JUDGMENT Sunil Ambwani, J.
1. The petitioner was appointed on 1.8.1963 as Assistant Cane Protection Inspector (Grade 2) through the selections held by U. P. Public Services Commission on 28.8.1966. He was promoted as Cane Protection Inspector (Grade-1) and Joined at Lakhimpur Kheri. The gradation list did not include the name of petitioner and other promoted officers. One Sri Dina Nath filed a Claim Petition No. 334 (T/111/78) before U. P. Public Services Tribunal at Lucknow challenging the gradation list, prepared in pursuance of Government order dated 25.6.1975 and claimed that the seniority list should be prepared on the basis of date of substantive appointment in the grade.
2. The U. P. Public Services Tribunal by its judgment dated 8.11.1985 found that at the time of their appointments, there were no service rules and set aside the seniority list dated 12.1.1977 prepared on the basis of the date of confirmation and held that the date of original appointment, taking into consideration the continuous offinciation shall be treated to be the basis of determination of seniority. In compliance with the order, a tentative gradation list dated 5.11.1986 was prepared in which on the basis of date of joining the petitioner was placed at Sl. No. 74. The petitioner filed objections for correction of the wrong date of joining. These objections dated 18.11.1986 and other objections were finally decided and a final gradation list was prepared on 4.3.1987 in which the petitioner's name was placed at Sl. No. 35 showing his date of joining as 28.8.1968.
3. This seniority list dated 4.3.1987 was cancelled on 19.3.1988 and that another tentative gradation list was issued on 19.3.1988 showing the petitioner at Sl. No. 36 and on the basis of this list the petitioner along with 8 other persons were promoted as Beej Utpadan Adhikari. District Kheri in Class 2 and was transferred on 5.5.1988 to District Ballia as District Cane Officer, Headquarter Rasra, district Ballia. The petitioner took charge at Rasra district Ballia on 12.5.1988. The gradation list was again cancelled on the ground that Public Services Commission had sent a list of approved officers on the basis of Rule 21 (1), (2) and (3) of U. P. Subordinate Cane (Grade-1 and II (General) Services Rules, 1979. Once again objections were filed by the petitioner and other officers on the basis of the order issued by the U. P. Public Services Tribunal, which had become final and that the officers were promoted on the basis of gradation list dated 1.8.1988 and were in service for 23 years, for preparation of the gradation list on the basis of date of joining.
4. It is contended that without deciding the objections, filed by the petitioner and other officers, another gradation list dated 30.9.1988 was issued.
5. Counsel for petitioner has challenged the order dated 6.5.1989 (Annexure-11 to the writ petition) by which he along with 11 other persons have been reverted on the basis of the determination of their seniority vide seniority list dated 30.9.1988 by which the petitioner and other officers mentioned in the order had become juniors in the Subordinate Sugarcane Service Grade-1 and some other officers were not found fit for regular selections in Subordinate Sugarcane Services Grade-A (General). The petitioners have also challenged the orders by which they were appointed as Senior Cane Development Inspector in pursuance of the reversion order.
6. A counter-affidavit of Sri H. B. Singh, Senior Assistant in the office of Cane Commissioner, U. P. at Lucknow was filed on 23.10.1991 defending the seniority list dated 30.9.1988. It is stated that there were two types of candidates. The first set is of the directly appointed candidates after approval from Public Services Commission and their seniority was determined in accordance with order of the Public Services Commission. The other set of persons is those who claims seniority on the basis of promotion. At the relevant point of time there were 59 posts for direct recruitment and another 59 posts for promotees. The earlier seniority list dated 4.3. 1987 required consideration afresh in view of the decision in J. P. Doual's case and thus a fresh and final list dated 30.9.1988 was prepared. As against 59 posts 178 incumbents were promoted on ad hoc basis, in view of the wages claims as well as Sugar Mill incumbent sent on deputation. This promotion was made purely on ad hoc basis subject to regular promotion after the approval from the Public Service Commission.
7. U. P. Subordinate Cane Service (Grade-1 and II) (General) Rules, 1979, regulate the service conditions of all these employees. According to the order of. the Tribunal in Dina Nath's case decided on 7.11.1985 the gradation list of Grade-11 officers was prepared from the date of their continuous officiation. At that time no one was available in Grade-1 from amongst the promotional quota and the gradation list dated 5.11.1986 was not prepared in accordance with the G.P. Doual's case and that none of promotees from Grade-11 had become member of service of Grade-1 and as such these persons could not be inducted in the list of Grade-1 officers.
