Allahabad High Court

Prabodh Kumar Pathak S/O Chandra ... vs State Of U.P. Thru Principal Secretary ... on 31 May, 2023

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Neutral Citation No. - 2023:AHC-LKO:39187

A.F.R.

Court No. - 30

(1) Case:- WRIT - A No. - 1511 of 2010

Petitioner :- Prabodh Kumar Pathak S/O Chandra Prabhaker Pathak

Respondent :- State Of U.P. Thru Principal Secretary Public Works Dept.

Counsel for Petitioner :- Sameer Kalia,Akash Deep Dubey,Anuj Singh,Ashish Verma,Deepak Srivastava,Deepanshu Dass,Garima Chauhan,Lalta Prasad Misra,Neel Kamal Mishra,Sarvesh Kumar Dubey, Siddharth Nandan, Upendra Nath Misra

Counsel for Respondent :- C.S.C.,P.K.Srivastava,Utsav Misra

Connected with

(2) Case :- WRIT - A No. - 6943 of 2007

Petitioner:- Diploma Engineers Sangh P.W.D.

Respondent :- State Of U.P. Thru Prin. Secy. P.W.D. And 2 Ors.

Counsel for Petitioner :- Sameer Kalia

Counsel for Respondent :- C.S.C.,I.P. Singh

with

(3) Case :- WRIT - A No. - 7232 of 2007

Petitioner :- Arvind Kumar Pandey And 5 Ors.

Respondent :- State Of U.P. Thru Chief Secy. And 4 Ors.

Counsel for Petitioner :- Rohit Tripathi,Vikas Budhwar

Counsel for Respondent :- C.S.C.,I.P. Singh

with

(4) Case :- WRIT - A No. - 7649 of 2007

Petitioner :- Brajesh Chandra Misra And 12 Ors.

Respondent :- State Of U.P. Thru Secy. P.W.D. And 4 Ors.

Counsel for Petitioner :- Rohit Tripathi

Counsel for Respondent :- C.S.C.,I.P. Singh

with

(5) Case :- WRIT - A No. - 3173 of 2008

Petitioner :- Diploma Engineers Sangh Public Works Deptt. Lko.Through Its

Respondent :- State Of U.P.Through Prin. Secy. P.W.D. Lko.And 5 Ors.

Counsel for Petitioner :- Sameer Kalia,Neel Kamal Mishra,P.K.Srivastava,Rajeev Mishra,S.K. Kalia,Sandeep Dixit

Counsel for Respondent :- C.S.C,Anoop Kumar Mishra,Ashish Verma,Gaurav Mehrotra,I B Singh,I.P. Singh,Laltaprasad Misra,Meenakshi Singh Parihar,Pradeep Kumar Srivastava,Raj Priya Srivastava,Renu Misra,Sanjay Kumar Srivastava,Shashank Dhaon,Siddharth Dhaon,Sidharth Dhaon,Utsav Mishra

with

(6) Case :- WRIT - A No. - 3422 of 2008

Petitioner :- Yatendra Babu

Respondent :- State Of U.P.Thr.Prin Secy P W D And 2 Ors.

Counsel for Petitioner :- Rajeev Singh

Counsel for Respondent :- C.S.C,I.P.Singh

with

(7) Case :- WRIT - A No. - 3448 of 2008

Petitioner :- Noorul Huda And 2 Others

Respondent :- State Of U.P. Through Its Chief Secy.And 4 Others

Counsel for Petitioner :- Rohit Tripathi

Counsel for Respondent :- C.S.C.,I.P.Singh

with

(8) Case :- WRIT - A No. - 3506 of 2008

Petitioner :- Madan Mohan Mishra And Anr.

Respondent :- State Of U.P. Thru Prin. Secy. P.W.D. And 2 Ors.

Counsel for Petitioner :- Rajeev Singh

Counsel for Respondent :- C.S.C.,I.P. Singh

with

(9) Case :- WRIT - A No. - 3578 of 2008

Petitioner :- Ramvir Singh

Respondent :- State Of U.P.Thr.Chief Secy And 4 Ors

Counsel for Petitioner :- Vikas Budhwar

Counsel for Respondent :- C.S.C,I.P.Singh,Sidharth Dhaon

with

(10) Case :- WRIT - A No. - 3594 of 2008

Petitioner :- Madan Kumar

Respondent :- State Of U.P.Thr.Secy P W D And 5 Ors

Counsel for Petitioner :- Rohit Tripathi,S.P.Singh

Counsel for Respondent :- C.S.C,I.P.Singh

with

(11) Case :- WRIT - A No. - 3660 of 2008

Petitioner :- Bhavya Nidhi

Respondent :- State Of U.P.Thr.Secy P W D And 3 Ors

Counsel for Petitioner :- Rohit Triapthi

Counsel for Respondent :- C.S.C.,I P Singh

with

(12) Case :- WRIT - A No. - 3666 of 2008

Petitioner :- Anil Kishore Pandey

Respondent :- State Of U.P.Thr.Secy P W D And 3 Ors.

Counsel for Petitioner :- Rohit Tripathi

Counsel for Respondent :- C.S.C.,I.P.Singh

with

(13) Case :- WRIT - A No. - 4151 of 2008

Petitioner :- Ram Sharan And Anr.

Respondent :- State Of U.P. Thru Prin. Secy. P.W.D. And 37 Ors.

Counsel for Petitioner :- Harsvardhan,Rajeev Singh

Counsel for Respondent :- C.S.C.,I.P. Singh

with

(14) Case :- WRIT - A No. - 4536 of 2008

Petitioner :- Rajendra Kumar Mishra

Respondent :- State Of U.P. Thru Secy. P.W.D. And 4 Ors.

Counsel for Petitioner :- C.B. Pandey,Rohit Tripathi

Counsel for Respondent :- C.S.C.,I.P. Singh

with

(15) Case :- WRIT - A No. - 5276 of 2008

Petitioner :- Satyanav Singh Suman And 8 Ors Now Division Bench

Respondent :- State Of U.P.Thr.Secy P W D And 42 Ors

Counsel for Petitioner :- C B Pandey,C.B.Pandey,Rohit Tripathi

Counsel for Respondent :- C.S.C.,Amardeep Yadav,Shashank Dhaon,Siddharth Dhaon

with

(16) Case :- WRIT - A No. - 5880 of 2008

Petitioner :- Sarvesh Kumar S/O Sri Radhey Ram Sharma

Respondent :- State Of Up Through Principal Secretary Public Works Deptt.

Counsel for Petitioner :- Harshvardhan,Rajeev Singh,S.K.Yadav Warsi

Counsel for Respondent :- C.S.C.,I.P.Singh

with

(17) Case :- WRIT - A No. - 6017 of 2008

Petitioner :- Purshottam Dubey S/O Late Rati Ram Dubey

Respondent :- State Of U.P. Through Principal Secretary Public Works Deptt

Counsel for Petitioner :- Harshvardhan,H S Jain,Ritu Chhabra

Counsel for Respondent :- C.S.C,Sidharth Dhawan,V.P.Sharma

with

(18) Case :- WRIT - A No. - 7361 of 2008

Petitioner :- Noorul Huda And Others

Respondent :- State Of U.P.Secretary Public Works Department And Others

Counsel for Petitioner :- Chandra Bhushan Pandey,Rohit Tripathi

Counsel for Respondent :- C.S.C.,I.P.Singh

with

(19) Case :- WRIT - A No. - 1698 of 2009

Petitioner :- Anoop Kumar Dwivedi S/O Sri Vishwanath Ji Dwivedi

Respondent :- State Of U.P.Through Prn.Secy.Public Works Deptt And Others

Counsel for Petitioner :- Vinay Tripathi,C.B.Pandey,I.P.Singh

Counsel for Respondent :- C.S.C.,Anupam Mehrotra,Siddharth Dhaon

with

(20) Case :- WRIT - A No. - 2366 of 2009

Petitioner :- Arun Gupta S/O Anand Gupta And Ors.

Respondent :- State Of U.P. Thru Secy. P.W.D. And Others

Counsel for Petitioner :- Rohit Tripathi

Counsel for Respondent :- C.S.C.,Sidharth Dhawan,Vinay Bhushan

with

(21) Case :- WRIT - A No. - 3314 of 2009

Petitioner :- Diploma Engineer Sangh P W D U P Sangh Bhwaan 96 M G Marg

Respondent :- State Of U P Thr. Prin Secy P W D Govt Of U P Lko.

Counsel for Petitioner :- Sameer Kalia,Anuj Singh,Ashish Verma,Neel Kamal Mishra

Counsel for Respondent :- C.S.C.,Akash Deep Dubey,Anuj Kudesia,Ashish Verma,Deepanshu Dass,Garima Chauhan,Lalta Prasad Misra,Sarvesh Kumar Dubey,Shashank Dhaon,Sidharth Dhaon,Surendra Pratap Singh,Utsav Mishra

with

(22) Case :- WRIT - A No. - 4459 of 2009

Petitioner :- Umesh Prakash Srivastava

Respondent :- State Of U.P. Through Principal Secretary

Counsel for Petitioner :- Dr.L.P.Mishra

Counsel for Respondent :- C.S.C.,Shashank Dhaon,Siddharth Dhaon

with

(23) Case :- WRIT - A No. - 7702 of 2009

Petitioner :- Arvind Kumar Pandey S/O Girish Kumar Pandey And Ors.

Respondent :- State Of U.P. Thru Secy. P.W.D. And Ors.

Counsel for Petitioner :- Arun Kumar Shukla,Ajay Pratap Singh Vatsa,Mianish Raghav

Counsel for Respondent :- C.S.C.,Shashank Dhaon,Siddharth Dhaon

with

(24) Case :- WRIT - A No. - 2000252 of 2009

Petitioner :- Arvind Kumar Pandey S/O R.K. Pandey And Others

Respondent :- State Of U.P. Thru Prin. Secy. P.W.D. And Others

Counsel for Petitioner :- Harshvardhan

Counsel for Respondent :- C.S.C.,I.P. Singh,Sidharth Dhawan

with

(25) Case :- WRIT - A No. - 2000447 of 2009

Petitioner :- Ashok Kumar Ram Jagat S/O Ram Jagat And Anr.

Respondent :- State Of U.P. Thru Prin. Secy. P.W.D. And Others

Counsel for Petitioner :- Dipak Seth,Devendra Mohan Shukla,Ratnesh Chandra

Counsel for Respondent :- C.S.C.,Anil K Singh

with

(26) Case :- WRIT - A No. - 2000622 of 2009

Petitioner :- Swami Nath Puri

Respondent :- State Of U P Thr. Prin Secy P W D U P Civil Sectt.Lko

Counsel for Petitioner :- Gaurav Mehrotra,Sidharth Dhaon

Counsel for Respondent :- C.S.C.,Rajnesh Kumar

with

(27) Case :- WRIT - A No. - 2000654 of 2009

Petitioner :- Ashok Saxena

Respondent :- State Of U P Thr.Prin Secy P W D Civil Sectt.Lko.

Counsel for Petitioner :- Hari Shanker Jain

Counsel for Respondent :- C.S.C.,Umesh Kr. Srivastava

with

(28) Case :- WRIT - A No. - 2000679 of 2009

Petitioner :- Ashok Saxena S/O Late Shamsher Bahadur Saxena

Respondent :- State Of U.P. Thru Prin. Secy. P.W.D. And Others

Counsel for Petitioner :- Hari Shanker Jain

Counsel for Respondent :- C.S.C.

with

(29) Case :- WRIT - A No. - 2000918 of 2009

Petitioner :- Om Prakash

Respondent :- State Of U.P. Through Principal Secretary

Counsel for Petitioner :- Ashwani Kumar,Abhishek Yadav,Ashish Verma,Sarvesh Kumar Dubey

Counsel for Respondent :- C.S.C.,Madhumita Bose

with

(30) Case :- WRIT - A No. - 2002018 of 2009

Petitioner :- Ravindra Singh S/O Sri Natthulal And Others

Respondent :- State Of U.P.Through Prn.Secy.Public Works Department And Ors

Counsel for Petitioner :- I.P.Singh

Counsel for Respondent :- C.S.C.,Sandeep Dixit,Sidharth Dhaon

with

(31) Case :- WRIT - A No. - 2000342 of 2010

Petitioner :- Jang Bahadur Singh And Ors.

Respondent :- State Of U.P.Through Prin. Secy. Govt. Deptt. Of P.W.D. Lko.

Counsel for Petitioner :- C.B.Pandey,Rohit Tripathi

Counsel for Respondent :- C.S.C.,Shashank Dhaon,Sidharth Duaon

with

(32) Case :- WRIT - A No. - 2000670 of 2010

Petitioner :- Jang Bahadur Singh And Ors.

Respondent :- State Of U.P.Through Prin. Secy. To The Govt. Deptt. Of P.W.

Counsel for Petitioner :- C.B.Pandey

Counsel for Respondent :- C.S.C.

with

(33) Case :- WRIT - A No. - 2000676 of 2010

Petitioner :- Jang Bahadur Singh S/O-Late Ram Kishan Singh And Ors.

Respondent :- State Of U.P. Thru. Prin. Secy. P.W.D. And Others

Counsel for Petitioner :- Madhumita Bose,Sidharth Dhaon

Counsel for Respondent :- C.S.C.

with

(34) Case :- WRIT - A No. - 2000967 of 2015

Petitioner :- Shamsuddin And 2 Ors.

Respondent :- State Of U.P. Through Prin. Secy. P.W.D. Lko. And Ors.

Counsel for Petitioner :- Upendra Nath Mishra

Counsel for Respondent :- C.S.C.,Rajnish Kumar

with

(35) Case :- WRIT - A No. - 2001618 of 2015

Petitioner :- Arun Kumar Mishra And Ors.

Respondent :- State Of U.P. Through Prin. Secy. P.W.D. Lko. And Ors.

Counsel for Petitioner :- Upendra Nath Mishra,C B Pandey

Counsel for Respondent :- C.S.C.,Rajnish Kumar,Sandeep Dixit,Sidhrth Dhawan

with

(36) Case :- WRIT - A No. - 9064 of 2017

Petitioner :- Vimal Kumar Mishra And Anr.

Respondent :- State Of U.P.Thru.Prin.Secy.Public Works Deptt.Lko. And 2 Ors.

Counsel for Petitioner :- Rajesh Kumar Shukla,Alok Kumar Vishwakarma

Counsel for Respondent :- C.S.C

with

(37) Case :- WRIT - A No. - 12155 of 2018

Petitioner :- Gulbir Singh And 2 Ors.

Respondent :- State Of U.P. Thru. Prin. Secy. Public Works Deptt. And 17 Ors

Counsel for Petitioner :- Upendra Nath Misra,Harsh Vardhan Mehrotra,Kshemendra Shukla,Utsav Mishra

Counsel for Respondent :- C.S.C.,Ashish Verma,Digvijai Singh,P.N. Singh Kaushik,Pankaj Kumar Dixit

with

(38) Case :- WRIT - A No. - 3808 of 2022

Petitioner :- Sunil Kumar Singh And Another

Respondent :- State Of U.P. Thru.Prin.Secy.Public Works Deptt. Lko And 2 Others

Counsel for Petitioner :- Anuj Kudesia

Counsel for Respondent :- C.S.C.,Anuj Singh,Deepanshu Dass,Neel Kamal Mishra,Raj Kumar Upadhyaya (R.K.Upadhyaya)

with

(39) Case :- WRIT - A No. - 4141 of 2022

Petitioner :- Vipin Kumar And 13 Others

Respondent :- State Of U.P. Thru. Prin. Secy. P.W.D. Lko. And 5 Others

Counsel for Petitioner :- Anuj Kudesia,Utsav Mishra,Vikas Kumar Agrawal,Gaurav Me

Counsel for Respondent :- C.S.C.,Alok Kumar Tripathi,Neel Kamal Mishra,Raj Kumar Upadhyaya (R.K.Upadhyaya)

with

(40) Case :- WRIT - A No. - 5811 of 2022

Petitioner :- Nagendra Nath Yadav And 3 Others

Respondent :- State Of U.P. Thru. Addl. Chief Secy. Public Works Deptt. Lko. And 29 Others

Counsel for Petitioner :- Deepanshu Dass,Lalta Prasad Misra

Counsel for Respondent :- C.S.C.,Anuj Kudesia,Raj Kumar Upadhyaya (R.K.Upadhyaya)

Hon'ble Om Prakash Shukla, J.

A. Introduction:

(1) The present issue, engaging the attention of this Court has a chequered history of litigation. Essentially, it revolves around the struggle relating to the promotion of Diploma holder Junior Engineer and Degree holder Junior Engineer to the post of Assistant Engineers in the Uttar Pradesh Public Works Department, wherein in the bandwagon, several other stake holders including the direct recruited Assistant Engineers, have also jumped to further complicate the whole issue. Evidently, the primary issue is relating to determination of vacancies arising in the direct and promotion quota for the period 1997-98 to 2003-04 and a secondary issue is relating to the manner this promotion quota can be filled in view of the prevailing United Provinces Services of Engineers (Building & Road Branch) Class-II Rules, 1936, its periodical amendment, Government Orders and most importantly the Judgments passed by this Court and the Hon'ble Supreme Court in that context.

(2) Although, several judgments and orders have been passed by this Court as well as the Hon'ble Supreme Court, which impacts the promotions of these Junior Engineers during the said litigations era of 1997-98 to 2003-04, however with the remand order dated 21.08.2019 by the Hon'ble Supreme Court in Civil Appeal No. 3695/2007 "
Aitbal Singh Vs. Pramod Shankar Upadhyaya & Ors.
", by virtue of which these writ petitions have been remanded for re-hearing before this Court, all the issues relating to the promotions including the quota stands revived. The relevant extract from the remanding order of the Hon'ble Apex Court can be profitably quoted as herein below:

"...A peculiar situation has arisen in this case. The decision which
has been overruled
by the High Court was affirmed by this court in
Diploma Engineers Sangh V. State of U.P
[(2007) 13 SCC 300]. It was brought to the notice of the High Court that a special leave petition was pending consideration before this court and judgment was reserved. Notwithstanding the said fact, the High Court has overruled the decision which was affirmed by this High Court later on. Judicial Proprietary required that the High Court should have stayed its hands when the matter was heard and reserved by this court and the High Court should not have proceeded with the hearing of the matter.

Apart from that, we find that certain reliefs have been granted by the High Court which were not even prayed for in the writ petition. The High Court ought to have confined consideration to the reliefs prayed in the writ petition and also considering the subject matter and parties before it.

We, therefore, set aside the impugned judgment and order and remit the matter to the High Court. We request the High Court to decide the matter afresh within six months after hearing the parties afresh".

(3) Thus, the following writ petitions being remanded vide the aforesaid order dated 21.08.2019 passed in Civil Appeal Nos. 6569, 6570, 6571-6572, 6573, 6574 of 2019 (arising out of SLP (C) Nos.28395, 28917,28535-28536 & 33760 of 2011, 3435 of 2012 impugning the Judgment dated 08.09.2011 passed by a Division Bench of this Court) are being re-heard :-

Sr. No.

Writ Petition No.

Cause-title

1.

1511(S/S) of 2010

Prabodh Kumar Pathak and others Vs. State of U.P. and others.

2.

6943(S/S) of 2007

Diploma Engineers Sangh PWD and others Vs. State of U.P. and others

3.

7232(
S/S) of 2007

Arvind Kumar Pandey and others

Vs. State of U.P. and others

4.

7649(S/S) of 2007

Brajesh Chandra Mishra and others

Vs. State of U.P. and others

5.

3173 (S/S) of 2008

Diploma Engineers Sangh PWD and others Vs. State of U.P. and others

6.

3422(S/S) of 2008

Yatendra Babu and others Vs. State of U.P. and others

7.

3448(
S/S) of 2008

Noorul Huda and others Vs. State of U.P. and others

8.

3506 (S/S) of 2008

Madan Mohan Mishra and others Vs. State of U.P. and others

9.

3578 (S/S) of 2008

Ram veer
Singh and others Vs. State of U.P. and others

10.

3594(
S/S) of 2008

Madan Kumar and others Vs. State of U.P. and others

11.

3660(
S/S) of 2008

Bhavya Nidhi Vs. State of U.P. and others

12.

3666(S/S) of 2008

Anil Kishore Pandey and others Vs. State of U.P. and others

13.

4151 (
S/S) of 2008

Ram Saran Mahto and others Vs. State of U.P. and others

14.

4536(
S/S) of 2008

Rajendra Kumar Mishra Vs. State of U.P. and others

15.

5276(S/S) of 2008

Satyawan Singh Suman and others

Vs. State of U.P. and others

16.

5880 (S/S) of 2008

Serves Kumar Vs. State of U.P. and others

17.

6017(S/'S) of 2008

Purushottam Dubey and others Vs. State of U.P. and others

18.

7361(S/'S) of 2008

Noorul Huda and others Vs. State of U.P. and others

19.

1698 (
S/S) of 2009

Anoop Kumar Dwivedi Vs. State of U.P. and others

20.

2366(
S/S) of 2009

Arun Gupta and others Vs. State of U.P. and others

21.

3314 (S/S) of 2009

Diploma Engineers Sangh PWD and others Vs. State of U.P. and others
4459 (
S/S) of 2009

Umesh Prakash Srivastava Vs. State of U.P. and others

23.

7702 (
S/S) of 2009

Arvind Kumar Pandey and others Vs. State of U.P. and others

24.

Writ-A No. 2000252 of 2009

Arvind Kumar Pandey and others Vs. State of U.P. and others

25.

Writ-A No. 2000447 of 2009

Ashok Kumar Ram Jagat and others

Vs. State of U.P. and others

26.

Writ-A No. 2000622 of 2009

Swami Nath Puri Vs. State of U.P. and others

27.

Writ-A No. 2000654 of 2009

Ashok Saxena Vs. State of U.P. and others

28.

Writ-A No. 2000679 of 2009

Ashok Saxena Vs. State of U.P. and others

29.

Writ-A No. 2000918 of 2009

Om Prakash and others Vs. State of U.P. and others

30.

Writ-A No. 1212 (S/B) of 2009 withdrawn vide order dated 28.02.2023

Surendra Kumar Srivastava and others Vs. State of U.P. and others

31.

Writ-A No. 2002018 of 2009

Ravindra Singh and others Vs. State of U.P. and others

32.

Writ-A No. 200342 of 2010

Jang Bahadur Singh and others Vs. State of U.P. and others

33.

Writ-A No. 200670 of 2010

Jang Bahadur Singh and others Vs. State of U.P. and others

34.

Writ-A No. 200676 of 2010

Jang Bahadur Singh and others Vs. State of U.P. and others

(4) The aforesaid writ petitions are being heard along with the following connected writ petitions, which are part of the aforesaid remand order passed in Civil Appeal No. 6576 of 2019 (arising out of SLP (C) Nos. 479 of 2016 impugning the judgment dated 05.01.2016 passed by a Division Bench of this court) :-

Sr. No.

Writ Petition No.

Cause-title
Writ-A No. 2001618 of 2015

Arun Kumar Mishra Vs. State of U.P. and others

And

The following connected writ petition, which is part of the aforesaid remand order, passed in Civil Appeal No. 6577 of 2019 (Arising out of SLP (C) Nos. 13962 of 2016 impugning the judgment dated 01.04.2016 passed by a Division Bench of this court).

Sr. No.

Writ Petition No.

Cause-title
Writ-A No. 2000967 of 2015

Shamsuddin and Ors Vs. State of U.P. and others.

And

The following connected writ petition, which part of the aforesaid remand order, passed in Civil Appeal No. 6575, 6580, 6581, 6582, 6583, 6584 & 6585 OF 2019 (Arising out of SLP (C) no (s) 23856, 24083, 20259, 24084 & 21666 & 24071 of 2018 and 4574 of 2019 6577 of 2019 impugning the judgment dated 17.07.2018 passed by a Division Bench of this court).

Sr. No.

Writ Petition No.

Cause-title

37.

24634 (S/S) of 2016 withdrawn vide order dated 04.02.2021

Manoj Kumar and others Vs. State of U.P. and others

And

The following connected writ petition, which is part of the aforesaid remand order, passed in Civil Appeal No. 6578-79 of 2019 (Arising out of SLP (C) Nos. 20618-20619 of 2017 & 12631 of 2018 impugning the judgment dated 04.07.2017 passed by a Division Bench of this court).

Sr. No.

Writ Petition No.

Cause-title

38.

Writ-A No. 9064 of 2017

Vimal Kumar Mishra and Ors Vs. State of U.P. and others
.

Further, the following writ petition also came to be tagged along with the aforesaid matters, which have been filed challenging the consequential effect of the main issue to be determined by this court. This writ petition being

Sr. No.

Writ Petition No.

Cause-title

39.

29014 (S/B) of 2017 withdrawn vide order dated 29.04.2022

Vijay Bahadur Yadav and Anr. Vs. State of U.P. and others
.

40.

Writ-A No. 12155 of 2018

Gulbir Singh & 2 others Vs. State of U.P. and others
.
Writ-A No. 26443 of 2019 withdrawn vide order dated 26.04.2022

Kaushal Kumar Jha & others Vs. State of U.P. and others
.

42.

Writ-A No. 21573 of 2021 withdrawn vide order dated 01.03.2023

Patanjali Srivastav and others Vs. State of U.P. and others
.

43.

Writ-A No. 3808 of 2022

Sunil Kumar Singh and Anr. Vs. State of U.P. and others
.

