ALOK KUMAR SHARMA Vs. STATE OF U P

JUDGEMENT

(1.) HEARD Sri Prashant Chandra, Senior Advocate assisted by Sri Faizal Ahmad Khan, learned counsel for the petitioner, Sri Rakesh Bajpai, learned Additional Chief Standing Counsel for the opposite party no. 1 and Sri S.K. Kalia, Senior Advocate assisted by Sri S. Shahi appearing for the private respondents. The petitioner being aggrieved by the seniority list dated 16.07.2008, a copy of which has been annexed as Annexure-1 to the writ petition and the orders dated 18.07.2008, by which promotion has been granted to opposite parties 2 to 5 on the post of General Manager a copy of one such order has been annexed as Annexure-2 to the writ petition has filed the instant writ petition. The brief facts of the case are that the petitioner was appointed on the post of Assistant Engineer in Kumaun Jal Sansthan and joined the post on 14.11.1978 and thereafter he was transferred to various places in Jal Sansthan of the State of U.P. The opposite party no.2 was appointed on the post of Assistant Engineer on 01.09.1979; the opposite party no.3 was appointed on the post of Assistant Engineer on 03.09.1980; the opposite party no.4 was appointed on the post of Assistant Engineer on 31.01.1979 and the opposite party no.5 was appointed on the post of Assistant Engineer on 01.06.1979. The petitioner was promoted on the post of Executive Engineer on ad hoc basis on 12.02.1988 after selection by a duly constituted Departmental Promotion Committee. The opposite parties 4 and 5 were promoted on 26.08.1988 on the post of Executive Engineer on ad hoc basis. In the year 1986 U.P.Palikas and Jal Sansthans Water Works Engineering (Centralised) Services Rules, 1986 were framed by the State Government. The services of the petitioner and other Assistant Engineers working in various Jal Sansthans in the State of Uttar Pradesh were merged in a centralised service known as Uttar Pradesh Jal Sansthan Water Works Engineering(Superior) Service. On 06th/07th September, 1989, the State Government issued tentative seniority list in which the petitioner was placed at serial no.16 and the names of the opposite parties 2 to 5 were placed at sl.no.20,24,18 and 19 respectively. Objections against the tentative seniority list were invited from the Officers and it was provided that if the objection is not received by 15.07.1996 the final seniority list shall be declared. No objection was filed either by Sri Ram Bharos Singh or by Sri Indra Dev Pandey, opposite parties 2 and 3 respectively against the said tentative seniority list. The final seniority list of Executive Engineers was published on 09.09.1996 by the State Government in which the petitioner was placed at sl. no.27 and the opposite parties 4 and 5 were shown at sl. no.29 and 30. On 26.10.1995, an amendment was incorporated in Rule 20 of the U.P. Palika and Jal Sansthans Water Works Engineering (Centralised) Services Rules, 1966 and the recruitment by promotion which was earlier through the Public Services Commission was brought outside the purview of the Public Services Commission. By the order dated 17.10.1996, the opposite parties 2 and 3 were promoted on the post of Executive Engineer. On 23.12.1996, the Uttar Pradesh Palika and Jal Sansthans Water Works Engineering (Centralised) Service Rules, 1996 (hereinafter referred to as 1996 Rules) were published in the U.P. Government Gazette and vide Rule 41 of the said rules, a separate sub-cadre known as Palika and Jal Sanstan Hill Sub- Cadre was created. By the order dated 20.03.1997, the petitioner and 14 other Executive Engineers were sent to Hill Sub-Cadre on the basis of the options submitted by them and were posted to work in Kumaun Jal Sansthan as Executive Engineer. All those who were sent by the State Government by the order dated 20.03.1997 to the Hill Sub-Cadre were from general category and the quota of the scheduled caste officers was not taken into account. The State Government thereafter rectified its mistake and modified its order dated 20.03.1997 by issuing the order dated 30.11.1998 by which the petitioner and one Sri Jaivir Singh Saini were sent back to the Plain i.e. General Cadre. The State Government on 17.12.2003 published a seniority list in continuation of the earlier seniority list dated 09.09.1996 of the Executive Engineers in which the names of the opposite parties 2 and 3 are at sl.no.33 and 36 respectively. The opposite party no.2 filed a writ petition in this Court at Allahabad which was registered as Writ Petition No.22066/2007in which he claimed promotion on the post of General Manager in Jal Sansthan in which an interim order was passed on 21.04.2006 directing the respondents to consider the case of the petitioner and other Executive Engineers who are working in the present cadre for promotion than those who are working on ad hoc basis. The opposite party no.2 thereafter filed a contempt petition which was registered as Contempt Petition No.1888 of 2007. In the said contempt petition, a counter affidavit was filed by the State Government stating, interalia, that the petitioner (Alok Kumar Sharma) is senior to Sri Ram Bharos Singh, who is opposite party no.2 in the instant petition. This Court at Allahabad by the order dated 08.01.2008 while disposing of the Civl Miscellaneous Writ Petition No. 21730 of 2007 and 22066 of 2007 filed by Sri Ram Bharos Singh, opposite party no.2 directed the State of U.P. to ensure that regular promotion on the post of General Manager of Jal Sansthans is made strictly in accordance with the 1996 Rules within a period of three