JUDGMENT Kamleshwar Nath, J. - This petition under Article 226 of the Constitution of India is for issue of writ of certiorari to quash orders dated 25.6.83, Annexures - 33 and 34, order dated 29.6.83, Annexure - 35, order dated 14.3.83, Annexure - 29 passed by the Vice-chancellor of the Lucknow University, opposite party No. 3, as also resolution dated 9.3.83 of the Executive Council of the University. Mandamus is also sought for implementation of report dated 12.5.82, Annexure - 22 and for confirmation of the petitioner on the post of Superintendent of the Central Accounts Officer of the Lucknow University with effect from 1.3.80. 2. The dispute principally concerns the position of the petitioner Harish Chandra Saxena who is working as Superintendent, Central Accounts Office of the Lucknow University as against opposite party No. 6 R. S. Gupta who has been appointed to be a Superintendent but senior to the petitioner. 3. Counter-affidavits have been filed on behalf of the opposite parties; there is also the petitioner's rejoinder. 4. The post in the Central Accounts Office, in the ascending order of ranking consist of Routine Grade Clerk, Junior Assistant, Senior Assistant, Assistant Superintendent, Internal Auditor, Superintendent and Accountant. The post of the Assistant Registrar of the University is a still higher post. 5. The Executive Counsel, being the Principal Executive Body of the University, of which the Vice-chancellor is a member, is the appointing authority in view of Section 21 (1) (vii) of the U.P. Universities (Re - enactment and Amendment) Act 29 of 1974, but the Vice-chancellor may take decision in matters of urgent nature requiring immediate action including making appointments which have to be reported to the Executive Council for final orders; the Executive Council also acts as an appellate authority of the Vice-chancellor in such matters vide Sections 13 (6) and 13 (8) of the Act. The Finance Officer has disciplinary control over the employees of the Audit and Accounts Section under the 1st Statute of the University. 6. The University did not have Service Rules for its employees. The Executive Council took a decision on 9.4.74 that pending formulation of Rules, the Service Rules applicable to the State Government employees would apply to the employees of the University subject to the resolutions that may be passed by the Executive Council from time to time. The above situation is not disputed by the parties. 7. The Executive Council took a decision on 9.4.74 that pending formulation of Rules, the Service Rules applicable to the State Government employees would apply to the employees of the University subject to the resolutions that may be passed by the Executive Council from time to time. The above situation is not disputed by the parties. 7. The petitioner Harish Chandra Saxena was appointed as a Routine Grade Clerk on 2.4.56 in the Radiology Department and was transferred to the Central Accounts Office on 2.5.1960. He was appointed as Junior Assistant on 3.5.60. He worked as Senior Assistant on a temporary basis since 1963 and was promoted substantively as such on 1.6.67 by a decision dated 28.10.67 of the Executive Council contained in Annexure - 1. 8. Opposite party No. 6 R.S. Gupta was appointed as Routine Grade Clerk on 20.12.56, was promoted as Junior Assistant in 1958 and was posted substantively as Senior Assistant on 1.6.67 by the above mentioned decision dated 28.10.67, Annexure - 1 in which his name was placed immediately below the petitioner. 9. The petitioner's case is that while on account of his having worked on the post of Senior Assistant on temporary basis from 1963, he was considered to be senior to the opposite party No. 6 and therefore was placed immediately above the latter in Annexure - 1, the case of opposite party No. 6 is that the placement in Annexure - 1 is not based on seniority or on merit and that while opposite party No. 6 was confirmed as Senior Assistant on 1.6.67, the petitioner was confirmed as such on 1.6.68. Reliance for this result was placed on a list, Annexure A - 2 dated 26.12.68 which according to the opposite party No. 6 sets out the inter se seniority of the ministerial establishment of the University; in this list the name, of the petitioner is placed just below the name of opposite party No. 6. The petitioner's reply in the rejoinder is a denial of this claim with a further statement that Annexure A - 2 is not the seniority list but was only a list of the employees of various categories for the purposes of placement in different pay scales, as revised by the Second Pay Commission. 10. The petitioner's reply in the rejoinder is a denial of this claim with a further statement that Annexure A - 2 is not the seniority list but was only a list of the employees of various categories for the purposes of placement in different pay scales, as revised by the Second Pay Commission. 