44.

Writ-A No. 4141 of 2022

Vipin Kumar and 13 others Vs. State of U.P. and others
.
Writ-A No. 5811 of 2022

Nagendra Nath Yadav and 3 Others Vs. State of U.P. and others
.

B. Genesis of Dispute

(5) Before adverting to the rules regulating appointment, promotions and other conditions of service of these Junior Engineers, it would be pertinent to mention that primarily three orders regarding promotion of Junior Engineers (Civil) to Assistant Engineer (Civil) in the Uttar Pradesh Public Works Department (UPPWD) are under challenge in these present bunch of writ petitions. These three orders being:

"(i) Order dated 02.08.2008 relating to 96 promotions;

(ii) Order dated 03.07.2009 relating to 27 promotions;

(iii) Order dated 05.02.2010 relating to creation of 97 more vacancies in promotions quota for 2003-2004 by applying "cadre principle" retrospectively, against which 78 recommendations for promotion were received from UPPSC in May, 2010, however the same could not be implemented due to the orders of this court."

(6) Apparently, all these promotion orders have been in favour of the degree holder Junior Engineers, wherein 96 promotees of order dated 02.08.2008 have joined and continued to work as Assistant Engineer since 2008, however, 27 promotees of order dated 03.07.2009 and 78 recommended promotees of order dated 05.02.2010 did not work on promoted post, but there seats are kept withheld as "protected vacancies".

(7) Thus, both the issues relating to (i) number of post available for Asst. Engineer under the promotion quota and (ii) the claim of the Degree holder J.E and Diploma holder J.E to the said post are to be adjudicated by this Court.

(8) The other writ petitions connected with this bunch of matters have been filed either for consequential reliefs leading to the aforesaid promotion orders or relating to other service conditions arising from these three promotion orders.

(9) At the outset itself, learned Senior Counsel of the contesting private respondents have vehemently argued that the promotion order dated 02.08.2008 of 96 promottees, was not quashed vide judgment dated 08.09.2011 and therefore the Hon'ble Apex Court, while setting aside the judgment dated 08.09.2011, vide its remand order dated 21.08.2019 has not remanded the promotion order dated 02.08.2008 for rehearing of the matter afresh. In rebuttal, the learned Senior Counsel appearing for the petitioners have argued that the Hon'ble Supreme Court had remanded the entire bunch of writ petitions decided on 08.09.2011 along-with other cases for re-hearing, which included the two writ petitions, bearing nos. 6943 of 2007 and 3173 of 2008, vide order dated 21.08.2019. According to them, all the three promotion orders dated 02.08.2008 (regarding 96 promotions), 03.07.2009 (regarding 27 promotions) and 05.02.2010 (regarding 78 recommendations) were assailed in about 40 writ petitions, which were decided by a common judgment and order dated 08.09.2011 and although this Court, vide judgment dated 08.09.2011 had only quashed the impugned orders dated 03.07.2009 and 05.02.2010 (while erroneously leaving order dt 02.08.2008 ) but it had also finally disposed off all the pending writ petitions, including the aforesaid two writ petitions no.6943 of 2007 and 3173 of 2008, in terms of the observations made in the judgment dated 08.09.2011.

(10) It is the contention of the petitioners that the Hon'ble Supreme Court vide order dated 21.08.2019, while setting aside the judgments dated 03.11.2006 passed in Anjani Kumar's case and order dated 08.09.2011 passed in
Diploma Engineers Sangh
's case, remanded all the matters for fresh hearing and since the aforesaid two petitions no.6943 of 2007 and 3173 of 2008 were also finally decided by the judgment dated 08.09.2011, therefore, they are fully covered by the remand order dated 21.08.2019 and they have to be heard afresh, together with this bunch.

(11) Having considered the rival submission, this court is of the view that no doubt the promotional order dated 02.08.2008 had not been specifically mentioned in the concluding paragraph of the earlier order dated 08.09.2011, however the observation and the conclusion arrived in
the said judgment
appears to be a holistic appreciation of all the three impugned promotion orders. This Court has specifically recorded in the said earlier order dated 08.09.2011, as follows;

"In the instant case, perusal of eligibility list dated 9.4.2008 reveals that names of certain persons were included, who, undoubtedly, at the relevant time were working on probation and have not become members of service. We are unable to accept the assertion of the private respondents that all the persons who have been appointed against substantive vacancy were fully eligible for promotion even without being confirmed on the post."

(12) Apparently, the said eligibility list dated 09.04.2008 (mentioned supra) along with eligibility list dated 25.04.2008 forms the basis of promotion order dated 02.08.2008, which this court had remarked to be unacceptable.

(13) Moreover, after final disposal of the entire bunch of cases by this court vide its judgment dated 08.09.2011, the aforesaid two writ petitions cannot be presumed to have been left out or decided in air, without there being any other order for the same. The Hon'ble Apex Court, in a recent judgment dated 30.09.2019, passed in Anupal Singh and others Versus State of U.P. and others, (2020) 2 SCC 1, has held that "where a common judgment has been delivered in which consolidation orders have specifically been passed, we think it irresistible that the filing of a single appeal leaves the entire dispute becoming subjudice once again".

(14) Thus, when the matters are remanded to this Court by the Hon'ble Apex Court, with a direction of hearing afresh i.e. de-novo hearing, then fresh hearing has to be conducted, as if, original hearing has not taken place at all and in such circumstances, such a remand is a complete remand and cannot be termed as limited/restricted remand. This aspect has been clarified by the Hon'ble Apex Court in the cases of Paper Products Limited Versus CIT Mumbai, (2007) 7 SCC 352; Surendra Kaul Versus Jyoti Ranjan, (2001) SCC Online Cal. 237.

(15) Further, from a perusal of the prayers of the SLP filed against the judgment and order dated 08.09.2011, it is revealed that entire judgment dated 08.09.2011 was challenged, which was passed on all the bunch of petitions including writ petition no. 6943 of 2007 and 3173 of 2008, in which the exercise of promotion on 96 vacancies culminating in the issuance of impugned promotion order dated 02.08.2008 was challenged. Thus when the judgment dated 03.11.2006 and all the subsequent judgments including the judgment dated 08.09.2011 have been set aside, with the direction of rehearing of the matters afresh, the contention & request of Mr. Dixit cannot be acceded to as all the writ petitions decided by judgment dated 08.09.2011, including the writ No. 6943/2007 & 3173/2008, would be revived along with their pleadings, and would be reheard afresh.

(16) Therefore, the submissions of the private respondents that the two writ petitions challenging their promotion order dated 02.08.2008 and the entire procedure of promotions, are not covered by the remand order dated 21.08.2019 of the Apex Court and therefore these two Writ Petitions do not require rehearing, deserves to be turned down. Thus, this court proceeds with deciding all the three impugned promotion orders.

C. The Old Service Rules of 1936

(17) That the rules regulating process of promotion from the post of Junior Engineer to the post of Assistant Engineer in the state of Uttar Pradesh is as per the United Provinces Service of Engineers (Building and Road Branch) (Class II) Rules, 1936, which has been amended from time to time (hereinafter referred to as the Old 1936 Rules). Apparently, after the commencement of the Constitution of India, the United Provinces Service of Engineers (Buildings and Roads Branch) Class-II Rules 1936 (for brevity 1936 Rules) continued to be in force by virtue of
Article 313
of the constitution of India.

(18) The salient feature of the 1936 rules, which originally existed and are relevant to the context in these bunch of matters, inter-alia stated:

(a)      Rule 3(b) related to as to who can be a member of the service and it invariably states; "Those appointed in substantive capacity to a post in the cadre under the provisions of these Rules".

(b)   Rule 4(i) says that there is no compulsion for the state Government to necessarily fill-up all the vacancies every year, so no right of promotion every year.

(c) Rule 5 relates to Source of Recruitment; which inter-alia says:

(i)        by direct appointment from amongst engineer students who have passed out of the Thomson Civil Engineering College, Roorkee, and who have completed a course of training in the Buildings and Roads Branch as engineer students after consulting a Permanent Board of Selection.

(ii)    by direct appointment after advertisement and after consulting a Permanent Board of Selection.

(iii) by the appointment of officers in the temporary Service of the United Provinces Public Works Department, Buildings and Roads Branch, after consulting a Permanent Board of Selection.

(iv)   by promotion of members of the United Provinces Subordinate Engineering Service or of Upper Subordinates in the Public Works Department, Buildings and Roads Branch, who have shown exceptional merit.

(d)    Rule-6 relating to the number to be recruited from each source say, the Government shall decide in each case the source from which a vacancy shall be filled:

Provided that-

(a)  Members of the United Provinces Subordinate Engineering Service or of upper Subordinates who are eligible for promotion under clause (iv) of rule 5 are debarred from applying for direct appointment under clause (ii) of that rule.

(b) In making appointments of the service, care shall be taken to secure reasonable representation of the different communities and to prevent the preponderance of any one class of community.

(c)  In the case of direct appointment, other things being equal, weight shall be given to a candidate's family status.

(e)      Rule-9 related to Qualifications of which rule 9(i) said that no person shall be recruited to the service under the provisions of rule 5(i), 5(ii), or 5(iii) unless-

(a)  he holds the Engineering certificate of the Thomson college, or

(b) he is a fully qualified Associate Member of the Institution of Engineers (India), or

(c)  he has obtained an Engineering degree of one of the Universities mentioned in the appendix under the conditions prescribed therein, or

(d) he has passed Section A and B of the Associate Membership Examination of the Institution of Civil Engineers, or

(e)  he has passed the Associateship Examination of the City and Guilds Institute (Imperial College of Science and Technology, South Kensington) in Civil Engineering; and

(f)   he has, if recruited under the provisions of rule 5(ii), had at least two year's practical experience on important works connected with roads and buildings.

Further, Rule 9(ii) says that no officer shall be promoted to the service under rule 5(iv) unless he has passed such qualifying examination which the Government may prescribe.

(f)      Rule 17 said that probation shall be for a period of four years of satisfactory service and Rule 18 says that departmental examination was necessary for confirmation.

(g)   Further rule 19 said that confirmation would be after completion of probation period and passing of all the tests and satisfactory service. Rule 20 and 21 relates to extension of probation period and termination of service. Rule 23 says that seniority would be determined by their initial rates of pay and confirmation shall be subject to Rule 22 i.e passing of departmental examination where required.

(19) The earliest amendment to the aforesaid 1936 rules had been on 28.10.1936 itself, wherein Rule 6 (a) was inserted to mean that "Not less than 20 percent of vacancies shall be reserved for selected qualified members of the Subordinate Engineering Service and the Upper Subordinate Engineering Service in promotion".

(20) Further, Rule 23 was also substituted by an amendment of 18.06.1941 to mean that seniority would be given from the date of order of appointment and Rule 9(ii) was amended on 19.04.1943 by substitution to mean; "No officer shall be promoted to the service under rule 5(iv) unless he has passed such qualifying examination as the Governor may prescribe, or possesses the technical qualifications prescribed in clause (i) of this rule."

(21) Apparently, Rule 9 of Old 1936 Rules as initially existed provided technical qualifications required to be possessed for the post of Assistant Engineer. Sub-clause (ii) provided that no officer would be promoted under Rule 5(iv) unless he had passed any qualifying examination, which the Government may prescribe. However, vide the aforesaid amendment dated 19.04.1943, a provision was made that an officer could be promoted to the post of Assistant Engineer after having passed the qualifying examination as prescribed by the State Government or in case he possessed the technical qualification prescribed in Rule 9(i) of the 1936 Rules. The effect of the said amendment was that a Junior Engineer possessing any of the qualifications prescribed under Rule 9(i) was no longer required to pass the qualifying examination for promotion as he had also an alternate route to be promoted by achieving the qualification as mentioned in the rules. Thus, qualifying examination was necessary to be passed only by such Junior Engineers who did not possess the technical qualification specified under Rule 9(i).

(22) This Court finds that the aforesaid choice given to a Junior Engineer to either pass the qualifying examination or obtain a technical qualification for consideration in the promotion quota to the post of Asst. Engineer under the promotion quota has become a bone of contention between the Diploma holder JEs and Degree holder JEs, which has led to several rounds of litigation between these two groups. The present bunch of litigation appears to be largely between this two contesting groups.

(23) That this court would not go into great details of the other amendments, however suffice to say that again on 21.7.1959 a notification was issued by the State Government making amendment to the Old 1936 Rules whereby in Clause (iv) of Rule-5 the words 'upper-sub-ordinate' had been deleted and the existing Clause (a) of Rule-6 was substituted by new provisions containing 25% of vacancies in the service to be reserved or earmarked for selected qualified members of Sub-ordinate Engineering Service and Computers. As per the said amendment, the vacancies so reserved had to be shared by members of Subordinate Engineering Service and Computers in approximate proportion of their relative cadre strengths at the time of selection in question.

(24) Certain amendments were also made to Rules 3(c), 5 and 6 of the old 1936 Rules on 28.7.1969 and in 1971 by means of another notification amendment was effected to Rule 23 of the 1936 Rules. The validity of amendments made to Rule 3(c), 5 and 6 by the 1969 notification and amendments effected in Rule 23 by the 1971 notification were subject matter of challenge in the case of P.D. Agarwal & Ors. V/s State of Uttar Pradesh & Ors, (1987) 3 SCC 622, wherein the Hon'ble Apex Court by means of its judgment and order dated 8.6.1987 while quashing Rules 3(c), 5, 6 and 23 of the Old Rules as arbitrary, directed the authorities concerned to prepare a fresh seniority list of all the members of the service in the cadre of Assistant Engineer in the PWD Department on the basis of their length of service from the date they have become members of the service fulfilling all the requirements
laid down in
the service rules. The Hon'ble Court observing the confusion being created by the rules vis-à-vis the judgment passed by the court, had observed, to quote :

".........We cannot but observe in this connection that though the temporary Assistant Engineers have been duly selected by the Public Service Commission after they are appointed as temporary Assistant Engineers yet in spite of several directions given by this Court, the authorities concerned did not think it fit and proper to prepare the seniority list in accordance with the directions given by this Court and as a result no seniority list in the cadre of Assistant Engineer has yet been prepared following the directions made even by this Court as embodied in the decision in
Baleshwar Dass & Ors. v. State of U.P. & Ors
, AIR 1981 SC 41. On the other hand amendments have been made to the existing 1936 service rules which per se seem to be arbitrary and this led to a spate of litigations. We do hope and expect that considering all these, the Government will take effective steps for preparation of seniority list as early as possible in order to create incentive for the members of the service by holding out prospects of future promotions in the interests of the service."

(25) It would be pertinent to mention herein that the Hon'ble Supreme Court while quashing Rules 3(c), 5, 6 and 23 of the Old Rules had directed the authorities to prepare a fresh seniority list of all the members of the service in terms of the Old service rules only, thereby recognising and acknowledging the existence of the old service Rules of 1936.

(26) The State Government made further amendment to the existing Old rules of 1936, wherein rule 5(i) to 5(iii) were inserted for providing quota for different sources vide an amendment dated 04.08.1987. As per the said amendment, rule 5(i) provided that 66.67% vacancies in Assistant Engineers were to be filled by direct recruitment, rule 5(ii) provided for 25% by promotion of diploma J.E and rule 5(iii) provided for 8.33% by promotion of Degree J.E. Rule 9(ii) relating to qualifying examination for promotion was done away with or deleted and the new substituted rule 12 provided that promotion was to be made on "merit" as per promotion by selection( Procedure) Rules, 1970.

(27) Subsequently, vide an amendment dated 11.01.1993, the criteria for promotion as mentioned in Rule 12 was changed from "merit" to "seniority subject to rejection of unfit". Later, the separate promotion quota devised by the 1987 amendment in terms of rule 5 was changed vide another amendment dated 25.09.1997 to mean that 58.34% posts were to be filled by direct recruitment, 33.33% posts by promotion of diploma J.E and 8.33% post by promotion of Degree J.E.

(28) The validity of both the notifications dated 4.8.1987 and 25.9.1997 was subject matter of challenge before this court by means of four writ petitions including Writ Petition No. 42762 of 2000 Aruvendra Kumar Garg v. State of U.P. and Ors. A Division Bench of this Court while deciding all aforesaid writ petitions jointly in Aruvendra Kumar Garg's case vide judgment and order dated 22.3.2002, reported in 2002 (2) E.S.C. 148, has quashed the impugned notifications dated 4.8.1987 and 25.9.1997 being ultra vires of
Articles 14
and
of the Constitution as creation of separate quota of promotion for Degree holder JEs and Diploma holder JEs was held to be discriminatory and illegal. Against the aforesaid judgment a Special Leave Petition was filed before the Apex Court by Aruvendra Kumar Garg and others but vide order dated 1st August 2006 the Hon'ble Apex Court, permitted the appellant of said case to withdraw the Civil Appeal No. 40195 of 2002 with Civil Appeal No. 4194 of 2002 and as such the judgment passed by the Division bench of this court attained finality.

(29) Apparently, after the passing of the Aruvendra Kumar Garg's case, as per the old rules of 1936, there remained a promotion quota of 25% to be filled from Junior Engineers/Computers satisfying the eligibility requirement specified by Rule 9 as per the 1943 amendment. As a further consequence Junior Engineer/Computers of Lok Nirman Vibhag who had either passed qualifying examination as envisaged under Rule 9(ii) or had passed Associate Membership Examination of the Institute of Engineers (India) or possessed a Bachelor degree in Engineering were eligible for consideration for promotion to the post of Assistant Engineer.

(30) The qualifying examination envisaged by Rule 9(ii) was a qualifying examination prescribed by State Government. Since the qualifying examination envisaged under Rule 9(ii) was the qualifying examination for treating candidates not possessing Bachelor of Engineering degree/Associate Membership of Institute of Engineers, at par with the aforesaid qualification and the rules governing the qualifying examination would demonstrate that the qualifying examination was envisaged as a written examination based upon a specified course curriculum for testing the technical knowledge of the candidates in Engineering, however on 11.2.2003 the State Government issued an office order making provision that the qualifying examination under Rule 9(ii) of the Rules would comprise only of an oral interview to be conducted by a three Member Committee.

D. Prelude to the Dispute

(31) Obviously, the office order dated 11.2.2003 seemed to have been issued contrary to the scheme of the 1936 Rules and to some extent to the benefit & favour of Diploma holder Junior Engineers and as such the same was subject matter of challenge by the degree holder J.E in Vijay Kumar & Others V/s State of Uttar Pradesh (CMWP No. 9127/2003) and other connected matters. A Division bench of this court vide a judgement & order dated 16th of July, 2004 quashed the Government order dated 11.02.2003 and a direction was issued to the state Government to make promotions at the earliest, strictly in accordance with the Rules, which means the concept of written examination was revived.

(32) Before the aforesaid order dated 16.07.2004, was passed by the Ld. Division bench of this court, two noticeable things transpired, firstly, not only the state government went ahead with the process of interview of the diploma J.E as per its office order dated 11.02.2003, dehors that the same was quashed vide order dated 16.07.2004 in Vijay Kumar's case ( supra), but the state Government, presumably thinking that with the passing of the judgment in Aruvendra Kumar Garg's case the entire promotional quota stood wiped out, issued a G.O dated 20.02.2003, prescribing 41.66% promotional quota post and apparently laid down procedure for promotion to fill up existing backlog vacancies under the old rule 1936. In order to make the issue more complicated, the state Government vide another letter dated 21.02.2003, asked Uttar Pradesh P.S.C to decide the date for convening D.P.C for the purpose of promotion to the post of A.E against the existing backlog vacancies, which was estimated to be 219 post. It is this G.O dated 20.02.2003, prescribing 41.66% promotional quota post of the State Government, which has created lot of confusion and is also one of the hottest contentious issue in these bunch of writ petition.

(33) Secondly, vide Notification dated 3.1.2004, the State Government framed & notified the U.P. Public Works Department Group-B Civil Engineering Service Rules, 2004 (for short the Rule 2004). The notification was issued in supersession of existing rules and orders in this regard and the intent of the notification was to supersede the 1936 Rules which continuously governed recruitment to the post of Assistant Engineers from 1936 till date. Interestingly, under the 2004 Rules, Rule 5 prescribes the source of recruitment as 50% by direct recruitment through the Commission and 50% by promotion from amongst substantively appointed Junior Engineers (Civil) and Junior Engineers (Technical) who have completed seven years' service as such on the first day of the year of recruitment. The 50% quota for promotion was subject to the proviso that 90% of the post under the promotion quota would be filled up by promotion of Junior Engineers (Civil) and 10% posts under the promotion quota to be filled up from amongst Junior Engineer (Technical).

(34) Further, as per the new Rule 8, it prescribed that the academic qualification for direct recruitment as a Bachelor's degree in Civil Engineering or an equivalent qualifications. The language of Rule 8 stipulated that the educational qualification envisaged therein does not apply to cases of promotion. In view of the aforesaid a Junior Engineer in the Department was now entitled to be considered for promotion in case he has been substantively appointed and has completed seven years as such on the first date of the year of recruitment without any further restriction as to possession of any technical qualification or passing any examination as had been prescribed under the old service rules of 1936. Thus, the notification has done away with the earlier requirement of possessing technical qualification or passing of a qualification examination for promotion to the post of Assistant Engineer.

(35) The new service Rules completely divest the requirement of possessing technical qualification or passing an examination for the testing of technical knowledge. Thus, the new service Rules has in a way abolished the distinction, which has always existed in the department between Junior Engineers possessing bachelor degree of Engineering or Associate Membership of Institute of Engineers and such Junior Engineers who do not possess the said qualification. However, the notification would have prospective operation only and it would not be given retrospective operation. The notification would be applicable for filling up vacancies of Assistant Engineer arising subsequent to 3.1.2004 and the same has no applicability with regard to vacancies for promotion which have already come into existence in the department prior to 3.1.2004. The mere fact that there has been delay in finalizing the promotion either on account of the litigation pending before this Court or even otherwise is wholly irrelevant and promotion against the vacancies which have arisen prior to 3.1.2004 are required to be filled in accordance with the 1936 Rules and the same cannot be the subject matter of promotion under the notification dated 3.1.2004. In case the notification is made applicable to earlier vacancies the same would amount to granting retrospective operation to the notification, which cannot be the purview of law nor the intent of the legislature in framing the new rules.

(36) Coming back to the factum of order dated 16.07.2004 passed by this court in Vijay Kumar & Others V/s State of Uttar Pradesh (CMWP No. 9127/2003) and other connected matters, wherein the Government order dated 11.02.2003 was quashed, it is available from records that Diploma Engineer Sangh filed a special leave petition before the Hon'ble Apex Court, wherein vide an order dated 27.09.2004 passed in SLP(Civil) CC No 8440 of 2004, the Hon'ble Apex Court stayed the operation of the Judgment dated 16.07.2004 passed by this court and made all subsequent promotions subject to the final outcome of the SLP.

(37) In the interregnum, various writ petitions came to be filed, wherein various issues were raised including the inter-play between the old service rules of 1936 and new service rules of 2004, validity of Government order dated 20.02.2003 and the prescription of promotion quota etc. This court heard these matters at length, wherein Anjani Kumar Mishra was considered the lead matter. Apparently, although in the SLP filed against Vijay Kumar's judgment by the "Diploma Engineers Sangh" arguments were completed & judgment was reserved by Apex court, but instead of waiting for the final judgment & deferring the hearing, this court proceeded to decide Anjani kumar Mishra's bunch case vide an order dated 03.11.2006 and 'reported as 2007(1) UPLBEC 260, wherein this court directed the following :-

(i) The vires of the new Service Rules of 2004 was upheld.

(ii) All the 73 promotions (30.06.1998, 02.05.2002, 06.12.2004 and 25.05.2005) made only from Degree holder JEs by 04 promotion orders, issued between 1998- 2002, without considering any senior diploma JE's, were declared bad in law & were quashed.

(iii) It held that nothing would survive including rule 5,6,9 from old Service Rules of 1936 after setting aside of 1987 & 1997 amendments, except Rule 12 i.e. promotion by seniority, & hence composite promotion quota of 41.66% would apply as per G.O dated 20.02.2003 for the interregnum period.

(iv) This Court, while applying G.O dated 20.02.2003 on total 446 vacancies of the old period, also proceeded to determine total vacancies of Assistant Engineer during the period 1997-1998 to 2003- 2004, as 186 for promotion quota & 260 for direct quota applying the 41.66 theory.

(v) The State Government was directed not to give direct quota vacancies to promotion and to fill up the aforesaid vacancies, as determined by this court in accordance with law, after determining the year-wise vacancies accordingly. "

(38) The judgment in Anjani Kumar's Case, whereby 73 promotions were set aside, was challenged in a separate SLP titled Atibal Singh V/s state of Uttar Pradesh, preferred by reverted degree holder JEs (Atibal Group), wherein the Apex Court passed an interim order on 27.11.2006 for not reverting them.
Further, another SLP came to be filed against the
Anjani Kumar Mishra
's case in so far as validity of new Service Rules of 2004 was concerned, in the case of Dileep Kumar Garg V/s State of U.P. & others, in which the order of status quo was initially passed on 04.01.2007. However, when the State filed an Interim application seeking vacation of status quo order & permission that old vacancies may be filled by the Old service Rules, 1936, the status quo order was vacated, but, subsequently vide an order dated 01.04.2008, the Hon'ble Apex Court dismissed the said SLP itself and upheld the judgment of this court as far as the vires of the new Service rules, 2004 were concerned.