months from the date a certified copy of the order is filed. The petitioner has alleged that the opposite party no.2 thereafter filed another writ petition in this Court at Allahabad against the transfer order dated 15.02.2008 which was registered as Writ Petition No.10766 of 2008 which was dismissed by the judgment and order dated 27.02.2008. The petitioner has alleged that in compliance of the judgment and order dated 08.01.2008 passed by this Court at Allahabad in Writ Petition Nos. 21730 of 2007 and 22066 of 2007 filed by Ram Bharos Singh, opposite party no.2, the Departmental Promotion Committee met on 09.04.2008 and name of the petitioner was considered along with others and he was selected and recommended for promotion to the post of General Manager. The petitioner has further alleged that the name of Sri I.D.Pandey was not recommended by the Departmental Promotion Committee which met on 09.04.2008 for promotion to the post of General Manager but on account of the political pressure exerted by opposite party no.3 Sri I.D.Pandey, the proceedings of the Departmental Promotion Committee which met on 09.04.2008 could not be given effect to. The petitioner has also alleged that the real brother of Sri I.D. Pandey, opposite party no.3 is a Member of the Legislative Assembly belonging to the Bahujan Samaj Party and he was instrumental in getting the matter maneuvered at the end of the State Government. The petitioner has also alleged that Sri Indra Dev Pandey, Opposite party no.3 filed a writ petition before this Court which was registered as Writ Petition No.333(S/B) of 2008 which was dismissed on 14.03.2008 on the ground of alternative remedy and thereafter a claim petition before the State Public Services Tribunal, Lucknow was filed which was registered as Claim Petition No.477 of 2008. In the said claim petition, an application was moved by Opposite party no.3 for interim relief to the effect that the State of U.P. be restrained from making promotions on the post of General Manager, Jal Sansthan on the basis of the recommendation of the Departmental Promotion Committee which met on 09.04.2008 but no relief was granted by the State Public Services Tribunal, Lucknow to the opposite party no.3. The petitioner has alleged that promotion of petitioner and other Officers including opposite parties no. 4 and 5 was being treated ad hoc even after lapse of about 19 years of service on the post of Executive Engineer and, therefore, by order dated 21.02.2007 passed by the State Government, the petitioner and eight other Officers including the opposite parties 4 and 5 were granted regular promotion on the post of Executive Engineer with effect from 17.10.1996 i.e. the date when juniors to the petitioner Sri Ram Bharos Singh and Sri Indra Dev Pandey were given regular promotion on the post of Executive Engineer and the seniority of the petitioner over opposite parties 2 to 5 was maintained and in the said order dated 21.02.2007, the State Government clearly provided that the inter-se seniority of the officers belonging to U.P.Palika and Jal Sansthans Water Works Engineering (Centralised) Service shall remain the same as declared vide order dated 09.09.1996 and 17.12.2003. The petitioner has also alleged that the State Government after about 20 years issued a tentative seniority list on 13.06.2008 and even in this tentative seniority list name of the petitioner is at sl. no.13. The petitioner has also stated that after publication of the tentative seniority list on 13.06.2008, the petitioner made a representation dated 17.06.2008, stating interalia that those who have already retired from service, their names may be removed and his date of birth and nomenclature of Degree which have been incorrectly mentioned may be corrected and if someone else objects to seniority assigned to the petitioner, then before taking the final decision, a copy of such representation/objection may be provided to him so that he may get an opportunity to counter such objection but no copy of objection or representation was given to the petitioner assailing his seniority. The learned counsel for the petitioner submits that the seniority list dated 06.09.1989, 09.09.1996 and 17.12.2003 are final between the parties and this Hon'ble Court at Allahabad by the judgment and order dated 27.02.2008 passed in Writ Petition No. 10766 of 2008 after perusal of the record has held that the representation filed by Sri Ram Bharos Singh on 31.12.2003 against the final seniority list dated 17.12.2003 is of no avail and from the record it is evident that at least nine persons are senior to Sri Ram Bharos Singh, the petitioner of the said writ petition while only five vacancies are available in the Cadre of General Manager. He further submitted that by the impugned order dated 16.07.2008 the seniority of the petitioner has been disturbed after more than two decades. The impugned order which is politically motivated, arbitrary and illegal has been passed by the State Government on extraneous consideration and it deserves to be quashed. He has relied upon the decisions of Hon'ble the Supreme Court in S.R. Bhagvat and others Vs. State of Mysore reported in (1995) 6 SCC 16, State of Punjab and another Vs. Bal Karan Singh reported in (2006) 12 SCC 709 and P.S. Gopinathan Vs. State of Kerala and others reported in (2008) 7 SCC 70. He further submitted that in compliance of the order dated 08.01.2008 passed by this Hon'ble Court at Allahabad the opposite party no.1 was required to consider the matter of promotion on the post of General Manager and accordingly