JUDGMENT 1. (Oral) - The petitioner is at present working as Assistant Engineer in the Rajasthan State Electricity Board respondent No.1. The petitioner has challenged the seniority of respondent's Nos. 2 to 7 issued by the respondent No. 1 by its order dated September 1, 1970 which shows the final Seniority of Assistant Engineers as on 31.12.1967. 2. Section 5 of the Electricity (Supply) Act, 1949 empowers the State Government to constitute a State Electricity Board. By virtue of that power the State Government issued a notification dated 1.4.57 constituting the Rajasthan State Electricity Board. The Board by its resolution No. 40 resolved that the Rajasthan State Service Rules as in force at the time of the formation of the Board namely the first July, 1957 and any amendments there to from time to time, be adopted by the Board and be deemed to have been adopted by the Board with effect from the 1st July, 1957 except in so far as any such Rules or Regulation are or were altered or amended by the Board in which case the Rules as amended or modified by the Board would apply. By a subsequent resolution No. 41 passed on 26.12.1959 it was resolved that the resolution No. 40 would be subject to the modification that the words reference to the Government or the Public Service Commission; in such rules would mean the Rajasthan State Electricity Board. It was also resolved there in that these Rules, Regulations & delegation will be subject to modification in so far as any Rules. Regulation or delegations are modified by the Board in which case the Rules, Regulations or Delegation so amended or modified by the Board would apply and would be deemed to have applied with effect from the date of such amendment or modification. 3. By virtue of decision of the Board the Rajasthan Service of Engineers (Electrical and Mechanical Branch) Rules 1954 (hereinafter referred to as 'the Rules 1954') govern the conditions of services of the petitioner and the respondents No. 2 to 7. The petitioner was appointed as Junior Engineer by an order dated 8.7.61 and joined the same on 17.7.61. The next promotion from the post of Junior Engineer is to that of Assistant Engineer. Such posts are to be filed partly by promotion and partly by direct recruitment. The petitioner was appointed as Junior Engineer by an order dated 8.7.61 and joined the same on 17.7.61. The next promotion from the post of Junior Engineer is to that of Assistant Engineer. Such posts are to be filed partly by promotion and partly by direct recruitment. The procedure provides for a list to be prepared by the Chief Engineer and the same to be considered by the Committee consisting of various officers who shall consider the list and after arranging the list in the order of seniority send the same to the Board. Rule 24(6) of the 1954 Rules provides that the final selection shall be made by the Board and a list of candidate considered suitable for promotion shall be arranged in order of their seniority as Engineering Subordinates. I may make it clear that Engineering Subordinates include a Junior Engineer. Rule 28 of the aforesaid Rules provides for seniority and says that seniority shall be determined by the date of the order of appointment to the grade concerned. The petitioner was in due course promoted as an Assistant Engineer under Rule 24 and his date of appointment is 21.9.62 as mentioned in the impugned seniority list. The respondents Nos. 3 to 6 were appointed as Junior Engineer on 21.8.1957. In due course the respondents Nos. 3 to 6 have also been appointed by promotion as Assistant Engineers. The date of their appointment as Assistant Engineers given in the impugned seniority list for respondents 3 to 5 is 22.9.62 while the date of the respondent No. 6 is 21.9.62. The petitioner's first grievance is that under Rule 29(i) the seniority is to be determined by the date of the order of appointment, the petitioner, whose date of appointment is 21.9.61 is senior to the respondent No. 3 to 5. It is not clear how the date of the respondent 3 to 5 is mentioned as 22.9.62 while that of the petitioner and respondents 6 is mentioned as 21.9.62 when all of them including respondent no. 6 were selected in pursuance of the decision of the Board at its 64th meeting held on 20th January, 1965. So if on the basis that as the petitioner and respondent no. 6 were selected in pursuance of the decision of the Board at its 64th meeting held on 20th January, 1965. So if on the basis that as the petitioner and respondent no. 3 to 6 must be declared to have been appointed by the same order, their seniority will be determined by Rule 28(4) of the rules which provides that the seniority inter se of persons appointed by promotion to a particular class of posts of the same date shall be the same as in the next below grade except in case of continued officiation on higher posts when it shall be in accordance with the length of such continued officiation provided that such officiation was not ad hoc or fortuitous. If rules 28(4) is applicable it is not disputed that the petitioner is junior in next below grade of Junior Engineer to the respondent no. 3 to 6 as he was appointed as Junior Engineer no. 8.7.61 while the respondents 3 to 6 were appointed as Junior Engineers on 21.8.57. It may be noted that the date of appointment mentioned in the seniority list of petitioner and respondent no. 6 is same i.e. 21.9.62 and in terms of this rule the petitioner must rank Junior to respondent no. 6. 