(39) In the interregnum, the Special leave petition filed by the Diploma Holder Engineers' Sangh against the order dated 16.07.2004 passed by this court in Vijay Kumar & Others V/s State of Uttar Pradesh, was converted into Civil Appeal No. 3228 of 2005 and although initially, an interim order was granted by the Hon'ble Supreme Court providing that any promotion made would be subject to the outcome of the Special Leave Petition, however, finally, the said SLP/Civil Appeal was dismissed vide judgment and order dated 20/3/2007 reported as "Diploma Engineers Sangh V/s State of Uttar Pradesh, 2007(13) SCC 300, by upholding the judgment of the Division Bench of this Court with a further direction to the State Government to hold the qualifying examination qua diploma holders Junior Engineers within a period of four months apparently indicating the existence of the old service rules of 1936 of pre-1969 amendment. It was further provided that any Junior Engineer who has been promoted in pursuance of the interim order granted by the Hon'ble Supreme Court
referred to above
would continue on the promoted post on ad hoc basis only subject to his being regularly promoted in accordance with the Rules, 1936 and in case they fail to clear the qualifying examination such persons shall stand reverted to the original post of Junior Engineers.

E. The Dispute

(40) Pursuant to the direction of the Hon'ble Apex Court in the Diploma Engineers Sangh V/s State of Uttar Pradesh, 2007(13) SCC 300, the Engineer-in-Chief on 15.5.2007, issued a letter notifying that qualifying examination would be conducted by the U.P. Technical Board of Education. Subsequently, the examinations were held on 18.07.2007 and 19.7.2007 at the U.P.S.C. Centre, Lucknow. Later on, due to some discrepancies, the examination held on 18 & 19.7.2007 was cancelled by the State Government vide order dated 30.7.2007, wherein it was estimated that about 711 diploma JE's had appeared. Consequently, a notice was published on 3.8.2007 that the examination would be now held on 12, 14 and 16th August, 2007. In the notice, it was also provided that the admit card which was issued at the time of qualifying examination by the U.P. Technical Board would be treated to be valid and no separate admit card would be required.

(41) However, candidates, who were posted in remote areas of the State of U.P., could not be made aware with the date of examination as no proper communication could be made by the concerned authorities of Department and as such large number of candidates could not participate in the examination. Apparently, only one candidate was able to appear in the first paper in forenoon and two others joined in the second paper in the afternoon for the qualifying examination. Similarly, on the next day only 9 candidates appeared in the first session and 11 in the second session. It has been claimed, that although, the State had provided that the admit card issued earlier will be treated as valid wherein the centre of examination was mentioned as U.P.S.C. Lucknow but the examination was actually changed and held at Allahabad. Thus these all deprived/prevented bonafide and eligible candidates to participate in the examination. This court finds that the conduct of this qualifying examination is also an issue in the present bunch of matters, which accordingly would be dealt with in the subsequent part of this Judgment.

(42) Apparently, in the meantime, the department without awaiting for the result of the upcoming qualifying examination, sent a requisition dated 24.09.2007 against 84 (186-73-29) promotion quota vacancies relating to the period of 1997-98 to 2003-2004 by including only degree holder JEs, although ironically even the results of the qualifying examination came to be declared only on 24.10.2007. It may be clarified that the aforesaid 84 requisition was arrived by the department, possibly by deducting the 73 promotion quashed in
Anjani Kumar Mishra
's case but which later came to be stayed in terms of status quo order granted by the Apex Court and 29 promotion seats granted to the diploma holder JEs vide promotion dated 30.06.1998 from the total number of 186 promotion seats determined in
Anjani Kumar Mishra
's case. Thus, the first genre of writ petition like the W.P No. 6943(S/S) of 2007 came to be filed by the Diploma Sangh seeking (i) quashing of G.O dated 24.09.2007 relating to 84 promotion quota and (ii) to hold fresh qualifying examination.

(43) There had been topsy-turvy in the whole promotion issue, in as much as suddenly the department declared the promotions of 29 diploma holder JEs, made on 30.06.1998, as null and void, which was again later approved by the State government on 25.04.2008, wherein after they added 29 more vacancies in earlier requisition making it for 113 vacancies i.e. (84 + 29) vide an eligibility list dated 09.04.2008. Both these orders dated 25.04.2008 and the list dated 09.04.2008 was challenged by the Diploma Sangh vide a second genre of writ petition like the W.P No. 3173(S/S) of 2008.

(44) Seemingly, against the aforesaid 113 vacancies which were included in the 186 vacancies determined for the period of promotion i.e. 1997-98 to 2003-04 in Anjani Kumar's case, 96 (95 +1) promotions were made on 02.08.2008 and 03.02.2009, but all the promotions were given only to Degree holder JEs, which has been alleged to have been not even members of the service as they were probationers. Apparently, since the list was prepared without considering the eligibility of Diploma holder JEs, as allegedly no qualifying exam under Rule 9(2) was lawfully held for ascertaining the eligibility of Diploma Holder JEs, therefore these 96 promotions were challenged by amendment in the second genre of writ petition (mentioned supra), on the ground of ineligibility of Degree Holder JEs and non-consideration of Diploma Holder JEs. Pertinently, the order dated 02.08.2008 was also challenged in several other petitions like W.P No. 4459(S/S) of 2009 and others, which are part of the instant bunch of Writ Petitions.

(45) In furtherance of a representation dated 27.11.2008 preferred by two Degree Holder JEs namely Vimal Kumar Mishra and Ishwar Pal Singh, about existence of 219 vacancies under the old rules as mentioned in the letter dated 06.02.2003 of E-in-C, the department sent a fresh requisition for 33 (219-186) vacancies vide an order/list dated 27.02.2009, while completely ignoring the fact that 186 vacancies was a final determination of number of promotion seats in Anjani Kumar Mishra's Judgement and that too the same were filled up. The state, while wrongly taking into account the letters dated 06.02.2003/20.02.2003 proceeded for excess promotion on the ground that
Anjani kumar Mishra
's case had given them the liberty to determine the actual number of seats in the promotion quota.

In any case, the requisition order dated 27.02.2009 was challenged by the Diploma Holder Junior Engineers by filling a third genre of petition, like Writ petition No.3314 of 2009 i.e.
Diploma Engineers Singh Vs. State of U.P and others
, which is pending before this Hon'ble Court along with the instant bunch of writ petitions.

(46) Further, in
Anjani Kumar Mishra
's case, though this court had fixed 186 vacancies, however it had opened for the state government to re-determine the vacancies. The state government relying on the letter dated 20.02.2003 addressed by the state government to the PWD suggesting 219 vacancies, proceeded to make promotions on the remaining 219-186=33 vacancies. As per records, a total of 27 promotions were made only from Degree Holder JEs against the aforesaid 33 vacancies without considering any of the Diploma holder JEs vide promotion order dated 03.07.2009. Thus, these promotions were challenged by the Diploma Holder Junior Engineer by filling an amendment application in the aforesaid third genre of petitions, like the writ petition No. 3314 of 2009 i.e Diploma Engineers Sangh V/s. State of U.P and others. This promotion order dated 03.07.2009 was also challenged in several other petitions like W.P no. 4459(S/S) of 2009, which are part of the instant bunch of writ petitions.

(47) Although this court in Anjani mishra's case had determined the number of promotional quota seats to be 186 and against which 10 seats were estimated to be vacant, however the State Government, dehors the said determination went ahead in making 96 promotions vide order dated 02.08.2008, 27 promotions vide order dated 03.07.2009 and if that was not enough, the state government in the most surreptitious manner, went ahead to now calculate the "promotional quota" seats on the basis of "cadre strength principle" which was apparently against the old rules of 1936. The state government by applying the said cadre strength principle determined about 97 seats available for promotional quota vide requisition order dated 05.02.2010. Thus the aforesaid requisition order dated 05.02.2010 was challenged by the Diploma Holder JEs in fourth genre of petitions, like the writ petition being No. 1511 of 2010 i.e
Prabodh Kumar Pathak Vs. State of U.P and others
as the old rules did not provide cadre strength principle. It was contended that the principle of "cadre strength" came to be introduced for the first time under the new Service Rules of 2004, hence it cannot be applied for vacancy determination under the old service rules of 1936.

(48) This Court, in a connected W.P no. 2018 of 2009 titled Ravindra Singh V/s State, vide interim order dated 28.04.2010, allowed the Respondent authorities to proceed with the DPC, but restrained them from issuing promotion orders and consequently 78 more Degree Holder JEs were considered and recommended for promotion against the aforesaid 97 vacancies but their promotion orders were never issued.

(49) Subsequently, after hearing the parties at length, all the connected 36 writ petitions (with leading writ
Diploma Engineers Sangh
's case), which were primarily filed by aggrieved Diploma holder JEs against the aforesaid promotions of Degree holder JEs was decided vide a judgment dated 08.09.2011 of this court. The Division bench quashed the promotion order dated 03.07.2009 and the requisition order dated 05.02.2010. All the 3 contentions of the diploma holder JEs were accepted i.e. (a) 105 promotions (27+78) were declared as excess promotions (i.e beyond 186), (b) the promoted 105 degree holder JEs (27+78) were declared as not members of service and hence ineligible for promotion; and (c) qualifying examination of 2007 was not held as per law.

(50) Various SLPs were filed challenging the aforesaid judgment and order dated 08.09.2011 before the Hon'ble Apex Court. However, the Hon'ble Apex Court, refused to pass any interim orders and directed that any promotions or reversion shall be subject to the outcome of the pending proceedings. The state Government on the heels of the said refusal by the Hon'ble Apex Court, vide an order dated 02.01.2012, passed the reversion order, whereby promotion granted to 27 Degree Holder JEs to the post of AEs vide an order dated 03.07.2009 was reverted to the post of Junior Engineer. Simultaneously the order dated 05.02.2010 regarding creation of 97 vacancies against which 78 recommendations of Degree holder JEs was received from the DPC was also quashed and no promotions of these 78 JEs were made, thus all the 105 promotions (27+78) of Degree JEs were set aside and they were reverted as no protection was given to them by the Hon'ble Apex Court.

(51) The State Government also vide an Affidavit dated 04.01.2012 admitting that all the 186 vacancies arising during the litigation era i.e. 1997-98 to 2003-04 were already filled up and in absence of any old vacancy prior to 1.7.2004, no further promotion can be made on the basis of the old Rules of 1936, although later vide an Affidavit dated 10.08.2018, the state despite admitting that 186 vacancies were filled up, tried to take a contradictory stand and went on to justify 105 vacancies as old vacancies on the basis of cadre principle.

(52) Nevertheless, for the recruitment year 2013-14, though there were a total of 235 vacancies of A.E. (civil). However, the state government sent a requisition dated 25.10.2013 for filling up only 130 vacancies by promotion and 105 vacancies (27+78) of Assistant Engineers were kept reserved and were kept out of the purview of promotion of eligible Diploma Holder JEs in that Recruitment year without assigning any reason. These 105 vacancies (27+78) were referred to as "protected vacancies" by the state for protecting 105 excess promotions of Degree holder (27+78), though there was no stay of the judgment dated 08.09.2011, since no protection was given to these 105 degree holder JEs by the Hon'ble Apex Court as mentioned above.

(53) Since some eligible and senior diploma Holder JEs were not being considered for promotion on account of withholding of 105 vacancies as aforesaid, a writ petition No. 967 (S/B) of 2015 i.e. Shamusddin and others V/s State of U.P & others was filed for claiming promotion against the aforesaid withheld 105 vacancies, with a prayer for release of these 105 withheld vacancies to be filled under the new service rules 2004. This Court vide an order dated 01.04.2016 directed the State to fill up the existing vacancies on the basis of eligibility list dated 25.01.2016 in accordance with law expeditiously. However, the Degree holder JEs, challenged the said order in SLP (Swami Nath Puri V/s Shamsuddin), wherein the degree holder JEs impressed upon the Hon'ble Apex Court as if promotions on 105 vacancies were going to be made against those same 105 vacancies which were reserved for them by the State. Although, initially the Hon'ble Apex Court vide its order dated 02.05.2016 stayed the said order dated 01.04.2016 passed by this court, however subsequently vide an order dated 3.10.2017, the Hon'ble Apex court, without touching the 105 withheld vacancies at that stage permitted the state government to fill up the remaining vacancies in accordance with the new Service Rules of 2004.

(54) Subsequently, while hearing a clarification application filed by Degree Holder JEs in the pending SLP No.28395/2011(Om Prakash Singh V/s. State), seeking vacation of the aforesaid interim order dated 03.10.2017, the Hon'ble Apex Court, vide an order dated 09.02.2018, directed that since the impugned judgment (i.e. Judgment dated 08.09.2011) had not been stayed by it, the court permitted the State Government to fill the seats by promotion in accordance with the impugned Judgment (i.e. Judgment dated 08.09.2011). However, the State Government again prepared an eligibility list dated 19.07.2018 by treating the 105 vacancies as old vacancies of recruitment year 2003- 04 and included the same old 27 Degree holder JEs of the order dated 03.07.2009 and 78 Degree holder JEs of order dated 05.02.2010 in the said list, despite the fact that they were already declared ineligible for promotions against the said vacancies of 2003-04 and were included without holding any qualifying exam for diploma JEs. Further, a DPC was also convened by UPPSC on 02.08.2018 for proceeding with promotions on the basis of the said eligibility list dated 19.07.2018.

(55) The said eligibility list dated 19.07.2018 as well as the DPC had been a subject matter of challenge before this court, wherein vide an order dated 02.08.2018 this court although refused to stay the aforesaid DPC, however granted a stay on the declaration of result. Further, an SLP filed against the said interim order before the Hon'ble Apex Court did not find any luck and merely this court was directed to decide the said pending Writ Petition on merits expeditiously.

(56) In the meantime, all Civil Appeal pending before the Supreme Court were allowed vide judgment dated 21.08.2019 and the Apex Court while setting aside the judgment dated 03.11.2006 and other consequential orders including Judgment dated 08.09.2011, remitted all the matter to this Court with a direction to decide all the matters afresh within the duration of Six Months. The validity of Diploma Engineers Sangh V/s State of U.P. ( 2007) 13 SCC 300 was also reaffirmed by the Hon'ble Supreme Court in the said Judgment.

(57) In the aforesaid background, the present bunch of writ petitions were heard on several occasion and parties were allowed to file their respective written submission, which are on record. This court has not extracted the facts of any particular case as the parties chose to argue on the common issue raised in these petitions. However, in order to complete the chain of events, it would be pertinent to mention herein that on the basis of a seniority list, the degree holder JEs, who were earlier promoted vide order dated 03.07.2009 relating to 27 promotional seats, but was later cancelled because of the judgment dated 08.09.2011 and these promottees were actually reverted on 01.01.0212, has now been promoted from the post of JE(Civil) to Asst. Engineer (Civil) by means of order dated 31.12.2021 and 31.05.2022 and there promotion has become final in the sense that there had been no protest.

F. Contention of the Parties

(58) Heard Shri Upendra Nath Mishra, Shri Sandeep Dixit, Shri Asit Chaturvedi, Shri H.G.S Parihar, learned Senior Advocates along with Shri Anuj Kudesiya, Shri Neel Kamal Mishra, Shri Deepanshu Dass, Shri C.B. Pandey Learned advocates for the parties and Shri Ravi Singh Sisodiya, Ld. Counsel for the State.

(59) Shri Upendra Nath Mishra, ld. Senior counsel appeared along with Mr Neel Kamal Mishra and in his usual erudite manner placed his argument in a sequential manner. According to the Ld. Sr. Counsel, there were basically five issues, which needs to be addressed by this court viz. (i) as to what is the vacancy for promotion quota under old service rules of 1936 and its effect in the light of G.O. dated 20.02.2003. (ii) Issue about fairness of qualifying examination for promotion quota "held under old Rules 1936" (iii) Issue about amending part of already suspended old rules by a GO to bring in the concept of "Cadre Principle" for vacancy determination. (iv)Issue about promotion of probationers and (v) Issue about moulding of reliefs.

(60) As far as the first sequential point raised by the Shri Mishra is concerned, it has been argued by the Ld. Senior Counsel that Pre-1969 Rule position of the old Service Rules of 1936 would revive, with old Rule 5(iv) and 6(i) of 1959, after setting aside of 1969, 1971, 1987 and 1997 amendments by the Hon'ble Courts, therefore only 25% promotion quota vacancies can be filled up as provided in 1959 amendment of the old Rules of 1936, instead of applying 41.66% promotion quota, as provided in G.O. dated 20.02.2003.

(61) According to the learned Senior Counsel, from a perusal of the State's affidavit dated 25.07.2006 and also the latest counter affidavit dated 12.12.2022 filed in Writ A no. 4141 of 2022 (
Vipin Kumar Vs. State
), it is abundantly clear that according to the state's submission, out of total of 446 vacancies belonging to the period 1997-1998 to 2003-2004, only 112 vacancies (wrongly shown as 128 vacancies), belonged to the promotion quota as per 25% quota prescribed under Rule 6(1) of old rules of 1936. According to him, out of the total 112 vacancies, 102 posts were already filled up and hence only 10 vacancies were actually in existence.
Thus, merely 10 seats were to be filled under the promotion quota, however the state against these 10 vacancies and in view of the judgment of Anjani Kumar's case, initially made 96 promotions of Degree Holder J.Es on 02.08.2008 and thereby filled up 186 promotion quota vacancies as determined in Anjani Kumar's case. Thereafter respondent authorities while wrongly relying on a letter dated 6.02.2003 which indicated, a total of 219 promotion quota vacancies declared 33 more vacancies (219-186) in promotion quota, on which 27 promotions were made on 3.07.2009. According to the Ld. Senior Counsel, all this promotion of degree holders were done without holding any qualifying examination under Rule 9(2) either in 2008 or 2009. Further, according to the Ld. Sr. counsel, 97 more vacancies were created for the period prior to 2004, vide requisition order dated 05.02.2010, by retrospectively applying cadre principle of vacancy determination in the already superseded old Rules of 1936, against which 78 recommendations for promotion were received from UPPSC but thankfully the same was never implemented due to the order of this court. Thus, he submits that all these 191 promotions (86+27+78) were excess promotions sought to be made under the old Rules, which, after setting aside of Anjani Kumar's judgment, cannot be sustained in the eyes of law.

(62) The learned Senior Counsel has also submitted that the private respondents including the State Government, while taking a 'U' turn from their earlier stand, are now, in the instant bunch of cases, placing reliance on the Constitution Bench judgment of ATB Mehtab Majid etc., so as to contend that after quashing of amendment by substitution of 1969 and 1971, pre-1969 Rule position would not revive, and thereby is trying to avoid application of 25% promotion quota on the vacancies belonging to the period prior 1997-98 to 2003-2004. According to the Ld. Sr. counsel, the said submission is merely an argument of convenience because the Hon'ble Apex Court in
Diploma Engineers Sangh
's case had already refused to apply the aforesaid constitution bench judgment on the ground that in P.D. Agarwal's case, the pre-1969 Rule position was already revived, restored and applied between the parties. Therefore, according to him, the general case law relied upon by the respondents regarding non-revival of pre- 1969 amendment position are not applicable in this case because 'principle of res- judicata' provides that issue decided between the parties cannot be allowed to be reopened and the parties should not be vexed twice over with the same kind of litigation.

(63) It has been further submitted that all the 03 promotion orders dated 02.08.2008, 03.07.2009 and 05.02.2010 making 201 promotions against 10 vacancies under the old Rules of 1936 (i.e. 191 excess promotions), that too, without holding valid qualifying examination and illegally presuming all the Diploma Holder J.Es as ineligible, are not tenable in law. Therefore, these illegal orders regarding excess 191 promotions (86+27+78) deserve to be set aside and these 191 new vacancies may kindly be directed to be filled up by promotions under the provisions of new Service Rules of 2004 as they were not covered under the old Rules of 1936.

(64) Further, as far as the second sequential point relating to the Issue about fairness of qualifying examination "held under old Rules 1936" is concerned, the Ld. Senior Counsel submitted that in pursuance of Rule 9 (ii) of the old Service Rules, 1936, a statutory G.O. dated 26.10.1969 was issued providing for 'annual qualifying examination' to be conducted by U.P. Technical Board at 03 or more centres. Clause-IV clearly provided an option to the candidates to either appear in one group of paper or the 03 group of papers in a year and to clear one or more groups of paper in one year.

(65) According to him, in continuation of the aforesaid statutory G.O. dated 25.11.1969, another G.O. dated 01.02.1972 was issued, which further clarified that option to clear one or more group of papers in one attempt would be available as before and in other words it was not to be necessary for a candidate to clear all the 03 groups of papers in one attempt. This means that under the aforesaid statutory prescription unless 3 attempts are provided by the state a candidate cannot be presumed to be unsuccessful in qualifying exam. Thus minimum 03 attempts were mandatorily to be given to every participant (diploma holder JEs) to clear all the 03 group of papers and a candidate cannot be presumed to be ineligible for promotion, if he fails to clear all the 03 group of papers in one attempt.

(66) The learned Senior Counsel further elaborated his argument by submitting that the last qualifying examination under Rule 9(ii) was held in 1970 and no qualifying examination was held from 1971 till 2007. Even in the year 2007, it was held for the first time in compliance of the Apex Court judgment dated 20.03.2007 in
Diploma Sangh
's case and thereafter there was no second or third or for that matter any qualifying examination held by the respondent-State. Therefore, it was argued by the learned Senior Counsel that for all the Diploma Holder Junior Engineers, it was the first and only qualifying examination ever held in their career.

(67) While presuming but not admitting that the qualifying examination of 2007 was legally held, however in absence of the other 2 attempts being offered to diploma JEs, no candidate could have been presumed to have failed in qualifying examination and therefore diploma JEs have been arbitrarily presumed to be ineligible for promotions. The learned Senior Counsel buttressed his point by submitting that without even holding 03 successive qualifying examination, the office memorandum dated 15.04.2007 arbitrarily insisted that the Diploma J.Es, who have either appeared in 03 different years of examination or have cleared all 03 groups in one year, shall be considered eligible, only if they have successfully passed all the 03 groups of paper by the year 2007, so as to be considered eligible in the promotions proposed in the year 2007-2008, which was done without considering the fact that 2007 Examination was the only Examination held by the respondents in 35 years.(1972-2007).

(68) According to the learned Senior Counsel, all the Diploma holder J.Es were illegally compelled to clear all the 03 group of papers in one attempt/one year which was in evident violation of the aforesaid 02 statutory Government order dated 26.10.1969 and 01.01.1972, which meant the vested rights given to the Diploma J.Es to clear 03 group of papers in 03 attempts under the aforesaid statutory prescription was arbitrarily taken away by the respondent authorities, who had arbitrarily proceeded to presume all the senior most Diploma Holder J.Es. as ineligible by merely holding one exam in 35 years between 1972 to 2007 and proceeded to deny consideration of their candidature in the promotions held repeatedly in 2008, 2009 and 2010, which amounts to unfairly holding qualifying examination, illegally presuming the diploma JEs as ineligible for promotion on the post of AE and hence complete denial of petitioners' fundamental rights of fair consideration in the matter of promotion.

(69) It was strenuously argued that a Confusion was created by the Authorities about Examination Centre at Lucknow. He further states that in compliance of the Hon'ble Apex Court judgment dated 20.03.2007 in
Diploma Sangh
's Case( Supra), the State Government authorized the U.P. Technical Board (UPTB) to hold the qualifying examination, which issued the first guidelines in June, 2007 prescribing for "objective type question papers" and providing "03 examination centres" but allotting UPPSC centre Lucknow to all the 711 participants, who appeared in the qualifying examination held on 18 & 19.07.2007 at Lucknow. However, on an application of the State, the Hon'ble Apex Court allowed the state to hold the qualifying examination through UPPSC within next one month, therefore, the earlier exam of July, 2007 was cancelled by the State on 23.07.2007.

(70) Subsequently, UPPSC issued its advertisement providing for the examination to be held at UPPSC centre at Allahabad. However, the Diploma Engineers Sangh meanwhile filed I.A. No. 8 & 9 on 08.08.2007 before the Apex Court for seeking modification of its order dated 19.07.2007 and for restoration of the previous exam held by UPTU but the said application was dismissed in limine on 10.08.2007. Thus, the State Government in the meantime circulated fresh guidelines of UPPSC on 8.08.2007 for the qualifying examination scheduled from 12 to 16.08.2007, clause-I and III of which required the candidates to appear for exams on their allotted centres which included two centres of UPPSC situated in State of U.P at Lucknow and Allahabad respectively. According to the Ld. Sr. Counsel, since all 711 candidates were allotted only UPPSC centre at "Lucknow" in earlier examination held in June, 2007 and there had never been any other allotment of any other examination centre by the authority, therefore, the only option available for the candidates was to appear at Lucknow centre and thus when the Diploma J.Es appeared at Lucknow centre in the morning of 12.08.2007, they were informed that the only examination centre is at Allahabad. Thus no candidates except one could appear at Allahabad in the first session. Despite repeated requests for an assurance of re-exam of the first session paper, the authorities denied the same and thus authorities ensured that no Diploma J.Es could not pass all the 03 group of papers in one year i.e. in the qualifying examination held in the August, 2007 which was the statutory opportunity of clearing qualifying exam given to them in 35 years. According to the Ld. Sr. counsel, this amounts to complete denial of fair and reasonable opportunity of participation of the Diploma Holder J.Es in the sole qualifying examination held by the respondents in the last 50 years till date, under Rule 9(ii) read with Rule 5(iv) of the old Service Rules.