a Departmental Promotion Committee meeting was scheduled for 09.04.2008 in which name of the petitioner was considered along with others and he was recommended for promotion to the post of General Manager and Sri Indra Dev Pandey whose name was not recommended by the Departmental Promotion Committee filed a claim petition before the State Public Services Tribunal in which an application for interim relief was moved to the effect that the State Government be restrained from making promotions on the post of General Manager, Jal Sansthan on the basis of recommendation of the Departmental Promotion Committee which met on 09.04.2008 and the said relief was declined by the State Public Services Tribunal by the order dated 29.04.2008. He has relied upon the decision of Hon'ble the Supreme Court in Commissioner, Karnataka Housing Board Vs. C. Muddaiah reported in (2007) 7 SCC 689. He further submitted that against the tentative seniority list which was issued by the State Government on 13.06.2008 a representation was made by the petitioner on 17.06.2008 to correct the date birth which was wrongly mentioned as 30.10.1952 in place of 30.12.1952 and the educational qualification was wrongly mentioned as B.E. which should have been B.Tech. He further submitted that the petitioner was promoted on the post of Executive Engineer by the order dated 12.02.1988 by a duly constituted selection committee and the word 'ad hoc' was mentioned in the order as at the relevant time, the recruitment by promotion was through Public Services Commission but on 26.10.1995 before promotion of the opposite parties 2 and 3, an amendment was incorporated in Rule 20 of the Uttar Pradesh Palika (Centralised) Service Rules, 1966 and the recruitment by promotion which was earlier through Public Services Commission was brought outside the purview of the Public Services Commission and since there was no requirement of approval by the Public Services Commission subsequent to 26.10.1995 when Rule 20 was amended, all those Executive Engineers who were working on ad hoc basis prior to 26.10.1995 will be deemed to be regularly appointed Executive Engineers as their ad hoc promotions on the post of Executive Engineer was made by the State Government through a duly constituted Departmental Promotion Committee. The learned counsel for the petitioner has relied upon the decision of Hon'ble the Supreme Court in Ashok Kumar Srivastava and others Vs. Ram Lal and others reported in (2008) 3 SCC 148. He further submitted that on 20.03.1997, the petitioner and 14 other Executive Engineers were sent to Hill Sub-cadre and posted to work in Kumaun Jal Sansthan as Executive Engineer and while passing the said order provision for quota of Scheduled Caste Officers was not taken into account and all those who were sent to the Hill Sub-Cadre were from General Category and when the State Government realized that no Scheduled Caste Officer was sent in the Hill Sub Cadre, the State Government rectified its mistake by issuing the order dated 30.11.998 by which the earlier order dated 20.03.1997 was modified and the petitioner and Sri Jaivir Singh Saini were brought back to the Plain i.e. General Cadre and only on this basis the opposite party no.1 cannot change seniority of the petitioner. He further submitted that by the order dated 21.02.2007 the petitioner has been granted notional promotion w.e.f. 17.10.1996 on the post of Executive Engineer and in the said order it was specifically provided that the seniority determined on 09.09.1996 and 17.12.2003 shall remain the same and as such the impugned order dated 16.07.2008 by which the petitioner has been placed junior to the opposite parties is arbitrary and illegal and deserves to be quashed. He further submitted that in the counter affidavit filed by opposite party no.1 there is no denial that the Departmental Promotion Committee was not met on 09.04.2008 and that the petitioner was not recommended for promotion and in the supplementary counter affidavit the State has very cleverly mentioned that though Departmental Promotion Committee was scheduled to take place on 09.04.2008 but the said Departmental Promotion Committee has not met on 09.04.2008 as the representative from Personnel Department could not attend the said meeting of Departmental Promotion Committee. The learned counsel for the petitioner has relied upon the decision of Hon'ble the Supreme Court in Union of India and others Vs. Somasundaram Viswanath and others reported in (1989) 1 SCC 175 and on the strength of the aforesaid judgment he submitted that the absence of any of the members of a Departmental Promotion Committee, other than the Chairman, would not vitiate the proceedings of Departmental Promotion Committee provided the member absent was duly invited but he absented himself. Sri Rakesh Bajpai, learned Additional Chief Standing Counsel appearing on behalf of opposite party no.1 submitted that on the basis of the option given by the petitioner, Hill Sub-Cadre was given to him by the order dated 20.03.1997 and by the order dated 30.11.1998 the petitioner was sent back to Plain Cadre on his own request. He further submitted that the seniority list dated 16.07.2008 was prepared strictly in conformity and in compliance of the judgment and order of this Hon'ble Court passed at Allahabad in Writ Petition No. 22066 of 2007 and 21730 of 2007 as well as the judgment and order dated 27.02.2008 passed in Writ Petition No. 10766 of 2008 and it does not violate any provisions of the 1996 Rules and the petitioner was assigned position in the seniority