4. As regards respondents no. 3 to 5, even if we take their date of appointment as 22.9.62 against that of the petitioner as 21.9.62 it does not avail the petitioner. The reason is that the Board at its 77th meeting held on 9th May, 1960 laid down the principles for determining the seniority of the officers appointed by the Board. One of the principles laid down therein says, that the inter se seniority of persons who were promoted from the posts of Junior Engineer/Engineering Subordinate by the Chief Engineer or the Board later on approved by the Screening Committee should be determined on the basis of their seniority in the lower cadre. It is not disputed that if this principle is applied to the case of the petitioner and the respondents 3 to 5 the petitioner will undoubtedly rank junior to the respondent No. 3 to 5 because they were appointed as Junior Engineers in 1957 whereas the petitioner was appointed as Junior Engineer in the year 1961. Mr. It is not disputed that if this principle is applied to the case of the petitioner and the respondents 3 to 5 the petitioner will undoubtedly rank junior to the respondent No. 3 to 5 because they were appointed as Junior Engineers in 1957 whereas the petitioner was appointed as Junior Engineer in the year 1961. Mr. Mridul however raises an objection that as Rule 28(4) provides for the seniority to be determined by the date of order of the appointment as Assistant Engineer the petitioner must rank senior because the date of appointment of the petitioner is mentioned in the impugned seniority list as 21.9.62 whereas the date of the appointment of the respondents as Assistant Engineers is mentioned as 22.9.62. Mr. Mridul says that the Rules must prevail over any decision taken by the Board. The underlying assumption in this argument seems to be as if applicability of the 1954 rules has statutory force and the principles laid down by Board on 9.5.66 cannot modify them. But his assumption is not correct. No doubt so far the 1954 rules are concerned they having been framed under Article 309 cannot be modified by the Government without framing a rule. But that assumption is correct so far as the applicability to the Government servants is concerned. But so far as the Board is concerned the 1954 Rules are only applicable because they have been adopted by the Board by the Resolution No. 40. In the absence of the adoption by Board, the 1954 Rules will not apply to the employees of the Board like the petitioner. The argument by Mr. Mridul misses the vital point that the Rules have not been framed by any statute but that have been adopted by the decision of the Board itself. The Board has however laid down by resolution No. 41 that these rules which have been incorporated by resolution No. 40 will be subject to the modification so far as they are altered or modified by the Board and in that case the Rules as amended or modified are to apply. It is apparent that the Board which had competency to modify the Rules when it laid down on 9.5.66 the principles for determining the inter se seniority of its officers. It is apparent that the Board which had competency to modify the Rules when it laid down on 9.5.66 the principles for determining the inter se seniority of its officers. The source of authority for the applicability of the Rules as well as the principles for determining seniority is the same, namely the Board. There is no logic in suggesting that the rules which also derive their potency by the decision of the Board, are applicable but not the principles of 9.5.66, also laid down by the Board. Now under the 1954 Rules there is no specific R dealing with the case of the Junior Engineers promoted as Assistant Engineers. This lacuna was filled in by the Board when it decided the principles at its meeting held on 9.5.66 for fixing the seniority of Assistant Engineers. There is no bar on the Board to supplement or modify the said Rules by its subsequent resolution because the sanctity of the Rules is not derived from legislature or statutory authority but it derived its strength from the decision of the Board itself. The principles laid down on 9.5.66 by the B and must be read as supplementing the 1954 rules. It has been held in Sant Ram Sharma v. State of Rajasthan and others AIR 1967 Supreme Court 1910 that : "It is true that there is no specific provision in the Rules laying down the principles of promotion of junior or senior grade officers to the selection grade posts. But that does not mean that till statutory rules are framed in this behalf the Govt. cannot issue administrative instructions regarding the principle to be followed in promotions of the officers concerned to the selection grade posts. It is true that the Govt. cannot amend or supersede statutory Rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed." It is manifest that the case of the petitioners and respondent 3 to 5 has to be determined by applying the principles laid down in the decision of the Board on 9.5.66 and once these are applied it admits of no dispute that the petitioner is junior to the respondents no. 3 to 6. 5. 3 to 6. 5. With regard to claim of seniority against the respondents No. 7 the position is that he was as an Assistant Electrical Inspector under the Government of Rajasthan. The post of Assistant Engineer was advertised by the Board and he was selected as an Assistant Engineer on 19.12.1962 and joined the same on 18.1.1963. It appears that the respondent No. 7 who had worked as Assistant Electrical Inspector under the Government represented that the services rendered by him under the Government should be considered as rendered under the Board presumably on the basis that the work of both the places is more or less similar in nature. Whatever the reason may be, the Board by its order August 4, 1970 in relaxation of the R. decided that the continued services rendered by the respondent No. 7 as Assistant Electrical Inspector in the Government may also be counted in the Board like the employees of the erstwhile Electrical and Mechanical Department and he may be given all the benefits that may accrue on this account. The Board later on wanted to go back on its resolution and the respondent allowed on 7.7.75 and a direction was given that the respondent Board will not disturb the seniority of the petitioner except in accordance with law and observations made in that judgement. The respondent No.1 considered the matter afresh and by its order dated 10.2.76 decided to maintain status-quo with regard to the seniority already assigned to the respondent No. 7 in its earlier order dated 4.8.70. The position thus is that the respondent no. 7 has been given the benefit of the services rendered by him as Assistant Electrical Inspector and is deemed to be have been appointed as Assistant Engineer on 5.4.61. Mr. Mridul however sought to urge that respondent no. 7 must be considered to have been appointed by the direct recruitment and his seniority should be counted from 18.1.63 i.e. from the date of his appointment by virtue of Rule 28. This argument however ignores that the Board has given to respondent no. 78 the benefit of the services rendered by him under the Government and that date make his date of appointment as 5.4.61 earlier to that of the petitioner, and the later therefore must rank junior to be respondent no. 7. 