(71) Further, though in the last 50 years, till date i.e. (1972 to 2022) only one qualifying exam was held in 2007 and thereafter no exam was followed in 2008, 2009 and 2010 and though it was statutorily mandated for the authorities to hold annual qualifying examination every year but the State authorities, without holding the annual qualifying examination in 2008, 2009 and 2010, proceeded to issue 03 promotion orders dated 02.08.2008 (96 promotions), 03.07.2009 (27 promotions), and 05.02.2010 (78 recommendations), exclusively from Degree Holder J.Es, while completely denying right of participation to Diploma Holder J.Es. Therefore, all the 03 promotion orders, which were, though made under old Service Rules, did not even follow the procedure prescribed for promotion under the old Rules of 1936. Thus, it has been contended by the Ld. Sr. Counsel that in absence of any valid qualifying examination, the state authorities had arbitrarily presumed all the Diploma Holder J.Es as ineligible for promotion and claimed that they have not successfully passed the qualifying examination, without actually holding any exam in 2008, 2009 & 2010 which was absolutely illegal and unjustified.

(72) Shri Mishra, learned Senior Counsel, further submitted that though criteria for promotion was "seniority subject to rejection of unfit" under Rule 12 of the old Rules and though all the members of the Sangh/Diploma Holder J.Es were placed between 1500 to 2000 places in the seniority list and whereas the selected Degree Holder J.Es were placed between 4500 to 6000 i.e. about 4000 places below the diploma holder JEs in the seniority list and almost all of them were working on probation on the cut-off date of eligibility i.e. 01.07.2003 but even then senior most Diploma Holder J.Es., who had about more than 25 years of service experience to their credit, were arbitrarily denied consideration for promotion on the ground of their presumed ineligibility to pass qualifying examination, which was never held in 2008, 2009 and 2010 and which was offered only once in 35 years. Thus, it has been contended that the qualifying examination held in 2007 was not only a farce but the entire procedure for promotion followed by the respondents in issuing impugned orders dated 02.08.2008, 03.07.2009 and 05.02.2010 was absolutely arbitrary and even de hors the old Service Rules of 1936, though the said Rules at the first place should not have been applied on these new vacancies, which occurred after 2004 and which should have been filled under the new Service Rules of 2004.

(73) The Learned Senior counsel relying on an Apex Court decision reported in Deepak Agarwal V/s State of U.P. 2011 (6) SCC 725 had submitted that "Rules in-force" on the date of promotion should apply. According to him, there were only 10 vacancies in promotion quota under the old rules prior to 2004, however promotions were sought to be made by the state on 96 post of AEs on 02.08.2008, 27 post of AEs on 03.07.2009 and then 97 more vacancies were created on 05.02.2010 for which 78 recommendation for promotion were made under the provision of Old Service Rules of 1936 which were not applicable after 2004. Therefore, the Ld. Counsel submits that all these promotions were illegally made against the new vacancies which occurred after 2004 and the same should have been filled up in accordance with the provisions of New Service Rules of 2004 i.e strictly according to the principle of seniority-cum-fitness and without applying separate promotion quota of degree holder JEs. The judgment passed in
State of Tripura v. Nikhil Ranjan Chakraborty
, (
2017) 3 SCC 646, Union of India v. Krishna Kumar
, (2019) 4 SCC 319 and State of Orissa Vs. Dhirendra Sundar Das, (2019) 6 SCC 270 were also relied for the said proposition of law.

(74) As far as the issue raised by the Ld. Sr. Counsel relating to statutory provisions of Rule 6(i) of old Service Rules of 1936 providing for "vacancy principle" could not have been replaced by merely issuing a G.O. dated 05.02.2010 for introducing "Cadre principle" in the already superseded rules, he submits that the same is a colourable and arbitrary exercise of power by the state and is also against the basic rule of interpretation. The Ld. Sr. Counsel has further submitted that it is a settled position of law that where the statutory Rules are clear and unambiguous, nothing should be added or inserted by means of interpretation of the Rules by the Courts. Moreover, it is a settled position of law that when something has been prescribed under law, to be done in a particular manner, it has to be done in that manner alone and not otherwise. In this case, when Rule 6(i) of the old Rules clearly provide 25% "vacancies" as promotion quota, it cannot be interpreted as 25% "cadre posts" by unnecessarily misinterpreting the old Rules of 1936. The judgement passed by the Hon'ble Apex Court in
UOI Vs. Charanjeet S. Gill
, (2000) 5 SCC 742 and PSC, Uttaranchal Vs. JCS Bora, (2014) 8 SCC 644 has been relied upon for the proposition that a government order cannot supersede provisions of an Act or a statutory rules.

The Ld. Sr. Counsel also relied on the judgment of
Chandra Kishore Jha Vs. Mahavir Prasad
, (
1999) 8 SCC 266, Diploma Engineers Sangh Vs. State of U.P. and Ors
, (2007) 13 SCC 300 and Kesari Devi VS. State of U.P, 2005 (3) ESC 2209 (ALL) for the proposition that when something has been prescribed under law to be done in particular manner, then it has to be done in that manner alone and not otherwise.

(75) That as to the fourth issue formulated by the Ld. Sr. Counsel for the petitioner relating to "Probationers" in service could not have been lawfully considered for promotion as per the applicable service Rules, he submits that the Concept of lien also required confirmation before promotion. According to him, if the incumbent is not confirmed on his feeding cadre posts on the date of consideration for promotion to the next higher post, then he would not have any lien, either on the parent post i.e the feeding cadre post or on the promoted post, in case of subsequent failure to clear probation and therefore in service jurisprudence, it is insisted for confirmation of the probationer before his promotion to the next higher post.

(76) Further, he submits that Old Service Rules of 1936 provided for confirmation before promotion. Thus, he submits that the petitioners/Diploma Engineers Sangh have challenged all the three orders dated 02.08.2008, 03.07.2009 and 05.02.2010 regarding promotion as AE also on the ground that under the Service Rules, the "probationers" in service of J.E. (Civil) could not have been considered for promotion to the post of A.E. (Civil), therefore the mere inclusion of such probationers, who were not even confirmed on their feeding cadre post of J.E. (Civil) on the cut-off date of eligibility i.e 01.07.2003 for the alleged promotion quota vacancies of 2003-04, could not have been lawfully considered for promotion to the next higher post of A.E. (Civil) as they were ineligible. The judgment passed in the case of
Baleshwar Das Vs. State of U.P. and others
reported in (1980) 4 SCC 226, Badri Prasad & 31 Ors Vs. Satya Dev Sharma ( Special Appeal No. 917/2006 decided by this court vide an order dated 22.05.2015) and Shiv Kumar Singh Vs. Satya Dev Sharma ( W.P. no. 6530(S/S) 2004 Decided on 1.11.2006 by this court) has been relied upon by the Ld. Sr. counsel for the proposition that unless an incumbent completes the probationary period required under the Rules successfully, it shall be unlawful for the state to make promotion of a probationer on the higher post, in violation of specific prescription of the service rules.

(77) As to the last limb of argument relating to reading down G.O. dt.20.02.2003 by moulding the relief, so as to do complete justice between the parties, it was submitted that under the consistent judgments of the Hon'ble Apex Court passed in the case of P.D. Agarwal's case, Aruvendra Kumar Garg's case and
Diploma Engineers Sangh
's case, when pre-1969 rule position stood revived, which included Rule 5(iv) (providing promotions of J.Es.) and Rule 6 (i) (providing 25% promotion quota) and the same was fully applicable on all the parties for the promotion quota vacancies of the period 1997-98 to 2003-2004 and when the State Government itself implemented 25% promotion quota while issuing promotion order dated 02.05.2002 of Atibal Singh group and applied provisions of Rule 5(iv) while issuing G.O. dated 11.02.2003, then it is not open for the State Government to claim that composite promotion quota of 41.66% as provided in G.O. dated 20.02.2003.

(78) It was emphatically submitted that it is a settled position of law that provisions of the statutory Rules cannot be amended by issuance of a mere Government order. Since under the orders of the Hon'ble Apex Court pre-1969 Rule position stood revived which included 25% promotion quota provided under Rule 6(i) of 1959 amendment, which was also applied by the State Government while making promotions on 02.05.2002. He has explained that since it was categorically admitted by the State in writing in para 20 of the Affidavit dated 15.07.2006 that after quashing of the amendments in Aruvendra Kumar Garg's case on 22.03.2002, "the earlier quota of recruitment i.e. 75% for direct recruitment and 25% by way of promotion was revived". Therefore, it was not open for the respondent to insist for application of G.O. dated 20.02.2003 and composite promotion quota of 41.66% for promotion under the old Rules of 1936.

(79) Thus, a point has been tried to be made that a government order, even if not challenged, if found contrary to statutory Rules and Regulations, should be quashed by the Court under its power of moulding of relief and no exception can be taken to that approach of the High Court. Therefore, the G.O. dated 20.02.2003 which is contrary to Rule 6(i) of the 1959 amendment of the old Rules of 1936 deserves to be read down and cannot be applied in the instant case.

(80) As far as the other side of the argument is concerned, the same was led by Ld. Senior Advocate Shri Sandeep Dixit, who in a very emphatically and stoutly manner drew the attention of this court to the fact that all the writ petitions which have been filed and are under consideration of the High Court by way of remand, were admittedly filed seeking a challenge to the alleged holding of the qualifying examination and the process of promotion and with a further direction to hold the fresh qualifying examination and till such time no promotion to be made on the post of Assistant Engineer (Civil). According to him, the Diploma Engineers Sangh had no occasion to make any other pleading or prayer or to take a ground on account of the fact that the entire exercise was by State Government in accordance to judgement and order dated 22-03-2002 passed by this Court in Aruvendra Kumar Garg's case and judgement and order dated 20-03-2007 in
Diploma Engineers Sangh
's case passed by Hon'ble Supreme Court and also the judgement and order dated 03-11-2006 passed in Anjani Kumar Misra's case.
The Ld. Sr. Counsel submits that the entire exercise of the state was based on these judgements considering rule 5 & 9 of the 1936 rules and also the vacancies which were determined in Ajani Kumar Misra's case to be 186. He also submits that the figure of 186 has been mentioned in the minutes of meeting dated 03-05-2007 held under the chairmanship of secretary PWD for holding the qualifying examination for 186 vacancies.

(81) The Learned Senior Counsel giving a bird view of the matter submits that all the writ petitions from 2007-09 which are the subject matter before this court came to be decided by judgement and order dt. 08-09-2011. Since, the promotion order 02.08­.2008 was made strictly in accordance to the rules as determined in
Diploma Engineers Sangh
's case and also the vacancy so determined in Anjani Kumar Misra's case to be 186, the division bench on dated 08-09-2011 did not interfere with promotions of the answering respondents so made on dated 02-8-2008. According to Shri Dixit, by virtue of Judgment 08-09-2011 the promotions of the 27 Degree Holder Junior Engineers made on 03-07-2009 and the selection of 78 Degree Holder Junior Engineers dated 05-02-2010 was merely set aside and as such various SLP's were filed against these two orders only. He submits that even the state also filed SLPs relating to the said two promotion orders only and the Ld. Sr. Counsel has tried to rely on the contents of SLP filed by the state before the Hon'ble Apex Court.

(82) According to the Learned Senior Counsel the promotion order dated 02-08-2008 by means of which the Degree Holder JEs were promoted was not interfered with by the division bench vide its Order dated 08-09-2011 and as such the same was not challenged by anyone including the Diploma Holder Junior Engineers Sangh before the Hon'ble Supreme Court. Thus, according to him the remand order dt. 21-08-02019 passed by the Hon'ble Apex Court is a remand with regard to the parties who had gone before the Hon'ble Supreme Court by filing the SLP and was relating to those persons whose promotion and selection were set aside by division bench. Thus, it has been submitted that since the case of promotion of degree holder JEs vide impugned order dated 02.08.2008, having been already adjudicated upon and not being remanded as no one had put a challenge in the Hon'ble Supreme Court, the same cannot be subject matter to be adjudicated afresh in view of judgement and order dated 21-08-2019. According to the Ld. Sr. Counsel, the judgement and order dt. 08-09-2011 by the High Court has become final and the limited remand which can be the subject matter to be adjudicated in writ petitions would be only with regard to promotion order dated 03-07-­2009 and selection dated 05-02-2010 and the judgement so relied by the other side in
Anupal Singh vs State of UP
[(2020) 2 SCC 173] was apparently distinguishable on facts.

(83) The Learned Senior Counsel continued further to argue that the 711 Diploma Holder Junior Engineers who registered themselves to appear in the qualifying examination held in 2007 are apparently making the prayer to hold a fresh qualifying exam for them, so as to be qualified to be considered in the zone of eligibility for promotion to Assistant Engineer (Civil) under the 1936 rules. However, according to him, out of these 711 diploma holder JEs, everyone had been promoted on the post of Assistant Engineer (Civil) as in when they became eligible on the criteria of seniority subject to the rejection of unfit under the 2004 Rules and 627 out of them have peacefully retired, 84 presently are working, 55 out of them are going to retire in the year 2023 and remaining 19 will retire next year. Thus, as on today no Diploma Holder Junior Engineer out of these 711 intend to appear in the qualifying examination for promotion to the post of Assistant Engineer (Civil), when they have already been promoted to the post of Assistant Engineer (Civil) on their turn. Thus, according to him, the entire exercise by this court would be futile as no writ is required to be issued in the aftermath of the changed circumstances. He further submits that as far as the 96 Degree Holder Junior Engineers, who have been promoted vide impugned order dated 02-08-2008, 48 have already retired either without promotion or after being promoted in 2022 to the post of Executive Engineer (Civil), remaining 42 are working on the post of Executive Engineer (Civil) having been promoted in 2022 and about 12 will further retire by the end of 2024.

(84) Shri Dixit also relied on the Judgment of Madan Lal versus State of Punjab and Others [AIR 1994 SC 647 para-6] to argue that the judgement and order dated 20-03-2007 is binding between the parties and diploma holder Junior Engineers will have to pass the Qualifying Examination so as to be eligible for being considered for promotion on the post of Assistant Engineer (Civil). According to him, the earlier mandamus even if assumed to be not correctly decided, has to be construed as final and binding between the parties and as such as long as the orders are operative then same are to be treated as law for the case and obeyed.
He also submits that the judgement applies in full force as far as the mandamus issued in Vijay Kumar's cases and
Diploma Engineers Sangh
's case is concerned, which goes on to show that so far as the Diploma Holder Junior Engineers are concerned with regard to the vacancy existing prior to 2004, they cannot come in the zone of eligibility unless and until they pass the qualifying exam which had been directed by this Court and the Hon'ble Supreme Court.

(85) Further, according to the learned Senior Counsel, under Rule-5 and Rule-9 of 1936 Rules, there is no requirement or prescription for confirmation and completion of probation period for being considered for promotion on the post of Assistant Engineer (Civil). Shri Dixit also relied on a Clarification Order issued on 17-07-2008 by Government on representation made by Diploma Engineers Sangh to U.P.P.S.C., clarifying that requirement of completion of probation period on or before 01st July 2003 was not a precondition for the purpose of promotion to the post of Assistant Engineer (Civil) under 1936 Rules against the vacancies of recruitment year 2003-04. The Ld. Sr. Counsel also relied on paragraph 7 of the judgment passed by the Hon'ble Supreme Court in the matter of
K.K. Khosla and Another versus State of Haryana and Others
[(1990) 2 SCC 199, for the proposition that, if there is no specific provision in the Rules requiring completion of probationary period for the purposes of promotion within the service, the non-completion of probationary period of two years on the post of Assistant Executive Engineer did not affect the validity of promotion to the post of the Executive Engineer under the Rules.

He also relied on para 8 of the Judgment passed in the Hon'ble Apex Court in the matter of
A.N. Sehgal and Others versus Raje Ram Sheoran and Others
[1992 Supp (1) SCC 304] to contend that confirmation and appointment to a substantive vacancy are always an inglorious uncertainty and would take unduly long time. Therefore, the confirmation or appointment to a substantive capacity would not normally be a condition precedent to reckon the continuous length of service for the purpose of seniority. Thus, according to him in view of the Rules, Facts and Law in the subject, none of writ petitions so far as the promotion order dated 02-08-­2008 is concerned survives and merits to be dismissed.

(86) Sri Anuj Kudesiya appeared for one of the private respondents and strenuously argued that the Diploma Engineers Sangh has no locus to challenge the promotion order dated 3-7-2009 as they have not passed the qualifying examination held on 12th to 18th August 2007, as per the judgment and order dated 20-3-2007 passed by the Hon'ble Supreme Court in Civil Appeal No.3228/2005 (
Diploma Engineers Sangh Vs. State of U.P. & Ors
) reported in 2007 (13) SCC 300, wherein the Hon'ble Supreme Court has given one time opportunity to pass qualifying examination. The Ld. Counsel extending his arguments wishes to suggest that as none of the Diploma Holder Junior Engineer passed the qualifying examination, they were not eligible to enter into the zone of consideration for promotion to the post of Assistant Engineer along with the decree holders Junior Engineers, therefore their writ petitions challenging the promotion orders were not maintainable. According to him, amongst all the 711 Diploma Holder Junior Engineers, who have participated in qualifying examination, most of them have retired and few of them have already been promoted to the post of Assistant Engineer and are going to retire, therefore, no cause remains to maintain the writ petition. He also submitted that nowhere the sangh had disclosed the list of members of the sangh and as such has no locus to approach this Hon'ble Court seeking reliefs and infact no cause of action survives qua them.

(87) Further, according to him, 27 degree holder JEs, who were promoted by G.O dated 3.7.2009 are appointees of August 2001 against substantive vacancies by regular selection by U.P.P.S.C., Allahabad and they were confirmed in service by confirmation orders dt. 26.2.2008 and dt. 22.1.2009 and their D.P.C. was held by U.P.P.S.C, Allahabad on 4.5.2009 for the purpose of promotion from the post of J.E. to the post of A.E. According to the Ld. Counsel, since they became Member of Service on the very first day of their appointment against substantive vacancies under Rule 3(g), 16, 17, 24 & 25 of Rules 1951, these people were rightly promoted to the post of Assistant Engineer under Rules 5(iv), 9(i) of Rules 1936 as amended from time to time. The Ld. Counsel submits that since there is no condition for completion of probation period & confirmation for eligibility of promotion in service Rules 1936, the Graduate JEs were fully eligible for promotion on the cut-off date i.e. 1st of July 2003 for recruitment year 2003-04 and as such were rightly promoted vide G.O. dated 3.7.2009.

(88) The learned Counsel further submitted that for determination of eligibility and vacancies a Three Members Expert High Power Committee was constituted by the principal Secretary, Public Works Department on the direction of Chief Secretary of the State, in view of complaints regarding eligibility and promotion of 27 Graduate JEs in 33 vacancies. The said committee found that 219 vacancies on the basis of cadre strength during 1-7-1997 to 30-6-2004, were to be filled by promotion and further that 27 Graduate JEs have been rightly promoted as AEs in accordance with the old Rules of 1936 and relevant Notifications. According to the Ld. Counsel, those recommended by UPPSC are substantively appointed in permanent posts which are permanently vacant and according to him, only those who are appointed substantively are put in probation while others are not. The Ld. Counsel has taken this court through the various rules to buttress his point that a probationer is appointed against a substantive vacancy on a post in the cadre of service and is a member of service from the very inception and as such has rightly been considered for promotion. The Ld. Counsel also relied on the judgment passed by the Hon'ble Apex Court in
K. K. Khosla v/s State of Haryana
, (1990) 2 sec 199 and A. N. Sehgal and Others V/s Raje Ram Sheoram and Others, (1992) 1 SCC 304.

(89) The learned Counsel in order to drive home his point relating to the number of vacancies has submitted that vide Government order dated 20.02.2003, a total vacancy of 219 post has been intimated for the period of 1997-98 to 2003-04, against which only 186 posts were filled. According to the Ld. Counsel, the bunch of writ petitions allowed vide order dated 8-9- 2011 by Hon'ble Division bench of this Court, merely quashed the promotion order dated 03-07-2009 and DPC of 05-02-2010 and the consequential order of promotion and posting of private respondents and directed the State Government to conduct the exercise for promotion afresh up to recruitment year 2003-2004 with utmost expedition. According to him, although the Hon'ble Supreme Court vide judgment and order dated 21-8­-2019 has quashed Judgment and order dated 3-11-2006 passed in
Anjani Kumar Mishra
's case, however the respondents herein were not promoted in pursuance of the judgment and order dated 3-11-2006 passed in
Anjani Kumar Mishra
's case but have been promoted against 219 vacancies determined by G.O. dt. 20-2-2003 and till date G.O. dated 20-2-2003 has not been challenged by any one. According to the Ld. Counsel, even after setting aside of the judgment dt. 8-9-2011 of this Court by the Hon'ble Supreme Court, the petitioners have not been placed till date on the promotional post though their promotional order dated 03-07-2009 has to be revived but on the instance of Diploma Engineers Sangh, till date promotion order of the respondents have not been revived.

(90) The learned Counsel, Mr. Deepanshu Dass, appearing in Writ No. 3314/2009, 1511/2010, 3808/2022, 4141 of 2022 and 5811 of 2022 has submitted that after quashing of the 1969, 1971, 1987 and 1997 amendments of the Old Rules of 1936, rule position as existing prior to 1969 amendment, stood revived as per the findings returned by the Hon'ble Apex Court in the case of Diploma Engineer Sangh V/s State (2007) 13 SCC 300 and hence the promotion quota under the old rules of 1936 will be 25% only and not 41.66% as relied earlier. He further submits that the vacancy determination principle under Rule 6(1) of the Old Rules of 1936, is that of "occurred vacancy" and therefore merely on the basis of the G.O. dated 05.02.2010, "cadre principle" for determination of vacancy cannot be introduced in the already superseded rules, as that will amount to superseding the Rule by means of a G.O and that too retrospectively.

(91) Shri H.G.S Parihar, Ld. Senior Advocate appearing for some of the private respondents has succinctly submitted that there was no locus for the diploma holder JEs to challenge the impugned promotion orders as none of them have been able to qualify in the qualification examination as mentioned in rule 9(2) r/w rule 5(4) of the old rules of 1936. According to him, the diploma holder JEs were ineligible for promotion, whereas there was no shortcoming in the eligibility of the degree holder JEs as they were appointed as JE on 10.08.2001, confirmed on 26.02.2008, but with effect from 14.05.2003. Thus, he submits that no interference is required in their impugned promotion order.

(92) The fulcrum of the argument as narrated by Shri Ravi Singh Sisodiya, learned Chief standing Counsel appearing for the State rests on the fact that after the judgment and order dated 22.03.2002 passed in Arunendra Kumar Garg Case (supra), the State government issued an Office Order dated 11.02.2003 thereby providing that since the amendments brought in Rules-1936 in the year 1987 and 1997 were set aside by this Court, it was obvious to make promotions as per the remaining Rules and accordingly the state provided that for the purpose of making promotions on the post of Assistant Engineer (Civil), interview of diploma holders would be conducted for qualifying examination, which was however set-aside in the Vijay Kumar's case by a Division bench of this court and upheld vide order dated 20.03.2007 passed in the case of
Diploma Engineers Sangh and others Vs. State of U.P. and others
by the Hon'ble Supreme Court.

(93) The learned Counsel has stated that in the meanwhile in furtherance to office order dated 11.02.2003 (which was later set aside by the this Court on 16.07.2004), the State Government had issued a letter dated 20.02.2003 in regard to promotions of Junior Engineer (Civil) to the post of Assistant Engineer (Civil). That in the letter dated 20.02.2003 it was merely stated that the State Government had got legal advice that the promotions should be made on the basis of Rules which remained after the judgment delivered by the Hon'ble Supreme Court in P.D. Agarwal case and by this Court in Arunendra Kumar Garg case. In the letter, it was expected that 41.66% quota should be applied and accordingly 219 vacancies should be filled by promotion. It was stated that it was merely a communication letter addressed by the State Government to the Public Works Department interpreting the Rules, 1936, as subsequent amendments in the year 1969, 1971, 1987 and 1997 were set aside. While issuing letter dated 20.02.2003, the current position in view of the setting aside of the amendments in the Rules, 1936 were considered and accordingly promotion quota was interpreted and determined.
According to the ld. Counsel, this court held that letter dated 20.02.2003 would prevail and accordingly concluded that there were 186 posts to be filled by promotion applying 41.66% quota in the
Anjani Kumar Mishra
's case, wherein the court also directed the State Authorities to re-determine the vacancies for years 1997- 1998 to 2003-2004 according to Government Order (as stated by the this Court but in fact it was an office correspondence letter addressed to the PWD department) and take further steps accordingly.

(94) The learned Counsel has further submitted that in course of hearing of the bunch of writ petitions leading to which was
Anjani Kumar Mishra
(supra), the State Government filed a Supplementary Counter Affidavit on 25.07.2006 sworn by Engineer-in-Chief, Head of department Sri Tribhuwan Ram in Writ Petition No. 5313 of 2004; Prabodh Shankar Upadhyay and others Vs. State of U.P. and others. In the said Supplementary Counter Affidavit dated 25.07.2006 the State had taken stand to determine the vacancies for promotion keeping in view 25% quota because it was considered that after setting aside of amendments incorporated in 1969, 1971 and 1987 and 1997, the amendments incorporated in Rules, 1936 in the year 1959 had got revived and as such the same should be considered for determination of the vacancies. In this Supplementary Counter Affidavit, the stand was taken by the state that in fact the total vacancies as regard the year 1997- 1998 to 2003-2004 were 130.