list at the same place where he deserves, as per 1996 Rules. He further submitted that services of the petitioner on the post of Executive Engineer were regularized by the order dated 21.02.2007 and the petitioner will get promotion as soon as the post of General Manager is fallen vacant which is likely on 30.06.2009 as the petitioner was selected for the post of General Manger along with others. Learned counsel for the opposite party no.1 has relied upon the decisions of Hon'ble the Supreme Court in Maharashtra State Electricity Board and another Vs. Rama Rajaramji Wadekar and another reported in (2002) 10 SCC 254 and Union of India and others Vs. Deo Narain and others reported in (2008) 10 SCC 84. Sri S.K. Kalia, Senior Advocate appearing on behalf of the private respondents submitted that the petitioner who was ad hoc Executive Engineer opted for Hill Sub-Cadre and his option was accepted and he was absorbed in the Hill Sub-Cadre by the Order dated 20.03.1997 as the Government Order dated 06.01.1997 specifically provides that the employees who opt for Hill Sub-Cadre and whose option is accepted will be finally absorbed in the Hill Sub-Cadre and the option once exercised cannot be changed at a subsequent date. He further submitted that according to the provisions of Rule 42 sub-clause (2) of the 1996 Rules the option given by the petitioner is irrevocable and it is evident from sub-clause (5) of Rule 42 of 1996 Rules that in case the employees opted for Hill Sub- Cadre is in excess of vacancy available, then such excess employees will be kept on waiting list and they will be absorbed on availability of vacancy in future but there is no provision that the excess employees will be sent back to the plain and as such the provision of Special Rule shall prevail. He has relied upon the decisions of Hon'ble the Supreme Court in Union of India and others Vs. C.N. Ponnappan reported in (1996) 1 SCC 524, Sushma Mutreja Vs. Union of India and others reported in (2001) 6 SCC 428 and Union of India and others Vs. Deo Narain and others reported in (2008) 10 SCC 84. He further submitted that opposite parties 2 and 3 were given regular promotion vide order dated 17.10.1996 and their promotions were regular from the beginning whereas the petitioner was promoted as Executive Engineer in the year 1988 on ad hoc basis and the State Government by the impugned order dated 16.07.2008 has placed the petitioner below the opposite parties in the seniority list in a just and legal manner and by the order dated 18.07.2008 the State Government has promoted the opposite party no.2 on the post of General Manager. He further submitted that the promotion of the petitioner on the post of Executive Engineer on ad hoc basis in the year 1988 was de hors the Rules and as such he cannot claim seniority over the regularly promoted Executive Engineers on substantive capacity and the State Government has acted strictly in accordance with the 1996 Rules and after inviting objection, inter-se seniority has been determined wherein the petitioner has been held junior to the opposite parties. He has relied upon the decision of Hon'ble the Supreme Court in the case of Shitla Prasad Shukla Vs. State of U.P. and others reported in 1986 (Supp) SCC 185. He further submitted that during the pendency of the claim petition filed by opposite party no.3 his seniority was re-fixed by the State Government and promotion was also granted to him and accordingly he moved an application dated 04.08.2008 before the State Public Services Tribunal for withdrawal of the claim petition which was allowed by the Tribunal by the order dated 06.08.2008. He further submitted that the petitioner and Sri Jaivir Singh Saini were subsequently sent back to plain i.e. General Cadre on 30.11.1998 and as such they were rightly placed below the opposite parties in the seniority list as opposite parties 2 and 3 were given regular promotion on the post of Executive Engineer by the order dated 17.10.1996. He further submitted that the tentative seniority list dated 13.06.2008 was published by the State Government by which objections were invited upto 21.06.2008 and after considering the objection preferred by the petitioner and others seniority to the petitioner has been given from the year 1998 when he joined plain i.e. General Cadre on return from Palika Hill Sub-Cadre. Sri S.K. Kalia, Senior Advocate has relied upon the decisions of Hon'ble the Supreme Court in Kulwant Kr. Sood Vs. State of H.P. and another reported in (2005) 10 SCC 670 and Sushma Mutreja Vs. Union of India and others reported in (2001) 6 SCC 428, We have considered the submissions made by learned counsel for the parties and gone through the record. It is admitted case of the parties that the petitioner was appointed on the post of Assistant Engineer in Kumaun Jal Sansthans on 14.11.1978 and the opposite parties 2 to 5 were appointed on the post of Assistant Engineer on 01.09.1979, 03.09.1980, 31.01.1979 and 01.06.1979 respectively. The petitioner was promoted on the post of Executive Engineer on ad hoc basis on 12.02.1988 after selection by a duly constituted Departmental Promotion Committee. The opposite parties 4 and 5 were promoted on 26.08.1988 on the post of Executive Engineer on ad hoc basis. In the year 1986 U.P.Palikas and Jal Sansthans Water Works Engineering (Centralised) Services Rules, 1986 were framed by the State Government. The services of the petitioner and other Assistant Engineers working in various Jal Sansthans in the State of Uttar Pradesh were merged in a centralised service known as Uttar