regularisation order to each individual under the provisions of the Rules, 1990. Thereafter, vide orders dated 24.07.1991 and 25.07.1991, the seniority list of LDA was issued.

5. Dr. L.P. Mishra, Special Counsel appearing for State of U.P./appellant submitted that Part II of Rules, 1942 provides the strength of the staff, which was divided in four groups. Group A is denoted as superior and it consists 4 cadres, Group B denotes as subordinate, which consists 5 cadres, Group C denotes Stenographer and Group D denotes miscellaneous petty posts, which are outside the purview of Commission. Part III of the Rules, 1942 provides the source of recruitment of the staff and the LDA are to be appointed by competitive examinations conducted by the Commission, subject to the provisions of Rules 14 and 24 of the Rules, 1942.

Relevant part of Part II as well as Part III of the Rules, 1942 are quoted hereunder :

"PART II - CADRE

Rule 3. Strength of the Staff - (1) The strength of the staff both permanent and temporary, shall be such as may be determined by the Governor from time to time:

Provided that the appointing authority may leave unfilled or hold in abeyance any vacant post in any cadre without thereby entitling any person to compensation.

Note - The present sanctioned staff consists of the following separate cadres:

(A) Superior

(1) Upper Division Assistants (including Assistants Superintendents) -114

(2) Translators (including Assistant Superintendents) - 24

(3) Journalists - 4

(B) Subordinate

(1) Treasurer - 1

(2) Budget Assistant - 1

(3) Reference Clerk (Including Accountant) - 29

(4) Lower Division Assistants - 106

(5) Hindi and Urdu Typists - 4

(C) Stenographers

Stenographers - 26

(D) Miscellaneous petty posts specified below which are outside the purview of the Commission

(1) Caretaker, Council House - 1

(2) Telephone Operators - 4

(3) Typewriter Mechanic - 1

(4) Junior Grade Clerks - 8

(ii) The staff as a whole does not constitute one service. The classes of posts enumerated under the heading "(A) Superior" in the Note above are not inter-changeable one another nor with the posts of stenographer. Members of a lower class have no right to posts in a higher class except to the extent indicated in these rules.

4. Status - The status of the staff is that of a non-gazetted subordinate ministerial service.

Note - The post of Caretaker, Council House has been treated as non-ministerial though minister servants may be appointed to it.

PART III - RECRUITMENT

Rule 5. Sources of recruitment - Recruitment to the staff shall be made as follows:

(A) Superior

1. Upper Division Assistants - By competitive examination conducted by the Commission, except as provided in rule 21.

2. Translators - By competitive examination conducted by the Commission, subject to the provisions of rule 12.

 
(B) Subordinate 
 
1. Treasurers, Additional Treasurers 			| By promotion under 
 
Assistant Treasurers,Treasurers-cum-Accountants  | rule 27 in consultation 
 
2. Accountants and Budget Assistants		| with the Commission.
 
(posts carrying special pay)
 

 
3. Reference Clerks (including posts of		| By promotion under 
 
Accountants and Budget Assistants 			| Rule 28
 
carrying no special pay)
 

 
							| By competitive 
 
							| Examinations
 
							| conducted by the
 
4. Lower Division Assistants 				| Commission  subject
 
							| to the provisions of
 
							|  rules 14 and 24.
 

 
(C) Stenographers
 
							| By competitive
 
							| Examination
 
							| conducted by the
 
Stenographers 					| Commission  subject
 
							| to the provisions of
 
							| rules 13. 
 

 
(D) Miscellaneous petty posts outside the purview of the Commission
 
(a) Caretaker, Vidhan Bhawan 			| By Selection under (b) Telephone Operators 				|  rule 20 without a
 
(c) Typewriter Mechanic				|  reference to the 
 
(d) Junior Grade Clerks				|  Commission.
 

 

5-A. Saving in respect of Estate Department - Notwithstanding anything contained in rule 5 or any other provision in these rules, such members of the staff of Government Estate Department as were holding substantive appointments in that department, immediately before April 1, 1965, shall, in consequence of the merger of the department with the Uttar Pradesh Secretariat, become and e deemed to be, on and from the said date, members of the staff within the meaning of rule 2(1).

9. Academic qualifications - The minimum academic qualification required of candidates for direct recruitment to various categories of posts shall be -

(1) Upper Division Assistants : A degree of a University.

(2) Translators (Hindi and Urdu) : A degree of a University. A candidate for the post of Translator must have taken one of het following languages in his degree examination:

(1) Urdu

(2) Hindi

(3) Persian

(4) Sanskrit

(5) Arabic

(3) x x x x x x x x x x x x x x x x

(4) Lower Division Assistants : Bachelor's degree from a recognised University.

Provided that the minimum academic qualification, in respect of the candidates who have been serving in the Secretariat as Lower/Upper Division Assistant from a date earlier than January 9, 1959 shall be High School Examination Certificate and after the aforesaid date it shall be Intermediate.

(5) x x x x x x x x x x x x x x x x x

(6) Stenographers : Intermediate Examination Certificate.

(7) (i) Telephone Operators : High School Examination Certificate

(ii) Junior Grade Clerks : Intermediate Examination Certificate

(8) Caretaker, Council House : Intermediate Examination Certificate

(9) Typewriter Mechanic : Efficiency in the repairs of typewriters with a thorough knowledge of their mechanism; preference being given to a candidate who possess the High School Examination Certificate.

9-A. Exemption from educational qualification of merged staff of Estate Department- Nothing contained in rule 9 shall apply or deemed to have ever applied to the members of the staff of the Government Estate Department to whom rule 5-A of these rules applies.

14. Reservation of vacancies in the posts of Lower Division Assistants in special circumstances -

(1) x x x x x x x x x x x x x x x x x

(2) The appointing authority may, in special circumstances but not generally, and with the concurrence of the Commission, reserve in any year up to eighty percent of the total number of permanent vacancies intended to be filled in that year, for department candidates who have rendered temporary or officiating service in the said or higher post for such total period as may be fixed in that behalf in consultation with the Commission and whose work is considered by the appointing authority to be satisfactory. The vacancies so reserved may be filled on the basis of a qualifying examination to be conducted by the Commission, from amongst candidates who come up to such standard as is considered by the Commission to be reasonable. There shall be no upper age limit for such candidates either for their appearance at the said qualifying examination or in the event of their success at that examination, for their appearance- on equal terms with the candidates for direct recruitment at any subsequent competitive examination referred to in rule 5 in respect of the posts of Lower Division Assistants.

(3) Notwithstanding anything contained in rule 14(2) or in any other rule, the appointing authority may, having regard to the exigencies of Public Service, fill in existing permanent vacancies in the posts of Lower Division Assistants to the extent of 80 percent from such departmental candidates who were recruited in previous years through the Commission against temporary vacancies or those recruited on the basis of a qualifying examination and who have completed at least one year's temporary or officiating service on the post of a Lower Division Assistant or on an higher post and whose record of service is considered to be satisfactory.

24. Reservation of vacancies in the posts of Lower Division Assistants - (1) One vacancy in the posts of Lower Division Assistants shall be reserved in every alternate year of recruitment, for such Telephone Operators and Junior Grade Clerks and approved candidates on the waiting lists for these posts as have rendered in the Secretariat a total service of not less than three years, including officiating or temporary service, as on the first day of the year in which the examination referred to in rule 5(B)(4) is held and whose work after a consideration of their character rolls and personal filed, if any, is considered by the appointing authority to be satisfactory and who come up at the said examination to such standard as is considered by the Commission to be reasonable."

6. Dr. L.P. Mishra next submitted that Rule 46 of the Rules, 1942 provides the determination of the seniority, which states that the seniority of a member of the staff shall ordinarily be determined in the class to which he is appointed by the date of his substantive appointment and in case of more than one person appointed on the same date, according to their respective positions in the waiting list.

Rule 46 of Rules, 1942 is reproduced hereunder:

"Rule 46. Seniority - The seniority of a member of the staff shall ordinarily be determined in the class to which he is appointed by the date of his substantive appointment and in the case of more than one person appointed in the same date according to their respective positions in the waiting list.

Provided that the seniority of such members of the staff as were holding substantive appointments in the Government Estate Department immediately before April 1, 1965 shall in consequence of the merger of that Department will the Uttar Pradesh Secretariat be determined in such a manner that for every two years of service rendered by them in a substantive capacity in that Department before the said date, they shall be allowed the benefit of one year's substantive service, and their seniority vis-a-vis the other members of the staff shall be fixed accordingly."

7. Dr. L.P. Mishra, learned counsel for the appellants submitted that for regularisation of officiating departmental candidates, Rule 14(2) of the Rules, 1942 was amended by way of promulgation of U.P. Secretariat Ministerial Staff Rules, 1982. On the advise of task force, for the smooth and expedite working in the Secretariat, the Government decided to abolish 427 posts of typists and to create 427 temporary posts of LDA vide Notification No. 697/20-E-5-110/87-TC/88 dated 10th February, 1989.

It has next been submitted by the learned counsel for the appellants that several employees, who were holding different posts as per the provisions of Rules, 1942, were given officiating charge of LDA and were performing the said duties for quite long time, as such, the State Government extended the benefit of regular appointment to those persons working on the higher posts, in officiating capacity, by promulgating the Rules, 1990 on 23.07.1990. Rule 2 of Rules, 1990 provides that it is having overriding effect on other Rules or Order. Rule 4 of Rules, 1990 provides that the person, who has initially been appointed on the post of Typist or Telephone Operators or Tele Printer or Talex Operator or Junior Grade Clerk and has subsequently been promoted in an officiating capacity to the post of LDA on or before 01.04.1989 and is continuing on such post, shall be considered for regular appointment in permanent or temporary vacancy that may be available to the post of LDA. Rule 6 of Rules, 1990 provides that appointment made under these Rules shall be deemed to be appointment under Service Rules, i.e., Rules, 1942. Rule 7 of the Rules, 1990 provides that persons appointed under the said rules, shall be entitled to seniority in accordance with the Service Rules and for this purpose, selection under these Rules, shall be deemed to be selection under Service Rules. Rules 4 to 8 (relevant) of the Rules, 1990 are as under :

" 4. (1) Any person who -

(i) was appointed to the post of Lower Division Assistant after being approved by the Commission for regular appointment to such post and was subsequently promoted in an officiating capacity, to the post of Upper Division Assistant before April 1, 1989 and is continuing as such ;

(ii) was initially appointed to the post of Typist or Telephone Operator or Teleprinter Operator or Telex Operator or Junior Grade Clerk, on a regular basis, and was subsequently promoted in an officiating capacity to the post of Lower Division Assistant before April 1, 1989 and is continuing as such or on a higher post;

shall be considered for regular appointment in permanent or temporary vacancy as may be available, to the post of Upper Division Assistant regarding persons falling under clause, (i) and to the post of Lower Division Assistant regarding persons falling under clause (ii).

(2) In making regular appointment under these rules, reservation for candidates belonging to the Scheduled Castes, Scheduled Tribes, and other categories shall be made in accordance with the orders, the Government in force at the time of consideration for regularisation under sub-rule (1).

(3) For the purpose of sub-rule (1) the appointing authority shall constitute a Selection Committee comprising;

1. One Officer not below the rank of Joint Secretary to the Government nominated by the Chief Secretary.

2. One Officer not below the rank of Joint Secretary to the Government in Personnel Department, nominated by Secretary to the Government in Personnel Department.

3. One Officer not below the rank of Joint Secretary to Government in Secretariat Administration Department nominated by Secretary to the Government Secretariat Administration Department.

The senior most officer shall be the chairman.

(4) The appointing authority shall, having regard to the provisions of sub-rule (1), prepare an eligibility list of the candidates, and place it before the Selection Committee alongwith character rolls and such other records as may be considered necessary to assess their suitability.