(95) Thus, it has been submitted by the Ld. Counsel for the state that in
Anjani Kumar Mishra
case, the State Government had taken a stand of revival of 1959 amendments in Rules, 1936 but this Court did not agree to this stand of the State Government on 03.11.2006 and it had considered the letter dated 20.02.2003 written by the State Government to the Public Works Department which determined the vacancies applying 41.66% quota calculating the vacancies to be 219 and determined quota to be 186 only.

Now on 21.08.2019, the Hon'ble Supreme Court has set aside the judgment and order dated 03.11.2006 passed in
Anjani Kumar Mishra
case and as such a peculiar situation has been created.

(96) Thus, the learned Counsel submits that it was clear that the department had made 73 promotions before the judgment of
Anjani Kumar Mishra
case and after the judgment the entire 186 promotions were made up to 02.08.2008 in as much as the judgment and order dated 03.11.2006 passed in
Anjani Kumar Mishra
case was applicable because the judgment and order dated 03.11.2006 was, though challenged before the Hon'ble Supreme Court in bunch of petitions leading to which was 3695 of 2007;
Atibal Singh and others Vs. Prabodh Shankar Upadhyay and others
;, no restraint order as regard filling of 186 posts was passed.

(97) That it had been further argued that in
Anjani Kumar Mishra
case, though this Court had fixed 186 vacancies, it had opened for the State Government to re-determine the vacancies, relying the letter dated 20.02.2003 addressed by the State Government to the Public Works Department suggesting 219 vacancies. The State Government hence proceeded to make promotions on the remaining i.e. 219-186= 33 vacancies and made promotions on 27 posts on 03.07.2009.

(98) Further, interpreting the judgment and order dated 03.11.2006 rendered in
Anjani Kumar Mishra
case, the State Government yet again re-determined the vacancies and decided that as many as 78 more promotions were required to be made as against the vacancies relating to year 1997-98 to 2003-2004. In pursuance to this determination, process was initiated conducting DPC on 05.02.2010 but the final result was not declared as the said DPC held on 05.02.2010 was challenged before this Court and this Court had passed an interim order restraining declaration of final result. This Court finally decided the said matter as well as bunch of connected 33 writ petitions filed in the connected issue on 08.9.2011 and set aside the impugned order dated 3.7.2009 and 5.2.2010 and made certain observation for promotion and posting as assistant engineer (civil), which was challenged before the Hon'ble Supreme Court.

(99) However, during pendency of petitions before Hon'ble Supreme Court against judgment and order dated 08.09.2011 passed by this Court, 27 Assistant Engineers (Civil), who were promoted on 03.07.2009, were reverted to the post of Junior Engineer (Civil) on 02.01.2012 because this Court had set aside the promotion order dated 03.07.2009. Since the promotion order dated 03.07.2009 as regard 27 promotions and order dated 05.02.2010 as regard DPC of 78 Junior Engineers (Civil) were set aside, the State Government had reverted 27 promotees and now after the judgment and order dated 21.08.2019 passed by the Hon'ble Supreme Court while quashing the order dated 03.11.2006 passed in
Anjani Kumar Mishra
case and order dated 08.09.2011 passed in diploma
Engineer Sangh
case, the position as emerges is that Diploma engineer sangh case was decided on 8.9.2011 in the light of judgement and order dated 3.11.2006 rendered in
Anjani Kumar Mishra
case and the promotion on 27 vacancies were made in the light of
Anjani Kumar Mishra
case and as such the re-determination of the posts for promotion in view of
Anjani Kumar Mishra
case also stands cancelled and as such the promotion made on 03.07.2009 on 27 posts automatically stands cancelled and in this regard the State Government had already passed as order on 02.01.2012 cancelling the order dated 03.07.2009 and 05.02.2010 whereby the promotee of 30.07.2009 order were reverted.

(100) It has been further argued by the Ld. CSC that a promotion list of Junior Engineers (Civil) was prepared by the department and on the basis of the said seniority list, the petitioners who are out of 27 promotees vide order dated 03.07.2009 which was later cancelled and promotees were reverted on 02.01.2012, were promoted from the post of Junior Engineer (Civil) to the post of Assistant Engineer (Civil) by means of orders dated 31.12.2021 and 31.05.2022, wherein all the promotees accepted the promotion made in view of the aforesaid orders without any protest and it has been requested by the Ld. Counsel that since the said promotions has become final, the same may not be disturbed at this stage. Further, he has also submitted that a seniority list of assistant Engineer (Civil) was prepared on 09.09.2016 in which the name of the petitioners did not find mention. On the basis of the said seniority list of 09.09.2016 as many as 170 promotions have been made from the post of Assistant Engineer (Civil) to the post of Executive Engineer (Civil) by means of order dated 30.06.2022. The present petitioners have also assailed the promotion order dated 30.06.2022 without any legal basis and as such the same cannot be accepted.

(101) The next scholarly argument was addressed by Shri Asit Kumar Chaturvedi Ld. Senior Counsel, who in his usual impeccable manner attacked the question of validity of "Qualifying Examination" held in the year 2007 concluded on 24.10.2007 i.e. the date when the result of the "Qualifying Examination" was declared and other ancillary issues (i) relating to examination centre at Allahabad, (ii) the body conducting the qualifying examination, (iii) examination being conducted without any prescribed rules / syllabus,(iv) hardship etc. which all existed as on 29.09.2007 i.e. the date of I.A. No. 10. According to the Ld. Sr. counsel, all the aforesaid issue were raised in the said I.A filed before the Hon'ble Supreme court by Diploma Holders Junior Engineers, who are members of the Diploma Engineers Sangh and since the said I.A was rejected by the Hon'ble Supreme Court through an order dated 03.12.2007, now it was not open for this Court to decide the said issue again, especially when no liberty was granted by the Hon'ble Supreme Court by the order dated 3.12.2007.

(102) It was further submitted by the Shri Chaturvedi Ld. Sr. Counsel that the Diploma Engineer Sangh and its members i.e. Junior Engineer Diploma holders have no locus to challenge the promotion orders as well as the promotion process for the vacancies between 01-07-1997 to 30-06-2004 i.e. 255 vacancies on any ground as the Junior Engineer Diploma holders have not passed the 'Qualifying Examination' held in the year 2007 in compliance of the Hon'ble Supreme Court judgment and order dated 20-03-2007. According to him, the four Writ Petitions filed by the Diploma Engineer Sangh and its members are not Public Interest Litigation and in service matters Public Interest Litigation is not maintainable. He further states that the Junior Engineers who have been awarded Degree in Engineering after 01-07-2003 i.e. the cut-off date for eligibility for the vacancy period 01-07-2003 to 30-06-2004 will also not have any locus to claim any right of consideration for promotion for the posts of Junior Engineers to Assistant Engineers Civil for the Vacancy Period 01-07-2003 to 30-06-2004 or for a prior period form 01-07-1997 to 30-06-2003. Even the direct recruits Assistant Engineer Civil appointed in the year 2009 will have no locus with respect to challenging the promotion orders as well as promotion process from Junior Engineers to Assistant Engineers for the vacancy of the period 01-07-1997 to 30-06-2004. Further, the provisions of order II rule 2, section 11 of the civil procedure Code has been pressed into action for arguing that the principle of res judicata would apply.

(103) According to the Ld. Sr. Counsel, the Government Order / letter dated 20-02-2003 has not been challenged by the Diploma Engineers Sangh or its members i.e. Diploma holders Junior Engineers till date but contrary to the same they were claiming the benefit of the aforesaid before the State Government, this Hon'ble Court and the Hon'ble Supreme Court, till they were declared unsuccessful in the qualifying examination held in the year 2007 through result dated 24-10-2007. It has been argued that the stand of the diploma holder JEs were contradictory to their own stand and as per the Ld. Sr. Counsel, these diploma holder's changed their stand only after they were declared unsuccessful in the qualifying examination in 2007, leading to a series of writ petitions filed by them. Thus, the Diploma Engineer Sangh and its members filed the first Writ Petition No.6943 (S/S) of 2007 (
Diploma Engineer Sangh versus State of U.P. and others
) on 26-10-2007, second Writ Petition No.3173 (S/S) of 2007 (
Diploma Engineer Sangh versus State of U.P. and others
) on 26-06-2008, third Writ Petition No.3314 (S/S) of 2009 (
Diploma Engineer Sangh versus State of U.P. and others
) on 27-05-2009 and fourth Writ Petition No.1511 (S/S) of 2010 (
Diploma Engineer Sangh versus State of U.P. and others
) on 16-03-2010, turning around and pleading keeping in view the judgment and order dated 03-11-2006 in
Anjani Kumar Mishra
's case, however after the Hon'ble Supreme Court Judgment and order dated 21-08-2019, the same became meaningless.

(104) Shri Chaturvedi, Ld. Sr. Counsel has stressed and articulated his argument on the provisions of 'The U.P. Service of Engineer (Building and Road Branch) Class II Rules, 1936' and argued that the said rules with subsequent amendments read with the Government Order / letter dated 20-02-2003, except to the extent struck down keeping in view the judgments in P.D. Agarwal's case and Aruvendra Kumar Garg's, case remained undisturbed and continued to apply and according to the Ld. Sr. counsel has to be complied with and the questions raised on behalf of the Diploma Engineers Sangh and its members contrary to the same is not tenable.
The Additional Grounds raised before the Hon'ble Supreme Court in Civil Appeal No.3228 of 2005 (
Diploma Engineers Sangh versus State of U.P. and others
) has been rejected through judgment and order dated 20-03-2007 and as such the same cannot be reopened.

The questions raised by the Hon'ble Supreme Court through order dated 24-10-2013 in Civil Appeal No.3695 of 2007 (
Atibal Singh versus State of U.P. and others
) has been ultimately put to rest through judgment and order dated 21-08-2019.

(105) According to the Ld. Sr. Counsel, the stand of the State Government with respect to promotion quota of 41.66% through (i) affidavit dated 13-10-2009 of Shri Kapil Dev, then Principal Secretary, Works, Public Works Department, Government of Uttar Pradesh, Lucknow, (ii) Short Counter Affidavit dated 13-10­2009 of Shri Tribhuwan Ram then Engineer-in-Chief, Public Works Department, Government of Uttar Pradesh, Lucknow affirming the Counter Affidavit dated 13-10-2009 of Shri Kapil Dev, (iii) Supplementary Counter Affidavit dated 06-01-2011 of Shri Isht Dev Prasad Rai then Special Secretary, Public Works Department, Government of Uttar Pradesh, Lucknow, is correct as the stand would be only the Government Order / letter dated 20-02-2003 and none else, whereas the Affidavit dated 25-07-2006 of Shri Tribhuwan Ram then Engineer-in-Chief, Public Works Department, Uttar Pradesh, totally ignores the Government Order / letter dated 20-02-2003 and was merely in compliance of the Court's interim order dated 20-07-2006 in Civil Miscellaneous Writ Petition No.53133 of 2004 (
Pramod Shankar Upadhyay and others versus State of U.P. and others
) pending at Allahabad. According to the Ld. Sr. Counsel, the Counter Affidavit dated 01-02-2023 of Kamta Prasad Singh, Special Secretary, Public Works Department, Government of Uttar Pradesh, Lucknow filed in Writ Petition No. 4141 of 2022 cannot be relied upon as the State Government after Government Order / letter dated 20-02­2003 till date has never taken decision to overturn the same and if any decision has been taken then the same has not been produced before this Court.

He has further relied on the judgment of the Hon'ble Supreme Court in the case of
M.I. Builders Pvt. Ltd vs Radhey Shyam Sahu and Others
reported in (1999) 6 SC 464, wherein it was held that the Government will be estopped from changing its stand except when the government finds later on that the stand of government is contrary to the provision of law, as there is no estoppels against law.

(106) Further, the Ld. Sr. Counsel has referred to a Committee report dated 21-04-2010, which was accepted by the State Government with respect to 41.66% promotional quota and relating to the number of vacancies being 219 in the promotional quota. He has also relied on the report to argue that the report mentions that there was no requirement of confirmation for Degree holder Junior Engineers for being promoted from Junior Engineers to Asst. Engineers. Thus, he submits that any stand of the State contrary to the same could not be taken even in the Counter Affidavit dated 01-02-2023 of Kamta Prasad Singh, Special Secretary, Public Works Department, Government of Uttar Pradesh, Lucknow filed in WRIT-A No. 4141 of 2022, which in any case is silent on the said aspect. He submits that since the promotion has to be on the post of A.E, the relevant service rule of the same cadre i.e. "United Province Service of Engineers (building & Roads) branch class-II Rules' 1936 rules, will prevail for the same, as is evident from U.P Promotion by selection in consultation with Public Service Commission (Procedure) Rules- 1970 (these rules have an overriding effect on all service rules of the state). Thus, according to him, it was evident from rules that seniority solely depends on the date of substantive appointment and is not connected in any way to the probation & confirmation. But the promotion invariably depends on the seniority list, which bears the names of persons in the order of their appointment as per P.S.C. select list and comprises the names of persons who are on probation.

(107) Shri Chaturvedi has immensely stressed on the fact that till year 1987, the condition of eligibility was to have technical qualification under rule 9(ii) and there was no clause of confirmation in the rules. However, for the first time in pursuance of the G.O. dated 7th January1980, the required eligibility condition of possessing technical qualification under rule 9(ii) was done away by 1987 Amendment, and the eligibility clause was changed to a fixed quota between diploma holders & degree holders requiring confirmation on the post. According to the Ld. Sr. counsel, even if confirmation was not a necessary condition within the relevant rules but, all the persons either promoted or awaiting promotion have already qualified professional examination by the year 2004 itself and have been confirmed retrospectively. Hence a person who is declared fit from a retrospective date that too before the date of issuance of promotion orders in 2008 and thereafter cannot be construed to be unfit during the probationary period. For a person on probation, who is otherwise eligible as per rules, if promoted and subsequently found unfit, the wrong can be rectified by reverting him from the post. But the same probationer, if ignored at the time of promotion and subsequently declared fit by way of confirmation, the wrong cannot be undone as he would have lost the seniority by the time even being eligible as per rules and the valuable right of his to be considered for promotion would have been jeopardized by that action. He, further clinched on the issue that confirmation, on successful completion of period of probation is neither a fresh appointment nor completion of appointment and that is for this reason it was the required technical Qualification that was made mandatory and not the confirmation on the post for possessing the eligibility criterion. Thus, he concluded that 1936 rules did not have any clause of confirmation as a pre-requisite for promotion and the same was introduced for the first time by 1987 amendment which was later quashed in
Aruvendra Kumar& Atibal Singh
's case.

(108) Further, he contended that appendix 25, which prescribed for qualifying examination to be conducted thrice in three years before making any promotion is a mere instructions of rules prescribed for conducting of Qualifying Examination and does not carry the weight of statutory rules. Also the same is not applicable for such Diploma Holders/ Degree Holders that acquire degree in Civil Engineering from the recognized institutions. He also submits that as per Appendix 25, the Qualifying Examination should possibly be conducted every year, however in the present case it continued so till the year 1971 after which it stopped, initially due to, boycott of diploma holders and later due to amendment in the rules waiving off its requirement to suit diploma holders.

(109) According to the Ld. Sr. counsel, the Qualifying Examination has nothing to do with the number of vacancies as the same was conducted every year irrespective of vacancies available or not. The objective of Qualifying Examination was to provide eligibility to the candidate passing it so that he can be considered as & when the vacancy arises and promotional exercise is undertaken. Further, sub rule 4 under "Eligibility" section clearly allows the candidate to choose one or more sections in one attempt but is made clear that he will be qualified only after passing all the three categories.

(110) Thus, the Ld. Sr. counsel had contended that the letter / order dated 05-02-2010 was liable to be upheld, resulting which the Writ-A No.918 of 2009 (
Om Prakash and another versus State of U.P. and others
) was liable to be allowed as for the Recruitment Year 2003-2004 for the first time selection was held and accordingly promotion order dated 02-08-2008 promoting 95 Degree holder Junior Engineers was issued and with respect to the same review Departmental Promotion Committee was held and accordingly promotion order dated 03-07-2009 promoting 27 Degree holder Junior Engineers was issued and as such the petitioner of the aforesaid Writ Petition along with others i.e. total 78 are liable to be promoted from a date prior to the persons promoted or directly appointed under the new Uttar Pradesh Public Works Department Group 'B' Civil Engineer Service Rules, 2004 with consequential benefits and accordingly are liable to be placed in the seniority list of Assistant Engineer (Civil) amongst the persons who have been promoted against the Recruitment year 1997-1998 to 2003-2004.

G. Discussion & Findings

(111) Admittedly, in all these writ petitions, the dispute revolves amongst the Junior Engineers Degree Holders with Diploma holders with regard to promotion on the vacancies pertaining to the year 1997-98 till selection year 2003-04. The said dispute has several facets, which shall be dealt as and when they resurrect in the later part of this Judgment.

(112) Recently, the Hon'ble Supreme Court in the case of Ajay Kumar Shukla V/s Arvind Rai, 2021 SCC Online SC 1195, has set aside the seniority list prepared by the department of Minor Irrigation, U.P on finding the list to be in contravention of statutory mandate. The bench held that although right to promotion is not considered to be a fundamental right but consideration for promotion has now been evolved as a fundamental right. The Apex Court arriving at the said conclusion has held; to quote:

"37. This Court, time and again, has laid emphasis on right to be considered for promotion to be a fundamental right, as was held by K. Ramaswamy, J., in the case of
Director, Lift Irrigation Corporation Ltd. v. Pravat Kiran Mohanty
[(1991) 2 SCC 295] in paragraph 4 of the report which is reproduced below:

"4... There is no fundamental right to promotion, but an employee has only right to be considered for promotion, when it arises, in accordance with relevant rules. From this perspective in our view the conclusion of the High Court that the gradation list prepared by the corporation is in violation of the right of respondent/writ petitioner to equality enshrined under
Article 14
read with
Article 16
of the Constitution, and the respondent/writ petitioner was unjustly denied of the same is obviously unjustified."

38. A Constitution Bench in case of
Ajit Singh v. State of Punjab
[(1999) 7 SCC 209], laying emphasis on
Article 14
and
Article 16(1)
of the Constitution of India held that if a person who satisfies the eligibility and the criteria for promotion but still is not considered for promotion, then there will be clear violation of his/her's fundamental right. Jagannadha Rao, J. speaking for himself and Anand, CJI., Venkataswami, Pattanaik, Kurdukar, JJ., observed the same as follows in paragraphs 21 and 22 and 27:

"21.
Articles 14
and
16(1) :
is right to be considered for promotion a fundamental right.

22.
Article 14
and
Article 16(1)
are closely connected. They deal with individual rights of the person.
Article 14
demands that the "State shall not deny to any person equality before the law or the equal protection of the laws".
Article 16(1)
issues a positive command that "there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State".

It has been held repeatedly by this Court that clause (1) of
Article 16
is a facet of
Article 14
and that it takes its roots from
Article 14.
The said clause particularises the generality in
Article 14
and identifies, in a constitutional sense "equality of opportunity in matters of employment and appointment to any office under the State. The word "employment" being wider, there is no dispute that it takes within its fold, the aspect of promotions to posts above the stage of initial level of recruitment.
Article 16(1)
provides to every employee otherwise eligible for promotion or who comes within the zone of consideration, a fundamental right to be "considered" for promotion. Equal opportunity here means the right to be "considered" for promotion. If a person satisfies the eligibility and zone criteria but is not considered for promotion, then there will be a clear infraction of his fundamental right to be "considered" for promotion, which is his personal right.

"Promotion based on equal opportunity and seniority attached to such promotion are facets of fundamental right under Article 16(1)

xxx xxx xxx

27. In our opinion, the above view expressed in Ashok Kumar Gupta and followed in Jagdish Lal and other cases, if it is intended to lay down that the right guarantee to employees for being "considered" for promotion according to relevant rules of recruitment by promotion (i.e. whether on the basis of seniority or merit) is only a statutory right and not a fundamental right, we cannot accept the proposition. We have already stated earlier that the right to equal opportunity in the matter of promotion in the sense of a right to be "considered" for promotion is indeed a fundamental right guaranteed under
Article 16(1)
and this has never been doubted in any other case before Ashok Kumar Gupta right from 1950."

(113) The Hon'ble Supreme Court in the matter of
Union of India and Others Vs. Krishna Kumar Others
( 2019) 4 SCC 319 has held that there is no vested right to promotion but there is only a right to be considered for promotion in accordance with law. While placing reliance on earlier judgments it has been held that the right to be considered for promotion is in accordance with law which is enforced on the date of consideration. In other words law is thus clear that a candidate has a right to be considered in the light of existing Rules, namely, the Rules enforced on the date of consideration takes place.

(114) Having enumerated the facts and the law on the subject, this court has given a very patient & thoughtful hearing to all the contesting parties. The Ld. Senior Counsels as well as the Ld. Counsel's appearing for the contesting parties have rendered great assistance to this court. Having heard the parties, this court is of the view that the issue to be decided by this court can be formulated as herein under:

A. Whether the number of vacancies under the promotion quota for the period during 1997-1998 to 2003-2004 ought to be determined as per the Service Rules of 1936 or as per the Government Order dated 20.02.2003;

B. Whether "cadre Principle" of vacancy determination can be applied for the period 1997-98 to 2003-2004;

C. Whether the "qualifying examination" in terms of rule 9(ii) of the service rules have a bearing to the promotion during the period of 1997-98 to 2003-2004 and as to whether it has been fairly conducted to facilitate promotion for the diploma holder JEs;

D. Whether the consideration of "Probationers in service" in terms of rule 21 of the service rules have a bearing to the promotion during the period of 1997-98 to 2003-2004;

(115) This court in a bunch of matters decided through the lead matter in
Anjani Kumar Mishra and others vs. State of U.P. and others
(2007) 1 UPLBEC 260, disapproved the allocation of vacancies in the quota of promotion for the recruitment years 1997-98 to 2003-04 based on the existing old rule of 1936 and directed for allocation of vacancies in accordance with quota as provided in the G.O. dated 20.2.2003, which prescribed 41.66% quota for promotion and 58.34% quota for direct recruitment and ultimately calculated the number of vacancies in the quota of promotion as 186. Paragraphs 117 to 120, which are relevant to the present context are reproduced herein:-

"117. In view of the aforesaid settled legal position we further hold that there exists no statutory rule 5 and 6 in old 1936 rules with regard to the allocation of quota of direct recruitment and promotees and in our considered opinion the field is occupied and supplemented by executive order issued by the Government in this regard on 20.2.2003, as contained in Annexure 7 of Writ Petition No. 53133 of 2004 Pramod Shanker, which provides 58.34% quota for direct recruitment and 41.66% quota for promotees without demarcation of any separate quota for graduate and non-graduate incumbents of feeder cadre within the quota of promotion. It appears that the aforesaid Government order has been issued in compliance of direction of this Court contained in the decision of Aruvendra Kumar Garg's case, thus the vacancies falling in the quota of promotion were intended to be filled by the incumbents of feeder cadre without allocating any separate quota for promotion for graduate and non-graduate incumbents. The aforesaid Government order dated 20.2.2003 was still in force prior to commencement of new 2004 Rules as there is no material on record to show that the said Government order has ever been modified or superseded till 3.1.2004 by the Government itself. Therefore it is necessary to examine the determination of vacancies in the quota of promotion under old existing law occupying the field.

118. From the perusal of supplementary counter affidavit sworn by Sri Tribhuwan Ram, Engineer-in-Chief, Government of U.P. on 25.7.2006 on behalf of State-respondents filed in the writ petition No.53133 of 2004.
Pramod Shanker Upadhyay and others Vs. State of U.P. and others
, it indicates that break up of year-wise vacancies on the post of Assistant Engineer in question has been given in chart enclosed as Annexure S.C.A-I and S.C.A.II which demonstrates that w.e.f. 1.7.1997 to 30.6.2004, total 446 vacancies have occurred on the post in question. Out of which total 316 vacancies are allocated in the quota of direct recruitment and only 130 vacancies are allocated in the quota of promotion for feeder cadre. Against 316 vacancies falling in the quota of direct recruitment 62 vacancies have been filled up by regularisation and remaining 254 vacancies are left for selection through Commission, whereas against total 130 vacancies falling in the quota of promotion only 102 vacancies are shown as filled up while 28 vacancies are still remaining to be filled up. From perusal of Annexure S.C.A.III enclosed with the aforesaid supplementary counter affidavit, it transpires that in respect of total vacancies occurred for the year 1997-98, 66.67% vacancies allocated in the quota of direct recruitment, 33.33% vacancies in quota for promotion, whereas in respect of vacancies occurred during the year 1998-2003, 75% vacancies allocated in the quota of direct recruitment and remaining 25% vacancies in the quota of promotion. Thereafter for year 2003-2004, total vacancies are divided and split into two parts, first part for the period w.e.f.1.7.2003 to 2.1.2004 and out of total vacancies occurred during this period, 75% vacancies are allocated in the quota of direct recruitment, whereas 25% vacancies are allocated in the quota of promotion. However the vacancies occurred w.e.f. 3.1.2004 to 30.6.2004, 50% are allocated in the quota of direct recruitment and 50% vacancies in the quota of promotion.