Pradesh Jal Sansthan Water Works Engineering(Superior) Service. On 06th/07th September, 1989, the State Government issued tentative seniority list in which the petitioner was placed at serial no.16 and the names of the opposite parties 2 to 5 were placed at sl.no.20,24,18 and 19 respectively. Objections against the tentative seniority list were invited from the Officers and it was provided that if the objection is not received by 15.07.1996 the final seniority list shall be declared. No objection was filed either by Sri Ram Bharos Singh or by Sri Indra Dev Pandey, opposite parties 2 and 3 respectively against the said tentative seniority list. It is admitted case of the parties that a final seniority list of Executive Engineers was published on 09.09.1996 by the State Government in which the petitioner was placed at sl. no.27 and the opposite parties 4 and 5 were shown at sl. no.29 and 30. It is also undisputed that on 26.10.1995, an amendment was incorporated in Rule 20 of the U.P. Palika and Jal Sansthans Water Works Engineering (Centralised) Services Rules, 1966 and the recruitment by promotion which was earlier through the Public Services Commission was brought outside the purview of the Public Services Commission. By the order dated 17.10.1996, the opposite parties 2 and 3 were promoted on the post of Executive Engineer by a duly constituted Departmental Promotion Committee. On 23.12.1996, the Uttar Pradesh Palika and Jal Sansthans Water Works Engineering (Centralised) Service Rules, 1996 were published in the U.P. Government Gazette and vide Rule 41 of the said rules, a separate sub-cadre known as Palika and Jal Sanstan Hill Sub-Cadre was created. By the order dated 20.03.1997, the petitioner and 14 other Executive Engineers were sent to Hill Sub-Cadre on the basis of the options submitted by them and were posted to work in Kumaun Jal Sansthan as Executive Engineer. All those who were sent by the State Government by the order dated 20.03.1997 to the Hill Sub-Cadre were from general category and quota of the scheduled caste officers was not taken into account. The State Government thereafter rectified its mistake and modified its order dated 20.03.1997 by issuing the order dated 30.11.1998 by which the petitioner and one Sri Jaivir Singh Saini were sent back to the i.e. General Cadre. 0 It is also admitted case of the parties that the State Government on 17.12.2003 published a seniority list in continuation of the earlier seniority list dated 09.09.1996 of the Executive Engineers in which the names of the opposite parties 2 and 3 are at sl.no.33 and 36 respectively as they were promoted on the post of Executive Engineer by the order dated 17.10.1996. In Writ Petition No.10766 of 2008 filed by Sri Ram Bharos Singh, opposite party no.2 before this Court at Allahabad, following observations were made while disposing of the writ petition by the judgment and order dated 27.02.2008 which is quoted below : "The respondents have produced the seniority list of Executive Engineers issued on 17th December, 2003 wherein, admittedly, the petitioner has been shown below the private respondent nos. 4 and 5. The said seniority list has not been challenged by the petitioner. We do not find any force in the submissions of the learned counsel for the petitioner that the representation against the said final seniority list is still pending consideration for the reason that objections/representations are maintainable against the tentative seniority list and not against the final seniority list." "We have examined the records of the case which make it clear that the petitioner had raised objections against the tentative seniority list only to the extent that his name was not correctly shown. He did not raise the issue of seniority qua respondent nos. 4 and 5. More so, this issue cannot be agitated by the petitioner at such a belated stage. Therefore, the representation filed by the petitioner on 31.12.2003 against the final seniority list dated 17th December, 2003 is of no avail. More so, after filing the said representation, the petitioner has not taken any further steps, for more than 4 years till date. Further, such a plea had not been agitated by the petitioner in the earlier writ petitions filed by him, i.e. Writ Petition No. 21730 of 2007 which was decided on 14.08.2007 and Writ Petition No.22066 of 2007, decided on 08.01.2008." This Court at Allahabad by the judgment and order dated 27.02.2008 passed in Writ Petition No. 10766 of 2008 filed by the opposite party no.2 has held that objections/representations are maintainable against the tentative seniority list and not against the final seniority list and therefore the representation filed by Ram Bharos Singh on 31.12.2003 against the final seniority list dated 17.12.2003 is of no avail. The Court also held that from the record it is evident that at least nine persons senior to the petitioner are there against five vacancies which are available in the cadre of General Manager. The Hon'ble Supreme Court in the case of S.R. Bhagvat and others (Supra) has held in para 12 as under: 1 "12. It is now well settled by a catena of decisions of this Court that a binding judicial pronouncement between the parties cannot be made ineffective with the aid of any legislative power by enacting a provision which in substance overrules such judgment and is not in the realm of a legislative enactment which displaces the basis or foundation of the judgment and uniformly applies to a class of persons concerned with the entire subject sought to be covered by such an enactment