B.N.Lokur, J. - (1.) Petitioner Prem Pal Mital and Respondent No. 3, Bankey Behari Srivastava, belong to the staff of the Uttar Pradesh Public Service Com- mission. They were both promoted as Assistant Superintendents and were also appointed from time to time to officiate as Superintendents. It is not disputed that Bankey Behari Srivastava was senior to Petitioner Prem. Pal Mital as Assistant Superintendent. Petitioner Prem Pal Mital was confirmed as Superintendent on the 24th July, 1962 while Bankey Behari Srivastava was confirmed as such on the 5th April, 1963. A seniority list was drawn up by the Uttar Pradesh Public Service Commission, Respondent No. 1, on the 1st December, 1963, in which Bankey Behari Srivastava was shown as senior to Petitioner Prem Pai Mital. It is against this gradation of seniority that Prem Pal Mital has come up to this Court with a petition under Article 226 of the Constitution. His short contention is that he was confirmed as Superintendent earlier than Bankey Behari Srivastava and, therefore, he is entitled to seniority over Bankey Behari and has, accordingly, prayed for a writ or direction that he be placed above Bankey Behari Srivastava in the gradation list and the existing gradation list be quashed.
(2.) The rule of seniority amongst the staff of the U. P. Public Service Com- mission is stated in Regulation 25 of the United Provinces Public Service Com- mission Staff (Conditions of Service) Regulations, 1942 which reads as follows : "The seniority of a member of the staff shall be determined in the class to which he is appointed by the date of his substantive appointment, and in the lase of more than one person being appointed on the same date, according to their respective positions on the waiting list, provided that the appointing authority may direct that a member whose period of probation is extended for failure to prove his fitness for confirmation be placed in the seniority list below the last confirmed member".
(3.) The learned counsel for Petitioner Prem. Pal Mital contended that the substantive appointment of Prem Pal Mital as Superintendent was on the date of his confirmation, namely, 24th July, 1962, and he is senior, under Regulation 25, to Bankey Behari whose substantive appointment was made on the 5th April, 1963, the date of his confirmation. The learned Standing Counsel on the other hand contended that the date of confirmation is not the date of substantive appointment for the purpose of Regulation 25 and the (late on which a member of the staff is appointed on probation against a permanent vacancy is the date of his substantive appointment; Bankey Behari was appointed on probation on 5th April, 1962 while there was no such appointment on probation in the case of Prem Pal Mital who was merely officiating till he was confirmed on 24th July, 1962. On this argument, the seniority of Bankey Behari over Prem Pal Mital, as shown in the gradation list, is sought to be defendant.;