(5) The Selection Committee shall consider the cases of candidates on the basis of their records referred to in sub-rule (4).

(6) The selection Committee shall prepare a select list of candidates, and forward it to the appointing authority.

(7) Where in respect of any person, who is eligible for being considered for regularisation under these rules, a formal departmental enquiry is pending or there is an order of the Court on account of which or for any other reason due to which it is not possible to make regular appointment by promotion of such a person. Selection Committee shall place its recommendation in a sealed cover and shall mention this fact against the name of the concerned person in the list prepared under sub-rule (6).

5. The appointing authority shall, subject to the provisions of sub-rule (2) and (7) of rule 4, make appointments from the list prepared under sub-rule (7) ;

Provided that in the cases covered by the provisions of sub-rule (7) of rule 4, action shall be taken by the appointing authority in accordance with the orders of the State Government.

6. Appointments made under these rules shall be deemed to be appointments under the Service Rule.

7. A person appointed under these rules shall be entitled to seniority in accordance with the Service Rules and for this purpose selection under these rules shall be deemed to be selection under the Service Rules :

Provided that the inter-se seniority of the candidates so appointed shall be the same as it was in the cadre from which they were promoted on an officiating basis.

8. Where a person, promoted on officiating basis, is not found suitable or whose case is not covered by sub-rule (1) of rule (4) of these rules, he shall, at once, be reverted to the substantive post from which officiating promotion was made and on such reversion he shall not be entitled to any compensation."

8. Adding to his arguments, Dr. L.P. Mishra, learned counsel for the appellants submitted that thereafter in exercise of powers conferred by Article 309 of the Constitution of India, in suppression of all existing rules or orders in relation to the service of Ministerial Staff of U.P. Secretariat, the State Government promulgated U.P. Secretariat Ministerial Service Rules, 1999 (hereinafter referred to as ''Rules, 1999').

Rule 5 of the Rules, 1999 provides 6 cadres of the post in the service, i.e., (i) Upper Division Assistant, (ii) Lower Division Assistant, (iii) Telephone Operator, (iv) Fax Calculator-cum-Typist, (v) Typewriter mechanic, (vi) Junior Grade Clerk.

Source of recruitment for the post of LDA is 60% by direct recruitment through Commission, 40% by promotion through the Commission, from amongst substantive appointed Telephone Operator (6%), Typist (84%), Junior Grade Clerk (10%), who have completed 5 years' service as such, on the 1st day of the year of recruitment.

By way of 4th amendment known as U.P. Secretariat Ministerial Staff (4th Amendment) Rules, 2002 made in Rules, 1999, the nomenclature of UDA and LDA was changed by designating it as Sameeksha Adhikari (Reviewing Officer) and Sahayak Sameeksha Adhikari (Assistant Reviewing Officer).

9. It has also been submitted by the learned counsel for the appellants that requisitions dated 19.03.1991 and 13.04.1994 were sent to the Public Service Commission for selection on the posts of LDA, i.e., 61 and 76 respectively with corrigendum dated 18.11.1994. After completion of the selection process, the appointment orders were issued on 30th May, 1999, 11th July, 1996 and 3rd February, 1999. Thereafter, seniority list dated 05.05.2000 and 02.11.2000 was issued for the post of Assistant Reviewing Officer and its consequential order was issued on 21.11.2000.

The aforesaid seniority lists dated 24.07.1991, 25.07.1991, 05.05.2000 as well as 02.11.2000 and its consequential order dated 21.11.2000 were challenged before a writ Court by means of Writ Petition No. 6012 (S/S) of 2000 (Suryamani Singh & Ors. Vs. State of U.P. & Ors.) on the ground that the same have been made without following the Rules, 1942, Rules, 1990 and Rules, 1999.

10. The writ court while allowing the above writ petition vide order dated 06.08.2004 quashed the seniority list dated 02.11.2000 and consequential order dated 21.11.2000. The writ Court also directed to modify the seniority list published on 24.07.1991 and 25.07.1991 maintaining at least 20% quota for direct recruits appointed up to 18th February, 1999 and thereafter 60% for direct recruits and 40% for promotees or regularised promottees, by applying Rules 8(2) and 8(3)(i) of Seniority Rules, 1991 and to provide prescribed quota for each selection year in the light of observations made therein and thereafter to promote the directly recruited candidates on the post of UDA from the dates their juniors had been promoted with consequential benefits.

11. The aforesaid judgment dated 06.08.2004 was challenged by the State Government in Special Appeal No. 31 of 2005 (State Vs. Suryamani Singh & Ors.), on the ground that the persons, who were initially appointed on the posts of Typist, Telephone Operators, Tele Printer, Talex Operator/Junior Grade Clerk and were allowed to work on the post of LDA on officiating basis, were extended the benefit of regular/direct appointment under the provisions of U.P. Secretariat Upper Division Assistant (Regularisation of Officiating Promotion) Rules, 1990 w.e.f. 23.07.1990. Thereafter, the seniority list dated 24.07.1991 and 25.07.1991 were issued, which became the subject matter of consideration in Writ Petition No. 6200 (S/B) of 1993 along with other connected matters before a Division Bench of this Court and the said writ petition was dismissed on 02.07.1996. Further ground taken by the State Government in Special Appeal No. 31 of 2005 was that a Special Leave Petition No. 25086 of 1996 (U.P. Secretariat UDA Association Vs. State of U.P. & Ors.) was also filed against the aforesaid judgment of the writ Court dated 02.07.1996, which was dismissed by a speaking judgment and order dated 27th January, 1997 and the validity of the seniority lists dated 24.07.1991, 25.07.1991 along with Rules, 1990 were upheld, therefore, the same cannot be reopened.

It has vehemently been submitted by Dr. L.P. Mishra, learned Special Counsel for the appellants that the coordinate Bench of this Court vide judgment and order dated 08.05.2015 passed in said Special Appeal No. 31 of 2005 again upheld the validity of Rules, 1990 as also the appointment of the persons under Government Order dated 23.07.1990 under Rules, 1990 declaring them as direct recruits and, thus, the selection and regular appointment made under Rules, 1990 has attained finality,

12. Reiterating his submissions with regard to justification of creation of 773 temporary posts of LDA by the State Government to give regular appointment to the persons officiating/working on the post of LDA, Dr. L.P. Mishra submitted that as on 23.07.1990, 2032 persons (2004 officiating + 28 substantively appointed) were working on the post of LDA, but as the substantive vacancies available were 1259 (permanent 808 + temporary 451), vide Government Order dated 06.08.1990, 773 temporary posts of LDA were created by the State Government. Again clarifying the position, learned counsel for the appellants submitted that Para 2 of the Rules, 1990 provides that aforesaid vacancies are temporary posts in the cadre of LDA up to 28th February, 1991 and the persons when merged/shifted in the regular cadre posts, the aforesaid created 773 posts will not be filled up in future and these posts shall be automatically deemed abolished.

The Government Order dated 06.08.1990 is being reproduced as under :

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13. Dr. L.P. Mishra further submitted that the coordinate Bench while upholding the validity of Rules, 1990, held that the persons appointed in accordance with the Rules, 1990 are direct recruitees. It is further observed that benefit of Rules, 1990 was given to 2032 persons working/officiating on the post of LDA and the 773 posts of LDA were temporarily created vide order dated 06.08.1990. It is also observed by the coordinate Bench that 773 persons were appointed/regularised prior to the declaration of vacancies, however, the seniority can be claimed by the incumbents from the date of substantive appointment against the vacancies, meaning thereby, 773 persons are entitled to get the seniority from the date of availability of the vacancies, i.e., 06.08.1990.

The coordinate Bench observed that at the time of implementation of Rules, 1990, available vacancies of LDA were not examined. Special appeal was allowed by setting aside the judgment and order of the writ Court dated 6th August, 2004 as also the seniority list dated 2nd November, 2000 as well as the rejection of representation dated 21.11.2000 and all consequential actions. The coordinate Bench also clarified that the seniority lists of LDA are to be determined in view of the observation and principles spelled out in the judgment as well as the Rules and Regulations, applicable as per law. After exercise is completed, the seniority list dated 24.07.1991 and 25.07.1991 would stand modified, accordingly, if necessary fall out of such exercise. Applications for validity of Rules, 19990 was also rejected.

14. Learned special Counsel for the State also submitted that aforesaid judgment of the coordinate Bench dated 8th May, 2015 was challenged in SLP (C) No. 23254 of 2014 before the Hon'ble Apex Court, which was also dismissed vide order dated 29.03.2017.

However, in the meantime, seniority list dated 08.09.2015 was issued in compliance of the order dated 08.05.2015 passed in Special Appeal No. 31 of 2005. The said seniority list dated 08.09.2015 was challenged by the private respondents herein by approaching the writ Court on the ground that the seniority list dated 08.09.2015 has been issued in gross violation of the specific directions of this Court issued in Special Appeal No. 31 of 2005. Further ground of challenge made in the writ petitions was that the petitioners, who were direct recruits on the post of LDA through the U.P. Public Service Commission on a requisition sent in respect of vacancies and were appointed during the years 1996 to 1999, are loosing their seniority as their substantive appointment was being altered to 2000-2001. Their grievance was that as 773 temporary/supernumerary posts were created for the purpose of regularisation/appointment of the officiating persons on the post of LDA, thus, the said persons appointed on the said 773 post could not count seniority and their names could not be included in the seniority list.

Learned counsel also submitted that another ground in the writ petition was that the cadre strength of LDA (now Assistant Reviewing Officer) was 886 at the time of joining of respondent-petitioners, therefore, they are entitled to get their seniority within the cadre strength.

15. Submission of the learned Special Counsel for the State is that the correct facts were not placed before the learned Single Judge by the respondent-petitioners and the said petition was allowed vide order dated 21.09.2017. He also submitted that the directions given by the coordinate Bench in Special Appeal No. 31 of 2005 dated 08.05.2015 was complied in true sense by the State Government by finding out the vacancies as were available on 23.07.1990.

On 22.07.1990, cadre strength of LDA was 1259 (808 permanent + 451 temporary) and on the said date, i.e., on 22.07.1990, 578 persons were having lien against the 1259 posts of LDA. Further, 550 LDAs were officiating on the post of UDA, who were regularised on the post of UDA on 23.07.1990 in pursuance of the Rules, 1990. It has next been submitted that after giving promotion to 550 LDA on the post of UDA, available vacancies were 1231 (550 + 681).

He also submitted that 2032 persons were working on the post of LDA on 22.07.1990, out of which, 28 persons were substantively appointed persons and rest 2004 persons were working as officiating LDA. As the regular appointment was made against the said 2004 posts, but since only 1231 posts of LDA were available, therefore, on 06.08.1990, 773 temporary additional posts of LDA were created and remaining persons were also regularised. The coordinate Bench, at the time of deciding the Special Appeal No. 31 of 2005 held that the persons appointed under Rules, 1990 were direct recruittee, therefore, 1231 persons are entitled to get their seniority from 23.07.1990 and rest of the persons, i.e., 773 are entitled for their seniority since 06.08.1990. He also submitted that the respondent-petitioners came in the cadre later, therefore, they are entitled their seniority from the date of their substantive appointment. He also conceded the facts that 773 persons, those were regularly appointed under the Rules, 1990 are entitled their seniority from 06.08.1990 as prior to the availability of the posts, seniority cannot be given. He also submitted that temporarily created posts vide Government Order dated 06.08.1990 are validly counted within the cadre of LDA till the merger of all the persons within the regular cadre, i.e., 1259. He also submitted that direction of learned Single Judge in relation to the opening of issue of regularisation of persons appointed on the post of LDA under Rules, 1990 dated 23.07.1990, is contrary to the judgment of the coordinate Bench and the regularisation cannot be opened when the decision of coordinate Bench dated 08.05.2015 has already been upheld by the Hon'ble Apex Court. Therefore, the judgment passed by the writ court, which is under challenge, is liable to be set aside.