having retrospective effect. We may only refer to two of these judgments." In the year 1986 the Uttar Pradesh Palikas and Jal Sansthans Water Works Engineering (Centralised) Services Rules, 1986 were published. The services of the petitioner and other Assistant Engineers including opposite parties 2 to 5 working in various Jal Sansthans in the State of U.P. were merged in the Centralized Service known as U.P. Palika and Jal Sansthan Water Works Engineering(Superior) Service. It is not disputed that the petitioner was promoted on ad hoc basis on the post of Executive Engineer by a duly constituted Departmental Promotion Committee on 12.02.1988 and the opposite parties 4 and 5 were promoted on 26.08.1988 on the post of Executive Engineer on ad hoc basis. It is also relevant to mention here that in Writ Petition No. 22066 of 2007 filed by Sri Ram Bharos Singh opposite party no.2 before this Court at Allahabad, an interim mandamus was issued on 21.04.2006 directing the State of U.P. that the Executive Engineer working in the present cadre be considered first for promotion on the post of General Manager in Jal Sansthan than those who are working on ad hoc basis. The opposite party no.3 thereafter filed a contempt petition alleging disobedience of the order dated 21.04.2006, which was registered as Contempt Petition No. 1888 of 2007. In the said contempt petition, a counter affidavit was filed by the Principal Secretary, Nagar Vikas, Government of U.P., Lucknow. Paragraphs 10 and 11 of the said affidavit which are relevant for disposal of the controversy raised in the instant writ petition are as follows :- That in this regard it is further most humbly submitted that the claim of the applicant that he is senior most in the cadre of Executive Engineers, therefore, he may be promoted on the post of General Manager, Jal Sansthan is neither correct nor justified. In this regard it is further stated that Jal Sansthans have been constituted under the Provisions of U.P. Sambharan Evam Seever Syasthan Adhiniyam, 1975 and the promotions of officers of Jal Kal Services have to be made by the State Government as per Government Order dated 03.11.1980 issued in this regard. It is further stated that since there was no service rules formulated for the employees of Jal Kal Abdhiyantran prior to 1986 and as such the provisions of U.P. Palika Centralized Service Rules 1966 were made applicable to services of such employees. It is further stated that prior to amendment made in the aforesaid service rules in the year 1995, consent of U.P. Public Service Commission was mandatory for promotion of such employees to the post of Executive Engineer but while making such promotion, consent of U.P. Public Service Commission was not obtained. Hence entire promotion made prior to 1996 has been made on ad hoc basis. After framing of absorption Rules 1986 those employees who have been absorbed in Jal Kal 2 Services, their ad hoc promotion too have not been regularized till further orders and they have been treated to have been regularized in Jal Kal Services by absorbing their services. That it is further stated here that the ad hoc Executive Engineers who are being stated by applicant being junior to him, infact, such ad hoc Executive Engineers are senior than the applicant in Feeding Cadre who were promoted on the post of Executive Engineers on ad hoc basis for some technical reasons in the year 1986-1988. As stated hereinabove in the year 1986-88 it was mandatory to obtain consent from the U.P. Public Service Commission in making the promotion on the post of Executive Engineer. But since no consent was obtained for promotions of aforesaid ad hoc Executive Engineers at that time, therefore, such Executive Engineers were promoted only on ad hoc basis. Applicant was promoted in the year 1996 in regular capacity as amendment was made in the service rules 1996 and restriction for obtaining consent from U.P. Public Service Commission was abolished, therefore, applicant was promoted on the post of Executive Engineer on regular basis in the year 1996. It is relevant to be stated here that at that time the senior ad hoc promoted Executive Engineers who are senior then the applicant were also required to be promoted on regular basis on the post of Executive Engineer but by mistake such Executive Engineers could not be promoted with applicant in the year 1996 on regular basis. The same mistake has been now removed after obtaining consent from the department of Personnel, Government of U.P. Lucknow and such ad-hoc promoted Executive Engineers who are senior than the applicant in Feeding Cadre have been given notional promotion by an order dated 21.02.2007 which has been enforced w.e.f. 09.09.1996 on the date on which applicant was granted promotion on regular basis. It is further relevant to be stated here that seniority list has been prepared by the department of Urban Development long before in which applicant has evidently been shown junior to ad-hoc promoted Executive Engineers which has not been challenged by the applicant or any one else till date at appropriate forum or Court. The said seniority list is still undisputed." Proviso to Article 320(3) of the Constitution of India empowers the Governor to withdraw from the purview of the Public Services Commission services and posts in connection with the affairs of a State and to make regulation in support thereof. On 26.10.1995, an amendment was incorporated in Rule 20 of the U.P. Palikas and Jal Sansthans Water Works Engineering (Centralised) Services Rules, 1966 by which the recruitment