KESHAV DEO AND ANR.versusSTATE OF U.P. AND ORS.

                        KESHA V DEO AND ANR.                                       A
                                       v.
                        STATE OF U.P. AND ORS.

                            OCTOBER 16, 1998

         [SUJATA V. MANOHAR AND M. SRINIVASAN, JJ.]                                B

     Service Law:

    U.P. Services ofEngineers (Building and Roads Branch), Class-II Rules,
1936-Rules 5, 6, 12 and 23(d) (as amended in 1969 and 1971)                        C
      Seniority-Promotees vis-a-vis Direct recruits-Determination--Ad hoc
 appointment-Made after following prescribed procedure-Officiating or ad
 hoc basis-Consideration of-Held, Seniority ofpromotees has to be counted
from the date of promotion whether on officiating or ad hoc basis-Hence,
promotees are entitled to benefit of their service in officiating capacity.        D
      The appellants were promoted to the post of Assistant Engineers on ad
hoc basis. The said promotions were made within the quota of posts reserved
for the promotees according to the relevant Service Rules by the Departmental
Promotion Committee. Since then, the appellants have been working
uninterruptedly on the post of Assistant Engineers. Subsequently, the State        E
Service Commission confirmed the appellant as Assistant Engineers.

      In the meanwhile, an ad hoc promotee Assistant Engineer like the
appellant filed a writ petition before the High Court (Saksena's case) claiming
seniority in the post of Assistant Engineer from the date of initial appointment   F
and officiation on the said post. The High Court allowed the writ petition.

     A similar controversy arose (Yadav's case) before the High Court
where also another Division Bench of the High Court took the same view.

      Pursuant to the aforesaid judgment in Saksena'a case and Yadav's case
the appellant-State gave benefit of seniority to the promotees. A seniority list   G
was also published. Aggrieved by the said list respondent No. 3 and 4 filed
a writ petition before the High Court. The High Court quashed the seniority
list on the ground that it was against the decision of this Court in P. D.
Aggarwal's case. The Division Bench also held that the judgment in Sakse(la's
case and Yadav's case were also contrary to the said decision of this Court        H
                                      343
    344                       SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.

A and not good law. The Division Bench further held that the period of service
    rendered by the promotee-Assistant Engineers before the appointment in
    accordance with the Rules, i. e. appointment with the consultation of the
    Commission, could not be counted for the purpose of determining the seniority.
    Hence this appeal.

B         In the appeal before this Court the following que.stion arose:-

          Whether in the facts and circumstances of the case the appellants are
    entitled to seniority on the post of Assistant Engineers from the date they
    have been officiating as such or from the date they were selected and approved
C   by the Commission?

          Allowing the appeal, this Court

        HELD: 1.1. From the U. P. Services of Engineers (Buildings and Roads
  Branch), Class-II Rules, 1936 (as amended in 1969 and 1971) the following
D position emerges:
          (a) The number ofvacancies for each year has to be determined.

          (b) They have to be filled from the sources mentioned in the Rules in
    the proportion specified.
E
        (c) Selection of candidates from each source to be made in the prescribed
    manner.

         (d) In the case of promotions from Subordinate Engineering Service,
    25 per cent of the vacancies are reserved for them.
F
          (e) Such of the eandidates who are recommended by the commission
    after following the prescribed procedure will be appointed to fill up the
    vacancies for the specified year.

          (t) If anybody is appointed with affect from a back date, that date will
G be deemed to be the date of substantive appointment.
         (g) Seniority of such person has to be counted from that date whether
    he was working on that post on officiating or ad hoc basis.

          (h) It follows as a corollary that any person appointed subsequent to the
H said date will be junior to him. (350-D-E-F-G-H; 351-A)
                            KESHAVDEOv.STATE                                 345
      1.2. Undisputedly, the appellants possessed the requisite qualifications       A
for the post of Assistant Engineer. Their promotions were within the quota
prescribed for them as there were sufficient number ofvacancies reserved
for promotees. They were selected by the Departmental Promotion Committee
even for their ad hoc promotion. They were recommended by the State Public
Service Commission after some years. After such recommendation, their                B
promotions were confirmed. The impugned seniority list was prepared on
that basis after the issue of directions by the High Court in Saksena's case
and Yadav's case. It goes without saying that the said seniority list is in
accordance with the Rules and cannot be disturbed. The High Court erred
in upsetting that list on the ground that it violates the Rule in P. D. Aggarwal's
case. [351-A-B-C]                                                                    C
    Direct Recruit Class II Engineering Officers' Association v. State of
Maharashtra, [1990) 2 SCC 715, following.