16. Learned special Counsel for the appellants also submitted that the 773 posts of LDA created vide Government Order dated 06.08.1990, are cadre posts. In support of his argument, he relied on the decisions of the Hon'ble Apex Court in the cases of J.S. Yadav Vs. State of U.P. & Anr., (2011) 6 SCC 570 and Union of India Vs. Puspa Rani, (2008) 9 SCC 242. He also drew attention of this Court on Rule 9(22) of U.P. Fundamental Rules, 1987, that defines the ''permanent post' as a post carrying a definite rate of pay sanctioned without limit of time.

He next submitted that a person is entitled to reckon his seniority from the date of his substantive appointment. To substantiate his arguments that, in case, a person is appointed against supernumerary post, he is entitled for his seniority from the date of his substantive appointment, Dr. L.P. Mishra placed reliance on the judgments of the Hon'ble Apex Court in the cases of Pramod Kumar Trivedi Vs. State of U.P., 2012 (11) ADJ 253, Union of India & Anr. Vs. Dr. Akhilesh Chandra Agarwal, (1998) 4 SCC 107, Dr. D.K. Reddy & Anr. Vs. Union of India & Ors., (1996) 10 SCC 177.

17. Learned counsel appearing for the appellants in the connected appeals also adopted the arguments advanced by Dr. L.P. Mishra, learned Special Counsel appearing for the State.

18. Shri Apoorva Tiwari appearing on behalf of the respondent-petitioners, on the other hand, submitted that there is no illegality in the order dated 21.09.2017 passed by the learned Single Judge.

Placing reliance on the judgments of the Hon'ble Apex Court in the cases of Rajasthan State Industrial Development & Investment Corporation Vs. Subhash Sindhi Cooperative Housing Society, (2013) 5 SCC 427 and N. Ramachandra Reddy Vs. State of Telangana, (2020) 16 SCC 478., learned counsel for the respondent-petitioners submitted that if substantial justice has been done between the parties, no interference is needed.

He further submitted that before issuing seniority list, availability of vacancies prior to the enforcement of the Rules, 1990 were not calculated in the form of separate chart. He also submitted that it is undisputed that the respondent-petitioners were appointed during the period 1996-1999 in accordance with the Rules, 1942.

19. Placing the facts of the case, in his way, Shri Apoorva Tiwari submitted that in the year 1988, the cadre strength of LDA was 1259 (808 permanent + 451 temporary) and against the aforesaid 1259 posts, 460 persons were substantively working as LDA. The Government of U.P. has given the officiating promotion to persons initially appointed on the post of Typist, Telephone operator, Telex Operator/Junior Grade Clerk to the post of LDA. In the similar manner, persons working substantively on the post of LDA were allowed to work in the officiating capacity on the post of UDA. Thereafter, in order to regularise the officiating promotion, the State Government promulgated the Rules, 1990.

Rule 3(2) of Rules, 1990 defines the term "available vacancy", which means a vacancy in which, no candidate has been recommended by the Commission before the date of notification of these Rules, which means that before the notification of Rules, 1990, no such candidate ought to be recommended by the Commission for the post of LDA. Rule 4(1)(ii) of Rules, 1990 provides that any person appointed on regular basis on the post of Typist, Telephone operator, Telex Operator/Junior Grade Clerk and subsequently promoted in an officiating capacity to the post of LDA before 01.04.1989 and continuing on the said post, shall be considered for regular appointment to the post of LDA. Rule 4(3) of Rules, 1990 prescribes the constitution of Selection Committee for considering appointment. The Selection Committee, so constituted, has to consider the names of the candidates mentioned in the eligibility list prepared as per Rule 4(4) and prepare a select list and forward the same to the Appointing authority. The Appointing authority, in turn, is required to make appointment from the select list prepared by the Selection Committee.

20. Submission of the learned counsel for the respondent-petitioners is that no effort was made by the State Government to ascertain available vacancy, as defined in Rule 3(2) prior to implementation of Rules, 1990. He also submitted that only the posts, against which, appointments could have been made under Rules, 1990, are those which were vacant on 22.07.1990. It has vehemently been submitted that the State Government acted in arbitrary and illegal manner, i.e., neither prepared eligibility list nor constituted Selection Committee, as provided in Rules, 1990 and straight away regularisation orders were issued to employees on the post of LDA on 23.07.1990 itself. Thereafter, the State Government, in exercise of powers conferred under the proviso of Article 309 of the Constitution of India promulgated U.P. Government Seniority Rules, 1991, which were given overriding effect over all other Service Rules. The said Rules were notified on 20.03.1991.

21. Shri Apoorva Tiwari next submitted that the seniority list of LDA was finalised on 24.07.1991 and 25.07.1991, wherein all the persons regularised (de hors the Rules, 1990), were placed in the seniority list without having any regard to the sanctioned strength of the cadre, which comprises 808 permanent post and 451 temporary post.

He also submitted that the State Government vide letter dated 19.03.1991 sent requisition to the Commission to make direct recruitment on the post of LDA against 61 posts. On 13.04.1994, the State Government again requisitioned 76 vacancies to Public Service Commission for direct recruitment of LDA. Thereafter, vide letter dated 18.11.1994, the State Government, in consultation with the Commission, divided the aforesaid 76 vacancies and added 30 vacancies, out of aforesaid 76 vacancies, to 61 vacancies for which requisition was already sent on 19.03.1991. Shri Tiwari submitted that due to this exercise of the State Government, the position, which emerged out, was that 91 vacancies became subject matter of U.P. Secretariat Upper/Lower Division Clerk Examination, 1991 and remaining 46 vacancies became subject matter of U.P. Secretariat Upper/Lower Division Clerk Examination, 1995. The respondent-petitioners were selected and appointed on the post of LDA against the said U.P. Secretariat Upper/Lower Division Clerk Examinations, 1991 & 1995.

22. It has next been submitted by the learned counsel for the respondent-petitioners that the final seniority list was published on 02.11.2000 and the objections to the same were rejected vide order dated 21.11.2000. The said seniority list dated 02.11.2000 along with consequential order dated 21.11.2000 was quashed by the writ court in Writ Petition No. 6012 (S/S) of 2000 vide order dated 06.08.2004. The State Government challenged the said order dated 06.08.2004 in Special Appeal No. 31 of 2005, which was allowed on 08.05.2015.

23. Shri Apoorva Tiwari, while justifying his argument that the learned Single Judge has rightly set aside the seniority list dated 08.09.2015 vide order dated 21.09.2017 (impugned in the present appeal) submitted that the said seniority list dated 08.09.2015 was issued without considering the direction issued by the Division Bench in Special Appeal No. 31 of 2005 dated 08.05.2015 as also by ignoring the vacancies, which arose in the year 1988, 1989, 1990, 1991, 1992, 1993, 1994 and 1995. He further submitted that the respondent-petitioners have wrongly been placed in the seniority list by altering their substantive appointment to 2000-2001.

He also submitted that persons working against 773 supernumerary post could not be placed in the seniority list as these are ex-cadre posts. He next submitted that in pursuance of the order dated 21.09.2017, seniority list dated 28.05.2018 has been issued, in which they categorically admitted that on 22.07.1990, 681 posts of LDA were vacant, but the State Government appointed 2004 LDA on 23.07.1990 under the provisions of Rules, 1990. He also submitted that the impugned order of the writ Court is not be read as statue, rather it must be read reasonably and in its entirety.

In support of his argument, Shri Apoorva Tiwari relied on the judgments of the Hon'ble Apex Court passed in the cases of Prem Singh Vs. State of Haryana, (2009) 14 SCC 494 and Goan Real Estate and Construction Ltd. Vs. Union of India, (2010) 5 SCC 388.

It has, thus, been submitted that there is no illegality in the order passed by the learned Single Judge and the present appeal is liable to be dismissed.

24. Learned counsel for the intervener while adopting the arguments advanced by Shri Apoorva Tiwari, submitted that the persons appointed on the ex-cadre post cannot be entitled for seniority in the regular cadre. Therefore, there is no illegality in the order passed by the learned Single Judge.

25. We have considered the arguments advanced by the learned counsel for the parties and perused the record.

26. Insofar as the argument advanced by Shri Apoorva Tiwari, learned counsel for the respondent-petitioners that if the substantial justice has been done between the parties, then interference would not be made on technical pleas, is concerned, the same has no legs to stand and is hereby rejected, as admittedly, the issue regarding the regularisation/appointment of LDA under Rules, 1990 has already been decided by the coordinate Bench vide order dated 8th May, 2015 and the same cannot now be reopened, as has been directed by the writ Court vide impugned order dated 21.09.2017.

In view of above, the decisions of the Hon'ble Apex Court relied on by the learned counsel for the respondent-petitioners in the cases of Rajasthan State Industrial Development & Investment Corporation (supra) and N. Ramachandra Reddy Vs. State of Telangana (supra) are not applicable in the present case.

In an intra-court appeal, the scope of inquiry is limited. In the present appeals, the judgment of the learned Single Judge is challenged before this Court on the ground that whether the issue of regularisation/direct appointment of the persons appointed under the provisions of Rules, 1990 can be reopened or not.

27. It is evident that the Ministerial Staff of U.P. Secretariat was being regulated in accordance with the provisions of U.P. Secretariat Ministerial Staff Rules, 1942. It is undisputed that Typist, Telephone Operator, Talex Operator, Typewriter Mechanic and Junior Clerks working on substantive post were allowed to officiate as LDA from 1st April, 1989. It is also evident from the record that total sanctioned strength of LDA was 1259, i.e., (808 permanent and 451 temporary). On 22.07.1990, against the said 1259 posts of LDA, 578 persons were having lien on the post of LDA, out of which, 550 LDA were officiating on the post of UDA and in pursuance of Rules, 1990, they were regularised on the post of UDA. On 23.07.1990, after giving promotion to 550 LDA to the post of UDA, the available vacancies for LDA were 1231. As on 22.07.1990, 2032 persons were working on the post of LDA, out of which, 28 persons were regularly selected persons and rest 2004 persons were working as officiating LDA. As on 23.07.1990 1231 posts of LDA were available after regularizing 550 LDAs on the post of UDA, therefore, regular appointments of 2004 persons officiating as LDA were made against the said posts. It was also found that 773 posts were not available, therefore, on 6th August, 1990, 773 posts of LDA were created. It is undisputed that on 23.07.1990, 2004 persons were appointed/regularised as LDA, but the posts of 773 LDA were created on 06.08.1990, however, the substantive appointment has been given to them since 23.07.1990. It is also evident that the total sanctioned strength of LDA was 1259, but the seniority list of 2032 LDA was prepared on 24.07.1991 and 25.07.1991. Further, as the State Government created 773 post on 06.08.1990 temporarily adding in the cadre, therefore, 773 temporary posts created on 06.08.1990 would be counted in the cadre of LDA till their abolition, which itself is mentioned in Government Order dated 06.08.1990. It is also undisputed that the respondent-petitioners were selected through Public Service Commission on the post of LDA against the requisition dated 19.03.1991 and 13.04.1994.

28. The seniority list for the post of LDA was prepared on 02.11.2000 and the aforesaid seniority list and its consequential order dated 21.11.2000 along with seniority list dated 24.07.1991 and 25.07.1991 were challenged in Writ Petition No. 6012 (S/S) of 2000. The said writ petition was allowed vide order dated 06.08.2004 and the seniority list dated 02.11.2000 and consequential order dated 21.11.2000 were quashed. The learned Single Judge vide order dated 06.08.2004 also directed to modify the seniority list published on 24.07.1991 and 25.07.1991 maintaining the quota as prescribed, i.e., at least 20% for direct recruits appointed upto 18th February, 1999 and thereafter 60% for direct recruitees and 40% for promotees or regularised promotees by applying Rule 8(2) and 8(3)(i) of Seniority Rules, 1991. Writ court also directed to provide prescribed quota for each selection year and also to promote them from the date their juniors had been promoted, with consequential benefits.