by promotion which was earlier through the Public Services Commission was brought outside the purview of the Public Services Commission and when the opposite parties 2 and 3 were promoted on the post of Executive Engineer on 17.10.1996 there was no requirement of approval by the Public Services Commission and as such they were promoted on regular basis by the duly constituted Departmental Promotion Committee. The petitioner was also promoted on the post of Executive Engineer by a duly constituted Departmental Promotion Committee on ad hoc basis as no consent of U.P. Public Service Commission was obtained by the State Government which was necessary 3 at the relevant time as the post was within the purview of U.P. Public Service Commission but subsequent to 26.10.1995 when the post was withdrawn from the purview of U.P. Public Service Commission the petitioner acquired the status of a regular promoted Executive Engineer. It cannot, therefore, be said that the promotion of the petitioner on the post of Executive Engineer in the year 1988 was de hors the rules. The petitioner filed a writ petition in this Court at Allahabad which was Registered as Writ Petition No. 30710 of 2006 in which a prayer was made that the petitioner's promotion to the post of Executive Engineer be treated as regular promotion as juniors to the petitioner have been promoted on regular basis. The said writ petition was disposed of by this Court at Allahabad by the judgment and order dated 26.05.2006 and a direction was issued to the State Government to decide the representations dated 16.01.2004 and 02.05.2006 by a speaking order preferably within two months. Thereafter the State Government by the order dated 21.02.2007 granted notional promotions to the petitioner on the post of Executive Engineer w.e.f. 17.10.1996 when juniors to the petitioner were promoted. The crucial point for consideration before us is the effect of the order dated 20.03.1997 by which the petitioner and 14 other Executive Engineers were sent to Hill Sub-Cadre and posted to work in Kumaun Jal Sansthan as Executive Engineer and the order dated 30.11.1998 passed by the State Government by which the petitioner and Sri Jaivir Singh Saini were subsequently sent back to Plain i.e. General Cadre. The State Government has admitted that while issuing the order dated 20.03.1997, the quota of Scheduled Caste Officers was not taken into account and all those who were sent to the Hill Sub-Cadre including the petitioner were from the general category and when the State Government realised that no Scheduled Caste Officer was sent in the Hill Sub-Cadre against their quota of 3 posts, the State Government rectified its mistake and passed the order dated 30.11.1998 by which the earlier order dated 20.03.1997 was modified. In the order dated 30.11.1998, the State Government has specifically mentioned that under special circumstance the order dated 20.03.1997 has been modified and the petitioner and Sri Jaivir Singh Saini were sent back to the Plain Cadre and it has been provided that this order shall not be a precedent. A perusal of the order dated 20.03.1997 reveals that name of the petitioner was at sl.no.13 in the list by which 15 Executive Engineers including the petitioner were sent to Hill Sub-Cadre. All these 15 persons belong to the general category as admitted by the State Government. The State government has also mentioned in the order dated 30.11.1998 that against the 15 posts of Executive Engineer, the quota of reserved category comes to 3 posts and 3 Scheduled Caste candidates ought to have been included in the list dated 20.03.1997. The State Government when realised its mistake that in allotting the Hill Sub- Cadre quota of reserved category was not kept in mind and since name of the petitioner was at sl.no.13 i.e. beyond 12 according to seniority, the Government has rightly modified its earlier order dated 20.03.1997 and sent back the petitioner and one Sri Jaivir Singh Saini to the Plain i.e. General Cadre. By 4 going to Hill Sub-Cadre in compliance of the order dated 20.03.1997 and coming back to the Plain Cadre pursuant to the order dated 30.11.1998 passed by the State Government, the petitioner will not lose his original seniority in the cadre of the Executive Engineer as for all practical purposes, the petitioner was not absorbed in the Hill Sub-Cadre. The order dated 30.11.1998 was not passed by the State Government under any of the provisions of the U.P.Palika and Jalsansthans Waterworks Engineering (Centralised) Service Rules, 1996 and as such the provisions of Rules 41 and 42 of 1996 Rules are not applicable to the case of the petitioner. The order dated 30.11.1998 was passed by his Excellency the Governor of Uttar Pradesh under special circumstance. It is also relevant to mention here that after the order dated 30.11.1998 passed by the State Government, the seniority list dated 17.12.2003 of the Executive Engineers was published by the State Government in continuation of the earlier seniority list dated 09.09.1996 and name of the opposite parties 2 and 3 are at serial no.33 and 36 respectively of the seniority list dated 17.12.2003 whereas name of the petitioner is mentioned at sl. no.27 of the seniority list dated 09.09.1996. This Court at Allahabad by the judgment and order dated 27.02.2008 passed in Writ Petition No.10766 of 2008 preferred by opposite party no.2, after perusal of the record, has held that representation of the petitioner filed on 31.12.2003 against the final seniority list dated 17.12.2003 is of no avail to Ram Bharos Singh, opposite