10. A Departmental Promotion and Screening Committee constituted by the Executive Council considered the question of promotion to the post of Assistant Superintendent in a temporary vacancy available on long term basis on a Note of the Finance Officer and recommended on 30.4,76 the petitioner to be promoted therefore and recorded that opposite party No. 6 was not found fit for promotion, vide Annexure - 3. This recommendation alongwith the Note of the Finance Officer, who pointed out the consequential supersession of opposite party No.6, was placed before the Vice Chancellor who passed the order dated 21.5.76, Annexure - 4 promoting the petitioner to the post of Assistant Superintendent; the formal appointment order, Annexure - 5 was issued on 24.5.76 in favour of the petitioner on the temporary post of Assistant Superintendent vice K.S. Bajpai. It is admitted by the opposite parties that the recommendation was in respect of the temporary vacancy created by the promotion of K.S. Bajpai, but it was contended that the Departmental Promotion and Screening Committee did not held any interview, gave no reason for holding opposite party No. 6 to be unfit and that the decision appointing the petitioner and superseding the opposite party No. 6 was arbitrary. It is further urged that the recommendation was not placed before the Executive Council and the appointment was made without the prior approval of the Executive Council. Emphasis was laid upon the meeting dated 29.8.76 by the Selection Committee which recommended the appointment of opposite party No. 6 on a newly created additional post of Assistant Superintendent. The recommendation of the Screening Committee, Annexure - 3 (30.4.76) followed by Vice-chancellors order dated 21.5.76, (Annexure - 4) and of tire Selection Committee dated 29.8.76 were both considered by the Executive Council on 30.8.76 and both were accepted, in consequence of which opposite party No. 6 was appointed as Assistant Superintendent with effect from 1.9.76. 11. The recommendation of the Screening Committee, Annexure - 3 (30.4.76) followed by Vice-chancellors order dated 21.5.76, (Annexure - 4) and of tire Selection Committee dated 29.8.76 were both considered by the Executive Council on 30.8.76 and both were accepted, in consequence of which opposite party No. 6 was appointed as Assistant Superintendent with effect from 1.9.76. 11. The petitioners case is that in consequence of the decision of the Executive Council on 30,8.76 not only the petitioner's initial order of appointment on the post of Assistant Superintendent with effect from 24.5.76 was approved but also the appointment - of the opposite party No. 6 as Assistant Superintendent became effective from 1.9.76 and in this view of the matter the petitioner was senior to opposite party No. 6 - The contention of the opposite parties is that since the Approval, of the Executive Council to the 2 recommendations was made for the first time on 30,8.76, the petitioner could not get benefit of his prior appointment since 24.5.76. 12. On 3.9.77 the Executive Council took a decision to fill all higher posts in the ministerial cadre (which includes the Central Accounts Officer) on the principle of seniority-cum-merit vide Annexure - 8. The Screening Committee constituted for the purpose, examined the question of confirmation of the petitioner and opposite party No. 6 in its meeting dated 9.1.78. The Screening Committee recommended confirmation of the petitioner on the post of Assistant Superintendent with effect from 24.5.77 (presumably on expiry of one year's period of probation) but refused to recommend the confirmation of opposite party No. 6 with the observation that the opposite party No. 6 had been superseded earlier and had failed to show his worth when given a chance. Even so, the Screening Committee recommended that opposite party No. 6 may be placed on probation on a post of Assistant Superintendent with effect from 6.12.77, the date on which Sri S.P. Mittal, Assistant Superintendent retired. this is Annexure - 6. In pursuance of the recommendations of the Screening Committee, the Vice-chancellor passed an order dated 27.1.78 contained in Appendix - G of Annexure - 7 confirming the petitioner with effect from 24.5.77; he did not pass any order confirming opposite party No. 6 in view of the comments of the Screening Committee. this is Annexure - 6. In pursuance of the recommendations of the Screening Committee, the Vice-chancellor passed an order dated 27.1.78 contained in Appendix - G of Annexure - 7 confirming the petitioner with effect from 24.5.77; he did not pass any order confirming opposite party No. 6 in view of the comments of the Screening Committee. The Vice-chancellor's order of confirmation and promotion of the petitioner as aforesaid was approved by the Executive Council in its meeting dated 30. 6. 78, vide Annexure - 7. 