Aforesaid judgment dated 06.08.2004 was challenged in Special Appeal No. 31 of 2005 by the State Government. A coordinate Bench of this Court allowed the said appeal vide order dated 08.05.2015 and upheld the validity of Rules, 1990 and appointment of 2004 persons as LDA vide order dated 23.07.1990 under Rules, 1990 was also upheld, declaring them as direct recruits. It was also observed by the coordinate Bench that on 23.07.1990, 2032 persons were working on the post of LDA and the substantive vacancies available were 1259, therefore, with the intention to accommodate 773 persons, vide Government Order dated 06.08.1990, 773 temporary posts of LDA were created. Para 2 and 3 of the Rules, 1990 provides that aforesaid vacancies are temporary posts in the cadre of LDA upto 28th February, 1991 and after absorption of the persons appointed on the aforesaid created 773 posts, in the regular cadre, the said posts will not be filled up in future.

Relevant parts of judgment dated 08.05.2015 are being reproduced hereunder:

"In order to calculate the vacancy, therefore, one will have to go back to the availability of the vacancy prior to the enforcement of the said rule which vacancies have to be such so that a person can claim his substantive appointment against such vacancy. The reason is that seniority would be given only from the date of substantive appointment against such a vacancy. This determination for all such candidates who have been regularised will therefore have to be made by preparing a separate chart indicating as to how and when the vacancy became available.

This is necessary as the vacancies came to be created vide Government Order dated 6.8.1990 apart from the vacancies which were existing. The first thing therefore to be done is as to which were the vacancies that were available on 23.7.1990. So far as their subsequent adjustment is concerned, the same can only be from the date any vacancy is made available. This peculiar situation has arisen because of the fact that the regularisation rules have been enforced even prior to the declaration of the vacancies on 6.8.1990 which do indicate the dates from which they have been made available to the incumbents. The question is that the available vacancy has to be against such a vacancy for which no candidate had been recommended by the Commission before the notification of the Rules. The criteria therefore again will have to be as to whether the vacancy was available so as to cover the regularised appointments envisaged under the notification dated 23.7.1990. It is only then that seniority can be claimed by the incumbent under Rule 46 of the 1942 Rules read with Rule 7 of the 1990 Regularisation Rules and the 1991 Rules of Seniority from the date of substantive appointment. This determination does not appear to have been done from a perusal of the impugned seniority list dated 2.11.2000 and the rejection of the representation on 21.11.2000. Consequently, the seniority will have to be redetermined by following this criteria and explicitly indicating the facts as per the aforesaid criteria separately. This calculation therefore from the date of the entry in the cadre as per available vacancy has to be revisited as it does not appear to have been done by the appellant-State. At least the same does not appear to be clear either from the impugned lists or orders or from the counter affidavit filed on behalf of the State before the learned Single Judge.

Apart from this, neither the learned Single Judge has touched this issue of providing seniority from the date of entry into the cadre nor has the division bench judgment dated 2.7.1996 taken notice of the aforesaid rules for determination of seniority in respect of the Upper Division Assistants. However, even though the dispute of Upper Division Assistants has attained finality, yet this aspect in relation to Lower Division Assistants was neither considered therein nor has it been determined by the State Government as indicated above. Consequently, the determination accordingly is an exercise which will have to be undertaken for resolving the dispute between the respondent-petitioners and those who have been regularised under the 1990 Rules.

There is one more aspect which has to be adopted while determining seniority, namely, the determination of seniority on account of the U.P. Government Servant Seniority Rules, 1991 coming into force. This is necessary because the said Seniority Rules of 1991 came into effect from 23.3.1991 and the seniority lists were prepared initially on 24.7.1991 and 25.7.1991. Thus, the Seniority Rules had come into force by the time the seniority list had been issued. Consequently, the impact thereof has also to be taken into account as the provisions of reservation or of any other criteria mentioned in the said rules could not have been ignored. The candidates who came to be appointed on substantive basis after 23.3.1991, their seniority would be governed by the 1991 Rules as they have an overriding effect over all other rules of seniority. This aspect has also escaped notice of the learned Single Judge for modulating the seniority in terms thereof.

Accordingly, the State Government will now have to undertake an exercise in the light of the aforesaid principles and redetermine the seniority as they would have an impact on the consequential benefits to which the respondent-petitioners may be entitled or their adversaries would be entitled as a result of such determination.

Having regard to the reasons given by us hereinabove, the position that emerges is:-

1. That the writ petitioners did have a cause of action as their objections vis-a-vis the seniority of those LDAs' who were regularised vide order dated 23rd July, 1990 against posts created on 6.8.1990, adversely affected the respondent-petitioners with the promulgation of the seniority list on 2.11.2000 and the rejection of the representation on 21.11.2000. We further hold that the petition of the respondent-petitioners is not barred by laches for all the reasons recorded hereinabove nor have they delayed the filing of the writ petition as the cause of action arose to them only after the lists and orders were issued on 2.11.2000 and 21.11.2000 respectively.

2. The division bench judgment dated 2nd July, 1996 in the case of U.P. Secretariat, UDA Association and 7 others Vs. State of U.P., Writ Petition No. 6200 of 1993 as affirmed by the Supreme Court in the decision in Special Appeal No. 25086 of 1996 decided on 27.1.1997 by the Apex Court and reported in 1999 (1) SCC 278; U.P. Secretariat UDA Association Vs. State of U.P. and others has attained finality as in relation to Upper Division Assistants, subject to the direction issued by the Apex Court to the effect that promotees are also required to be fitted into service from the date when they are entitled fitment in accordance with the quota and rota prescribed under the rules, but at the same time the said judgment would not be an impediment for the reasons given in our judgment hereinabove for determining the limited issue of seniority of the Lower Division Assistants.

3. The status of the employees who have been regularized under the Regularization Rule dated 23rd July, 1990 and have been appointed under the post creation order dated 6th August, 1990 are not promotees and can only be treated as direct recruits for the reasons given in the judgment hereinabove. The presumption raised and the finding recorded by the learned Single Judge to that extent stands reversed.

4. In view of our findings and conclusions that the candidates who fall under the Regularization Rule of 1990 are not promotees and are direct recruits, there is no reason to apply the quota and rota rule for promotees for them.

5. For the reasons given by us hereinabove, we also hold that the State Government has not been able to establish about any exercise of having undertaken for determining the vacancies under Rule 11 of the 1942 Rules as per the cadre strength defined under the rules. This exercise will also have to be undertaken to first determine the vacancies that are available in Rule 3(2) of the Regularization Rules of 1990 in order to determine as to whether the appointments by way of regularization have been offered against the substantive vacancies available with regard to which no candidate had been recommended by the Commission before the notification of the said rules on 23rd July, 1990. The argument of the learned counsel for the respondent-petitioners that in order to claim seniority those who have been regularized, their induction into the cadre and date of entry upon being appointed in a substantive capacity against a substantive vacancy has to be determined before extending to them the benefit of seniority, is accepted.

6. For this the status of post creation or availability of the post in the cadre, the vacancies determined as per rules and then the placement according to the date of substantive appointment will have to be determined.

7. So far as those who have been extended the benefit of 15% promotion from the post of Group-D/Class IV Employees, their status stands determined by the introduction of sub-rule (4) of Rule 14 of the 1942 Rules as introduced on 5.11.1990 and therefore they have to be allocated their space as per their appointment under the aforesaid provision.

In view of the conclusions drawn hereinabove and the reasons in support thereof, we allow Special Appeal No. 31 of 2005 and set aside the judgment dated 6th August, 2004 but at the same time we also grant relief to the writ petitioners to the extent of allowing the writ petition and quashing the final seniority list dated 2nd November, 2000 as well as the rejection of the representation of the writ petitioners vide order dated 21st November, 2000. All consequential action taken pursuant to the judgment dated 6.8.2004 would also stand annulled including the seniority list dated 21.10.2005.

As a consequence of the aforesaid relief having been extended, we further clarify that the seniority list of the Lower Division Assistants shall be redetermined in the light of the observations made hereinabove and the principles that have been spelled out in this judgment as well as the rules and regulations applicable as per the law prescribed and after the exercise is completed, the list of 24.7.1991 and 25.7.1991 would stand modified accordingly if necessary as a fall out of such exercise. This exercise shall be undertaken by the State Government and concluded preferably within a period of three months and till such exercise is concluded no fresh third party rights should be created till finalization of the seniority as per this judgment. So far as the consequential action taken by the State Government pursuant to the impugned judgment dated 6th August, 2004 is concerned, since the judgment has been set aside, any action taken on the strength thereof also falls through."

29. From a further perusal of the judgment of the coordinate Bench dated 08.05.2015, it is evident that the arguments advanced by the learned counsel for the respondent-petitioners before this Court have already been placed before the coordinate Bench and all these issues in relation to regularisation of the persons in compliance of the Rules, 1990 as also the LDAs appointed through Public Service Commission have already been considered and decided by the coordinate Bench in the following terms.

"Sri Anil Tiwari, learned Senior Counsel assisted by Sri Apoorv Tiwari has advanced his submissions on behalf of the respondent-petitioners contending that the entire thrust of the argument of the State Government primarily is that the rules, namely the Uttar Pradesh, Secretariat Ministerial Staff Rules, 1942 do not make any provision for promotions and therefore the concept of promotion is alien to the said rules.

Sri Tiwari submits that the State has taken a stand as if the appointments made by the State, the seniority whereof was in dispute before the learned Single Judge was not by promotions and were alternate modes of recruitment, but he submits that the pleadings in the counter affidavit of the State are otherwise. The argument which is being advanced by Sri Prashant Chandra for the State is therefore not in conformity with the pleadings. He however submits that in essence if the rules are read together then there are only two modes of recruitment, one that is direct recruitment and the other modes are recruitments which are not direct recruitment, and therefore are according to him nothing else but promotions. For this he has invited the attention of the Court to Rule 2(f) of the 1942 Rules, extracted hereinunder:-

"2(f) "Direct recruitment" means recruitment made otherwise than by promotion"

The said rule defines direct recruitment to mean recruitment made otherwise than by promotions. Sri Tiwari submits that the word promotion therefore occurs in the 1942 Rules in contradistinction to direct recruitment and therefore the same is clearly referable to the other alternate modes of recruitment of departmental candidates who have been extended the benefit by the State Government. He therefore submits that the State Government cannot now say that they were not promotions. He has further pointed out the definition of the meaning of the word staff which means the entire cadre of non-gazetted ministerial staff of the Secretariat. The cadre of the staff has been defined in Rule 3.

Elaborating his submissions, Sri Tiwari submits that for this further reference will have to be made to Rule 14 of the 1942 Rules which is extracted herein under:-

"Rule 14. Reservation of vacancies in the posts of Lower Division Assistants in special circumstances-

(1) * * * *

(2) The appointing authority may, in special circumstances but not generally, and with the concurrence of the Commission, reserve in any year up to eighty per cent of the total number of permanent vacancies intended to be filled in that year, for departmental candidates who have rendered temporary or officiating service in the said or higher post for such total period as may be fixed in that behalf in consultation with the Commission and whose work is considered by the appointing authority to be satisfactory. The vacancies so reserved may be filled on the basis of a qualifying examination to be conducted by the Commission, from amongst candidates who come up to such standard as is considered by the Commission to be reasonable. There shall be no upper age limit for such candidates either for their appearance at the said qualifying examination, or in the event of their success at that examination, for their appearance on equal terms with the candidates for direct recruitment at any subsequent competitive examination referred to in rule 5 in respect of the posts of Lower Division Assistants.