6. That leaves the case of the respondent no. 2. 78 the benefit of the services rendered by him under the Government and that date make his date of appointment as 5.4.61 earlier to that of the petitioner, and the later therefore must rank junior to be respondent no. 7. 6. That leaves the case of the respondent no. 2. Against the respondent No. 2 his date of joining as Assistant Engineer is mentioned as 17.7.62. Prima facie it appears that the date of order of appointment to post of Assistant Engineer is earlier to mentioned to petitioner's namely 21.9.62, and, therefore, he should rank senior to him. The petitioner's first grievance is that his date of appointment as Assistant Engineer should have been given as 17.7.72 on the ground that a Junior Engineer after one year is entitled to be appointed as Assistant Engineer on and from the said date. But as the petitioner was not working on that date nor given any promotion on that date by the Board, he can't claim to have his date of appointment taken from that date. The reason mentioned for fixing the seniority of the respondent No. 2 as far 23.7.62 was said to be that he was working on that post temporarily with effect from 23.7.62 when the petitioner at that time was only working as Junior Engineer and, therefore, he cannot rank senior to the respondent No. 2. Now the petitioner as well as the respondent respondent no. 2 were selected by the same Screening Committee as is clear from the Board's order Ex. 2. The grievance of the petitioner is that both of them were selected by the same Screening Committee, the date 23.7.62 as the date of appointment of the respondent No. 2 is not understandable. Mr. Gupta, appearing for the respondents tried to justify the fixation of 23.7.62 as the date, when the respondent No. 2 was appointed to work against a vacant post of Assistant Engineer with effect from 23.7.62. But it is, to he noted that the said order appointing the respondent No. 2 stated that he was being appointed officiating (on purely temporary basis) for four months. Nothing has been stated in the reply by the Bord as to how and under what circumstances this appointment from 23.7.62 will enable respondent no. 2 to claim seniority when the petitioner and he were selected by the same Screening Committee. Nothing has been stated in the reply by the Bord as to how and under what circumstances this appointment from 23.7.62 will enable respondent no. 2 to claim seniority when the petitioner and he were selected by the same Screening Committee. I cannot say that this appointment is necessarily irrelevant but the difficulty is that as no explanation has been given in this regard it is difficult to give a finding. It should also be noted that Rule 28(4) provides that in case of persons appointed by promotion on the same date, the seniority will be the same as in the next below grade except in the case of continued officiation on higher posts provided that such officiation was not ad hoc or fortuitous. In the absence of any material on record it not be said whether that appointment was ad hoc or fortuitous and in what manner it will count for seniority. Also so far as the date of appointments of the petitioner and the respondent no. 2 as Junior Engineers is concerned it is mentioned as 8.7.61. Mr. Mridul, however, takes the plea that as the petitioner joined on 17.7.61 and the respondent No. 2 joined on 22.7.61, the petitioner should be treated senior. Mr. Gupta however counters it by contending that the principle applicable for determining seniority will be laid down in the Board meeting on 9.5.66. He refers to para 2 (a) which sways that if more than one persons are promoted as Assistant Engineers on the same date their Seniority in the Lower Cadre will be taken into account irrespective of their date of joining as Assistant Engineer and also refers to para 3 which says that in case of direct appointment, if no order of preference has been given by the Selection Committee the seniority inter se shall be according to the date of birth, and urged that if this criteria of date of birth was applied, the respondent no. 2 will rank senior to the petitioner. Whether this rule of date of birth will apply in the case of promotees has not been examined by the Board and in its absence it cannot be determined by this Court. 2 will rank senior to the petitioner. Whether this rule of date of birth will apply in the case of promotees has not been examined by the Board and in its absence it cannot be determined by this Court. In these circumstances it seems to me just and proper to issue a mandamus to the respondent Board to determine and pass a fresh order with regard to the respondent Board to determine and pass a fresh order with regard to the inter se seniority of the petitioner and the respondent no. 2. The same will however be done after giving proper opportunity to the petitioner and the respondent no. 2. The Board may, therefore, fix the inter se seniority of the petitioner and the respondent no. 2 as under the rules and according to law. The claim of the petitioner for seniority against respondents 3 to 6 however fails and is dismissed. 7. The petition is therefore dismissed excepting with regard to the respondent no. 2 to the extent mentioned above. As there is divided success, there will be no order as to costs. *******