13. According to the opposite parties, the criterion of seniority-cum-merit (vide Annexure - 8) was reconsidered on the representation of the Karamchari Sangh of the University who had made a number of demands. The Vice-chancellor took a decision on 19.1.78 (vide Annexure A - 4), on the representation of the Karamchari Sangh, to fill up the higher posts in the ministerial cadre on the basis of seniority of 1968 (purporting to be indicated by Annexure A - 2) which decision was approved by the Executive Council on 29.5.78. The petitioner's case is that the Vice-chancellor's decision dated 19.1.78 on the representation of the Karamchari Sangh is irrelevant and that the decision of the Executive Council dated 29.5.78 did not alter or affect the Executive Council's decision dated 3.9.77. It is also pointed out that despite the so called decision dated 29.5.78 of the Executive Council, the confirmation of the petitioner with effect from 24.5.77 had been approved by the Executive Council in a still later meeting, i.e. 30.6.78, Annexure - 7, hence in any view of the matter, the petitioner stood confirmed on the post of Assistant Superintendent with effect from 24.5.77 while the confirmation of opposite party No. 6 come much later and, therefore, the petitioner was senior to opposite party No. 6. 14. It is however, urged by the opposite parties that the recommendation dated 9.1.78 of the Screening Committee, (Annexure - 6) was erroneous because it considered un - communicated entries in the character roll of opposite party No. 6 for the years 1975 - 76 and 1976 - 77, and that the supersession of opposite party No. 6 by the Departmental Promotion and, Screening Committee dated 30.4.76 (Annexure - 3) was without basis. It is pointed out that after all the appointment of opposite party No. 6 to the post of Assistant Superintendent was approved by the Screening Committee on 29.8.76 which fact was not considered by the Screening Committee in the meeting dated 9.1.78. It was also urged that the Screening Committee was concerned only with the appointment on the post of Assistant Superintendent in substantive capacity and not with confirmation, and had recommended the appointment of both the petitioner and opposite party No. 6 in substantive capacity, but went a step further by confirming the petitioner and by placing opposite party No. 6 on probation with effect from 6.12.77. It was said that the opposite party No. 6 made a representation to the Vice-chancellor who directed that till the matter of communication of adverse entries of opposite party No. 6 was clarified, the recommendation of the Screening Committee would be kept pending. This decision of the Vice-chancellor was marked by him by sidelining a portion of the recommendation of the Screening Committee as 'A', and the order was passed on 25.1.78 allegedly apparent from Annexure A - 3. The petitioner's case in this regard (vide para 16 of the rejoinder - affidavit) is that Annexure A - 3 does not contain any side - lined portion, that only that portion of the Screening Committee's recommendation was side - lined 'A' which concerned opposite party No. 6, while die Vice-chancellor approved all other recommendations, with the result that the recommendation with regard to the petitioner remained unaffected and that what was kept pending, was the recommendations regarding R. S. Gupta personally. 15. The petitioner further said that in spite of his being senior and being a confirmed Assistant Superintendent with effect from 24.5.77, and the opposite party being not confirmed at all on the post of Assistant Superintendent, the Vice-chancellor wrongfully appointed the opposite party No. 6 to be the Superintendent (in the scale of 450 - 700) and the petitioner to be Internal Auditor (in the scale of 350 - 700) by order dated 5.2.79, Annexure - 10 (followed by the formal order dated 8.2.79, Annexure - 11). The petitioner then filed writ petition No. 3531 of 1980 in this Court against the present opposite parties, including opposite party No. 6, which was allowed by a Division Bench by judgment dated 18.5.81 (Annexure - 12). The petitioner then filed writ petition No. 3531 of 1980 in this Court against the present opposite parties, including opposite party No. 6, which was allowed by a Division Bench by judgment dated 18.5.81 (Annexure - 12). According to that judgment, on the facts as stood at that lime, the petitioner was held to have been a confirmed Assistant Superintendent while opposite party No. 6 was not either on the date of the impugned order dated 5.2.79 (and its formal order dated 8.2.79) or till the dale of the judgment. The Court found that whatever might have been the merits of the representation of opposite party No. 6, the petitioner was senior to opposite party No. 6 till then, that the mere pendency of the representation of opposite party No. 6 did not wipe off the seniority of the petitioner, that there could be no question of any unconfirmed Assistant Superintendent to be treated as senior to a confirmed Assistant Superintendent, that the decision of the Vice-chancellor appointing opposite party No.6 on the