S.U.Khan, J. - (1.) This writ petition was initially allowed by me on 4.12.2008 without hearing any one on behalf of respondent No. 3, the contesting respondent as no one had appeared on his behalf. Thereafter, rehearing application was filed which was allowed on 14.9.2009 and on the same date arguments of learned counsel for both the parties on the merit of the writ petition were also heard and judgment was reserved.
(2.) Certain paras of my judgment dated 4.12.2008 which deal with the facts of the case and the point involved are quoted below: "The dispute in the instant writ petition relates to comparative seniority of petitioner and respondent No. 3. Both of them were Senior Auditors in Local Fund Audit Department, U.P., Allahabad. Both of them were promoted from the Feeder Cadre of Auditor. Admittedly, respondent No. 3 was promoted as senior auditor earlier. However, in the feeder cadre i.e. auditor, respondent No. 3 was junior to the petitioner. The reason of prior promotion of respondent No. 3 is that a particular test was required to be passed for promotion which respondent No. 3 passed earlier. Petitioner was appointed as auditor on ad hoc basis through letter dated 20.7.1976 and his services were regularised against substantive vacancy on 13.12.1979. Thereafter, he was confirmed w.e.f. 1.9.1982 through order dated 18.10.1982. Respondent-No. 3 was appointed on 26.7.1976. In the seniority list published on 25.10.1982 for all the auditors, petitioner was at serial No. 149 and respondent No. 3 at 152. Similarly, in the list published on 6.4.1985 also petitioner was shown to be senior than respondent No. 3. For promotion to the post of senior auditor apart from certain length of service, qualifying subordinate audit service examination is also necessary. Petitioner qualified the said examination on 4.6.1988 and was promoted through order dated 6.10.1988 and thereafter petitioner joined on the promoted post on 31.10.1988. Thereafter respondent No. 3 was further promoted to the post of senior auditor grade-l through order dated 2.1.1999. However, the petitioner was promoted to the said post through order dated 1.8.2000. The grievance of the petitioner is that in the cadre of senior auditor he should have been treated to be senior to respondent No. 3, hence he should have been promoted to the post of senior auditor grade-l prior to respondent No. 3. It has been stated in para No. 14 that petitioner made representation on 22.1.1998 but it was not decided in spite of several reminders. Another representation is stated to have been made on 7.11.2002. which was rejected on 29.3.2003, copy of order is Annexure 10 to the writ petition. Petitioner again filed objection which was rejected on 20.1.2004. (Annexure 12 to the writ petition) on the ground that respondent No. 3 had passed subordinate audit service examination in the year 1983 while petitioner passed the said examination in the year 1987 (or 1988) hence respondent No. 3 was senior to him. In the seniority list dated 22.12.1997 also petitioner was shown junior to respondent No. 3 in the cadre of senior auditor. Petitioner again filed representation which was again rejected on 7.6.2004, copy of which is Annexure-15. Said orders have been challenged through this writ petition. Annexures 12 and 15 have been passed by Deputy Secretary Government of U.P. The relevant Rules governing the service in question are U.P. (Local Fund) Audit Subordinate Service Rules 1985. Rule 22(3) of the said Rules dealing with seniority is quoted below: 22(3) "The seniority inter se of persons appointed by promotion shall be the same as it was in the cadre from which they were promoted." The said Rules have been framed under Article 309 of the Constitution of India General Rules for seniority in Government service have also been framed by Government of Uttar Pradesh known by the name of U.P. Government Servant Seniority Rules, 1991. In the Rules of 1991, Rule 6 deals with seniority which is quoted below: "Where according to the service rules, appointments are to be made only by promotion from a single feeding cadre. The seniority inter see of persons so appointed shall be the same as it was in the feeding cadre. Explanation.- A person senior in the feeder cadre shall, even though promoted after promotion of a person junior to him in the feeding cadre shall in the cadre to which they are promoted, regain the seniority as it was in the feeding cadre." Rule 3 of Rules of 1991 is also relevant and is quoted below: These rules shall have effect notwithstanding anything to the contrary contained in any other service rules made hereto-before. The Supreme Court interpreting the Rules of 1991 in Mohan Karan v. Sfafe of U.P., 1998(3) SCC 444 has held that Rules of 1991 will prevail upon the U.P. DevelopmentAuthorities Centralised Services Rules, 1985."
(3.) Learned counsel for the contesting respondents has cited a judgment dated 24.1.2008 delivered by a Division Bench of this Court in writ petition No. 53064 of 2006 B. C. Malviya and others v. State of U. P. and others and has supplied a photostat copy of certified copy of the said judgment. In the said case interpretation of Rule 22(3) of the Rules of 1985 was also involved. However, there was one more point involved in the said case which was in respect of interpretation of an earlier judgment. Contesting respondent in the said case had been promoted in the year 1985 prospectively. He filed writ petition claiming promotion w.e.f. 1983 when his juniors or colleagues were promoted and the writ petition was dismissed. The judgment dated 24.1.2008 is based upon both the points. Firstly, it has been held that in view of dismissal of earlier writ petition filed by the contesting respondent of the said case, he could not claim seniority over those persons in the same cadre who had been promoted in 1983. The second point which had been decided was that the said rule applies only to one selection. Last few paragraphs of the said judgment are quoted below: "The Rules 1985 clearly provides that inter se seniority of persons appointed directly on the result of any once Selection shall be the same as determined by the Commission. So far as the inter se seniority of the promotees is concerned, as per Rule 22(3) of the Rules 1985 it is to be fixed as referable to the seniority in the cadre from which they have been promoted. Provision of the said Rule require to be interpreted harmoniously in such a manner that they may not lead to absurd result or arbitrariness. The formula provided therein would apply provided all the promotions are made in the same selection. At the moment, respondent No. 4 could claim the relief provided he was appointed with effect from the date petitioners had been appointed i.e. 3.5.1983. Respondent No. 4 was given promotion w.e.f. 6.8.1985. The respondent No. 4 had filed writ petition seeking his promotion from 3.5.1983 i.e. the date from which the petitioners had been promoted claiming that petitioners were junior to him in the feeding cadre. The writ petition has been dismissed and relief prayed for had been denied by the Court for reasons recorded in the judgment. It is not open to the authority to nullify the said judgment and order by sitting in appeal over the same. It is settled legal proposition that a person cannot be granted seniority from a date prior to his birth in the cadre. In Dr. S.P Kapoor v. State of H.P. and others, (1981) 4 SCC 716; and Shitala Prasad Shukla v. State of U.P. and others, AIR 1986 SC 1859, the Apex Court held that a person cannot claim seniority over and above the persons lawfully appointed in the mainstream prior to his joining in the said cadre. In view of the above, whatever might be the interpretation of the Rules 1985, any order granting seniority to the said respondent No. 4 over and above the petitioners would amount to granting promotion from the date the petitioners had been so promoted (even if notionally) which as already recorded above would be contrary to the judgment of this Court dated 23.2.1992, and hence legally not permissible. An issue which has attained finality cannot be re-opened in collateral proceeding. In view of the above, the petition succeeds and is allowed. The impugned order dated 4th April, 2006 is hereby quashed. No order as to costs.";