(3) Notwithstanding anything contained in rule 14(2) or in any other rule, the appointing authority may, having regard to the exigencies of Public Service, fill in existing permanent vacancies in the posts of Lower Division Assistants to the extent of 80 per cent from such departmental candidates who were recruited in previous years through the Commission against temporary vacancies or those recruited on the basis of a qualifying examination and who have completed at least one year's temporary or officiating service on the post of a Lower Division Assistant or on a higher post and whose record of service is considered to be satisfactory."

He contends that reservation of vacancies is contemplated under the said rule for departmental candidates for recruitment/appointment to the post of Lower Division Assistants. This is available to only such candidates who have rendered temporary or officiating service on the said post or higher post for a certain number of period that may be fixed by the appointing authority in consultation with the Commission.

Sri Tiwari therefore submits that this nature of reservation of 80% of the total number of permanent vacancies of Lower Division Assistants is clearly meant for inhouse candidates and for those who are already in service of the Secretariat. The provision therefore is to offer them a higher post keeping in view the fact that they shall be entitled and eligible for consideration provided they fulfill the conditions prescribed therein which also includes the consideration of the candidate after he appears in a qualifying examination to be conducted by the U.P. Public Service Commission. He has further pointed out that no upper age limit is provided for such candidates and therefore it is clear that the entire rule is for providing benefit of higher avenues in service which is nothing else but a mode of promotion and is not a mode of direct recruitment or any other alternate mode of recruitment. He submits that upon fulfilling the conditions, the person working in the lower grade gets a transition in service the consequence whereof is eventual promotion to a higher post. He contends that it is something different that the procedure prescribed for such promotion is through the commission but the same is not direct recruitment which envisages a different procedure under Rule 5 of the 1942 Rules. He submits that Rule 2(f) read with Rule 5(B)(4) clarifies the position that direct recruitment is by competitive examination to be conducted by the Commission whereas for the departmental candidates a qualifying examination is to be conducted by the Commission from amongst such candidates who have rendered temporary or officiating service for a particular period as defined under Rule 14(2) referred to hereinabove. This therefore takes such recruitment through reservation of vacancies totally outside the purview of direct recruitment and by exercise of such discretion in special circumstances the State Government is empowered to make promotions.

The argument therefore appears to be that the seniority of such persons, which is being contested by the respondent-petitioners, and who were appointed by the State Government not by direct recruitment but by other methods have to be treated as promotions. He however submits that such recruitment is possible only after permanent vacancies are determined to be filled in that year as per the determination of number of vacancies under Rule 11 that has to be made annually to be filled up either through examinations or selection as the case may be, but without determining such vacancies the post cannot be reserved or offered to a departmental candidate.

He further submits that mere selection under the rules does not give any right of appointment unless the provisions of Rule 19 are also observed which provides that the appointing authority after such consideration under Rule 12, Rule 13 or Rule 14 as well as Rule 24 which are the other modes of recruitment have to be subjected to an inquiry and after a satisfactory opinion is formed in respect of such candidates then only he will be considered to be qualified or else he will be disqualified for appointment. He further contends that this two fold scrutiny of first examining the standard of the candidate amounts to judging his merit under Rule 14 through a qualifying examination and the second stage is of considering his suitability in terms of Rule 19(2). Such a rule is akin to the rule of merit-cum-seniority which is applied for promotions. He therefore submits that this procedure as well indicates that the other modes prescribed under Rule 12, 13, 14 and 24 are modes of promotion to a higher post keeping in view the peculiar nature of services of the Civil Secretariat. For this he submits that the Secretariat Establishment is a separate establishment of a peculiar nature and they are attached to an establishment from where they cannot be transferred or sent to any other place and rather they have to virtually stagnate in the same establishment. It is for this reason that the merit of suitable candidates are to be assessed for offering higher posts through reservation as defined aforesaid which clearly amounts to offering them advancements in their career and which procedure is nothing short of promotion. The LDA's, whose seniority is being assailed by the respondent-petitioners, have actually been given the benefit of promotion.

He has then invited the attention of the Court to Rule 24 which is again a reservation of vacancies in the post of Lower Division Assistants of a special category in relation to Telephone Operators, Junior Grade Clerks and approved candidates on the waiting list of these posts. Here Sri Tiwari advanced a separate argument that under Rule 24 it is obligatory on the State to carry out this exercise and to offer appointment by reserving one vacancy if the posts in every alternate year of recruitment as provided in the said rule. He therefore submits that this is yet another mode but which was never adopted by the State Government inspite of a specific obligation cast on the State Government for doing so.

He has then invited the attention of the Court to Rule 34 which makes a provision for waiting lists. Here he submits that there shall be two types of waiting lists, one being the list of departmental candidates qualifying separately under Rule 12, Rule 13, Rule 14 and Rule 24 and then a combined list of all such candidates to be a waiting list which according to him would be available to offer appointments on the higher post of LDA as and when the vacancies come into existence.

Appointment is provided for under Rule 35 which has to be in order in which the names of candidates stand in the list of selection or the waiting list as the case may be.

When it comes to seniority under the 1942 Rules the provision is clear that it shall be determined in the class to which one is appointed by the date of his substantive appointment and in the case of more than one person appointed on the same date according to their respective positions in the waiting list. Rule 46 is quoted hereinunder:-

"Rule 46. Seniority - The seniority of a member of the staff shall ordinarily be determined in the class to which he is appointed by the date of his substantive appointment and in the case of more than one person appointed in the same date according to their respective positions in the waiting list.

Provided that the seniority of such members of the staff as were holding substantive appointments in the Government Estate Department immediately before April 1, 1965 shall in consequence of the merger of that Department will the Uttar Pradesh Secretariat be determined in such a manner that for every two years of service rendered by them in a substantive capacity in that Department before the said date, they shall be allowed the benefit of one year's substantive service, and their seniority vis-a-vis the other members of the staff shall be fixed accordingly."

The contention therefore is that the candidates who are appointed otherwise than through direct recruitment and are internal departmental candidates, have to be considered as promotees and their appointment if made in terms of 1942 Rules, would be treated as a substantive appointment if the same has been done in conformity with the said rules. On the other hand, if any promotion has been made without following the said rules, then a person would not be treated to be substantively appointed so as to form part of the cadre and claim consequential seniority.

To substantiate his submissions that the rules indicate promotional avenues and any attempt made to give a higher post amounts to promotion, Sri Tiwari has cited the following judgments:-

1.1971(2) SCC 58 (Para 11); Dr. Harkishan Singh Vs. State of Punjab and others;

2.1980 Supp. SCC 668 (Para 5); C.C. Padmnabhan and others Vs. Director of Public Instructions and others;

3.1994 Supp (3) SCC 595 (Para 6); Director, Central Rice Research Institution, Cuttack and another Vs. Khetra Mohan Das;

4.(1994) 5 SCC 392 (Paras 5 and 9); Tarsem Singh and another Vs. State of Punjab and others;

5.1994 Supp (1) SCC 44 (Para 6); K. Narayanan and others Vs. State of Karnataka and others;

6.(1995) 4 SCC 462; Union of India Vs. S.S. Ranade

7.1996 (1) SCC 562 (Paras 7 and 8); State of Rajasthan Vs. Fateh Chand Soni;

8.(1999) 7 SCC 251 (Paras 6 and 15); Ram Prasad and others Vs. D.K. Vijay and others.

The aforesaid judgments have been cited in support of the proposition that whenever a higher post or a higher pay scale is offered to an in house candidate, the same amounts to promotion.

These judgments therefore reflect on the concept of promotion as an advancement in career to a higher post or a higher pay scale. With the aid of these judgments, Sri Tiwari submits that the rules of 1942 which provide for other modes of recruitment as discussed hereinabove, other than direct recruitment, are clearly designed to promote the internal departmental candidates.

Sri Tiwari thereafter has advanced his submissions in relation to those 2034 candidates who have been absorbed under the Uttar Pradesh Secretariat, Upper Division Assistants and Lower Division Assistants (Regularization of Officiating Promotions) Rules, 1990 contending that the regularisation is by way of promotion. This rule and offer of regularization to such employees whose seniority is the bone of contention between the respondent-petitioners and the State has been framed in exercise of powers conferred under Article 309 of the Constitution of India. The rules were notified on 23rd July, 1990. According to Rule 2 thereof, they shall have effect notwithstanding to the contrary contained in any other rules or orders but at the same time Rule 3(6) defines that service rule means the Uttar Pradesh Secretariat Ministerial Staff Rules, 1942. Thus, even though an overriding effect has been given to such rules, but they refer to the 1942 Rules.

Sri Tiwari contends that regularization was offered to such persons who were officiating in higher posts and were described as having been promoted in officiating capacity. They were however to be considered for regular appointment and according to Rule 4(3) a Selection Committee consisting of three officers was to be constituted for selecting such candidates and then preparation of an eligibility list for considering appointment after assessing their suitability. The select list was to be prepared by the Selection Committee.

The rules further provide that such appointments shall be considered for regular appointment against permanent or available temporary vacancies under Rule 4. The word available vacancy has been defined in Rule 3(2) to mean such a vacancy for which no candidate had been recommended by the Commission before the date of notification of these rules. This clearly means that any vacancy, permanent or temporary existing as per cadre strength under 1942 Rules, would be offered for regular appointment provided such vacancies have not been notified or recommended by the Commission before the date of notification of the said rules. What therefore follows is if the Commission has not recommended any candidate for any such vacancy then only regularization would be offered against such a post. Sri Tiwari submits that the vacancy has to be available before hand. The vacancy according to him has to be determined as per Rule 11 of the 1942 Rules or otherwise should also exist prior to the notifications of the rules of regularization on 23rd July, 1990. It is only thereafter that the Selection Committee would proceed to consider any candidate and it is only after such selection that the appointment can be deemed to be an appointment under the service rule as per Rule 6. He further points out that Rule 7 of the 1990 rules also demonstrates that seniority would be available in accordance with service rules and interse seniority of the candidates would be the same as it was in the cadre from which they were promoted on an officiating basis.

The contention of Sri Tiwari is that even this procedure under the 23rd July, 1990 notification was not followed nor was it observed and all regularization which followed as a consequence of the said notification is invalid. He submits that since the said rules also provide for a clear rule of seniority to be adopted for such candidates, the same can always be questioned and can be adjudicated by this Court even at the instance of the respondent-petitioners who were born later in the cadre. This can be done, inasmuch as, if any illegal appointment de-hors the rules and contrary to the cadre strength has been made, the same would not confer any entitlement at least to claim seniority over and above the direct recruits.

He also contends that such appointees will be deemed to be in service only if appointments can be saved lawfully and if the appointments cannot stand the scrutiny of the rules under which such appointments have been made such candidates have to be pushed down for the purpose of seniority as against direct recruits.

The contention of Sri Tiwari is that even for the purpose of being born in the promotion cadre the appointment has to be as per the cadre strength and the vacancies available as indicated above and the appointments should be in accordance with the rules. If both these contingencies are absent, then if the appointment is beyond the cadre strength the person would not be entitled to any such benefit unless he enters the cadre as and when the vacancies are available. The State Government did not undertake any such exercise and rather thrust upon the cadre these 2034 candidates without there being any posts available. In such circumstances, he contends that the issue of delay in challenging the seniority awarded to such candidates would not impede the challenge raised on behalf of the respondent-petitioners.