still higher post of Superintendent while appointing the petitioner on the lower post of Internal Auditor was wholly arbitrary and that the Executive Council as the appointing authority, being also the appellate authority of the Vice-chancellor, had already taken certain decisions in favour of the petitioner and, therefore, it was not open to the Vice-chancellor to reverse the decision of his own, without reference to the Executive Council. In the result, the writ petition was allowed, the order dated 5.2.79, Annexure - 10 and its formal order dated 8.2.79, Annexure - 11 appointing opposite party No. 6 as Superintendent were quashed with direction that the competent authority would lake a fresh decision in accordance with law. 16. In consequence of the order of the High Court, opposite party No. 6 was reverted with effect from 18.5.81 (the date of judgment of the High Court) by order dated 5.6.81; subsequently by order dated 10.7.81, Annexure - 15, the petitioner was appointed to officiated as Superintendent with effect from 2.7.81 for a period of six weeks which was further extended on ad hoc basis by order dated 31.8.81, Annexure - 18 of the Vice-chancellor. 17. 17. The case of the opposite parties is that the appointment of the petitioner as Internal Auditor and of opposite party No. 6 as Superintendent by order dated 5.2.79 and 8.2.79 were only stop gap arrangements pending disposal of the representation of the opposite party No. 6 who was senior to the petitioner on the basis of 1968 list. It was said that it was unfortunate that counter - affidavit could not be filed on behalf of the University in that writ petitioner; nevertheless the High Court's decision only was that tentatively or provisionally or for the time being the petitioner had to be treated to be senior to opposite party No. 6 and that the ultimate decision on the question of inter se seniority was left open by the High Court. It may be mentioned that in that writ petition appearance on behalf of the University had been made and arguments were advanced by the Counsel for the University as set out in the judgment itself, Annexure - 12. 18. By order dated 20/21 1st July,.1981, Annexure - 16 the Vice Chancellor appointed a Committee of 4 members consisting of S/Sri H.K. Seth, M.M.L. Gupta, Chandra Bhan and B.G. Gokhley to examine the list of confirmation and promotion submitted by the Finance Officer in respect of the Central Accounts Office and to submit its recommendations by 7.8.81 after consideration of representations. The Finance Officer issued a provisional seniority list dated 22.7.81. Annexure - 17 in which the petitioner was placed just above opposite party No. 6 objections were UPLBEC - 133 called. The said Committee gave a personal hearing to both the parties, considered the representations and by Annexure - 20 dated 17.8.81 held the petitioner to be senior to opposite party No. 6. The opposite parties admit the constitution of the Committee, emphasised that the seniority list, Annexure - 17 was only provisional, in respect of which opposite party No. 6 had filed objections and urged that the said 4 member committee was not constituted for deciding the dispute between the petitioner and opposite party No. 6. It was stated that the Committee appointed for that specific purpose was the one consisting of S/Sri C.P. Sharma, Major Guru Dull and M.M.L. Gupta. It was stated that the Committee appointed for that specific purpose was the one consisting of S/Sri C.P. Sharma, Major Guru Dull and M.M.L. Gupta. However, the opposite parties admitted that the Committee of S/Sri C.P. Sharma and others never met and never took a decision regarding inter se seniority of the petitioner and the opposite party No. 6. Be that as it may, the Finance Officer issued another seniority list on 8.1.82 indicating the petitioner to be senior to opposite party No. 6 but made a note at the bottom that the Committee had decided that the decision on the representation of opposite party No. 6 would be taken later. The Executive Council met on 16.2.82 and choose to frame another Committee of 5 persons consisting of the Vice-chancellor, S/Sri S.K. Narain, J.N. Kaul, H.K. Seth and Dinesh Chandra. This Committee was formed for considering seniority and confirmation of the employees of the Central Accounts Office including the petitioner and opposite party No. 6. This 5 member Committee submitted a report on 8.5.82 (vide Annexure - 22) holding the petitioner to be senior to opposite party No. 6. 19. The case of the opposite parties in this regard is that although this 5 Member Committee had held the petitioner to be senior to opposite party No. 6, the report did not cantain any reason for the decision; and when the report came up for consideration before tire Executive Council on 12.5.82, the Vice-chancellor withdraw the report for the purposes of re - examination and local opinion. 