119. Thus there appears no legal basis for such determination and computation of vacancies. We have already held that on declaration of rule 5 and 6 of old 1936 rules as ultra-vires of the provisions of
Articles 14
and
of Constitution of India by Hon'ble Apex Court in P.D. Agrawal's case as brought about by 1969 amendment rules there exist no statutory rules under aforesaid 1936 rules for allocation of different quota for different sources of recruitment. Rule 5 and 6 of old 1936 Rules as stood while 1969 amendment rules came into force could not be revived automatically without their fresh enactment for the purpose of determination of rights and obligations arise therefrom, as the substituted rules were declared ultra-vires after their substitution for the aforesaid rules, therefore, aforesaid earlier rules could not be treated to be revived as existing before their substitution without fresh enactment. Similarly, Rule 5 (iii) brought about by1987 and 1997 was also declared ultra-vires of the Part III of the Constitution in Aruvendra Kumar Garg's case, thus no rights and obligations arise therefrom. Therefore, prescription of quota for direct recruitments and promotees existing in the rules 5 and 6 of old 1936 Rules prior to the aforesaid amendments for substituting the said rules cannot be revived for the same reasons. Thus, the approach of Government while computing and determining the vacancies in question and in doing so taking assistance from rule 5 and 6 of old 1936 rules as stood at the time of amendment of rules by amending rule 1969 palpably incorrect and demonstrably wrong, therefore, cannot be sustained. Thus, in view of the aforesaid discussion, we are of the considered opinion that except the Government order dated 20.2.2003 there existed no statutory rule or Government order during 1997 to 2004 for determination and allocation of the aforesaid vacancies in the quota of promotion and direct recruitment. By the aforesaid Government Order, the Government has intended to fill up vacuum in existing statutory rules and the existing vacancies in the said quota, we are of the further opinion that all the vacancies in the quota for promotion from year 1997 to 30.6.2004 are liable to be filled up according to the quota prescribed under Government order dated 20.2.2003. As we have already held that vacancies falling in the quota of promotion earlier and also w.e.f. 3.1.2004 to 30.6.2004 are also liable to be filled up under old law occupying the field, thus, according to the Government order dated 20.2.2003.

120. Applying the aforesaid Government order in respect of prescription of different quota for direct recruitment and promotion out of total 446 vacancies of Assistant Engineers occurred during the aforesaid period, 58.34% quota for direct recruitment and 41.66% quota for promotion, the total number of vacancies would come to 260 in the quota of direct recruitment and 186 in the quota of promotion. Since 62 vacancies in the quota of direct recruitment have already been filled by regularisation as shown in the chart contained in Annexure S.C.A. -II of the Supplementary Counter Affidavit. Thus only (260-62) = 198 vacancies are still remaining to be filled in the quota of direct recruitment and total 186 vacancies in the quota of promotion are liable to be filled up according to the G. O. dated 20.2.2003 and rule 12, of rules 1936 prescribing criterion seniority subject to rejection of unfit as amended by U.P. Service of Engineers (B. and R.B.) class II (Amendment Rules) 1992. Therefore, determination of vacancies in the quota of direct recruitment and promotion is wholly erroneous and illegal, thus cannot be sustained, consequently requisition dated 2.2.2006 sent by the Government to the Commission for holding selection on the posts of Assistant Engineers through direct recruitment and pursuant advertisement published in daily newspaper Amar Ujala dated 5.9.2006 so far as it pertains to the aforesaid posts are hereby quashed. The State Government is directed to undertake re-exercise of determination of vacancies under quota of direct recruitment and promotion both according to the observations made herein before and take further steps to hold selection for direct recruitment and promotion as indicated herein before."

(116) Thus, it was concluded vide paragraph 171 of the Judgment rendered in
Anjani Kumar Mishra
's case [supra] as herein under:

"171. In view of foregoing discussions and observations our conclusions are summarized as under:

(1) The provisions of Rule 5(ii) and Rule 16 of new 2004 Rules are held to be valid.

(2) Although, the provisions of new 2004 Rules are prospective in operation and shall apply w.e.f. 3.1.2004 but the vacancies occurred on or after 1.7.2004 only shall be filled up under new 2004 Rules and vacancies occurred prior to 30.6.2004 in the quota of promotion shall be filled up under old 1936 Rules. However, the existing vacancies prior to 30.6.2004 in the quota of direct recruitment shall be filled up as backlog vacancies under new 2004 Rules as the process of selection for direct recruitment were not initiated prior to commencement of new 2004 Rules, but without any further allocation of vacancies in the quota for promotion for period in question.

(3) There exists no statutory rule for prescription of quota for direct recruitment and promotion after decision of Hon'ble Apex Court in P.D. Agrawal's case and this court in Aruvendra Kumar Garg's case under old 1936 Rules. However, in order to fill up vacuum and supplement the remaining existing provisions of old 1936 Rules, the G.O. dated 20.2.2003 has been issued to fill up the remaining existing vacancies available at relevant time by prescribing 41.66% quota for promotion which shall be applicable to fill up the existing vacancies alone not covered by new 2004 Rules as indicated in judgement.

(4) The respondent-State authorities are directed to re-determine the vacancies for years 1997-1998 to 2003-2004 according to G.O. dated 20.2.2003 and take further steps within a month from the date of production of certified copy of the order passed by this court before Secretary, P.W.D., Government of U.P.

(5) While undertaking re-exercise for determination of remaining vacancies for year 1997-98, the promotions made at Sl. No. 32 to 40 by G.O. No. 4023/23-4-98 N.G./97 T.C. Lucknow dated 30th June 1998 shall be ignored. Similarly 53 promotions made vide G.O. No. 2220/23-4-2002-24 N.G./2002 Lucknow dated 2.5.2002 in respect of vacancies of years 1998-99 to 2000-2001, 10 promotions made vide G.O. No.8651/23-4-2002-24 N.G./02 dated 6.12.2004 pertaining to vacancies of year 1998-99 and 1999-2000 and one promotion made vide G.O. No. 8021/23-4-05-24 N.G./02 dated 25.5.2005 shall also be ignored.

(6) As a result of striking down the promotions made on the post in question from Sl. No. 32-40 contained in G.O. dated 30.6.1998, G.O. dated 2.5.2005, G.O. dated 6.12.2004 and G.O. dated 25.5.2005 the degree holder junior engineers who were promoted by the aforesaid Government orders shall not be reverted at once to their original posts until the vacancies against which they were promoted shall be filled up according to rule-12 of old 1936 Rules by incumbents of feeder posts irrespective of their having diploma or degree in engineering.

(7) Against total remaining vacancies falling in the quota of promotion for year 1997 and for year 1998-2004 as indicated herein above, separate year wise eligibility and select list shall be prepared in respect of vacancies of each recruitment year.

(8) While preparing year wise eligibility list, the persons whose promotion have been quashed, shall also be considered and placed in the eligibility lists if fall within zone of consideration according to their seniority position in the seniority list irrespective of their having degree in engineering or equivalent qualification and while considering their case the period of services rendered by them on higher post shall be taken into account while computing their seniority on feeder cadre and their Annual Confidential Reports and other service records shall also be taken into account on notional basis on feeder cadre.

(9) However it is made further clear that rejection of relief to the petitioners in separate quota for promotion for degree holders on alleged ground of discrimination would not disentitle them to be considered for promotion provided they are otherwise found eligible for consideration for promotion according to their seniority position under rule 12 of old 1936 Rules, in that event of the matter they will also be considered along with other eligible candidates irrespective of their degree in engineering or equivalent qualification.

(10) The respondents-State authorities are directed to undertake aforementioned exercise and complete it within a period of three months from the date of production of certified copy of order passed by this court before Secretary of concern department of the Government.

(11) After aforesaid exercise is over, if the claim of promotions of degree holder junior engineers whose promotions have been quashed, are found not acceptable either because of their lower seniority position or found otherwise not suitable according to the rules of promotion, they shall be reverted to their original posts forthwith on completion of aforesaid exercise."

(117) This court in earlier round of litigation in this bunch of matters, vide order dated 08.09.2011 has recorded as herein under:

"As regard the vacancies, the consistent stand of the State Government, as comes out from various affidavits and letters including the letter dated 22.4.2009, is that there were only 186 vacancies in the quota of promotion for the period 1997-98 to 2003-04. In the case of Anjani Kumar Mishra, the Court has determined the total vacancies to be 186. It is admitted fact that the State Government has promoted 29 persons vide order dated 30.6.1998, 1 by order dated 20.8.2007, 95 by the order dated 2.8.2008, 1 by the order dated 3.2.2009 and 27 persons were lastly promoted by the order dated 30.7.2009. It is also not in dispute that 73 persons are working under the Court's Order. It may also be pointed out that 21 vacancies were carried forward by the authorities. Thus, in all, 249 promotions have already been made. Therefore, there was no justifiable and valid reason for the authorities to act when the Court in the case of Anjani Kumar had already adjudicated the vacancies.

We are of the considered opinion, the vacancies existing in promotional quota as on 30.6.2004 are to be filled in accordance with provisions contained in United provinces Service of Engineers (Buildings and Roads Branch) Class-II Rules, 1936 in view of the judgment and order passed by this Court in the case of Anjani Kumar Mishra, which has been approved by the Apex Court.

Even at the cost of repetition, it may be stated that once the determination of vacancies, i.e. 186 after the judgment in
Anjani Kumar Mishra
's case had attained finality, which was determined applying the quota of 41.66% on the occurred vacancies during the period. There was no occasion or valid reason for the Government to make selection in excess of the determination. Moreover, it is not open for us to re-determine the vacancies as it would amount to review of the aforesaid final judgment."

(118) Apparently, both in
Anjani Kumar Mishra
's case as well as the order dated 08.09.2011(mentioned supra), this court has determined the vacancies to be filled on the basis of promotional quota to be 41.66% as per the alleged communication/ Government order dated 20.02.2003.
The said communication/ Government order was construed to be holding the ground for prescribing the promotional quota under an impression that their existed no statutory rule for prescription of quota for direct recruitment and promotion after decision of Hon'ble Apex Court in P.D. Agrawal's case and this court in Aruvendra Kumar Garg's case under the old 1936 Rules.
This court, therefore in
Anjani Kumar Mishra
's case arrived at a decision that in order to fill up the vacuum and supplement the remaining existing provisions of the old 1936 Rules, the G.O. dated 20.2.2003 had been issued to fill up the remaining existing vacancies available at relevant time by prescribing 41.66% quota for promotion which shall be applicable to fill up the existing vacancies not covered by new 2004 Rules as indicated in the said judgement.

(119) Shri Sandeep Dixit, the Ld. Senior counsel has also argued his case on similar lines. According to him nothing survives from old rules after amendments of 1969, 1971, 1987 & 1997 brought by substitution, as the same were quashed in P.D Agarwal's case and Aruvedra Kuamr Garg's case. According to him since nothing survived in the old rules relating to the promotional quota, the state issued the Government order dated 20.03.2003 to fill the gap and in any case, the said Government order was never challenged by any of the contesting parties. Thus, according to him the Government order dated 20.2.2003 holds the field even as on today.

(120) However, this court is afraid to accede to the aforesaid argument of Shri Sandeep Dixit for various reasons. Firstly, it appears from records that the Hon'ble Apex Court, in P.D. Agarwal's case has not only quashed 1969 & 1971 amendments brought by substitution but had also directed for preparation of seniority list as per the pre-1969 Rule position i.e. according to 1959 amendment. Since a new seniority list dated 17.07.1995 of Asst. Engineers (civil) was actually prepared by the state therefore old Rules as amended upto 1959 always existed in the rule book as per the Judgment of the Apex Court. Secondly, this Court, vide its judgment dated 22.03.2002, passed in Aruvendra Kumar Garg's case, took notice of the contention of Degree Holder JEs that the amendment brought by substitution, if voilative of
Article 13(2)
, is void from the very inception and is admittedly a 'still borne law, i.e an invalid substitution, hence pre-amendment rule position would revive. In contrast, contention of Diploma Holder JEs, at that time was that pre-1969 rule position, which provided qualifying exam under rule 9(2) (and which was removed in 1987 amendment), would not revive again, after quashing of 1969 to 1997 amendments. This Court, vide judgment dated 22.03.2002 of Aruvendra Garg's case, though referred A.T.B. Mehtab Mazid's judgment, Bhagat Ram Sharma's and several other judgments in para 18 and 19 of Aruvendra Kumar Garg's judgment, but it proceeded to hold in para 20 that the issue before it was not about the revival of 1959 amendment because 1987 and 1997 amendments were brought by substituting 1969 amendment (and not the amendment of 1959), which was already quashed in P.D. Agarwal's case, therefore, no finding about revival of pre-1969 rule position was given in Aruvendra Kumar Garg's case. It would be rather wrong to say that this Court in Aruvendra Kumar Garg's case, had quashed all the provisions of old Service Rules of 1936, rather this court merely quashed the two notifications regarding amendments of 1987 and 1997 because the entire Rules of 1936 were not under challenge.

(121) Moreover, the question regarding revival of old Rules upto 1959 amendment was actually answered by the Hon'ble Apex Court vide judgment dated 20.03.2007 passed in
Diploma Engineers Sangh
's case.
In that case the Diploma Holder J.Es while relying ATB Mehtab Mazid's case, contended that pre- 1969 Rule position would not revive after setting aside of the four amendments. The Degree Holder J.Es argued to the contrary. The Hon'ble Apex Court in para 5 and 7 of the said judgment observed that after setting aside of four amendments from 1969 to 1997 which were void-ab-initio, the Rules of 1936, as they stood before such amendments (including Rule 5(4) and 9(2)) had revived and therefore direction was given for holding of written qualifying examination as per Rule 5(4) and 9(2) of the old Rules.

(122) Apparently, after revival of old Rules as existed upto 1959 amendment, 25% promotion quota as per Rule 6(1)(a) had revived or rather always existed and therefore the promotion quota vacancies could not had been determined as per G.O. dated 20.02.2003 because G.O dated 20.02.2003 came into existence as a stop-gap arrangement under the impression that there existed no rules determining the promotion quota. However, now that in view of the string of Judgment passed by the Apex Court in P.D. Agarwals's case, Diploma Engineer's Sangh as well as the Aruvendra Garg's case, there is not an iota of doubt about the existence of rules relating to the promotion quota on the date of determining the number of vacant seats for the promotional quota. In any case, this court does not wishes to further burden this judgement with the precedents which invariably have held that Government orders cannot supersede the statutory Rules, suffice to say that recently the Hon'ble Apex Court vide a Judgement dated 15.03.2023 delivered by HMJ Sanjay Kishan Kaul in "Ashok Ram Parhad V/s State of Maharashtra, 2023 SCC OnLine SC 265" has held that government resolutions cannot override statutory rules. The Hon'ble Apex Court while dismissing an appeal arising from a Judgment of the Bombay high Court observed that service rules are liable to prevail, and that there can be government resolutions in consonance and not in conflict with those rules.

(123) With regard to the contention of Shri Dixit relating to their being no challenge to the Government order dated 20.03.2003, is concerned, we must first understand as to what is a Government Order. As has been argued by Shri Upendra Nath Misra, ld. Senior Counsel ably assisted by Shri Neel Kamal Mishra, Advocate, that a Government order has to undergo the twin test of being in consonance with
Article 162
and also with the Rules of business issued by the State Govt, while exercising powers under
Article 166(3)
of the Constitution. Apparently, the State Government issued the Rules of business 1975 in exercise of powers under
Article 166(2)
and
166(3).
Clause- 4(2)(Ga) of the Rules of business, which clearly provided that no Government order can be issued where the strength of the cadre is increased or service condition of any cadre is changed, without taking multi department consultations (specially the approval of finance department). Rules of business is sacrosanct in the matter of issuance of a G.O or a direction by the State as held in the case of
Pancham Chand Vs State of HP
, 2008(7) SCC 117. Since, the letter dated 20.02.2003 was neither issued in the name of His Excellency the Governor, nor it was issued after Multi Departmental consultations, especially Finance Department, as shown by no endorsements made to any other Department, in that letter, the same cannot be construed as a Government order.

(124) Further, the letter dated 20.02.2003 was issued while referring to the earlier letter dated 06.02.2003, which mentioned in Clause-1 that the total sanctioned cadre strength of A.E. (Civil) in the Department is 1225 posts. Then Clause 2(ba) of the said letter says that if promotion quota of 41.66% is applied as per 1997 amendment, though there will be a shortage of 219 vacancies in promotion quota but if these 219 vacancies are filled up by promotion, then the total cadre strength would be increased from 1225 to 1250. Thus, while referring to the aforesaid letter dated 06.02.2003 and 219 promotion quota vacancies mentioned therein, the letter dated 20.02.2003 was sent by the Secretary of the Department to the E-in-C, whereby the process of interview as provided by office order dated 11.02.2003 was laid down. Therefore if these 219 vacancies were being filled up, while exceeding the total sanctioned cadre strength of A.E. (Civil) from 1225 to 1250, the Secretary PWD ought to have undertaken multi­-departmental consultation as per Clause 4(2)(Ga) of the Rules of Business, 1975, (specially the approval of law department and finance department. In absence of following such procedure, the issuance of letter dated 20.02.2003 by the Secretary, PWD to the E-in-C, without endorsing it to any other department, does not make this letter a "Government order" as per
Article 162
and
166(3)
as the same is not in consonance with Rules of business and therefore it remains a letter only.

(125) There is a second aspect of the matter, in as much as, letter dated 20.02.2003 was based on office order dated 11.02.2003, whereby the mode of qualifying examination was changed from written exam to interview. For this reason, para 5 of the letter dated 20.02.2003 provided the time line as to how interviews are to be held for determining eligibility under Rule 9(2). Since the office order dated 11.02.2003 has been set aside by this Court in Vijay Kumar's case on 16.07.2004 and by Hon'ble Apex Court in
Diploma Engineers Sangh
's case on 20.03.2007 and the procedure of interview was disapproved while maintaining the earlier procedure of written exam as per Rule 9(2) of the old Rules, therefore, the letter dated 20.02.2003 providing for procedure and time line etc, of the said interviews would also become non-existent and redundant. Hence there was no need to challenge such a letter in the Court as no rights can be conferred through letters/internal communications.

(126) Further, when this Court, vide order dated 17.07.2006 directed the Principal Secretary and E-in-C for filing their affidavits for giving a clear picture about total number of vacancies available for promotion, year-wise, commencing from year 1997-1998 till 30.06.2004, so as to avoid confusion about conflicting claims regarding existence of promotion quota vacancies given by Degree Holder J.Es and Diploma Holder J.Es., the State Government filed a detailed affidavit dated 25.07.2006 and in para-20 of the same, it categorically held that old Rules as existed upto 1959, which provided 25% promotion quota, have revived. Thus when the State Government itself was following Rule 6(1) of old Rules as existing 1959, as late as in 2006 while filing Affidavit dt 25.07.2003, there was no need, occasion and justification for anyone to challenge the letter dated 20.02.2003 before this Court. Even the letter dated 20.02.2003, not only refers to the office order dated 11.02.2003 and letter dt 06.02.2003, which was issued while treating the 'unamended old Rules upto 1959 in existence', but even the letter dated 20.02.2003 also categorically holds that the promotion shall be made according to the 'unamended provisions of the old Rules', which were left over after setting aside of 1969 to 1997 amendments, i.e. upto 1959 amendment. Therefore, the mere proposed claim of application of 41.66% promotion quota and consequent 219 vacancies was merely due to some misconception and self-contradiction, hence there was no need to challenge the letter dated 20.02.2003. Lastly, even if for the sake of arguments, the said letter dated 20.02.2003 is considered to be a Government Order, the said G.O. cannot supersede the provisions of statutory Rules. (Please see
Union of India Vs Charanjeet S. Gill
(2000) 5 SCC 742 (Paragraph 25) and PSC, Uttaranchal Vs JCS Bora, (2014) 8 SCC 644 (Page 28).

(127) Last but not the least, the stand of the State, who had been the author of the said letter dated 20.02.2003 is also remarkable and could be found in the submission of the Ld. Chief Standing Counsel, wherein Shri Ravi Singh Sisodiya has in unequivocal terms has addressed the government letter dated 20.02.2003 as a mere letter dated 20.02.2003. According to the state the letter dated 20.02.2003 was issued in regard to promotions of Junior Engineer (Civil) to the post of Assistant Engineer (Civil) and it was merely stated in the said letter, that the State Government had got legal advice that the promotions should be made on the basis of Rules which remained after the judgment delivered by the Hon'ble Supreme Court in P.D. Agarwal case and by this Court in Arunendra Kumar Garg case. According to the state, in the letter, it was merely stated that the state expected that 41.66% quota should be applied and accordingly 219 vacancies should be filled by promotion and it was merely a communication letter addressed by the State Government to the Public Works Department interpreting the Rules, 1936, as subsequent amendments in the year 1969, 1971, 1987 and 1997 were set aside. Thus, it can be safely concluded that even as per the understanding of the state, the said Government order or letter or communication dated 20.02.2003 was a mere communication between the state and PWD and nothing more. In view of the above, the letter/communication dated 20.02.2003 loose its sheen of a Government order and it does not make any difference as to whether the same was challenged or not by any of the contesting parties as it was a mere recommendation, which may or may not have been acted upon the recipient.

(128) Thus, in the peculiar facts, when the Hon'ble Apex Court, vide order dated 20.03.2007, had earlier ordered for revival for old Rules as existed upto 1959, which was reiterated vide its latest judgment dated 21.08.2019, therefore, only Rule 6(1) of the old Rules upto 1959 amendment, providing for 25% promotion quota, would apply for determination of promotion quota vacancies upto the recruitment year 2003-2004, hence the said letter dated 20.02.2003 has no relevance in view of the latest developments stated above and hence it has no application whatsoever.

(129) Further, as already stated herein above, during the period 2004 to 2007, contesting parties were claiming different number of vacancies to be allegedly existing in promotion quota, therefore, this Court, while hearing
Anjani Kumar
's case passed an order dated 17.07.2006 & 20.07.2007, directed the Principal Secretary of the Department and Engineer-in-charge, PWD to file affidavit giving total number of vacancies available in promotion quota year-wise, commencing from the year 1997-1998 till 30.06.2004.

(130) The State Government, in compliance of the said direction, filed a detailed supplementary counter affidavit dated 25.07.2006, categorically mentioning that after setting aside of the impugned amendments of 1969 to 1997, the 25% promotion quota (as provided under Rule 6(1) of 1959 amendment) stood revived. Since state was clear in its understanding that Rule 6(1) of the old rule providing 25% quota for promotion had revived, therefore letter dt 20.02.2003 was consciously not relied/mentioned by the state in the said affidavit. Moreover, a chart was annexed with the said affidavit to explain the year-wise vacancies from 1997-1998 till 2003- 2004.
In the said chart, the State Government had clearly mentioned that by applying 25% promotion quota over these years, a total of 130 vacancies were created against which 102 vacancies were filled up and only 28 vacancies were in existence which could be filled under the old Rules of 1936, though infact there were only 10 vacancies in promotion quota upto 2003-04 as held in
Anjani Kumar Mishra
's case.

(131) Thus, the state always believed and never doubted the existence of 25% promotion quota as per the Old rules of 1936, however, this Court in para 118 to 120, of the judgment dated 03.11.2006 passed in
Anjani Kumar
's case refused to accept the aforesaid stand of the State that earlier Rules existed prior to 1969 would revive after setting aside of all subsequent amendments and therefore it held that after quashing of 1969 to 1997 amendment, nothing would revive from old Rules and only letter dated 20.02.2003 providing for 41.66% promotion quota shall apply for promotion to be made upto 2003-2004.

(132) As rightly submitted by the Ld. Chief Stating Counsel of the state, the State Government, merely in compliance of Anjani's judgment dated 03.11.2006 and Diploma's Sangh's judgment dated 20.03.2007 had made the impugned promotions in 2008, 2009& 2010. However, when the promotion orders dated 03.07.2009 and 05.02.2010 were quashed by this Court on 08.09.2011, which was based on the precedential value of the Anjani Kumar's Judgment and which was holding the field at that point of time, the State Govt., apparently to defend its actions, filed an SLP before the Hon'ble Apex Court against the judgment dated 08.09.2011. In this SLP, the averments were also made by the State, obviously by relying Anjani Kumar's Judgment and its direction about application of G.O. dated 20.02.2003 and application of composite promotion quota of 41.66%, which cannot be faulted with.

(133) However, this court finds that the stand of the state in the aforesaid process rested on a slippery ground as on the one hand it ought not to be an adversarial litigant and rather it should have taken a stand which was as per the prevailing law and not as a contesting party, however at the same time, the state was obliged to follow the judgment of this court without any reservation.

(134) Unfortunately, the state was not able to balance the aforesaid two rival situation as Anjani Kumar's judgment was not stayed by the Hon'ble Apex Court and it continued to remain in operation till it was set aside on 21.08.2019 by Hon'ble Apex Court and as such all the post- Anjani Mishra's judgment, all the affidavits of the State filed from 2007 to 2019 had relied upon Anjani Kumar's judgment dated 03.11.2006, i.e letter dated 20.02.2003 and promotion quota of 41.66% for justifying the excess promotions made from 2008 to 2010 from Degree Holder J.Es. All these State affidavits including the affidavit of then Principal Secretary Sri Nitin Ramesh Gokaran filed on 10.08.2019, referred by private respondents were nothing but "post Anjani Affidavits of the State". Since Anjani Kumar's judgment was in existence at that time, therefore, it could not have been ignored at that time.