To demonstrate that the vacancies were not available, he has invited the attention of the Court to Paras 7 and 8 and other paragraphs of the counter affidavit filed on behalf of the State on 11th January, 2000 the affidavit whereof is sowrn by Sri Dhirendra Pratap Singh. He submits that there the cadre strength has been described and the figures given therein are totally incorrect and false. He submits that no determination of vacancy was undertaken under the 1942 Rules that could have been offered to such reserved category of internal candidates and realizing that no such exercise has been undertaken, the State Government hurriedly in a very novel manner introduced and notified the Rules dated 23rd July, 1990 which is neither in conformity with the 1942 Rules nor is it in conformity with law. Otherwise also assuming that the said rules notified on 23rd July, 1990 do confer some rights the same has been followed in its utmost breach. The contention is that at one place the cadre strength is described as 886 and another place the same swells to 1100 or odd. He therefore submits that even if these figures are admitted it is not understood as to how 2034 candidates have been extended the benefit of regularization. He further submits that the description of creation of 773 supernumerary posts in the counter affidavit does not spell out as to when these posts were so created. It is at this juncture that it is relevant to mention that the appellant State has placed before us the notification dated 6th August, 1990 indicating the existing and the posts that have been created and described as supernumerary posts in the counter affidavit.

The argument therefore is that having failed to determine the correct number of vacancies and there being no posts available on 23rd July, 1990, the entire process of regular appointment on the same date that is 23rd July, 1990 is totally illegal and therefore it cannot confer any status on such appointees to claim seniority as they are not part of the cadre. Even otherwise, the word supernumerary used in the counter affidavit itself is indicative of the fact that they are posts beyond the cadre and therefore seniority would be available only for such candidates who are within the cadre and not against supernumerary posts. It has however been clarified by Sri Sudeep Seth at this stage that the word supernumerary appears to have been loosely used in the counter affidavit whereas the notification dated 6th August, 1990 creating the posts clearly describes them to be temporary posts and therefore they be treated accordingly and not as supernumerary posts.

Sri Tiwari taking a dig at this stand of the State submits that this fact of the creation of the posts subsequent to the notification dated 23rd July, 1990 was neither placed before the learned Single Judge nor has the learned Single Judge taken notice of this fact but he has rightly arrived at the conclusion that the seniority deserves to be redetermined treating them to be promotees.

Sri Tiwari contends that if the posts itself were created much after 23rd July, 1990, then no benefits accrue to any of the appointees as the word "available vacancy" is that for which no candidate had been recommended by the Commission before the date of notification of the rules. In the instant case, the notification dated 6th August, 1990 establishes that there were no posts available except the permanent nature of posts indicated therein which was also not determined as per Rule 11. In this unsure state it is obvious that at least the 773 additional posts that came into existence for the first time on 6.8.1990 were not there for being offered for appointment when the regularisation rules were promulgated on 23.7.1990. Not only this, the said post creation order also clearly prescribes that these appointees would be in addition to the cadre strength and the posts would stand abolished as and when the appointees enter a particular cadre.

Sri Tiwari therefore contends that it is only as and when such candidates enter the cadre that they would be entitled to count their seniority from such date and not from the date of their alleged regular appointment on 23rd July, 1990. In this background, even though the respondent-petitioners have been appointed through direct recruitment later on between 1997 and 1999, yet they can challenge their placement in seniority as against such candidates who are not even part of the cadre and admittedly their status is beyond the cadre strength as indicated hereinabove.

Sri Tiwari submits that under the 1990 Rules dated 23.7.1990 these persons may have been appointed and their appointment may not be open to challenge but they have been kept alive without being born into the cadre, particularly the 773 candidates who have been referred to hereinabove. He therefore submits that the question of seniority hinges upon the very factum of mode of a person entering into the cadre through a regular appointment in accordance the rules against available vacancies. Any illegal action of the State Government cannot enure any benefit on such appointees as that would be putting a premium on the government's illegal action. Such appointees according to Sri Tiwari will continue to hold lien on their original posts till they are absorbed regularly into the cadre. The notification dated 23rd July, 1990 does not therefore confer any such right and this issue has to be gone into as a matter of principle by this Court as well as by the State Government before finalizing seniority. Sri Tiwary has then cited the following judgments to support his submissions:-

1.(1996) 11 SCC 361; M.S.L. Patil, Asstt. Conservator of Forests, Solarpur(Maharashtra) and others;

2.(1998) 6 SCC 630; C.K. Antony Vs. B. Muraleedharan and others;

3.(2004) 10 SCC 734; Sanjay K. Sinha-II and others Vs. State of Bihar and others;

4.(2009) 12 SCC 49; State of Rajasthan and others Vs. Jagdish Narain Chaturvedi and others.

One more contention has been raised by Sri Anil Tiwari, namely that the manner in which the selections are alleged to have been carried out on the same day, it was not possible for a selection committee to have interviewed or assessed their suitability in just one day. The State issued letters of appointment on the same date when the 1990 Regulations were promulgated."

30. It is also evident that the judgment passed by the coordinate Bench in Special Appeal No. 31 of 2005 was challenged in SLP (C) No. 23254 of 2014, which was also dismissed vide order dated 29.03.2017.

31. Vide impugned order dated 21.09.2017, learned Single Judge set aside the seniority list dated 08.09.2015. The grounds taken by the respondent-petitioners before the writ Court were that the directions issued by the Division Bench in Special Appeal No. 31 of 2005 on 08.05.2015 were not complied with at the time of preparation of seniority list, as also the Rule 9(2) of the Rules, 1991 was not considered. Further prayer made in the writ petition was to place the respondent-petitioners in the seniority list after serial no. 810.

Learned Single Judge vide impugned order dated 21.09.2017 observed that there are two aspects of service laws, which have to be separately applied in the facts of the case, one of which, is of regularisation and substantive appointment, and the other is seniority. Both are governed by separate rules and both cannot be confused and mixed with each other. It is also observed by the writ Court that an incumbent has to be regularized or appointed on a substantive vacancy, and the date on which he is regularized or appointed on a substantive vacancy, would be the relevant date for his entry in the cadre and for fixation of his seniority. Once the date of regularisation of substantive appointment in the cadre is fixed, the same cannot be changed. The seniority has to follow the said date of regularization and/or substantive appointment on a vacancy in the cadre. For the said purpose, firstly an exercise for deciding the number of vacancies available for regularization as per the Regularization Rules, 1990 ought to be calculated by the State Government. The Rules, 1990 were initiated on 23.07.1990 and on this date, the regularisation also took place. Thus, the vacancies, as per the provisions of the aforesaid Rules have to be available on 22.07.1990. Learned Single Judge further observed that on the said date, admittedly, a large number of LDAs were officiating as UDA and were occupying the post of LDA, hence, the post, they were occupying, cannot be considered as the vacant post at the time of regularisation of officiating LDA. Learned Single Judge also observed that 2032 persons were required to be regularised as LDA while the total number of posts available in the cadre was 1235 and some of which were already occupied. Thus, even the entire cadre strength was much less than the persons required to be regularised. It would also not leave any vacancy available in the year 1991 or 1994 for being requisitioned to Commission.

With the aforesaid observations, learned Single Judge set aside the seniority list dated 08.09.2015 and directed the State Government to regularise LDAs on the posts, as were available on 22.07.1990 and, accordingly, fixed their seniority on the date of their appointment in substantive vacancy as directed by the Division Bench.

The relevant paragraphs of the impugned order are reproduced hereunder :

"21. The remaining vacancies of the cadre, which were not filled up under the Regularization Rules, 1990, continued to be covered by the Rules of 1942 and any selection and appointment to such vacancies could be made only under the said Rules of 1942. The said vacancies cannot by any interpretation of law, be filled up by Regularization Rules, 1990. This interpretation is also supported by the action of the State Government itself, that it took after coming into force of Regularization Rules, 1990. The State Government by a requisition dated 19.3.1991 and 13.4.1994 itself requisitioned vacancies to the Commission for being filled up. Thus, on the said dates, the State Government was of the view that only the vacancies as existed on 22.7.1990 have been occupied by the officiating Lower Division Assistants by way of their regularization. If the argument of the respondents is accepted, then, all the vacancies available on 23.7.1990 would stand filled up and still there would be persons available, required to be regularized under the Rules of 1990. Thus there would be no vacancies available to be sent to the Service Commission in 1991. This situation would arise as admittedly there are 2032 number of persons required to be regularized as Lower Division Assistant while the total number of post available in the entire cadre is 1235 (Both 804 permanent and 431 temporary) some of which were occupied. Thus, even the entire cadre strength was much less than the persons required to be regularized. It would not leave any vacancy available in the year 1991 for being requisitioned to the Commission. The State Government did not act in that fashion. The State Government itself requisitioned vacancies to the Commission. Hence what is being argued today is contrary to the action of the State Government taken by it immediately after the Regularization rules, 1990 were given effect to.

22. In the impugned order while fixing seniority persons have been given regularization, from dates when there were no vacant substantive posts available, contrary to the Regularization Rules, 1990 and the directions of the Division Bench. Thus, the impugned order dated 8.9.2015 cannot stand and is set aside. The State Government is directed to regularize Lower Division Assistants on vacancies as were available on 22.7.1990 and accordingly, fix their seniority on the date of their appointment in substantive vacancies as directed by the Division Bench. In the remaining vacancies of the cadre, the appointments are required to be made as per Rules, 1942 and the persons so appointed under the rules, 1942 would also be given seniority on the basis of the date of their appointment on the substantive vacancies under the said Rules.

23. Thus, following directions are issued to the State Government:-

(i) The State Government shall fix vacancies available for regularization as per Regularization Rules, 1990 and the directions given by the Division Bench prior to notification of Regularization Rules, 1990 i.e., on 22.7.1990.

(ii) Thereafter, the said vacancies available are to be filled up from amongst the persons falling within the criteria of regularization under Regularization Rules of 1990 as per the direction of the Division Bench. Persons remaining to be regularized shall be kept in waiting list till the vacancies become available, within the vacancies which were found on 22.7.1990, i.e., the vacancies under which persons can be regularized as per Regularization Rules of 1990 and the order of the Division Bench.

(iii) As regards the remaining posts in cadre (the posts other than those which are vacant on 22.7.1990), and after all the persons who are to be regularized are given substantive appointments all future vacancies, shall be filled up by appointment as per Rules of 1942 as amended from time to time and after notification of U.P. Secretariat Ministerial Service Rules, 1999 vacancies will be filled under said 1999 Rules.

(iv) Thereafter the State Government is to prepare the seniority list on the basis of the date on which a person is given substantive appointment in the cadre. The seniority is to strictly follow the date of substantive appointment in the cadre.

The above two exercises are required to be held distinctly so that no further confusion is created.

24. Since the matter is old, it is expected that the State Government shall complete the exercise as per directions given above, within a period of six months.

25. With the aforesaid directions, the present writ petitions is allowed."

32. Admittedly, the coordinate Bench in Special Appeal No. 31 of 2005 while upholding the regularisation of the persons under Rules, 1990 vide order dated 23.07.1990, declared them as direct recruitees, but this fact was not properly placed before the learned Single Judge.

It is undisputed fact that total sanctioned strength of the LDA was 1259 (808 permanent + 551 temporary). 681 post of LDA were vacant and 550 LDA were working/officiating on the post of UDA on 22.07.1990. Total 28 substantive LDAs were working and rest 2004 persons were working as officiating LDA. As on 22.07.1990, 550 LDAs working/officiating on the post of UDA. They were regularised as UDA on 23.07.1990, therefore, 2004 persons, who were officiating/working on the post of LDA were also regularised as LDA on 23.07.1990 against 1231 vacant posts of LDA (including 550 posts of LDA, who were officiating as UDA and regularised on the said post on 23.07.1990). As on 23.07.1990, total vacancies of LDA were 1231, but since 2004 persons were regularised/appointed as LDA and 773 persons were regularised/appointed beyond the cadre strength, therefore, 773 post of LDA were created vide Government Order dated 06.08.1990 with the intention to give the substantive appointment to 773 LDAs by extending cadre strength temporarily.

It is also evident from the record that 773 posts were created vide Government order dated 06.08.1990, therefore, 773 persons regularised under the Rules, 1990 were entitled to get their seniority from 06.08.1990 and not before this date. Admittedly, the issue of regularisation/recruitment of 2004 persons was already decided by the coordinate Bench and the said judgment has also been affirmed by the Hon'ble Apex Court in SLP (C) No. 23254 of 2014, hence, the same cannot be re-opened. Thus, 1231 persons appointed under the provisions of Rules, 1990 read with Rules 1942 are entitled to get their seniority from 23.07.1990 and remaining 773 persons are entitled to get their seniority from 06.08.1990 after creation of post of LDA.

33. The coordinate Bench has already dealt the issue that 2004 persons appointed under the provisions of Rules, 1990 are direct recruits, therefore, they cannot be deprived from their seniority and they are entitled to get their seniority from the date when the substantive posts were made available. The aforesaid view of the coordinate Bench finds support from the judgments of the Hon'ble Apex Court in the cases of Pramod Kumar Trivedi (supra), Union of India & Anr. Vs. Dr. Akhilesh Chandra Agarwal (supra) and D.K. Reddy (supra), wherein the Hon'ble Apex Court held that a person, even appointed against a supernumerary post, is entitled to seniority from the date of his substantive appointment.

Further, all the vacancies created temporarily for recruitment of the officiating LDA, come within the cadre, as has been held by the Hon'ble Apex Court in the cases of J.S. Yadav (supra) and Union of India Vs. Puspa Rani (supra).

As the coordinate Bench also decided the issue in relation to the validity of Rules, 1990 and appointment of the persons under the aforesaid Rules on the post of LDA, the judgment referred by the learned counsel for the respondent-petitioners in the cases of Prafulla Kumar Das (supra), Union of India Vs. S. Krishna Murthy (supra), R.K. Sabarwhal (supra), Prem Singh (supra), Goan Real Estate & Construction Ltd. (supra), Direct Recuirt Class II (supra), Narinder S. Chadha (supra), Janak Dulari Devi (supra) and Bharat Singh (supra), are not applicable in the present case.

34. It is also relevant to mention here that all these arguments placed before this Court have already been dealt by the coordinate Bench and thereafter upheld the validity of the recruitment under Rules, 1990.

35. Learned counsel for the respondent-petitioners failed to advance argument on the point that as to how the issue of regularisation/appointment under the provisions of Rules, 1990 can be reopened, when the same has already been adjudicated and declared valid by the coordinate Bench in Special Appeal No. 31 of 2005. All the issues raised by the respondent-petitioners here in the present appeal as also in the writ petition, have been dealt by the coordinate Bench in its judgment dated 08.05.2015, in detail, which are reproduced hereunder :

The first question that has to be addressed to is the maintainability of the writ petition filed by the respondent writ petitioners challenging the seniority accrued in favour of those LDAs, who were extended the benefit of the Regularization Rules dated 23rd July, 1990. This is admitted that the respondent writ petitioners were born into the cadre between 1996 to 1999. Thus, when the said rules were promulgated and the benefit of regularization was given under the rules dated 23rd July, 1990 coupled with the post creation orders on 6.8.1990, the respondent-petitioners having not been born into the cadre, did not have any occasion to raise any such challenge. This does not mean that they are precluded from raising a challenge to the seniority, if it affects them as and when they enter into the cadre. At this juncture, one of the arguments advanced by Shri Prashant Chandra deserves mention. His contention is that unless the very regularization order dated 23rd July, 1990 is challenged, the consequential seniority of such candidates also cannot be challenged. For this, it is on record that there was no challenge raised to the regularization order dated 23rd July, 1990 by the respondent writ petitioners. They, after the disposal of the writ petition and the pendency of the present appeal filed by the State for four years in 2008 filed an amendment application seeking to challenge the said regularization order on the ground of it being invalid and contrary to the 1942 Rules.

This challenge to the validity of the Rules, 1990 now, at this stage, cannot be permitted to be raised for several reasons. The first is that the respondent writ petitioners even though described the 23rd July, 1990, Rules to be unconstitutional in Paragraph 8 of the writ petition yet no relief for quashing of the same was prayed for in the writ petition. It was only the consequential seniority the quashing whereof had been prayed. Sri Jain, learned counsel for the petitioners contends that a challenge having been pleaded, the Court can always mould the relief in exercise of powers under Article 226 of the Constitution, which powers continue with this Court in the present appeal, and it is for this reason that an application for amending the relief further praying for quashing of the same was moved in 2008.

We are unable to accept this plea primarily for the reason that such an amendment is highly belated and that too even after the writ petition was allowed in favour of the respondent-petitioners. The writ petitioners did not file any appeal praying for any further relief and they appear to have been satisfied with the quashing of the seniority list. Thus there was no intention to challenge the regularization rules dated 23rd July, 1990. The statement of fact made in Paragraph 8 of the writ petition by itself would not render a positive challenge raised without anything further. The respondent writ petitioners after the writ petition was allowed did not pursue this challenge at all and after four years of the pendency of the appeal, as a respondent, have moved an amendment application which otherwise cannot be entertained. Thus for laches and for the aforesaid reasons, this relief as prayed for to be moulded in their favour now cannot be considered on behalf of the respondent writ petitioners. The regularised LDA's have been conferred a benefit of regular appointment under the 1990 Rules and the same has become final it cannot be permitted to be reopened.

There is yet another reason for the same. As noted above, the validity of the said rules was also raised by those who were contesting the seniority of UDA in Writ Petition No. 6200 of 1993 decided on 23rd July, 1990. Secondly, the process adopted for selection and regular appointment under the said rules was also agitated therein. The Division Bench in the aforesaid judgment has answered the plea so raised by repelling the contentions and also upholding entire selection process under the regularization rules of 1990 in the following terms:-

"As far as the contention of the Direct Recruits regarding validity of Regularization Rules, 1990 is concerned, it is misconceived, inasmcuh as, Regularization Rules, 1990 derives its authority and force from Article 309 of the Constitution of India, hence it cannot be said that the rules are not statutory. The State Government in exercise of power under Article 309 of the Constitution, has been vested with a power to frame the rules and there exists no requirement to consult the Commission in that regard.

As far as next submission regarding the regularization of the services of the promotees on the same date when the rules came into force is concerned, as well as that the record being not placed before the Selection Committee etc. on behalf of the State Government, it was vehemently argued by Mr. Yogeshwar Prasad that the point raised before the Court pertains to determination of the question of fact which cannot be agitated upon because there is a presumption in favour of the State action with regard to its correctness and fairness. Question of regularization was pending before the State Government much earlier to 1990. The State Government in that regard framed rules of Regularization in the year 1989, itself. Although the record of petitioners (promotees) services etc. were prepared in advance even before the Regularization Rules, 1989, but the services were regularized due to certain defect pointed out in that rule. Thereafter, Regularization Rules, 1990 were issued on 23.7.1990. The charts which were prepared in advance on the basis of the service record, were produced before the selection committee and after due application of mind the selection committee regularised the services of the promotees.

We are of the view that this Court in exercise of its jurisdiction under Article 226 of the Constitution of India, cannot adjudicate upon such contentious disputes. Hence, for that reason the regularization of the promotees cannot be annulled. During the course of arguments, a vain effort has been made to challenge the Regularization Rules, 1990, but no serious effort was made to assail the Rules, itself. As pointed out earlier the State Govt. in exercise of its power vested under Article 309 of the Constitution of India, issued the Regularization Rules, 1990 which is more or less similar to Regularization Rules, which were subject matter of dispute before Hon'ble Supreme Court in P.D. Agrawal (supra), which was upheld by Hon'ble Supreme Court. The said rule cannot be challenged on the ground of its being violative of Article 14 and 16 of the Constitution of India. Hence, we hold that the Regularization Rules, 1990 is valid and regularization made under the Rules does not suffer from any legal or constitutional defect."

The said judgment in its entirety, subject to a slight modification for fitment, has been upheld by the Apex Court and accordingly so far as the validity of rules and the selections by way of regularization has already become final. We therefore sitting in a coordinate bench cannot now reagitate or reopen the said issue when the said judgment has been upheld by the Apex Court through a speaking order. The amendment sought by the respondent writ petitioners in the present writ petition stands rejected and it is held that the selections and regular appointments under the Government Order dated 23rd July, 1990 has attained finality.

Apart from this, the State has threadbare laid its policy and has assailed the decision of the learned Single Judge on the ground that the learned Single Judge has wrongly treated the regularised LDAs as promotees.

In the absence of any rule of promotion by way of officiation the holding of a post on officiating basis cannot be termed as promotion. Thus, this rule by itself does not confer a promotional status to an LDA if he is regularised under Rules of 1990. To the contrary, the rules make it clear that they shall be considered for regular appointment and not for being promoted on the post in question.

This being the position of the Rules, 1990, either way, namely under the Rules, 1942 or under the Rules, 1990, there is no rule for promotion to the post of LDA. Thus, those who have been given regular appointment under the Government Order dated 23rd July, 1990 as an LDA, the same is only by way of appointment which is no promotion and consequently reverting back to the definition contained in Rule 2(f) which are the 1942 Rules applicable, the said recruitment through regularization is direct recruitment and not promotion.

Once having held that the regularised Lower Division Assistants are not promotees, the question that remains to be answered is as to what rules of seniority have to be applied and in what manner? A perusal of the determination of seniority dated 2.11.2000 and the rejection of the representation on 21.11.2000 indicate a reference to the 1942 Rules and to the U.P. Government Servant Seniority Rules, 1991. However, a mere reference to the Rules without applying the same in terms of the entry of an incumbent into the cadre does not appear to have been spelt out categorically. We have already held that a person would be entitled to get his seniority counted only from the date of entry into his cadre which in turn would be dependent upon the availability of the vacancy against which the incumbent has been appointed in accordance with the Rules.

The LDAs, who were regularised on 23.7.1990, were also extended the benefit of seniority by virtue of Rule 7 of the said Rules of 1990 quoted hereinunder :-

"7. A person appointed under these rules shall be entitled to seniority in accordance with the Service Rules and for this purpose selection under these rules shall be deemed to be selection under the Service Rules :

Provided that the inter-se seniority of the candidates so appointed shall be the same as it was in the cadre from which they were promoted on an officiating basis."

The said rule clearly indicates that seniority would be in accordance with the Service Rules as the selections are under the Service Rules. The word "Service Rule" has been defined under Rule 3(6) of the Regularisation Rules to mean the Uttar Pradesh Secretariat Ministerial Staff Rules, 1942. Rule 2 thereof specifically states that they shall have effect notwithstanding anything to the contrary contained in any other rules or orders. Thus, the seniority of those who were regularised under the said rules in 1990 has to be determined as per Rule 46 of the Rules, 1942 upon determination of vacancy as per the 1942 Rules read with the Seniority Rules, 1991. This determination of vacancy has however to be calculated in accordance with the definition of the word "Available Vacancy" contained in Rule 3(2) of the 1990 Regularisation Rules extracted hereinunder :-

"(2) "Available Vacancy" means a Vacancy for which no candidate has been recommended by the Commission before the date of notification of these rules."

The word "Available Vacancy" has been defined to mean a vacancy against which no candidate has been recommended by the Commission before the date of notification of the said rules on 23.7.1990.

