Desai, J. - (1.) The petitioners in this group of petitions under Art. 32 of the Constitution were inducted as Khandsari Inspectors between March 1960 and 1964. Respondents 4 to 19 were also recruited as Khandsari Inspectors on different dates. Respondents 1 and 2 are the Chief Secretary, Govt. of U. P. and the Secretary, Industries respectively of the U. P. Government and respondent No. 3 is the Sugar Commissioner of U. P. The dispute amongst the petitioners and the respondents 4 to 19 is about inter se seniority between them in the cadre of Khandsari Inspectors.
(2.) It appears that in the year 1958-59, the State Government framed what is styled as 'Khandsari Licensing Scheme' to regulate the supply of sugarcane to sugar factories by G.O. No. 4588(l) XVIII-A-680/59 dated November 21, 1959 Posts of Khandsari Inspectors initially designated as Licensing Inspectors were created in the pay-scales of Rs. 120-250. Petitioners No S. 1, 2 and 3 were appointed as Khandsari Inspectors between March and May. 1960. Thereafter some of the respondents were recruited as Khandsari Inspectors and some others who were recruited departmentally were approved by the Public Service Commission. On March 22, 1971 the third respondent - the Sugar Commissioner circulated a provisional seniority list of Khandsari Inspectors. The grievance of 'the petitioners is that some of the petitioners have been assigned lower place in the seniority list even though they were recruited earlier and have been continuously in service. To illustrate. petitioners pointed out that petitioners 1 to 3 have been placed at Serial Nos. 25, 29 and 27 respectively though all of them were recruits of 1960 while respondent No. 7-J. S. Negi. who was recruited on March 23, 1961 was assigned the place at Serial No. 15 and respondent No. 4 0. N. Chaturvedi, who was recruited on March 23, 1961 was shown at Serial No. 6. Simalarly, respondent No. 9-P. N. Rai, who was also recruited on March 23, 1961 was shown at Serial No. 17 and respondent No. 5 was shown at Serial No. 8. The petitioners further pointed out that petitioners Nos. 4, 5. 6, 7 and 8, who were recruits of 1961 have been assigned places Nos. 30, 34, 42, 35 and 31 respectively while recruits of 1963 have scored a march over them in the provisional seniority list. The petitioners assert that when the recruitment was made in the year 1960, the post of Khandsari Inspector was not within the purview of the Public Service Commission and that they were regularly recruited to posts which were temporarily sanctioned and indefinitely continued till today and therefore, in reckoning the seniority, they must be given the benefit of the length of continuous officiation. They further contend that when the post of Khandsari Inspector was later brought within the purview of the Public Service Commission, the names of the petitioners who were already recruited in service as also of some of the respondents were forwarded to the Public Service Commission for approval and except petitioner No. 9-S. P. Gupta, the names of rest of the petitioners were approved by the Public Service Commission on September 30. 1963, the relevant date in the case of petitioner No. 9 is April 14, 1978. The petitioners assert that even assuming that their appointment would be regular after approval of the Public Service Commission, yet once such approval is granted, it would relate back to the date of appointment and the previous length of service cannot be ignored or denied in computing their seniority in the absence of any statutory rule or administrative instruction which has the force of law. The petitioners further aver that in the absence of any other statutory rule or administrative instruction for determining seniority, length of continuous officiation provides a valid principle for determining seniority. Viewed from this angle, petitioners 1 to 3 would be senior to all the respondents and the placement of 'the remaining petitioners vis-a-vis the responddents will have to be recomputed. On the circulation of the provisional seniority list, the petitioners submitted various representations pointing out the error in drawing-up the provisional seniority list but till this day no reply was given nor any final seniority list circulated nor reasons assigned for rejecting the representations. The petitioners further say that despite their representation, respondents 1, 2 and 3 are operating the tentative seniority list for making further promotions to the post of Khandsari Officer and Assistant Sugar Commissioner and thereby they are being denied equality of opportunity in the matter of promotion. The petitioners accordingly questioned by these writ petitions the validity and legality of the provisional seniority list asserting that as the final seniority list is not being drawn-up and as the representations are being ignored and yet the provisional seniority list is being operated to the disadvantage of the petitioners thereby denying them equality of opportunity in the matter of promotion which action of the respondents 1 to 3 is violative of Arts. 14 and 16.
(3.) Kailash Narain Pandey, Additional Sugar Commissioner filed affidavit-in-opposition. It was admitted that by the Govt. Order dated November 21. 1959 temporary posts of Licensing Inspectors later redesignated as Khandsari Inspectors in the pay scale of Rs. 120-250 were created but according to him as the maximum of the scale was over Rs. 200 right from its inception, the post was within the purview of the Public Service Commission in view of Regulation 5 (a) of Appointment Department Misc, No. 99/II-B-151-60 dated January 29. 1954 issued under the Uttar Pradesh Public Service Commission (Limitation of Functions) Regulations, 1954. It was then stated that on the framing of the Khandsari Licensing Scheme, it became necessary to urgently appoint Inspectors to implement the scheme and therefore, the third respondent--sugar Commissioner as Appointing Authority pending regular selection through open competition by the Public Service Commission proceeded to make appointments and the appointment of the petitioners were of a stopgap or ad hoc nature and that it created no right to the post. It was admitted that petitioners Nos. 1 and 2 were recruited after holding departmental competitive test on March 4, 1960. Petitioner' No. 3 who was then working as a Clerk in Cane Union Federation Ltd., Lucknow was selected on May 24, 1960 by applying a weeding out test. petitioners Nos. 4 to 8 were recruited after holding qualifying test and interview on 23rd March. 1961 and Petitioner No. 9 was appointed as and by way of stopgap arrangement. It was contended, that the petitioners were appointed on an ad hoc and temporary basis as a measure of stopgap arrangement. It was conceded that all the petitioners except petitioner No. 9 were approved by the Public Service Commission for regular appointment in the year 1963, to be specific on 30th September, 1963 and they have continued uninterruptedly in the posts of Khandsari Inspectors. It was further averred that within a period of one year and seven months from the date of appointment of the petitioners, the State Public Service Commission selected candidates to replace the already working unapproved Licensing Inspectors on the request of the Department and sent a list of approved candidates on September 14, 1961, but only 5 out of 44 such selected candidates joined and hence the Department has to permit the petitioners to continue though according to the third respondent notices of termination of service were served on some of the petitioners. It was further pointed out that when the State Public Service Commission proceeded to recommend candidates for the post of Khandsari Inspectors, some of the petitioners applied for such posts, but their applications were rejected at the stage of scrutiny. But on a request from the Department the State Public Service Commission entertained the applications, called the petitioners for interview and approved them. It was admitted that except petitioner No. 9 all the rest of the petitioners were approved by the Public Service Commission on September 30. 1963. Justifying the drawing-up of the tentative seniority list as being based on recommendations of Public Service Commission, it was said that the service which can be taken into consideration for determining the length of continuous officiation must commence from the date of substantive appointment and accordingly the provisional seniority list has been drawn-up keeping in view the date of approval by the Public Service Commission in respect of each candidate. It was averred that if this principle is valid for the purpose of Art. 16, there is no error in drawing-up the seniority. It was specifically stated that it was open to the Government to ignore officiating service or service rendered on appointment in an ad hoc or stopgap arrangement. It was broadly stated that before a man can claim to have his seniority determined in the cadre. he must belong to the cadre and he can only enter the cadre on substantive appointment.;