(135) However, now when the Hon'ble Apex Court, in its remand order dated 21.08.2019 has not only set aside Anjani Kumar's judgment dated 03.11.2006 and Diploma's judgment dated 08.09.2011 etc. and has also reiterated about correctness of the two Judge judgment dated 20.03.2007 passed in
Diploma Holder J.Es.
case, nothing remains to be decided and accordingly old Rules of 1936 except the amendment of 1969 to 1997, stood revived.

(136) Thus, as a result of the aforesaid development, after the Anjani Kumar's judgment is set aside with a direction for rehearing, all the pleadings of the parties in the pending writ petitions, including the State's affidavit dated 25.07.2006 stood revived. Therefore, all "post-Anjani affidavits of the State" became redundant and meaningless and the only affidavit of the State which can be relied upon now is the State's affidavit dated 25.07.2006 which is the solitary "pre-Anjani affidavit" containing the "pre-Anjani stand of State". Therefore when the re-hearing started as a result of remand order dated 21.08.2019, the State Government relied upon its pre-Anjani Affidavit dated 25.07.2006.

(137) This Court finds that during the hearing of the present bunch of matters, in the year 2022, 27 private respondents of W.P. No.3314 of 2009 filed a fresh writ petition no.4141 of 2022 for a direction to the respondents to treat them as having been promoted as A.E. (Civil) w.e.f. 03.07.2009.This Court vide order dated 22.08.2022 directed the State Government to file an affidavit as to why their promotion order shall not been restored, wherein the State Government filed an affidavit dated 09.12.2022 in W.P. no. 4141 of 2022 and in para-6, 13 and 23, it was categorically held that, after Anjani Kumar's judgment is set aside, the position prior to 03.11.2006 stood revived and therefore the letter dated 20.02.2003 containing 41.66% quota can no longer be applied. All the post Anjani Affidavit filed by the State have also become redundant and the only relevant stand of the State is its pre-Anjani Affidavit dated 25.07.2006 which says application of 25% promotion quota only. The state also took a stand that since the matter has been remanded for rehearing and the validity of promotion orders of the private respondent is still under challenge, therefore, in absence of Anjani's judgment, promotion quota vacancies have to be decided afresh, and till then the promotion orders of private respondents cannot be straight away revived.

(138) Further, the State Government also filed another affidavit through the Secretary/ Special Secretary on 01.02.2023 as a composite affidavit in Pending Petitions i.e. 3314 of 2009 and 1511 of 2010 and also in the new petition of 4141 of 2022, wherein the earlier stand was reiterated and the pre-Anjani affidavit of the State dated 25.07.2006 was again relied upon which says application of only 25% promotion quota.

(139) From the above, it is clearly established that there has been no change in the stand of the State as has been argued by Shri Dixit, ld. Sr. counsel. In fact, after setting aside of 1969 and 1971 amendment in P.D. Agarwal's case and 1987 and 1997 amendment in Aruvendra Kumar Garg's case, the State Government consistently relied upon the revival of the old Rules as existed in 1959. Consequently, while issuing office order dated 11.02.2003 and letter dated 20.02.2003, pre- 1969 Rules position was relied upon by the State. Similarly, while making promotions on 02.05.2002 after Aruvendra Kumar's judgment, only 25% promotion quota was applied. This stand was also taken in the affidavit dated 25.07.2006 (pre-Anjani Affidavit) which has again been relied upon by the State after Anjani Mishra's Judgment was set-aside and therefore while discarding all the post Anjani affidavits, the same earlier stand of 2006 has been reiterated.

(140) Thus, this court is of the view that from the three judgments of the Hon'ble Apex Court on the subject of revival of old rules, 1936, (i.e. Diploma's sangh's case, Aruvendra garg's case and P.D. Agarwal's case) it is absolutely clear that if Rule 5(i) to 5(iv), which existed only prior to 1969 (and which due to repeal, never existed in the statute books from 1969 to 2004), got revived & clarified under the aforesaid judgments of the Hon'ble Apex Court, therefore when Rule 9(ii) read with Rule 5(iv) of the old service rules were revived under the aforesaid judgments, Rule 6(i) providing 25% promotion quota as per 1959 amendment, would also be revived and applied on the parties. This is because promotion as a mode of recruitment provided under 5(iv) is meaningless without revival of 25% promotion quota provided under Rule 6(i) of old rules of 1959. Moreover, Rule 9(ii) of the old rules providing qualifying examination which was omitted by substitution through 1987 amendment got revived under the judgment of the Hon'ble Apex Court. If qualifying examination provided under rule 9(ii) for making promotions under rule 5(iv) of the old rules as amended upto 1959 amendment would revive, then Rule 6(1) of 1959 amendment providing 25% quota would also revive, after setting aside of 1969, 1971, 1987 and 1997 amendments brought by substitution' by Hon'ble Courts. Therefore, revival of rules 9(2) and 5(4) with 6(1) of the old rules of 1936 as amended upto 1959 already done by the Hon'ble Apex Court, is a binding precedent between the parties.

(141) Thus, it can be safely concluded that the number of vacancies under the promotion quota for the period during 1997-1998 to 2003-2004 ought to be determined as per the Service Rules of 1936, wherein rule 6(a) provides for promotional quota of 25% for promotion of Junior Engineers to the post of Asst. Engineers.

(142) The next incidental question related to the aforesaid issue, which falls for determination is as to the number of the promotional quota seats available for the period during 1997-98 to 2003-2004.

(143) The Engineer-in-Charge in his letter dated 06.02.2003 to the State, determined 219 vacancies in promotion quota on the cadre strength basis, but he cautioned the state government that by doing this, the total sanctioned strength on such determination would increase from 1225 to 1250 and therefore the said principle is not applicable.

(
144) Anjani Kumar Mishra
's case specifically records at paragraph 118 that 446 vacancies have occurred on the post of Asst. Engineer for promotion during the period of 1997-98 to 2003-04 as per the affidavit filed by the state. Although, the court gave a different direction to the whole athematic relating to the number of post available for direct recruit as well as the promotional post by applying the G.O dated 20.02.2003 and doubting the existence of the Old service rules, 1936. However the fact of the matter remains that the state had filed an affidavit along with a chart on 25.07.2006 as recorded in paragraph 118 of the said judgement, narrating inter-alia that there existed 446 vacancies, out of which total 316 vacancies are allocated in the quota of direct recruitment and 130 vacancies were allocated in the quota of promotion for feeder cadre. Against 316 vacancies falling in the quota of direct recruitment 62 vacancies have been filled up by regularisation and remaining 254 vacancies are left for selection through Commission, whereas against total 130 vacancies falling in the quota of promotion only 102 vacancies are shown as filled up while 28 vacancies are still remaining to be filled up. The said number of vacancies was arrived by the state on the basis of existing old rules of 1936, in as much as for the year 1997-98, the state had shown 66.67% vacancies allocated in the quota of direct recruitment, 33.33% vacancies in quota for promotion, whereas in respect of vacancies occurred during the year 1998-2003, 75% vacancies allocated in the quota of direct recruitment and remaining 25% vacancies in the quota of promotion. Thereafter for year 2003-2004, total vacancies were divided and split into two parts, first part for the period w.e.f.1.7.2003 to 2.1.2004 and out of total vacancies occurred during this period, 75% vacancies were allocated in the quota of direct recruitment, whereas 25% vacancies were allocated in the quota of promotion. However the vacancies occurred w.e.f. 3.1.2004 to 30.6.2004, 50% are allocated in the quota of direct recruitment and 50% vacancies in the quota of promotion.

(145) As far as the judgment of this court in
Anjani Kumar Mishra
's case is concerned, it held that 41.66% of the seats were available under the promotional quota by applying the G.O dated 20.02.2003 and as such arrived at a figure of 186 seats under the promotional quota and also left it open for the state government to re-determine the number of seats available under the promotional quota. Further, all the 73 promotions (30.06.1998, 02.05.2002, 06.12.2004 and 25.05.2005) made only from Degree holder JEs by 04 promotion orders, issued between 1998-2002, without considering any senior diploma JE's, were declared bad in law & were quashed.

(146) However, as already recorded hereinabove, the 73 promotions which was declared bad in law and quashed, were able to obtain a status quo order from the Hon'ble Apex Court and as such the Engineer-in-Chief vide a requisition dated 03.06.2008 sent for filling remaining 113 vacancies. Against the said 113 vacancies, which were included in the 186 vacancies determined for the period interregnum i.e. 1997-98 to 2003-04 in
Anjani Kumar
's case, 96(95+1) promotions were made on 02.08.2008 and 03.02.2009 but all the promotions were given only to Degree holder JEs only and the remaining 17 vacancies were carried forward due to non-availability of reserved category candidates, which were filled up in the subsequent recruitment years.

(147) Thus all the 186 vacancies for the interregnum period i.e. 1997-1998 to 2003-2004 were already filled up under the old Service Rules of 1936, leaving no vacancy to be further filled up as per the old Service Rules. However, taking a cue from the letter dated 06.02.2003 issued by the Engineer-in-charge, the department again sent a fresh requisition dated 27.02.2009 for 33 (219-186) vacancies, while completely ignoring the fact that the calculation of 186 vacancies as determined in
Anjani Kumar Mishra
case. As a matter of fact against this 33 vacancies, 27 promotions were made vide impugned order dated 03.07.2009.

(148) If that was not enough, the State Government, again sent a fresh requisition for filling up 97 more vacancies of Assistant Engineer (over and above 186+27 promotions already made), while calculating the same on the basis of "cadre strength principle" which was against the old rules of 1936, wherein 78 more degree holder JEs were considered for promotion vide impugned requisition dated 28.04.2010.

(149) Thus, there seems to be an arithmetical issue relating to the number of vacancies in the promotional quota. Even the enquiry committee report dated 24.04.2010 is of no help relating to the number of vacancy available in the promotional quota for the period 1997-98 to 2003-04. Although Shri Chaturvedi, ld. Sr. Advocate made an endeavour to explain and justify that 97 is the left over vacancies under the old rules of 1936 by taking a cue from G.O dated 20.02.2003, however the same was not verifiable, especially when a simple calculation would show that in case there are 446 vacancy for Asst. Engineers, applying the existing old rules, 75% would go for direct recruit, which would translate into 334 seats and the rest 25% towards promotional quota would translate into 112 seats. Apparently against this 112 seats, 102 undisputedly stands filled (29 promotions of diploma JEs on 30.06.1998 & 73 promotion of degree JEs vide four promotion orders dated 30.06.1998 (9 promotion), 02.05.2002 (53 promotions), 06.12.2004 (10 promotions) and 25.05.2005 (01 promotion). Therefore, there would be only 10 vacancies only available for the promotional quota. Since, almost 191 excess promotions have been made by the state vide the three impugned promotion order dated 02.08.2008 (86 excess seats), 03.07.2009 (27 excess seats) and 05.02.2010 (78 excess seats), the question of actual determination and justification for this excess seats has to be given by the state Government, which is not forth coming. Further, although, there is no justification for the excess promotion seats as stated herein above, however a feeble ground has been taken by the state that 97 promotion sought to be requisitioned vide impugned order dated 05.02.2010 is being justified on the basis of cadre principle, which has sought to be made applicable to the Old service rules of 1936 retrospectively vide G.O dated 05.02.2010.

(150) The Ld. Sr. counsel Shri Mishra has relied on the judgment of Deepak Agarwal V/s State of U.P. 2011 (6) SCC 725 and other related judgments to propagate the proposition of law that the "Rules in-force" on the date of promotion should apply. There is no doubt on the said proposition of law as referred by Shri Mishra, however it seems that he has only relied on the said Judgement by presuming that there is only 10 vacancies in promotion quota for the year 1997-98 to 2003-04 and the other promotions made vide impugned order dated 02.08.2008, 03.07.2009 and 05.02.2010 were for vacancies which had arisen after the new service rules, 2004 came to be enforced. Although, in the first blush the argument of Shri Mishra looks attractive but on a closer look, it seems the whole theory is based on an erroneous belief that there are only 10 vacancies arising in the promotion quota for the year 1997-98 to 2003-04. Since, the number of vacancies occurring for the promotion quota for the year 1997-98 to 2003-04 itself is controversial and is a task still unfulfilled, this court is unable to agree to the said proposition put forth by the Ld. Sr. Counsel.

(151) In view of the above, a controversy remains as to the actual number of vacancy existing in the promotion quota by applying the 25% rules as is to be found in the old service rules of 1936. Thus, it is imperative that the state constitutes a High Level Committee, headed by the Chief secretary of the state and preferably having the principal secretary of the competent department and such other members, who according to the chief secretary can render active assistance in determining the actual number of promotion seats available for the period 1997-98 to 2003-04, so that a quietus is given, keeping in view that the issue has been lingering and pending for more than two decades.

H. Whether "cadre Principle" of vacancy determination can be applied for the period 1997-98 to 2003-2004;

(152) Therefore, the next question to be decided by this court is as to whether "cadre principle of vacancy determination" can be applied retrospectively for the period 1997-1998 to 2003-04 on the already superseded old Service Rules of 1936, by merely issuing a G.O. dated 05.02.2010, even though Rule 6(i) of the superseded old Rules of 1936 did not provide for the same and it was provided under the new service rules of 2004 only, which was implemented w.e.f. 3.1.2004 only.

(153) It has been submitted by Shri Mishra, Ld. Senior counsel and as rightly so, that rule 6(1) of old Rules of 1936 provided for "25°% vacancies" as promotion quota. The State tried to amend the word 'vacancies' by the word 'posts' by 1997 amendment but it was quashed in Aruvendra Garg's case. Finally these old Rules of 1936 were superseded in 2004, when new rules came and since then old rules of 1936 were no longer in existence. Despite that, the State Government, by merely issuing a G.O. dated 05.02.2010, tried to amend Rule 6(i) and inserted the word 'cadre post' in Rule 6(i) of the already superseded Rules of 1936, by a retrospective amendment of the said Rule through a G.O., which is impermissible in law because it is the settled position of law that G.O. cannot supersede statutory Rules. Moreover, this court cannot be oblivious to the fact that it is also a settled position of law that where the statutory Rules are clear and unambiguous, nothing should be added or inserted by means of interpretation of the Rules by the Courts. Further, the law stands settled that where a power is given to any authority do a certain thing in a certain way the thing must be done in that way or not at all.
Other methods of performance are necessarily forbidden (
Nazir Ahmed Vs King Emperor
(1936 SCC Online PC 41).

The said principle has also been followed by a three-judge bench of the Supreme Court in a judgment, reported as
Chandra Kishore Jha v. Mahavir Prasad & Ors.
[(1999) 8 SCC 266] and in
Cherukuri Mani v. Chief Secretary, Government of Andhra Pradesh & Ors.
[(2015) 13 SCC 722] wherein the Hon'ble Apex Court held as under:

"14. Where the law prescribes a thing to be done in a particular manner following a particular procedure, it shall be done in the same manner following the provisions of law without deviating from the prescribed procedure......

(154) In this case, when Rule 6(i) of the old Rules clearly provide 25% "vacancies" as promotion quota, it cannot be interpreted as 25% "cadre posts" by misinterpreting the old Rules of 1936. Thus, in the view of this court, the "cadre Principle" of vacancy determination cannot be applied retrospectively for the period 1997-98 to 2003-2004, especially when nothing contrary to that can be found on the records of this case.

Whether the "qualifying examination" in terms of rule 9(ii) of the service rules have a bearing to the promotion during the period of 1997-98 to 2003-2004 and as to whether it has been fairly conducted to enable the diploma holder JEs to come within the consideration zone for promotion;

(155) As available from records, rule 9 of Old 1936 Rules as initially existed provided technical qualifications required to be possessed for the post of Assistant Engineer. Sub-clause (ii) provided that no officer would be promoted under Rule 5(iv) unless he had passed any qualifying examination, which the Government may prescribe. However, vide amendment dated 19.04.1943, a provision was made that an officer could be promoted to the post of Assistant Engineer after having passed the qualifying examination as prescribed by the State Government or in case he possessed the technical qualification prescribed in Rule 9(i) of the 1936 Rules. The effect of the said amendment was that a Junior Engineer possessing any of the qualifications prescribed under Rule 9(i) was no longer required to pass the qualifying examination for promotion as he had also an alternate route to be promoted by achieving the qualification as mentioned in the rules.

(156) However, as per the rules, all such Junior Engineers who did not possess the technical qualification specified under Rule 9(i) were mandatorily required to appear and qualify in the qualification examination to be qualified for promotion to the post of Asst. Engineers. In fact this qualification examination was a gate-way for promotion to this diploma holder JEs as by passing such qualifying examination, these diploma holder Junior Engineers would come within the consideration zone for promotion to the post of Asst. Engineers. It is one thing to say that the diploma holder junior Engineer were not able to pass in the qualifying examination and another to say that this qualifying examination could not be conducted by the state for any reason whatsoever, for a diploma holder junior Engineer can only appear and then qualify/pass in the qualifying examination only and only if it is conducted as per the rules. However, the present case is something else. Strangely, enough, although the state has not conducted the aforesaid qualifying examination, but still it went ahead with the issuing the promotion order by erroneously construing that all the diploma holder Junior Engineers are disqualified/not qualified for the said promotions, which cannot be permitted as per law.

(157) Apparently, it is available from records that qualification examination was not conducted by the state between 1972 to 2006 and it was only in the year 2007 that this qualification examination was conducted under a direction of the Hon'ble Apex court in
Diploma Engineers Sangh V. State of U.P
(2007) 13 SCC 300. The said qualifying examination was marred with controversy, which shall be dealt in later part of the judgment, however, interestingly, after the said controversial qualifying examination of 2007, no steps had been taken by the state to conduct any further qualifying examination in the year 2008 or 2009 or 2010 or for any other successive year, although impugned promotion order and requisition for promotion was issued for the year 2008, 2009 and 2010 for promoting degree holder JEs on the ground of non-availability of qualified diploma holder JEs.

(158) It has been argued that Qualifying examination was fairly held as one time affair and the qualifying examination was held only once in 2007 because the Hon'ble Supreme Court vide order dated 20.03.2007 had given direction for holding exam as "one time affair only" and according to the Ld. Sr. Counsels appearing for the degree holder JEs, all the issues relating to the manner, in which the said qualifying examination was conducted had been raised by the Diploma Holder JEs as on 29.09.2007 vide IA No. 10 in the
Diploma Sangh
case before the Hon'ble Supreme Court and since these diploma holder JEs were not given any indulgence by the Hon'ble Apex Court nor any liberty was sought by them for re-agitating the said issue before this court, it was not open for this court to decide the self-same issue again, which according them had been already decided by the Apex Court. According to them, if any issue relating to the conduct of qualifying examination was raised in the said IA, then the same cannot be raised before this court until and unless, liberty was granted by the Hon'ble Supreme Court by the order dated 3.12.2007.

(159) This court finds that the Hon'ble Apex Court, vide its judgment dated 20.03.2007, in
Diploma Engineers Sangh
's case, directed the respondent authorities to conduct the qualifying examination as per the provisions of the service rules and relevant G.Os prescribing the mode and method of qualifying examination. Thus, it was incumbent on the State authorities to hold the examination "as per existing Old Rules", which were contained in Rule 9(2) of the old Rules of 1936. Since, rule 9(2) provided for a qualifying examination "which the Government may prescribe", it is available from the records that the said Government prescription could be found in Appendix-IV of irrigation manual 1936, which invariably provided for holding of qualifying examination in October "each year". This was further clarified by the State vide G.O. dated 25.10.1969 for laying down qualifying examination Rules. Clause-I to IV of the said G.O. required holding of annual qualifying examination in October- November every year through U.P. Technical Board in its three or more centres. Candidates were given liberty to qualify one of the three group of examination in one attempt which means three attempts for three group of examination. This means liberty was given to the candidates to pass each of the three groups of papers in one attempt (meaning thereby three attempts to pass for three groups of papers). Similarly, office order dated 01.01.1972 clarified the earlier G.O. dated 25.10.1969 and specifically provided that passing of one group of papers in one attempt would mean that candidates cannot be compelled to pass all the three group of papers in one attempt only.

This court finds that the question before the Hon'ble Supreme Court in the
Diploma Sangh
case was relating to the issue as to whether a "qualifying examination" as prescribed under rule 9(ii) of the old rules of 1936 can be in the form or an interview or in the form of a written examination as envisaged under the rules and the effect of G.O dated 11.02.2003 on the said existing rules. The Hon'ble Apex court while upholding the judgment of this court, wherein the G.O dated 11.02.2003 was quashed, merely directed the state-respondent to conduct the qualifying examination within four months from the date of the order. The Hon'ble Apex Court neither observed nor held that the said qualifying examination was to be a one time affair as has been contended by the Ld. Senior counsels.

(160) Moreover, the department did not hold qualifying examination after the year 1970 and although initially no quota had been fixed for recruitment on the post of Assistant Engineers through promotion, but latter quota was fixed for recruitment on the post of Assistant Engineers through promotion and, therefore, the vacancies which were falling within the promotion quota were to be filled up only by way of promotion but the same could not be filled as the department did not hold qualifying examinations after the year 1970. The Rules
referred to above
, were subjected to various amendments, which led to several round of litigation and ultimately the controversy was set at rest, on 3.11.2006, in
Anjani Kumar Mishra
's case (2007)1 UPLBEC 260, wherein this Court has determined the vacancies of promotion quota from the year 1997-98 till selection year 2003-04.

(161) It is an admitted fact between the parties that written examination was held only once in 2007 and the state without holding any other qualifying examination observed in its office order dated 15.05.2007 that the candidates, who have passed all the three groups of papers, whether in one year or in different groups in different years, would only be considered eligible for promotion. The said conditions apparently seems to be incongruous as it amounts to putting a condition of impossibility because unless three attempts as provided in the Rules to pass three group of papers is not offered to the diploma holder JEs in 2007, 2008 and 2009, it was not open for the respondent authorities, to straight away presume all the Diploma Holder J.Es to be ineligible for promotion, against the promotion quota vacancies under the old Rules of 1936. Thus, the very issuance of three promotion orders in 2008, 2009 and 2010 on the basis of a solitary qualifying examination held in August, 2007, which is evidently in violation of the procedure prescribed for determining eligibility of Diploma Holder J.Es appears to be not as per law. Therefore it is a self-defeating argument of private respondents that for not succeeding in the qualifying examination, the diploma holder JEs have no locus to challenge the 3 illegal promotion orders, especially when adequate opportunity of 3 attempts was not afforded to the Diploma Holder J.Es to qualify the examination under the old Rules of 1936. It would be rather wrong and over reaching to interpret in any manner the lucid judgment passed by the Hon'ble Apex Court in
Diploma Sangh
' case, wherein it has been specifically directed to 'hold the qualifying examination within four months in accordance with the Rules' and it had only changed the agency of the examination i.e. from U.P. Technical Board to U.P.P.S.C. Thus, this court is of the view that except of the holding of the qualifying examination within four months and change in the examining agency, all the remaining procedure of qualifying examination was to be followed, "strictly in accordance with the Rules". The Apex Court had granted four months' time only to conduct the first examination but to pass it in 3 attempts was a legal requirement and it is noteworthy here that by fixing this time limit, the legal requirement of giving three attempts to pass qualifying examination under the Rules was never waived off by Hon'ble Apex order, especially when the order specifically insisted to follow the rules.

(162) Further, this court does not wishes to enter into the arena of allegation regarding any boycott of qualifying examination in August, 2007 by members of Diploma Engineers Sangh or to the factum of as to whether 711 Diploma Holder J.Es had participated in the qualifying examination held from 17 to 19.07.2007 or not. Although, there are allegation and counter-allegations relating to non-participation of Diploma Holder J.Es in the qualifying examination held in August, 2007 due to alleged change in examination centre by the State by suddenly changing the examination centre from Lucknow to Allahabad, wherein only one candidate was able to appear in the forenoon session and seven in the afternoon session. The manner and the way in which this examination was conducted is not far from controversy and the facts apparently speaks for itself.

(163) No doubt, the qualifying examination of 2007 was although marred with controversy, however it was still a qualifying examination. However, the non-conduct of any successive examination by the state-authorities thereafter seems to be absolutely not condonable. There is is no explanation as to how and in what manner 96 promotions could be made on 02.08.2008, only from Degree Holder J.Es and all the Diploma Holder J.Es. could be presumed to be ineligible by not even holding any qualifying examination that year or on the ground that one qualifying examination was conducted in 2007 and all the diploma holder JEs failed in that qualifying examination, leave alone the rules, which prescribed giving them three attempts to pass the examination, especially when the Apex Court has held in diploma
Engineers Sangh
case, that "Qualifying examination' in the context of promotion refers to an examination which when passed, qualifies or makes the candidate eligible for promotion and the purpose of a qualifying examination is not to determine the comparative inter se merit of the candidates. Thus, according to this court, the qualifying examination was not to decide merit for promotion, rather it was meant to be a gateway for the diploma holder JEs to come within the consideration zone for promotion, which as held by the Apex court is a fundamental right of an employee. In any case, the state-respondent in not conducting the said qualifying examination has shut the door for these diploma holder JEs for their rightful consideration, which cannot be permissible as per law and appears to be discriminatory.