        P. D. Aggarwal v. State of U.P., [1987) 3 SCC 622, held inapplicable.

      G. P. Doval v. Chief Secretary, Govt. of U.P., (1984) 4 SCC 329; O.P. D
Sing/av. Union ofIndia, [1984] 4 SCC 450; D.N. Aggarwal v. State of M.P.,
(1990) 2 SCC 553; Masood Akhtar Khan, case [1990) 4 SCC 24; State of
Bihar v. Akhouri Sachindranath, (1991) Suppl. 1SCC334; Keshav Chandra
Joshi v. Union of India, (1992) Suppl. 1 SCC 272; 'Aghore Nath Dey',
(1993) 3 SCC 371; V. Srinivasa Reddy v. Govt. of A.P., [1995) Suppl. 1 SCC E
572; V.P. Shrivastava v. State of M.P., (1996] 7 SCC 759; U.P. Secretariat,
case J.T. (1997) SC 461; 'Jagdish Ch Patnaik' J.T. (1998) 3 SC 105 and
'Mohd Sadar Ali' J.T. (1998) 5 SC 627, referred to.

      2. Therefore, it has to be held that the impugned seniority list prepared
by the Government pursuant to the directions contained in Saksena's case             F
and Yadav's case is in accordance with the Rules and cannot be 'nterfered
with on the ground that the promotees have been given the benefit of their
service in officiating capacity. [351-B-C]

      D.N. Saksena v. State of U. P. (ALL), (W P No. 1536 of 1981 decided
on 4-7-1989) and V.K. Yadav v. State of U. P., (ALL.) (W. P. No. 8966of1989          G
decided on 17-1-1990), approved.

        CIVIL APPELLATE JURISDICTION: C!vil Appeal No. 1647 of
1997.

        From the Judgment and Order dated 22.1.97 of the Allahabad High Court        H
    346                        SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.

A   in W.P. No. 684 of 1995.

         Rakesh Dwivedi, Kavin Gulati, Tarun Gulati and Mrs. Nandini Gore for
    the Appellants.

          A.B. Rohtagi, K. Misra and R.B. Misra for the State ofU. P.
B
          Amit Bose, IV.. A. Chinnasamy, for the Respondent No. 3 Vishnu Sharma,
    (Tripurari Ray) and Vineet Kumar for the Respondent No. 4

          The Judgment of the Court was delivered by

C         SRINIVASAN, J. The first appellant was appointed as an Overseer (re-
    designated as Junior Engineer) on adhoc basis in Public Works Department
    (for short P.W.D), State ofU.P. on 17.7.1970 and was approved by the Public
    Service Commission, U.P. (for short the Commission) on 30.6.1973. The second
    appellant was directly appointed as overseer substantively in the said
    department through the Commission on the same day. Both the appellants
D   were holders of Diploma in Civil Engineering. In May, 1978 they passed an
    examination known as Associate Member of Institution of Engineer (India),
    Section A and B, equivalent to B.E. Degree. On 30.5.1979 the appellants were
    promoted to the post of Assistant Engineers on adhoc basis. The said
    promotions were made within the quota of posts reserved for the promotees
E   according to the relevant Service Rules by the Departmental Promotion
    Committee consisting of Secretary, P. W.D., Chief Engineer, P.W.D. and Chief
    Engineer Irrigation Department. The appointment orders stated that the
    promotion was being made to cope up with the work load in the Department
    since Assistant Engineers approved by the Commission were not available
    and that the promotions were only for a period of one year. Since then, the
F   appellants have been working uninterruptedly on the post of Assistant
    Engineers.

          2. Respondents 3 & 4 were selected through the Commission and
    appointed directly as Assistant Engineers in the P.W.D. by order dated 9.8.1979.
G   The commission held in the year 1980, an interview of some of the promotees
    to be considered for the post of Assistant Engineers. The appellants have a
    grievance that though their juniors were called for interview, they were not
    considered without any reason therefor. However that grievance is outside
    the scope of the present controversy. In the interview held in the year 1984,
    the appellants were also called and they were duly approved and selected by
H   the Commission. Consequently, they were confirmed as Assistant Engineers.
                   KESHA VDEOv. STATE [SRINIVASAN,J.]                      347
       3. In the meanwhile, one D.N. Saksena, who was an adhoc promotee as         A
Assistant Engineer in the year 1970 just like the appellants and approved by
the commission in the year 1980, tiled a Writ Petition in the High Court namely
W.P. No. 1536 of 1981, claiming seniority in the post of Assistant Engineer
from the date of initial appointment and officiation on the said post. That Writ
Petition was treated to be one in representative capacity and notice was given     B
to all concerned through the newspapers. A Division Bench of the High Court
upheld on 4. 7 .1989 the claim made by the petitioner in the said writ petition
and held that the promotees would be assigned seniority from the date of
continuous 9fficiation and not from the date of approval by the Commission.