20. The petitioner then says that the legal opinion rendered on 21.5.82, Annexure - 23 suited that seniority ought to be determined on the basis of confirmation as was being done by the Government with regard to its own employees and in that sense also the petitioner had been correctly recommended to be senior to opposite party No. 6. It is urged that the withdrawal of the recommendation dated 8.5.82 of the 5 member Committee which included the Vice-chancellor himself, by the Vice-chancellor in the Executive Council meeting dated 12.5.82 was malafide, arbitrary and unjust. 21. It is urged that the withdrawal of the recommendation dated 8.5.82 of the 5 member Committee which included the Vice-chancellor himself, by the Vice-chancellor in the Executive Council meeting dated 12.5.82 was malafide, arbitrary and unjust. 21. The case of the opposite parties in this respect is that the Vice-chancellor was quite competent to withdraw the recommendations of the Committee and to obtain legal opinion, but the legal opinion rendered, by Annexure - 23, could not be read in evidence, did not deal with the whole of the dispute and was not binding. 22. When the legal opinion was placed before the Executive Council on 21.8.82, the Executive Council decided to postpone the matter till the framing of Service Conduct Rules for die employees of the University; it was again postponed for die same reason on 19.9.82. Not only that, but the question of confirmation of the petitioner on the post of the Superintendent was also postponed by the Executive Council in its meeting dated 31.12.82 awaiting the formation of the Service Conduct Rules. According to the petitioner all these postponements were arbitrary, un-justified and malafide. 23. The reply of the opposite parties in this record is that the Executive Council was quite competent to postpone the matters till the formation of Service Conduct Rules. 24. On 7.3.83 the Finance Officer submitted a proposal for confirmation of opposite party No. 6 on the post of the Assistant Superintendent vide Annexure - 26. The Executive Council in its meeting dated 9.3.83 confirmed opposite party No. 6 on the post of the Assistant Superintendent with effect from 6.12.77 and authorised the Vice-chancellor to decide the dispute between the petitioner and opposite party No. 6 The opposite parties admit these facts. The grievance of the petitioner is that opposite party No. 6 could not be confirmed on the post of Assistant Superintendent with effect from 6.12.77, because that was the date on which opposite party No. 6 had been placed on probation which was to ensure for a period of one year, and that the Executive Council illegally and arbitrarily ignored the recommendations of the 5 - Member Committee and delegated the function of the Vice-chancellor alone. The version of the opposite parties is that the Committee initially appointed for deciding the seniority dispute between the petitioner and opposite party No. 6 consisting of Servsri C.P. Sharma, Guru Dutt and M.M.L. Gupta did not even meet, that the 5 - Member Committee did not assign reasons for treating the petitioner to be senior to opposite party No. 6 and was, therefore, withdrawn by the Vice-chancellor and, therefore, in order to resolve the dispute, the Executive Council authorised the Vice-chancellor by resolution dated 9.3.83 to decide the dispute. This is the first impugned order. The version of the opposite parties is that it is the right and privilege of the Appointing Authority, i.e., the Executive Council to appoint an incumbent substantively or on probation, or to count the officiating period towards probation, hence opposite party No. 6 was validly confirmed with effect from 6.12.77, without placing him on probation. 25. The petitioner contended alternatively that even if the opposite party No. 6 may be treated to be validly confirmed with effect from 6.12.77 on the post of the Assistant Superintendent, continued to be senior to opposite party No. 6, because he had been confirmed much earlier, i.e., on 24.5.77 as Assistant Superintendent. The case of the opposite parties was that seniority depended upon 1968 list in which opposite party No. 6 was senior to the petitioner. 26. After the judgment of the High Court in the writ petition, the petition had already been appointed on ad hoc basis on the post of the Superintendent with effect from 2.7.81 by order dated 10.7.81, Annexure - 15 which was further extended by order dated 31.8.81, Annexure - 18; opposite party No. 6 was promoted to the post of Superintendent with effect from 21.6.82, vide Annexure - 28, but subsequently by order dated 14.3.83, Annexure - 29, the Vice-chancellor appointed the opposite party No. 6 to be the Superintendent with effect from 12.3.82. It is pointed out by the petitioner that 12.3.82 was the date on which opposite party No. 6 was working as Assistant Superintendent after returning from leave and according to the initial appointment opposite party No. 6 had been appointed as Superintendent on 21.6.82 and, therefore, the Vice-chancellor erred in appointing the opposite party No. 6 to be the Superintendent with effect from 12.3.82 by order dated 14.3.83, Annexure - 29. 