The vacancy has to be one which has been determined under Rule 11 of the 1942 Rules. Rule 11 of the 1942 Rules is extracted hereinunder :-

"11. Number of vacancies to be filled - The appointing authority shall annually ascertain the number of vacancies available at the commencement of a year and also those expected to occur during that year in the posts of Upper Division Assistants, Translators, Lower Division Assistants and Stenographers and accordingly intimate to the Commission the number of vacancies intended to be filled on the results of the examination or selection, as the case may be, to be held that year, indicating also the number of posts reserved in each category under rule 6 for candidates belonging to Scheduled Castes."

In order to calculate the vacancy, therefore, one will have to go back to the availability of the vacancy prior to the enforcement of the said rule which vacancies have to be such so that a person can claim his substantive appointment against such vacancy. The reason is that seniority would be given only from the date of substantive appointment against such a vacancy. This determination for all such candidates who have been regularised will therefore have to be made by preparing a separate chart indicating as to how and when the vacancy became available.

This is necessary as the vacancies came to be created vide Government Order dated 6.8.1990 apart from the vacancies which were existing. The first thing therefore to be done is as to which were the vacancies that were available on 23.7.1990. So far as their subsequent adjustment is concerned, the same can only be from the date any vacancy is made available. This peculiar situation has arisen because of the fact that the regularisation rules have been enforced even prior to the declaration of the vacancies on 6.8.1990 which do indicate the dates from which they have been made available to the incumbents. The question is that the available vacancy has to be against such a vacancy for which no candidate had been recommended by the Commission before the notification of the Rules. The criteria therefore again will have to be as to whether the vacancy was available so as to cover the regularised appointments envisaged under the notification dated 23.7.1990. It is only then that seniority can be claimed by the incumbent under Rule 46 of the 1942 Rules read with Rule 7 of the 1990 Regularisation Rules.

There is one more aspect which has to be adopted while determining seniority, namely, the determination of seniority on account of the U.P. Government Servant Seniority Rules, 1991 coming into force. This is necessary because the said Seniority Rules of 1991 came into effect from 23.03.1991 and the seniority lists were prepared initially on 24.07.1991 and 25.07.1991. Thus, the Seniority Rules had come into force by the time the seniority list had been issued. Consequently, the impact thereof has also to be taken into account as the provisions of reservation or of any other criteria mentioned in the said rules could not have been ignored. The candidates, who came to be appointed on substantive basis after 23.03.1991, their seniority would be governed by the Rules, 1991 as they have an overriding effect over all other rules of seniority. This aspect has also escaped notice of the learned Single Judge for modulating the seniority in terms thereof.

Accordingly, the State Government will now have to undertake an exercise in the light of the aforesaid principles and redetermine the seniority as they would have an impact on the consequential benefits to which the respondent-petitioners may be entitled or their adversaries would be entitled as a result of such determination.

Having regard to the reasons given by us hereinabove, the position that emerges is:-

1. That the respondent-petitioners did have a cause of action as their objections vis-a-vis the seniority of those LDAs', who were regularised vide order dated 23rd July, 1990 against posts created on 06.08.1990, adversely affected the respondent-petitioners with the promulgation of the seniority list on 02.11.2000 and the rejection of the representation on 21.11.2000. We further hold that the petition of the respondent-petitioners is not barred by laches for all the reasons recorded hereinabove nor have they delayed the filing of the writ petition as the cause of action arose to them only after the lists and orders were issued on 2.11.2000 and 21.11.2000 respectively.

2. The Division Bench judgment dated 2nd July, 1996 in the case of U.P. Secretariat, UDA Association and 7 others Vs. State of U.P., Writ Petition No. 6200 of 1993 as affirmed by the Supreme Court in the decision in Special Appeal No. 25086 of 1996 decided on 27.1.1997 by the Apex Court and reported in 1999 (1) SCC 278; U.P. Secretariat UDA Association Vs. State of U.P. and others has attained finality as in relation to Upper Division Assistants, subject to the direction issued by the Hon'ble Apex Court to the effect that promotees are also required to be fitted into service from the date when they are entitled fitment in accordance with the quota and rota prescribed under the rules, but at the same time the said judgment would not be an impediment for the reasons given in our judgment hereinabove for determining the limited issue of seniority of the Lower Division Assistants.

3. The status of the employees who have been regularized under the Rules, 1990 and have been appointed under the post creation order dated 6th August, 1990 are not promotees and can only be treated as direct recruits for the reasons given in the judgment hereinabove. The presumption raised and the finding recorded by the learned Single Judge to that extent stands reversed.

4. In view of our findings and conclusions that the candidates, who fall under the Rules, 1990 are not promotees and are direct recruits, there is no reason to apply the quota and rota rule for promotees for them.

5. For the reasons given by us hereinabove, we also hold that the State Government has not been able to establish about any exercise of having undertaken for determining the vacancies under Rule 11 of the Rules, 1942 as per the cadre strength defined under the rules. This exercise will also have to be undertaken to first determine the vacancies that are available in Rule 3(2) of the Rules, 1990 in order to determine as to whether the appointments by way of regularization have been offered against the substantive vacancies available with regard to which no candidate had been recommended by the Commission before the notification of the said rules on 23rd July, 1990. The argument of the learned counsel for the respondent-petitioners that in order to claim seniority those who have been regularized, their induction into the cadre and date of entry upon being appointed in a substantive capacity against a substantive vacancy has to be determined before extending to them the benefit of seniority, is accepted.

6. For this the status of post creation or availability of the post in the cadre, the vacancies determined as per rules and then the placement according to the date of substantive appointment will have to be determined.

7. So far as those who have been extended the benefit of 15% promotion from the post of Group-D/Class IV Employees, their status stands determined by the introduction of sub-rule (4) of Rule 14 of the 1942 Rules as introduced on 5.11.1990 and therefore they have to be allocated their space as per their appointment under the aforesaid provision.

In view of the conclusions drawn hereinabove and the reasons in support thereof, we allow Special Appeal No. 31 of 2005 and set aside the judgment dated 6th August, 2004 but at the same time we also grant relief to the writ petitioners to the extent of allowing the writ petition and quashing the final seniority list dated 2nd November, 2000 as well as the rejection of the representation of the writ petitioners vide order dated 21st November, 2000. All consequential action taken pursuant to the judgment dated 6.8.2004 would also stand annulled including the seniority list dated 21.10.2005.

As a consequence of the aforesaid relief having been extended, we further clarify that the seniority list of the LDA shall be redetermined in the light of the observations made hereinabove and the principles that have been spelled out in this judgment as well as the rules and regulations applicable as per the law prescribed and after the exercise is completed, the list of 24.07.1991 and 25.07.1991 would stand modified accordingly if necessary as a fall out of such exercise. This exercise shall be undertaken by the State Government and concluded preferably within a period of three months and till such exercise is concluded no fresh third party rights should be created till finalization of the seniority as per this judgment. So far as the consequential action taken by the State Government pursuant to the impugned judgment dated 6th August, 2004 is concerned, since the judgment has been set aside, any action taken on the strength thereof also falls through.

36. In view of above, the controversy in relation to the appointment of the persons on the post of LDA under the provisions of Rules, 1990 has already been decided by the coordinate Bench of this court vide order dated 08.05.2015, which has also been upheld by the Hon'ble Apex Court.

37. Thus, it is crystal clear that the issue of appointment/regularisation of 2004 persons on the post of LDA vide Government order dated 23.07.1990 has already been decided by the coordinate Bench and declared all the aforesaid appointee as direct recruitee. The coordinate Bench also found that on 23.07.1990, since 1231 substantive vacancies of LDA were available and 773 temporary posts of LDA were created vide Government Order dated 06.08.1990 with the consent of Finance Department dated 03.08.1990, therefore, said 773 LDAs are entitled to seniority from 06.08.1990 and not from 23.07.1990.

As the respondent-petitioners are appointed against the U.P. Secretariat Upper/Lower Division Clerks Examinations 1991 & 1995, in pursuance of requisition of State Government dated 19.03.1991 and 13.04.1994, therefore, they are entitled for their seniority from the date of their appointment as per Seniority Rules, 1991.

It is well settled by the Hon'ble Apex Court in the case of K. Meghachandra Singh & Ors. Vs. Ningam Siro & Ors., 2020 (5) SCC 689 that the seniority will be given from the date when the employee born in the cadre, therefore, the persons appointed in pursuance of the requisitions dated 19.03.1991 and 13.04.1994, cannot be placed above the persons appointed in the year 1990. The relevant part of the judgment is reproduced as under :

"30. We may also benefit by referring to the judgment in State of U.P. v. Ashok Kumar Srivastava [State of U.P. v. Ashok Kumar Srivastava, (2014) 14 SCC 720 : (2015) 3 SCC (L&S) 536] . This judgment is significant since this is rendered after the N.R. Parmar [Union of Indiav. N.R. Parmar, (2012) 13 SCC 340 : (2013) 3 SCC (L&S) 711] decision. Here the Court approved the ratio in Pawan Pratap Singh v. Reevan Singh [Pawan Pratap Singh v. Reevan Singh, (2011) 3 SCC 267 : (2011) 1 SCC (L&S) 481] , and concurred with the view that seniority should not be reckoned retrospectively unless it is so expressly provided by the relevant Service Rules. The Supreme Court held that seniority cannot be given to an employee who is yet to be borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime. The law so declared in Ashok Kumar Srivastava [State of U.P. v. Ashok Kumar Srivastava, (2014) 14 SCC 720 : (2015) 3 SCC (L&S) 536] being the one appealing to us, is profitably extracted as follows : (SCC p. 730, para 24)

"24. The learned Senior Counsel for the appellants has drawn inspiration from the recent authority in Pawan Pratap Singh v. Reevan Singh [Pawan Pratap Singh v. Reevan Singh, (2011) 3 SCC 267 : (2011) 1 SCC (L&S) 481] where the Court after referring to earlier authorities in the field has culled out certain principles out of which the following being the relevant are produced below : (SCC pp. 281-82, para 45)

''45. (ii) Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution.

***

(iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime.' "

Admittedly, the aforesaid facts were not considered at the time of issuing of seniority list of LDA dated 08.09.2015.

38. As it is evident that on 23.07.1990, only 1231 posts of LDAs were available, but 2004 persons officiating as LDA were appointed under the Rules, 1990, i.e., 773 persons were appointed beyond the sanctioned strength, therefore, 773 temporary posts of LDA were created on 06.08.1990, thus, we hereby hold that the said 773 persons are entitled for seniority from 06.08.1990. We further hold that persons appointed against the Examinations 1991 & 1995 are entitled to get their seniority as per Rules, 1942 read with Seniority Rules, 1991.

39. In view of facts and discussions made above, impugned order dated 21.09.2017 passed in Writ Petition (S/S) No. 5828 of 2015 (Dr. Kishore Tandon & Ors. Vs. State of U.P. & Ors.) along with connected Writ Petition (S/S) No. 12598 of 2017 (Hari Shankar Nath Tiwari & Ors. Vs. State of U.P. & Ors.) is hereby set aside with all consequentials. Seniority list dated 08.09.2015 in relation to 773 LDAs who were adjusted against the post creation order dated 06.08.1990 and the LDAs appointed in pursuance of Requisition dated 19.03.1991 onwards, is also hereby quashed.

The special appeals stand allowed.

40. State Government is directed to prepare the seniority list of Assistant Review Officer (earlier known as LDA) in the light of the observations made hereinabove and as per the prescribed law, within four months from today.

41. The party shall file computer generated copy of order downloaded from the official website of High Court Allahabad, self attested by it alongwith a self attested identity proof of the said person(s) (preferably Aadhar Card) mentioning the mobile number(s) to which the said Aadhar Card is linked, before the concerned Court/Authority/Official.

42. The concerned Court/Authority/Official shall verify the authenticity of the computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

(Rajeev Singh, J.)     (Ramesh Sinha, J.)