A.Banerji, J. - (1.) The three petitioners arc members of the Subordinate Local Fund Audit Service, U. P. (hereinafter referred to as the Service, which is a subordinate non-ministerial service. The petitioners claim that they are senior to the contesting respondents in service and, as such, their names should have been placed ahead of the contesting respondents. They have challenged the legality of the orders placing them below the contesting respondents in the matter of seniority. They have also challenged the validity of the provisions of sub-rules (1) to (4) of Rule 19 of the U. P. Local Fund Audit Service Rules, 1969. Aggrieved by the orders dated 2th January, 1975 (Annexure-4) 13th March, 1975 (Annexure-5) and 28th December, 1974 (Annexure-6) to the writ petition the petitioners have come up to this Court in this writ petition under Article 22 of the the Constitution.
(2.) The three petitioners were respectively appointed as Assistant Auditors on 28-12-1951, 12-5-1952 and 14-3-1959 and confirmed on 1-9-1955, 1-4-1955 and 1-7-68 under Rule 24 of the U. P. Subordinate Local Fund Audit Service Rules, 1942 (hereinafter referred to as the 1942 Rules). Rule 14 of the 1942 Rules provided that no person shall be promoted to the post of Senior Auditor unless he has passed the qualifying departmental examination for such promotion. This examination is known as S. A S. examination. The petitioners 1, 2 and 3 duly qualified themselves for promotion to the post of Senior Auditor by passing S. A. S. examination in January, 1958, February, 1959 and March, 1969 respectively. Rule 25 of the 1942 Rules provided that appointment to the post of Senior Auditor shall be made by the examiner from amongst the Assistant Auditors who have passed the departmental examination, mentioned above. It was also provided that mere fact that a person had passed the departmental examination would not ipso facto promote him to the post of Senior - Auditor but that would be subject to other features enumerated in Rule 25 (2). Sub rule (3) of Rule 25 made a provision for making officiating or temporary appointment from amongst the Assistant Auditors who had not passed the departmental examination mentioned in Rule 14 in case no Assistant Auditor, who has passed the S. A. S. examination, is available. According to the petitioners qualified and eligible Assistant Auditors were to be substantively appointed to the post of Senior Auditor. They were to be put on probation and on completion of probationary period were to be confirmed under Rule 27 if considered fit for the same. According to the petitioners Rule 25 did not contemplate for appointment of qualified and eligible Assistant Auditor to the post of Senior Auditor in officiating or temporary capacity when clear substantive vacancies existed. Rule 31 of the 1942 Rules provided for seniority. It provided that seniority amongst Assistant Auditors and amongst Senior Auditors was to be determined with reference to the date of substantive appointment as Assistant Auditor. The first proviso provided that if two or more candidates were appointed on the same date their seniority is to be determined according to the order in which the orders of their appointments were issued. The second proviso laid down that in determining the seniority among the Senior Auditors regard will also be had, wherever necessary, to the provisions of Rule 25 (2). The Examiner, Local Fund Accounts, U. P. Allahabad, respondent No. 2 prepared and circulated a seniority (gradation) list dated 9th April, 1960 re-fixing seniority among unconfirmed Senior Auditors and Assistant Auditors who had passed the departmental examination. In this list petitioner No. 1 was placed at serial No. 43 and petitioner No. 2 at serial No. 49. Petitioner No. 3 was not eligible, as he had joined the service only in 1959. Petitioners 1 and 2 were appointed as Senior Auditors in 1960 and 1961 respectively but in officiating capacity. Between 1960 and 1966 several Assistant Auditors holding officiating or temporary posts as Senior Auditors were substantively appointed as Senior Auditors and in the due course we were confirmed under Rule 27. By 1966 all unconfirmed Senior Auditors upto serial No. 22 in the list were appointed substantively. Although 19 vacancies existed and were available for substantive appointment to the posts of Senior Auditors no person from the list (Annexre-1) or otherwise was substantively appointed as Senior Auditor after the appointment of B. L. Srivastava whose place was 22nd in the list. Petitioners 1 and 2, who bad become eligible to be appointed substantively in the permanent posts of Senior Auditor according to the established practice and procedure, were not confirmed and they continued as such.
(3.) English translation of Notification dated 7th October, 1969 was published in the U. P. Gazette dated November 1, 1969, containing rules called Subordinate Local Fund Audit Service Rules, 1969 purporting to have been made in exercise of the powers under proviso to Article 309 of the Constitution and in supersession of all existing rules and orders on the subject by the Governor of Uttar Pradesh. These rules took effect from November 1,1969. The permanent strength of Senior Auditors was raised to 47. Under these rules, the Examiner is required to draw up in order of seniority a list of officials considered suitable for promotion on the basis of seniority subject to the rejection of unfit. The second list drawn up for temporary or officiating vacancies was to hold good only for one year or until such time as the matter was reviewed. Rule 25 of the 1969 Rules deals with seniority. It provides that seniority in each category of posts shall be determined by the date of the order of appointment in a substantive capacity in that category. The petitioners case further is that although 1969 Rules took effect from November 1, 1969, no lists under sub-rules (1) and (2) of Rule 19 or under Rule 25 were drawn up for several years nor was any Departmental Selection Committee constituted under sub-rule (3) of Rule 19 of the 19o9 Rules. However, respondent No. 2 prepared a Gradation List under Rule 25 (3) containing therein the respective places of the Assistant Auditors who had passed the S. A. S. examination and were already serving in such posts in officiating or temporary capacity. In the first part of this list the position vis-a-vis 50 members of the service was shown. The second part of the list contained the names of 20 members who had passed the S. A. S. examination. The respective places of petitioners 1, 2 and 3 in the first part of the list were at serial Nos. 17, 24 and 49. A copy of the list is Annexure-2 to the writ petition. Subsequently, respondent No. 2 drew up another gradation list of 118 posts of Assistant Auditors showing the position as on 10-5-1974. The petitioners 1, 2 and 3 were shown in this list at serial Nos. 14, 6 and 58 respectively. The petitioners case further is that the list did not contain the respective dates since when the members of the service were appointed to the posts of Senior Auditors in officiating or temporary capacity.;