      4. A similar controversy inter-se the promotees and direct recruits arose    C
in another writ Petition No. 8966 of 1989 which was decided on 17.1.1990.
There also the same view was taken by another Division Bench which was
challenged in S.L.P. (c) No. 4878of1990, V.K.Yadav v. State ofU.P. in this
Court. The S.L.P. was dismissed on 19.11.1990.

       S. The judgment in the case of Saksena referred to earlier was assailed     D
in this Court in S.L.P. (C) No. 9343of1990, C.P. Sharma Versus State ofUttar
Pradesh and others. The appellant therein placed reliance on the judgment of
this Court in P.D. Aggarwal v. State of U.P. and Ors., (1987] 3 SCC 622. By
judgment date.;11.2.1991, the S.L.P. was dismissed by this Court.
                                                                                   E
       6. Pursuant to the aforesaid judgments the State Government gave
benefit of seniority to the promotees. A seniority list was published, vide
letter dated 3.12.1984 issued by the Secretary. Govt. ofU.P. inviting objections
against the same. After considering the objections filed by the direct recruits,
a final seniority list was prepared and published, vide notification dated
11.7.1995. The first appellant was placed at Serial No. 566 and second appellant   F
at Serial No. 567. Respondents 3 & 4 were placed at Serial Nos. 712 and 722
respectively. Aggrieved by the said list, respondents 3 & 4 filed Writ Petition
No. 684 (SB) of 1995 in the High Court. The main ground of attack was that
the counting of the period of continuous officiation of the promotees from
the date of adhoc appointment was against the decision of this Court in P.D.       G
Aggarwalv. State ofU.P., (1987] 3 SCC 622. No promotee was impleaded as
a party to the Writ Petition. The application filed by the appellants for
impleading them as parties was also dismissed by the High Court. However,
the appellants were permitted to advance arguments through their counsel at
the time of hearing. The State Govt. in its counter affidavit justified the
seniority list as one based on the rulings in D.N. Saksena and V.K.Yadav.          H
    348                       SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.

A         7. The Division Bench of the High Court has quashed the seniority list
    on the ground that it was against the decision of this Court in P.O. Aggarwal.
    The Division Bench also held that the judgments in Saksena and Yadav were
    also contrary to the said decision of this Court and not good law. The
    Division Bench held that the period of service rendered by the promotee -
    Assistant Engineer before the appointment in accordance with the rules, that
B   is appointment with the consultaiton of the Commission, can not be counted
    for the purpose of determining the seniority.

          8. That is the judgment which is challenged in this appeal. Three
    questions were posed by the appellants for consideration:
c          I. Whether in the facts and circumstances of the case the appellants are
    entitled to seniority on the post of Assistant Engineers from the date they
    have been officiating as such or from the date they were selected and approved
    by the Commission?

D          II. Whether the appellant~ can be deprived of the benefits of their
    officiating service prior to the approval of the Commission for the purpose
    of seniority in view of the fact that the delay in granting approval for making
    them regular on the post of Assistant Engineer was attributable to the State
    Government and the Commission, as the appellants were fully qualified to be
    appointed and approved as Assistant Engineers even on the date, they were
E   appointed to officiate as such?

         III. Whether the High Court was right in reopening the issues which
    have been decided in favour of the promotees by three different Division
    Benches of the same Court without referring the matter to a larger Bench?

F         9. We do not propose to consider the third question as an answer in
    the negative would only lead to a remand to the High Court for fresh
    consideration of the matter. As the dispute between the. promotees and direct
    recuits has been pending for a long time, a remand will only prolong the
    agony of the parties and the matter may have to come again to this Court for
G   decision. Hence, we propose to decide the appeal on merits.