party no.2 to the instant petition. The seniority list dated 09.09.1996 and the seniority list dated 17.12.2003 which is in continuation of the earlier seniority list dated 09.09.19996 are final between the parties as those seniority lists were never challenged by opposite parties 2 to 5 either before this Court by way of writ petition or before the State Public Services Tribunal by way of claim petition. Hon'ble the Supreme Court in the case of State of Punjab and another Vs. Bal Karan Singh (Supra) has held that the limitation starts when right to sue first accrues. Paragraphs 21 and 22 of the said reports reads as under : "21. Coming to the third suit, Civil Suit No. 82 of 2003, we have found that the prayer in the suit filed on 06.05.1993 is to set at naught the seniority lists published in the year 1980 and in the year 1984. On the face of it, the prayer for declaration is barred by limitation. The suit is governed by Article 58 of the Limitation Act and the impact of the publication of the seniority list was felt by the plaintiff on the issue of that list and when others were placed above him. The cause of action therefore arose in 1980 and in 1984." 5 "22. According to us, the suit is also barred by acquiescence and estoppel. No one in a service can sleep over the question of seniority for more than 12 years and then come to court seeking a relief which will upset the seniority of a number of persons who had been shown as seniors in the respective seniority lists. Therefore, on the face of it, a declaratory relief that will have the effect of altering a twelve-year- old and a nine-year-old seniority list could not have been granted by the courts below." The State Government while deciding Writ Petition No.10766 of 2008 filed by Ram Bharos Singh opposite party no.2 and in the counter affidavit filed in the contempt petition preferred by opposite party no.2 has admitted before this Court that the petitioner (Alok Kumar Sharma) is senior to Ram Bharos Singh opposite party no.2. The contention of the petitioner that a Departmental Promotion Committee met on 09.04.2008 in which name of the petitioner was considered along with others and he was selected and recommended for promotion to the post of General Manager cannot be disbelieved as Sri Indra Dev Pandey, opposite party no.3, who was not recommended by the Departmental Promotion Committee which met on 09.04.2008 for promotion to the post of General Manager, filed a Claim Petition No.477 of 2008 before the State Public Services Tribunal in which an application was moved by the opposite party no.3 for interim relief to the effect that the State of U.P. be restrained from making promotion on the posts of General Manager, Jal Sansthan on the basis of the recommendations of the Departmental Promotion Committee which met on 09.04.2008 but no relief was granted by the State Public Services Tribunal to the opposite party no.3. In the counter affidavit filed by the opposite party no.1, there is no denial that the Departmental Promotion Committee did not meet on 09.04.2008 and the petitioner was not recommended for promotion but in the supplementary counter affidavit filed by the State, it has been stated that though the Departmental Promotion Committee was scheduled to meet on 09.04.2008 but the said Departmental Promotion Committee has not met on 09.04.2008 as the representative from Personnel Department could not attend the said meeting of the Departmental Promotion Committee. Hon'ble the Supreme Court in Union of India and others Vs. Somasundaram Viswanath and others (Supra) has held that the absence of any of the members of a Departmental Promotion Committee, other than the Chairman, would not vitiate the proceedings of Departmental Promotion Committee provided the member absent was duly invited but he absented himself. The proceedings subsequent to 09.04.2008 by issuance of a tentative seniority list dated 13.06.2008 and finalisation of the impugned seniority list dated 13.06.2008 were initiated in an arbitrary and mala fide manner when the seniority lists dated 09.09.1996 and 17.12.2003 were final between the parties. The case law relied upon by the learned counsels for the opposite parties are not applicable to the facts of the present case. 6 The impugned seniority list dated 16.07.2008 by which the petitioner has been placed below opposite parties 2 to 5 and the orders dated 18.07.2008, by which promotion has been granted to opposite parties 2 to 5 on the post of General Manager on the basis of the impugned seniority list dated 16.07.2008 are legally not sustainable. In the result, the writ petition succeeds and is hereby allowed. A writ of certiorari is issued quashing the seniority list dated 16.07.2008, a copy of which has been annexed as Annexure-1 to the writ petition and the orders dated 18.07.2008, by which promotion has been granted to opposite parties 2 to 5 on the post of General Manager, a copy of one such order has been annexed as Annexure-2 to the writ petition. The opposite party no.1 is directed to reconsider the matter regarding promotion of the petitioner and other eligible candidates on the post of General Manager on the basis of the seniority lists dated 09.09.1996 and 17.12.2003, in accordance with law, within three weeks from the date a certified copy of this order is produced and till the final decision is taken by the State Government, the petitioner shall be allowed to work on the post on which he was working prior to the impugned orders dated 18.07.2008. Under the circumstance, there shall be no order as to costs.