8. It is stated in para 27 of the counter-affidavit, that the petitioner and other persons did not come in the field of eligibility, for regular selections by promotion from Grade-11 to Grade-1, from the seniority list prepared in accordance with the order of U. P. Public Services Tribunal dated 8.11.1985, based on the principles of date of continuous officiation. The petitioner was appointed in Grade-11 on 1.8.1963 whereas the persons shown in the list as senior to the petitioners were all appointed before the appointment of the petitioner.
9. I have heard Sri B. K. S. Raghuvanshi, for petitioner and learned standing counsel for respondents.
10. The petitioner has not impleaded the persons who are likely to be affected by the order passed by this Court in order of determination of the seniority falling which no relief can be granted in the writ petition.
11. This writ petition was filed in the year 1989. The substance of the objection of the petitioner is that the seniority list was prepared in terms of the decision of U. P. Public Services Tribunal, Lucknow. According to him, the seniority list was prepared on 4.3.1987 and 19.3.1988 respectively on the basis of date of substantive appointment. In the third seniority list dated 1.8.1988 the basis of determination of seniority was changed giving benefits to those persons who were appointed by direct recruitment through the U. P. Public Service Commission. The petitioner has challenged the basis of revising the seniority list. In the office Memorandum dated 1.8.1988, it is stated that the seniority list has been revised on the availability of selected and approved candidates from U. P. Public Service Commission. Counsel for petitioner states that after 19.3.1988 no one was appointed by direct recruitment and that only the promotions were approved by the Commission which could have disturbed the seniority list. There was no service rules applicable in the department prior to 1979 and thus the determination of seniority prior to the rules was made on the basis of continuous officiating. The service rules was not likely to affect those persons who were continuously working in the department before the enforcement of the Rules of 1979. The petitioner was in service for 22 years and thus it is contended that it was incumbent upon the department to obtain approval to his promotion within one year.
12. Rule 21 of the Rules of 1979 provides for fixation of seniority and is quoted as below :
"21. Seniority.-(1) Except as provided for hereinunder seniority in each class of post will be determined by the date of order of substantive appointment and where more than one person are appointed together, by the order in which their names are arranged in the said order.
(2) The relative seniority among themselves of direct recruits shall be the same as the order of merit determined by the Commission at the time of their selection.
(3) The inter se seniority of persons appointed by promotion shall be the same as it was in the substantive post held by them at the time of promotion.
Note.-(1) Where the appointment order specifies as particular back date with effect from which a person is to be appointed substantively that date will be deemed to be the date of order of substantive appointment. In other cases it will mean the date of issue of the order.
(2) If any direct recruit takes usually long time in joining without any reasonable cause, he may be placed below others in the gradation list after obtaining the approval of the Commission."
13. Under these rules the seniority in each class of post is to be determined by the date of order of substantive appointment and the relevant seniority amongst direct recruits shall be the same as the order of merit determined by the Commission. Sub-rule (3) provides that the inter sc seniority of persons appointed by promotion shall be the same as it was in the substantive post held by them at the time of promotion.
14. The petitioner was not holding a-substantive post in Subordinate Cane Services Grade-1 (General). His promotion was made purely on ad hoc basis on temporary arrangement. The petitioner's alleged promotion dated 28.6.1966 was not approved by the U. P. Public Services Commission and until the approval, the petitioner cannot be said to have been substantively appointed in Grade-1. He was, therefore, not entitled for placement in the seniority list of Grade-1 officers. Rule 5 (1) (A) (i) provides promotion to Grade-1 (General) based by promotion through the Commission on the basis of seniority subject to rejection of unfit from amongst the permanent incumbents of Grade-11 posts. The petitioner as such can only claim seniority in the grade after he was substantively appointed in Grade-1 post on his promotion through the Commission. The ad hoc promotion cannot give him substantive appointment by promotion of Grade-1 post.
15. There is another major defect in the writ petition. The petitioner has not challenged the seniority list dated 30.9.1988 by which his seniority was determined on the basis of which he was reverted from the primary post under the J. P. Cane (Gazetted) Services Rules, 1979, to Grade-1 (General) post regulated by U. P. Subordinate Cane (Grade-1 and II) (General) Services Rules of 1979.
16. The writ petition is consequently dismissed both on the ground of falling to challenge the seniority list and impleading all those persons who are likely going to be affected by the orders to be passed in this writ petitions, as well as on merits. There shall be no order as to costs.