           10. We are also of the opinion that it is not proper to decide the second
    of the above questions. In this case the appellants or other promotees were
    not parties to the writ petition and the High Court has decided only the
    general principle applicable in the dispute between the promotees and direct
H   recruits in the matter of seniority and not considered the individual grievances
                     KESHAVDEOv. STATE[SRINIVASAN,J.]                        349
if any, against the seniority list dated 11.7.1995. Any individual grievance         A
against the said seniority list is a matter for agitation before the appropriate
forum. We leave that question open.

       11. What remains to be considered is only the first question set out
above. The Service Rules applicable in this case are the U.P. Services of            B
Engineers (Buildings and Roads Branch), Class-II Rules, 1936 as amended in
 1969 and 1971 hereinafter referred to as Rules. Rule 5 provides that recruitment
to the post of Assistant Engineer shall be made by direct recruitment as well
as promotion. Rule 6 says that the Governor shall decide the number of
appointments to be made at each selection in each kind of post from the
sources mentioned in Rule 5. The provisos to the rule specify the proportion         C
from each source. According to the provisos twenty five percent of the
vacancies shall be filled by promotion of members of the P.W.D. Subordinate
Engineering Service and P.W.D. Computers' Services. As per Rule 12,
recruitment by promotion shall be made by selection on merit. The Secretary
shall consider the cases of all eligible candidates and draw up, in order of         D
merit a list of candidates considered suitable for promotion. A supplementary
list of candidates whom the Secretary considers suitable for officiating or
temporary appointments shall also be drawn and both lists should be sent to
the Commission along with Character Rolls, etc. The Commission after
examining the rolls may add to the lists as they may like and return them to         E
the Govt. Thereafter the candidates will be interviewed by a Selection
Committee presided over by a representative of the Commission. The
Committee shall thereafter prepare two lists and place them before the
Commission. The Commission shall make their final recommendations to the
Govt. Appointments will be made on the basis of such recommendations. Rule
23 provides for seniority and sub rule (d) is very relevant in this case and         F
it reads thus:

      Rule 23{d):

        "As and when vacancies are allocated in any year according to the
        promotion specified in the first proviso to rule 6, the inter-se seniority   G
        of those referred to in clauses (a), (b) and (c) above will be determined
        by framing a cycle of 4 according to the following formula :-

        1.      P.

        2       T.                                                                   H
     350                        SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.

A            3.       D.

            4.        D.


                  Repeat
B

           Note (I) in the Rule reads as follows :-

           "Note :-1.

c               Where the appointment order specifies a particular back date with
            effect from which a person is to be appointed substantively (on
            probation against a clear vacancy on a permanent post) that date will
            be deemed to be the date of order of substantive appointment. In
            other cases it will mean the date of issue of the order."
ID        12. From the Rules applicable to the parties, the following position
     emerges:

           (a) The number of vacancies for each year has to be determined.

E          (b) They have to be filled from the sources mentioned in the rules in
     the proportion specified.

          (c) Selection of candidates from each source to be made in the prescribed
     manner.

F          (d) In the case of promotions from Subordinate Engineering service, 25
     per cent of the vacancies are reserved for them.

           (e) Such of the candidates who are recommended by the Commission
     after following the prescribed procedure will be appointed to fill up the
G    vacancies for the specified year.

          (f) If anybody is appointed with effect from a back date, that date will
     be deemed to be the date of substantive appointment.

          (g) Seniority of such person has to be counted from that date whether
H    he was working on that post on officiating or ad hoc basis.
                   KESHAVDEOv. STATE [SRINIVASAN,J.]                        351
      (h) It follows as a Corollary th~t any person appointed subsequent to         A
the said date will be junior to him.

        13. Bearing the above principles in mind the facts of the case may be
analysed. Undisputedly, the appellants possessed the requisite qualifications
for the post of Assistant Engineer. Their promotions were within the quota
prescribed for them as there were sufficient number of vacancies reserved for       B
promotees. They were selected by the Departmental Promotion Committee
even for their ad hoc promotion. They were recommended by the Commission
after some years but with reference to 1979. After such recommendation their
promotions were confinned with effect from 30.5.1979. The impugned seniority
list was prepared on that basis after the issue of directions by the High court     C
in D.N. Saksena and V.K.Yadav. It goes without saying that the said seniority
list is in accordance with the Rules and can not be disturbed. But unfortunately
the High Court has upset that list on the ground that it violates the rule in
'P.D. Aggarwal.'