(164) Further, the impugned promotion order issued in favour of degree holder JEs only and not providing equal opportunity for diploma holder JEs, so as to enable them to come within the consideration zone of promotion cannot seems to be justified as per law and is in breach of the fundamental rights of the diploma holder JEs to be considered in the promotion quota. Further, the state continued with the said illegality in issuing two more promotion orders dated 03.07.2009 and 05.02.2010 without holding any qualifying examination in 2008 and 2009, which apparently was in violation of the procedure prescribed under the old Service Rules of 1936.

(165) Therefore, the issue does not merely boils down to the issue of determining as to whether "qualifying examination" of August, 2007 provided reasonable and fair opportunity of participation to the Diploma Holder J.Es or not, but the said issue have several rippling effect, including as to whether the action of the Government in issuing the impugned promotion order can be justified in view of firstly not holding any qualifying examination in 35 years i.e.(1972-2007), secondly in creating confusion for all diploma JEs to clear all 3 groups of papers in an attempt and thirdly by creating an evident confusion about examination centre at Lucknow or Allahabad, in violation of statutory prescription. Further, this court cannot be obvious of the fact that the State Government, without holding "annual qualifying examination" in the year 2008, 2009 & 2010, have went on to treat these Diploma Holder J.Es as 'ineligible for promotion' and thus restricted their chance of coming within the consideration zone for promotion, while issuing impugned promotion orders dated 02.08.2008, 03.07.2009 & 05.02.2010.

(166) Further, this court finds that though the criteria of promotion was 'seniority subject to rejection of unfit' under rule 12, even then, by not offering 3 attempts to pass qualifying exam to the diploma holders JEs and while presuming them unfit after one exam only, these senior Diploma holder J.E's, were illegally superseded in the aforesaid promotions, who were placed above the Degree Holder J.E's/private respondents in the seniority lists.

(167) This court finds that specific prayer has been made by the diploma holder JEs that they have not been treated fairly and equal opportunity was not afforded to them to pass the qualifying examination, so as to come within the consideration zone for promotion to the post of Asst. engineers. The petitioners have argued challenging all the three promotional orders passed by the state Government and have prayed for correct determination of vacancies to be filled up by promotion under the old Rules of 1936 and about quashing of unfair qualifying examination, including 03 illegal promotion orders dated 02.08.2008, 03.07.2009 and 05.02.2010.

(168) Thus, in view of the overwhelming circumstances this court is of the view that there was no justification for the State for not holding the 03 successive qualifying exam in 2008, 2009 and 2010, before making 191 promotions from amongst Degree holder JEs only in all these years and arbitrarily presuming all the senior Diploma holder JEs' as ineligible, on the basis of holding only one failed and unfair attempt of qualifying examinations. The diploma holder JEs were wrongly ousted from the consideration zone of promotion. This illegal & arbitrary conduct of the respondent state vitiates all the 3 impugned promotions orders dated 02.08.2008, 03.07.2009 and 05.02.2010.

I. Whether the consideration of "Probationers in service" in terms of rule 21 of the service rules have a bearing to the promotion during the period of 1997-98 to 2003-2004;

(169) Further, it is available from records that impugned orders and requisitions for promotion were also sent for various degree holder JEs, who were appointed as probationers in the said service. One of the contention raised by the diploma holders JEs is that these probationers cannot be held to be in the feeder post for promotion to Asst. Engineers post until and unless their services are confirmed, whereas on the other hand it has been argued by the degree holder JEs that there is no concept of confirmation in the said post as they were always appointed in a substantive post and further confirmation can also be made retrospectively.

(170) This court finds that the eligibility for the post of Junior Engineer is governed by Uttar Pradesh Public Works Department Subordinate Engineering Services, 1951 (in short hereinafter to be referred as '1951 Rules'). Further, rule 3(g) defines 'Member of the Service' and it means a person appointed in substantive capacity under the provisions of these rules. Rule 19 talks about the probation period of two years. Rule 22 provides about the departmental examination which is required to be passed within the prescribed period with condition that if any candidate does not pass the departmental examination within the said period the increment in pay shall be withheld. Rule 23 deals with confirmation and provides that the confirmation after completing a probation period would be subject to passing the departmental examination. Relevant rules reads as under:-

"19. Probation:- A person on appointment in or against a substantive vacancy shall be placed on probation for a period of two years.

Provided that officiating and temporary service, is it is continuous, shall count towards the period of probation to the maximum extent of one year.

22. Department examination- (1) All temporary and officiating overseers must pass the department examination prescribed in the Manual of Orders, Public Works Department, Volume I, within three years of jointing their appointment. If they fail to pass the above examination within the prescribed period their increment in pay shall be withheld. Subject to the orders of the Chief Engineer a stopped increment may be allowed to be drawn when the overseer has passed the examination, with effect from the first day of the month following that in which the examination, with effect from the first day of the month following that in which the examination is held, and the period during which the increment was withheld may also be allowed to be counted for purposes of further the increment in the time-scale. Arrears of increments may also be granted in special cases where failure to pass the examination was due to circumstances beyond the overseer's control.

(2) Candidate appointed to a substantive vacancy shall be required to pass the examination during the period of probation, if they have not already done so.

23. Confirmation- Subject to the provisions of rule, 22 a probationer shall be confirmed in his appointment at the end of his period of probation, or extended period of probation, if the Chief Engineer considers him fit for confirmation and his integrity is certified."

(171) Apparently, a person becomes a member of service when he is appointed in substantive capacity. For being substantively appointed, an incumbent has to at least complete the period of probation and a person who is not substantively appointed cannot be treated to be a member of service. This aspect of the matter has been considered by the Hon'ble Supreme Court in the case of Baleshwar Das and others etc. V/s State of U.P. and others, AIR 1981 SC 41, wherein in paragraph 33 of
the said judgment
, the Apex Court held as under :-

"33.Once we understand 'substantive capacity' in the above sense we may be able to rationalize the situation, if the appointment is to a post and the capacity in which the appointment is made is of indefinite probation, if the Public Service Commission has been consulted and has approved, if the tests prescribed have been taken and passed, if probation has been prescribed and has been approved, one may well say that post was held by the incumbent in a substantial capacity."

(172) In the instant case, perusal of eligibility list reveals that names of certain persons were included, who, undoubtedly, at the relevant time were working on probation and have not become members of service. Thus, this court is unable to accept the submission of the Ld. Sr. Advocate that all the persons who have been appointed against substantive vacancy were fully eligible for promotion even without being confirmed on the post due to their long duration of service or due to post facto effect of confirmation.

(173) The submissions of Shri Dixit, Ld. Senior Counsel that 'confirmation before promotion is not required', is not correct. The reliance on para-7 of the Hon'ble Apex Court judgment of K.K. Khosla Versus State of Haryana, reported in (1990) 2 SCC 304 is also out of context as the same is not applicable to the facts of the present case. The said Judgment of the Hon'ble Apex Court was based on the interpretation of Rule-11 of Haryana Service of Engineers Class-I P.W.D. (Public Health Branch) Rules, 1961, wherein at para-7 of
the said judgment
, it was unambiguously mentioned that "there is "no specific provision in the Rules" requiring completion of probationary period for the purposes of promotion within the service". Infact, requirement of Confirmation is always "rule specific". Thus the aforesaid judgment is not applicable in this case. In contrast to the aforesaid judgment, the old Service Rules of 1936 applicable on the parties clearly required completion of probation before promotion. Rule 5(iv) of the old Rules of 1936 regulating the promotion of A.E. (Civil), specifically provide that recruitment by promotion shall be made of "members of United Provinces Subordinate Engineering Services, who have shown exceptional merit". The "members of Subordinate Engineering Services" have been defined in Rule 3(g) of U.P. Public Works Department Subordinate Engineering Services Rules, 1951, which provides that "member of service means a person appointed in substantive capacity under provisions of these Rules". Further, the definition of the "member of service" as mentioned in Rule 3(g) of Subordinate Engineering Services, i.e. J.E, Service Rules of 1951 is infact pari-materia with the definition of "member of service" mentioned in Rule 3(b) of United Provinces Service of Engineers (Building and Road Branch) Class-II i.e AE Service Rules of 1936 (i.e. A.E. Service Rules of 1936), which provides the same definition of member of service i.e. "Member of Service means Government Servant appointed in the substantive capacity under the provisions of these Rules".

(174) Since the phrase "substantive capacity" has been used in the definition clause of Rule 3(g) of J.E. Service Rules, 1951, which defines "members of united provinces subordinate engineering services", it is clear that a person would become a member of subordinate services only after he is appointed in "substantive capacity" under the said Rules, which in turn means that he becomes members of subordinate services, only after successfully completing the period of probation and after passing the departmental tests prescribed thereof.

(175) In view of the aforesaid facts, it is abundantly clear that only those persons, who have successfully completed the period of probation after completing the requisite formalities/ examination etc., become the members of subordinate engineering service under the J.E, Service Rules 1951 and it is only such J.Es., who can only be considered eligible for promotion to the next higher post of A.E. (Civil), under Rule 5(4) of A.E. Service Rules i.e. old Service Rules of 1936.

(176) In order to further emphasize that confirmation is a must for a candidate to be eligible for promotion as A.E. (Civil), the State Government took a policy decision contained in the G.O. no. 680/EAP/27EA/ 69 of 1969, Clause-2 of the said G.O. clearly provided that passing of qualifying examination, confirmation in service and 07 years of minimum service experience is the minimum eligibility requirement for promotion of a J.E. (Civil) to A.E. (Civil). Though Clause-8 of the said G.O. exempted the Degree Holder J.Es. from the requirement of minimum 07 years of service experience and though amendment of 1943 of old Service Rules of 1936 already granted exemption to Degree Holder J.Es from appearing in qualifying examination but there has never been any provision of law, which gave automatic exemption to Degree Holder J.Es from being 'confirmed in service of J.E, (Civil)', before being placed in the feeder post or getting eligible for promotion as A.E. (Civil). Even the new guidelines dt 08.08.2007 of the rescheduled exam clearly required confirmation in service as one of the eligibility. Therefore the contention regarding non-requirement of confirmation before promotion is wholly unfounded.

(177) Further, this court finds and as is also available from records that the state, after making 27 promotions on 03.07.2009 and declaring 97 more vacancies for promotion vide order dated 05.02.2010, wherein clause 1 to 4 of the same provided that the direct recruits appointed in the meantime shall be adjusted against future vacancies, material prejudice was caused to the direct recruits as well. Since only 10 vacancies were there for promotion under 25% promotion quota of rule 6(1) of the old rules of 1936, against which the respondents had made/ proposed 191 excess promotions during 2008 to 2010, and since the direct recruits do not want these 191 excess promotees to sit over and above them who were appointed through UPPSC of 2007 batch, therefore they had sought impleadment/ interventions in the present bunch of cases as well as filed separate writ petition, as they also have a valid cause of action against private respondents. Apparently, the direct recruits of 2009 batch are actually supporting the cause of the Diploma Engineers Sangh in joining the request for setting aside the aforesaid 03 appointment orders dated 02.08.2008, 03.07.2009 and 05.02.2010 by adding one more ground that the vacancies which are needed to support the aforesaid promotion orders are actually occupied already by the direct recruits of 2009 batch.

(178) It has been argued by Shri Dixit, Ld. Senior Counsel that the exercise being taken by this court in adjudicating these bunch of matters is meaningless as apparently only 84 out of 711 candidates who participated in the qualifying examination are presently working and the rest have superannuated and even this 84 diploma holder JEs have been promoted to Asst. Engineers and as such nothing survives in these petitions. However this court, as has been also rightly argued by Shri Misra, Ld. Senior Counsel that all these 84 working Diploma Holder J.Es, who were denied the benefits of promotion due to the illegal promotions of their juniors having degrees, still have a right to seek promotion as AE w.e.f. the date their juniors/private respondents were promoted and therefore the instant bunch of cases & the cause of present Litigation survives for all the petitioners. Secondly, even if all the 711 Diploma Holder J.Es would have retired, it cannot be presumed that the cause of action does not survive because all the senior Diploma Holder JEs/Members of the Sangh, who have been made to retire while illegally denying promotion as A.E. (Civil), have a legal right of notional promotion from the date their juniors were promoted as A.E, and therefore the present litigation survives. Thirdly, the respondents themselves have admitted that one direction which can possibly be given, is for the respondents to hold fresh qualifying examination. If accepted by the Hon'ble Court, this itself would prove that the impugned promotion orders dated 02.08.2008, 03.07.2009 and 05.02.2010 were held without previously holding a valid qualifying examination under Rule 9(2) of the old Rules and this would suffice for quashing the 03 impugned promotion orders. Therefore the present litigation survives qua the petitioners. Lastly, as against only 10 promotion quota vacancies existing prior to 2004, which were covered under old Rules of 1936, 181 excess promotions (191-10) were made by the respondent authorities, from J.E to A.E. (Civil) but only from Degree Holder JE's, while presuming all the senior Diploma Holder JEs/ Members of the Sangh as ineligible for promotion. Thus junior Degree Holder J.E's were arbitrarily picked up and promoted, while presuming all senior Diploma Holder J.E's, which requires indulgence of this Hon'ble Court.

(179) As far as the argument of Shri Asit Chaturvedi, Ld. Senior counsel relating to applicability of the principles of res judicata, which requires that anything which has been settled between the parties in the earlier rounds of litigations through the judgments of P.D. Agarwal's case, Aruvendra Kumar Garg's case, Vijay Kumar's case,
Diploma Engineer Sangh
's case and the latest judgment dated 21.08.2019, cannot be reopened. This court finds that there is merely an over emphasis on the 'obiters' of the 5 judgments earlier decided by this court and the Hon'ble Apex court with respect to same old 1936 service rules, however as per law, it is the ratio decidendi, which is binding on the parties. As to the distinction between obiter and ratio decidendi, recently the Hon'ble Apex Court vide order dated 24.04.2023 passed in SLP (Civil) No. 7455-74562023 comprising of the bench of Sanjiv Khanna and M.M. Sundresh J.J., has held as herein under:

"....The distinction between obiter dicta and ratio decidendi in a judgment, as a proposition of law, has been examined by several judgments of this Court, but we would like to refer to two, namely, State of Gujarat & Ors. v/s. Utility Users' Welfare Association & Ors. (2018 6 SCC 21 and Jayant Verma & Ors. vs. Union of India & Ors. (2018) 4 SCC 743.
The first judgment in
State of Gujarat
(supra) applies, what is called, "the inversion test" to identify what is ratio decidendi in a judgment. To test whether a particular proposition of law is to be treated as the ratio decidendi of the case, the proposition is to be inversed, i.e. to remove from the text of the judgment as if it did not exist. If the conclusion of the case would still have been the same even without examining the proposition, then it cannot be regarded as the ratio decidendi of the case.

In Jayant Verma (supra), this Court has referred to an earlier decision of this Court in
Dalbir Singh & Ors. vs. State of Punjab
, (1979) 3 SCC 745 to state that it is not the findings of material facts, direct and inferential, but the statements of the principles of law applicable to the legal problems disclosed by the facts, which is the vital element in the decision and operates as a precedent. Even the conclusion does not operate as a precedent, albeit operates as res judicata. Thus, it is not everything said by a Judge when giving judgment that constitutes a precedent. The only thing in a Judge's decision binding as a legal precedent is the principle upon which the case is decided and, for this reason, it is important to analyse a decision and isolate from it the obiter dicta..."

(180) Putting the aforesaid "inversion test" into service, it is apparently available that in P.D. Agarwal's case, the Apex Court while setting aside the 1969 and 1971 amendments (both brought by substitution), had simultaneously directed preparation of fresh seniority list as per the un-amended provisions of the old Service Rules of 1936. Thus pre-1969 Rule position (i.e. upto 1959 amendment rules) was kept intact while interpreting the same rules. Further, in Aruvendra Kumar Garg's case, this Court categorically declared 1969 and 1971 amendments to be "still born laws" and hit by the vice of prohibitive legislation under
Article 13(2)
of the Constitution. Since all the four amendments of 1969, 1971, 1987 and 1997 amendments were voilative of
Article 14
and
and hence in contravention of
Article 13(2)
, therefore they were also declared to be void ab initio. Thus only the aforesaid ratio decidendi passed in Aruvendra Garg's case were the binding precedent and nothing beyond it.

(181) Similarly, in Vijay Kumar's case of 16.07.2004, the State Govt., while relaxing provisions of Rule 9(2) and 5(4) of the old 1936 Rules as they stood prior to 1969, had introduced 'interview', instead of 'written examination', vide office order dated 11.02.2003, as the mode of qualifying examination. This Court, after considering the validity of the office order dated 11.02.2003, passed the judgment dated 16.07.2007, in which it was categorically noted the fact that the State Government had issued the office order dated 11.02.2003, while reviving the provisions of rule 5(4) and while relaxing the provisions of Rule 9(2) of the old Rules of 1936, as they stood prior to 1969. This Court had set aside the Office order dated 11.02.2003 on the ground that a G.O. cannot supersede the provisions of the statutory rules.

(182) Following the Vijay Kumar's case, when in
Diploma Engineer Sangh
's case, the validity of the judgment dated 16.07.2004 passed in Vjay Kumar's case was considered by the Hon'ble Apex Court.
In that case, the Diploma Holder J.Es while relying ATB Mehtab Mazid's case, contended that pre-1969 Rule position would not revive after setting aside of the four amendments. The Degree Holder J.Es argued on the contrary. The Hon'ble Apex Court in para 5 and 7 of the said judgment gave a categorical finding that after setting aside of four amendments from 1969 to 1997 which were void-ab-initio, the Rules of 1936, as they stood before such amendments (including Rule 5(4) and 9(2)) had revived and therefore direction was given for holding of written qualifying examination as per Rule 5(4) and 9(2) of the old Rules.

(183) In
Sri Atibal Singh
's case, when the correctness of the Division Bench judgment dated 20.03.2007 passed in
Diploma Engineers Sangh
's case was referred to the larger/three judges bench vide order dated 24.10.2013, the same was upheld by the larger bench vide its remand order dated 21.08.2019, which had set aside Anjani Kumar's judgment dated 03.11.2006, which had laid down that nothing would revive from pre-1969 rule position after setting aside of four amendments and therefore only the G.O. dated 20.02.2003, providing 41.66% promotion quota shall apply.

Simultaneously it had reiterated and upheld the Division bench judgment dated 20.03.2007 of
Diploma Engineer Sangh
's case, which had provided for revival of old 1936 Rules upto 1959 amendment, after setting aside of four amendments.

(184) The aforesaid two judgments dated 20.03.2007 of the Hon'ble Division Bench and 21.08.2019 of larger Bench were passed actually between the parties and therefore the ratio of the judgment actually constitute res-judicata in true sense. Therefore, by application of principle of res-judicata, all the parties of the said litigation are bound by the law settled by the Hon'ble Apex Court while interpreting the same rules, that after quashing/ setting aside of four amendments of 1969, 1971, 1987 and 1997, the pre-1969 Rule position of the old Rules of 1936 i.e. upto 1959 amendment would revive.

(185) Since the old Rule, 1936 cannot be revived in piece meal but rules in its entirety would be revived, as it existed upto 1959 amendment, therefore, along with Rule 5(4) and 9(2), Rule 6(a) providing for 25% promotion quota would also get revived, which would be legally applied while making any promotion on the post of A.E. (Civil), for any vacancy upto the year 2003-2004, i.e. those existed prior to promulgation of new Service Rules of 2004. Apart from the aforesaid issues, which stand decided by this Hon'ble Court and affirmed by the Hon'ble Apex Court, nothing else can be allowed to be included in these settled issues, while misinterpreting the aforesaid judgments, under the garb of application of principles of res-judicata.

(186) Further, after quashing of the Anjani Kumar's Judgment dated 03.11.2006 (except the portion of the judgment upholding the validity of new Service Rules of 2004, which stands approved in Dilip Kumar Garg's case), by Hon'ble Apex Court's vide remand order dated 21.08.2019, the direction of Anjani Kumar's Judgment regarding application of letter dated 20.02.2003 is no longer applicable. Therefore, the application of promotion quota of 41.66% of the said letter dt 20.02.2003, which is merely a communication between Secretary and E-in-C, is no longer applicable and enforceable, over and above 25% promotion quota prescribed under rule 6(1) of the old rules of 1936, which is now applicable in the matter of promotion of Junior Engineers to the post of Asst. Engineers.

(187) As explained earlier, by application of 25% promotion quota under Rule 6(1)(a) of the old 1936 Rules, there were only 10 promotion quota vacancies which could have been filled up as per old 1936 Rules but against these 10 vacancies, 191 promotions (181 excess promotions) have been made by applying 41.66% promotion quota as per letter dated 20.02.2003. Since only Anjani's judgment directed for application of letter dated 20.02.2003 and quota of 41.66%, and it is already set aside by Hon'ble apex court on 25.08.2019, while reiterating the ratio of Diploma Engineers Sangh's judgment dated 20.03.2007, then the request of private respondents regarding application of 41.66% promotion quota as laid down in letter dated 20.03.2003 (i.e post-Anjani position) cannot be accepted now, otherwise it would amount to upholding the approach of Anjani kumars' case, which stands set aside by Hon'ble apex court and therefore it is impermissible in law.

(188) Thus the effect of setting aside of Anjani Kumar's Judgment dated 03.11.2006 by Hon'ble Apex Court on 21.08.2019 on the rehearing being held by this Hon'ble Court, under the directions contained in the said judgment is that the petitioner's prayer regarding correct determination of promotion quota vacancies under old Rules of 1936 and declaration of the excess vacancies to be filled under new Rules of 2004 has to be considered afresh. Thereafter, if it is found that there were only 10 vacancies existing in promotion quota upto the recruitment year 2003-2004, the same may be adjusted out of 96 private respondents promoted on 02.08.2008 and the impugned promotion order dated 02.08.2008 regarding remaining 86 excess promotees deserve to be quashed.

(189) Thereafter all the remaining excess 105 vacancies illegally determined in promotion quota (27+78) by 2 impugned orders dated 03.07.2009 & 05.02.2010, made by wrongly applying letter dated 20.02.2003 and an incorrect promotion quota of 41.66%, also deserve to be quashed. Thereafter all these excess 181 vacancies deserve to be declared as the New promotion quota vacancies to be filled up under the New Service Rules of 2004.

(190) Before concluding, this court finds that "A stitch in time saves nine", although not a legal maxim but an old adage, fits on all four corners to the dispute engaging the attention of this court in the present bunch of matters. Apparently, promotion for the year 1998-1999 to 2002-2003 to the post of Assistant Engineers (AE) in the Uttar Pradesh Public Works Department, is the centrifugal issue in these petitions, which had been unsettled by the letter dated 20.02.2003. The issuance of the said letter and other cognate letters/Government orders had a rippling effect leading to a swarm of petitions filed on the self-same issue which is under consideration in this bunch of matters. This court finds that this situation could had been avoided by a little care & caution by the state and these Junior Engineers be the Diploma Holders or the Degree Holders, would had been given their fair, rightful & equal opportunities of promotions as envisaged under the provisions of United Provinces Service of Engineers (Buildings and Roads Branch) Class-II Rules 1936.

J. Conclusion

(191) As a sequel to the aforesaid discussions and legal position, this Court arrives at the following conclusion:

(a) The State Authorities are directed to re-determine/re-calculate the number of vacancies accrued for the post of Asst. Engineer in the promotion quota by applying the promotional quota of 25% as is to be found in the old rules, 1936 & in the light of observation made by this court, for the period of 1997-1998 to 2003-2004 by constituting a High level committee as mentioned in the present Judgment;

(b) After the said determination, the state Authorities are directed to hold the qualifying examination as provided under rule 9(ii) of the old rule, 1936 and other ancillary rules and provide equal opportunity to the diploma holder Junior Engineers forthwith, so as to enable them to come within the consideration zone for promotion to Asst. Engineers;

(c) Impugned promotion orders dated 02.08.2008, 3.7.2009 and 5.2.2010 and the consequential orders for promotion and posting as Assistant Engineers are not sustainable, which are hereby quashed.

(d) Any promotion made to the Junior Engineers, otherwise than the aforesaid promotion order 02.08.2008, 3.7.2009 and 5.2.2010 shall remain undisturbed, as this court was only examining the validity of these impugned orders;

(e) The 105 new vacancies (27+78), withheld by the State Govt, in the requisition for promotion sent to the UPPSC for the recruitment year 2013-14, in support of the impugned orders dated 03.07.2009 and 05.02.2010 be released, subject to the re-calculation/re-determination of the promotional quota seats by the High level Committee;

(f) Except for the vacancy seats re-determined/re-calculated by the High level committee for the promotion of Asst. Engineers for vacancies arising during the period of 1997-98 to 2003-04, all the withheld seats may be filled as per the provisions of new Service rules, 2004;

(g) Since, promotions have already been made as per the promotion order dated 02.08.2008, it is hereby directed that until and unless the aforesaid exercise of re-determination and/or re-calculation of the number of promotion quota is not determined by the state government and the list of promotion is not prepared strictly as per the service rules of 1936, these promotees shall continue to work & be posted in their respective position;

(h) The State authorities are directed to undertake aforementioned exercise and complete it within a period of two months from the date of production of certified copy of order passed by this court.

(192) With the aforesaid observations and directions, all the writ petitions stands disposed of finally.

(193) There shall be no order as to cost.

(Om Prakash Shukla, J.)

Order Date : 31st May, 2023

Ajit/-