       14. We shall now advert to 'P.D.Aggarwal' and all the other rulings cited    D
by counsel on both sides in the chronological order, In G.P. Doval and Ors.
v. Chief Secretary. Govt. of UP. and Ors., [1984] 4 S.C.C. 329, it was held that
subsequent approval by Public Service Commission to temporary appointments
already made will relate back to the date of initial appointment for the purpose
of reckoning seniority on the basis of the general rule of continuous officiation   E
in the absence of any particular rule framed in that regard. That case related
however to a dispute between two sets of direct recruits.

       15. In O.P. Sing/av. Union ofIndia, [1984] 4 S.C.C. 450 the contest was
between promotees and direct recruits. A Bench of Three Judges held that
the seniority of direct recruits and promotees appointed under the Rules must       F
be determined according to the dates on which direct recruits were appointed
to their respective posts and the dates from which the promotees have been
officiating continuously either in temporary posts created in the Service or in
substantive vacancies to which they were appointed in a temporary capacity.

                                                            •
      16. In P.D. Aggarwal and Ors. v. State of U.P., [1987) 3 S.C.C. 622 the
                                                                                    G
dispute was between two sets of direct recruits. Whatever observation was
made in that case must be taken along with the context. The respondents in
that case were directly recruited as Asstt. Civil Engineers in substantive
capacity against temporary vacancies in consultation with the Public service
Commission under Rules, 1936. The appellants were also similarly recruited          H
    352                        SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.

A   but later on the basis of the competitive examination conducted by the
    Commission they were appointed directly on probation against permanent
    vacancies. Both categories of Assistant Engineers were graduates in
    Engineering and were perforn1ing the same nature of work. In December 1961,
    the Govt. issued an O.M. Laying down principles for recruitment to permanent
B   and temporary vacancies and pursuant thereto the Rules were amended in
    1969 and 1971. The effect of the amendments was that the Assistant Engineers
    who had become members of service under the 1936 Rules would no longer
    be members of service and required to wait till selection and appointment as
    Assistant Engineers under Rule 5 (a)(ii) against quota fixed by Rule 6of1969
    Amendment Rules. Consequently the Assistant Engineers appointed several
C   years ago to the temporary posts had to wait until their selection and
    appointment to permanent posts against the prescribed quota whereas the
    Assistant Engineers recruited to permanent posts several years after would
    supersede the former in the matter of detern1ination of seniority from the date
    of their appointment against the permanent vacancies. This Court quashed
    the amended rules as well as the seniority lists. In the course of the judgment,
D   this Court said that the period of service rendered by the ad hoc appointees
    before their service had been duly regularised in accordance with the
    regularisation rules, cannot be taken into account in reckoning their seniority
    in service and that their seniority will be counted only from the date when
    such ad hoc appointees after regularisation in accordance with concerned
E   rules had become members of the service. The Bench had no occasion to
    consider a situation similar to the one which has arisen in this case.
    Unfortunately, the High Court has without understanding the ruling correctly
    observed repeatedly that the decisions in D.N. Saksena and V.K.Yadav and
    the seniority list prepared in 1995 in accordance with the same are contrary
    thereto.
F
           17. In D.N. Aggarwal and Anr. v. State of MP. and Ors., [1990] 2 SCC
    553 ad hoc promotions were made when the persons concerned were not
    eligible and had not completed qualifying period of service. Though they
    were later selected by D.P.C. on regular basis and appointed as such to the
G   promotion post on their completing the qualifying period of service, it was
    held that their ad hoc period of service cannot be counted for the purposes
    of their seniority.

          18. In Direct Recruit Class ii Engineering Officers Association v. State
    of Maharashtra and Ors., [1990] 2 SCC 715, the Constitution Bench held that
H   once an incumbent is appointed to a post according to rule, his seniority has
                   KESHAVDEOv. STATE[SRINIVASAN,J.]                          353
to be counted from the date of his appointment and not according to the date        A
of his confinnation. The Bench summed up the law in the fonn of eleven
propositions. It is sufficient to refer to the first two propositions which are
in the following terms :

        "(A) Once an incumbent is appointed to a post according to rule, his
        seniority has to be counted from the date of his appointment and not        B
        according to the date of his confirmation.

        The corollary of the above rule is that where the initial appointment
        is only ad hoc and not according to rules and made as a stop-gap
        arrangement, the officiation in such post cannot be taken into account      C
        for considering the seniority.

        (B) If the initial appointment is not made by following the procedure
        laid down by the rules but the appointee continues in the post
        uninterruptedly till the regularisation of his service in accordance with
        the rules, the period of officiating service will be counted."              D
      19. Masood Akhtar Khan case, [1990] 4 SCC 24 has no bearing in this
case as the initial appointments of the appellants therein who were direct
recruits were not according to the Rules.

      20. In State of Bihar v. Akhouri Sachindranath and Ors., [1991] Supp.         E
   SCC 334, it was held that no person can be promoted with retrospective
effect from a date when he was not born in the cadre so as to adversely affect
others. The respondents 1 to 5 in that case were directly appointed as Asstt.
Engineers on the recommendation of the Public Service Commission in 1961.
Respondents 6 to 13 were promoted to the post in 1964 and the appellants
were promoted in 1969. The promotees were shown as juniors to the direct            F
recruits in the seniority list. On the representation of the promotees, an order
was passed by the Govt. on 21. 7. 75 changing the date of promotion of the
promotees to a prior date in 1961. Subsequently other orders were passed
pushing back the dates of promotion still further to December 1958 for
respondents 6 & 7 and February 1961 for respondents 14 to 23. Those orders          G
were challenged by respondents 1 to 5 who were direct recruits and the orders
were quashed. That ruling has no relevance in the present case.

      21. In Keshav Chandra Joshi v. Union ofIndia, [ 1992] Supp. 1 SCC 272
promotion was made in excess of the quota on ad hoc basis as a stop-gap
arrangement as direct recruits were not available. Such appointment by              H
    354                        SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.

A   promotion being contrary to rules, the Bench held that the promotees could
    not claim the benefit of their officiation in the promoted post before the date
    of the vacancy within the quota as such service was fortuitous.

          22. In 'Aghore Nath Dey', [1993] 3 SCC. 371, this Court explained the
    s~ope of applicability of corollary to Conclusion (A) and Conclusion (B) in
B Direct Recruit Class II Engg. Officers' Association case (supra) and reiterated
    that the benefit of ad hoc service is not admissible if appointment was in
    violation of Rules. In V. Srinivasa Reddy v. Govt. ofA.P., [1995] Supp. l SCC
    572 the contest was only between two sets of direct recruits and the decision
    turned on an interpretation of the relevant Service Rules.

C         23. In V.P. Shrivastava and Ors. v. State ofMP., [1996] 7 SCC, 759 the
    promotees who were appointed de hors the rules and not approved by the
    Public Service Commission, were held to be juniors to direct recruits regularly
    appointed after selection through Public Service Commission in spite of their
    longer service.

D         24. In U.P. Secretariat case J.T., (1997) 2 SC 461 the promotees were
    appointed in officiating capacity against vacancies reserved for direct
    recruitment as no direct recruitment had taken Place. This Court affirmed the
    judgment of the High Court holding that direct recruit was to be treated from
    the date on which he actually joined the service and the promotee was to be
E   fitted into the service from the date when he was entitled to figment in
    accordance with quota and rota prescribed under the Rules.

          25. The ruling in 'Jagdish Ch. Patnaik', J.T. (1998) 3 SC 105 has no
    application in this case. It is wholly unnecessary to invoke the principle
    stated in Mohd Sadar Ali, J. T. ( 1998) 5 SC 627 that the earlier judgment
p   cannot be reconsidered after a lapse of nine years.

           26. We have no hesitation to hold that the impugned seniority list of
    1995 prepared by the Govt. pursuant to the directions contained in D.N.
    Saksena and V.K. Yadav, is in accordance with the Rules and cannot be
    interfered with on the ground that promotees have been given the benefit of
G   their service in officiating capacity. The question is answered in favour of the
    appellants. As stated already individual grievances against their placement in
    the list have to be agitated in appropriate forum. The judgment of the High
    Court is unsustainable and it is set aside. The Writ Petition filed by respondents
    3 & 4 is dismissed. The parties will bear their respective costs.

H         27. Before parting with the case, we-wish to place on record our strong
                  KESHAV DEO v. STATE [SRINIVASAN, J. J                 355
disapproval of the stand taken by the State Government in this appeal. In the A
High Court, Government stood by the seniority list and justified it. When the
High Court allowed the writ petition, the Govt. ought to have filed an appeal
in this Court particularly because the promotees were not made parties to the
writ petition. Not only did the Govt. fail to do so but in this Court it actively
supported the case of the writ petitioners. The conduct of the Govt. is highly
reprehensible. It is only because of such attitude, the disputes between direct B
recruits on the one hand and promotees on the other became perennial. It is
high time the Govt. realised that if the employees are made to live through
endless litigations, administration cannot be carried on properly.

v.s.s.                                                      Appeal allowed.