27. This is the 2nd impugned order. 27. This is the 2nd impugned order. The opposite parties do not recognise the validity of the confirmation of the petitioner on the post of Assistant Superintendent, for reasons stated above, and added that acting under authorisation dated 9.3.83 by Executive Council, the Vice-chancellor held opposite party No. 6 to be senior to the petitioner, and allowed the petitioner to continue to work as Superintendent purely in a stop - gap arrangement (Vide Annexure - 19); and since there were two posts of Superintendents, there was nothing mala fide in the order of the Vice-chancellor appointing opposite party No. 6 to one of these posts. It is pointed out that seniority as Assistant Superintendent depended upon 1968 Seniority List, wherein opposite party No. 6 was senior to the petitioner, that confirmation as Assistant Superintendent depended upon seniority as Assistant Superintendent and that promotion and confirmation as Superintendent depended upon seniority and confirmation as Assistant Superintendent, hence opposite party No. 6 was correctly held by the Vice-chancellor to be senior to the petitioner. 28. The contention of the petitioner is that the so - called Seniority List of 1968 cannot be the basis for determining the seniority of the petitioner and opposite party No. 6 for the post of the Superintendent, and that the Vice-chancellor himself had taken a decision in the 5 - Member Committee which he had headed that the petitioner was senior to opposite party No. 6. It was pointed out that the Vice-chancellor had passed the order dated 25.6.83, Annexure - 33, (followed by the formal order of even date Annexure - 34) holding opposite party No. 6 to be senior to the petitioner in consultation with the Finance Office, and the Registrar', which he was neither authorised by Executive Council, nor was competent to do, hence the order is wholly illegal. Further, the orders Annexure 33/34 of Vice-chancellory/Registrar, which is the 3rd impugned order, are without jurisdiction, because the power was vested in the Executive Council. The contention of the opposite parties is that the Vice-chancellor was not at all influenced by the Finance Officer or the Registrar and the opposite party No. 6 had already been appointed as Superintendent earlier. 29. The contention of the opposite parties is that the Vice-chancellor was not at all influenced by the Finance Officer or the Registrar and the opposite party No. 6 had already been appointed as Superintendent earlier. 29. The petitioner further contends that lastly opposite party No. 6 had been confirmed with effect from 1.3.80, by order dated 29.6.83 (Annexure 35) which is the 4th impugned order, on the post of Superintendent although the post was made permanent much later, viz., only by G.O. dated 19.5.81. The case of the opposite parties is that the order is not illegal because in the exigency of the situation, revealed by Annexure A - 9 and Annexure - 25, and the unrest of the University Employees, the Vice-chancellor was satisfied with the, urgency of the matter, and validly passed the order within the powers conferred by tire Act and that such orders are placed before and noted by the Executive Council. 30. In the end, the petitioner claimed that after quashing the four impugned orders, a mandamus may be issued to the opposite parties to give effect to the recommendations of the 5 - Member Committee rendered on 8.5.82 (Annexure - 22) holding the petitioner to be senior to opposite party No. 6, and to confirm him on the post of Superintendent with effect from 1.3.1980. 31. There has been a spate of affidavits, counter - affidavits, supplemental)' counter affidavits, rejoinders, supplementary rejoinders, Annexures, oral arguments and finally arguments in writing. All the material Annexures filed by opposite party No. 6 are re - petitions of those filed by the other opposite parties. An independent and important Annexure filed by opposite party No. 6 along with the supplementary affidavit dated 26. 3. 87 is Annexure C - 11 dated 7.6.86 containing the order of the Vice-chancellor expunging adverse entries recorded against opposite party No. 6 for the years 1975 - 76 and 1976 - 77 on a consideration of his representations dated 21.3.78 and 26.9.83. We have carefully considered all the material placed before us. 32. The opposite parties have raised the preliminary objection that the petitioner has an alternative remedy under Section 68 of the Act, hence this writ petition is not maintainable. We have carefully considered all the material placed before us. 32. The opposite parties have raised the preliminary objection that the petitioner has an alternative remedy under Section 68 of the Act, hence this writ petition is not maintainable. Having regard to the scope of controversy in this writ petition, coupled with the fact that the dispute between these very parties had figured in this Court in Writ Petition No. 3531 of 1980, and further because some of the decisions of the opposite parties are challenged as malafide and discriminatory', we do not consider the remedy under Section 68 of tire Act to be an efficacious remedy in the present case. We hold that we would be exercising a fair and reasonable discretion in hearing and disposing of this writ petition on merits rather than relegating the petitioner to the alternative remedy. The existence of an alternative remedy does not debar this Court from entertaining writ petition in appropriate cases. Both the parties have cited some rulings. It would be enough to refer to the last of the cited cases, namely, Dr. (Smt.) Kuntesh Gupta v. The Management of Hindu Kanya Mahavidyalaya Sitapur, (1987) 4 SCC 525 : 1987 UPLBEC 734 (SC), which lays down that an alternative remedy is not an absolute bar to the maintenance of the writ petition particularly where the concerned authorities have acted without jurisdiction. 33. Very great emphasis has been laid on behalf of the opposite parties on the the so - called seniority list of 1968 (Annexure A - 2) which according to the petitioner is not a seniority list. It is not necessary to express a final opinion of the question whether that list is a valid seniority list of the employees of the University because the dispute between the parties is fit to be settled on other material. In its own terms, Annexure A - 2 purports to be a secondary evidence of ranking, as it was formulated on the basis of the date of appointment in the old approved grades, obtained from various departments of the University taken as one Unit for the purposes of fixation of salary in revised scales of pay pending the recommendations of a Committee appointed by the Executive Council to work the details for implementation of the revised scales. The list docs not contain the date of appointment in old grades. 34. The list docs not contain the date of appointment in old grades. 34. According to admitted facts the petitioner was appointed as Routine Grade Clerk on 2.5.56 and promoted as Junior Assistant on 3.5.60 whereas opposite party No. 6 was appointed as Routine Grade Clerk on 20.12.56 and promoted as Junior Assistant in 1958; both were appointed substantively as Senior Assistant on 1.6.67, although the petitioner had been working temporarily as Senior Assistant since 1963. These successive appointments of the petitioner and opposite party No. 6 were noticed by the Division Bench in Writ Petition No. 3531 of 1980 inter - parties as admitted facts in the very first paragraph of the judgment. On this basis the petitioner could claim to be senior to opposite party No. 6 not only at the time of appointment as Routine Grade Clerk but also on the post of Senior Assistant if the temporary post was held continuously by the petitioner and was a long term vacancy. The opposite parties have urged that the petitioner's appointment as Routine Grade Clerk was in the King George's Medical College which was a separate Unit from the Central Accounts Office of the University and, therefore, the appointment in the former does not count for seniority in the latter. If that be so, then there should have been separate seniority lists, not a composite seniority list for the whole University as in Annexure A - 2. The parties have not produced any material on these aspects of the dispute which could assume several legal angles if material facts in this regard were brought out. It is futile therefore to pursue this matter any further. The most reasonable use which could be made of the list (Annexure A - 2), is to treat it as a working list with the parties concerned having an opportunity to show that the ranking contained therein is erroneous. It is not safe to express a final opinion regarding its validity as a seniority list. It is proved by the supplementary - affidavit dated 13.4.87 of Sri B.M. Singh, Registrar of the University that in 1973 a fire broke out in the University which completely destroyed the records of the Registrar and Accounts Office, as a consequence of which no record other than Annexure A - 2 is available on the subject of seniority of the employees. The petitioner has also not produced any alternative seniority list. 35. In any case it is mentioned in the petitioners own document, namely, Annexure - 3, the minutes of the proceedings of Departmental Promotion and screening Committee of the Central Accounts Office held on 30.4.76 recommending the names of 3 employees including the petitioner for filling up 3 temporary vacancies of Assistant Superintendent available on long term basis, that opposite party No. 6 was senior to the petitioner but was not found fit for promotion as Assistant Superintendent. It will be enough for the purposes of this writ petition to examine the facts and legal position commencing from the proceedings for selection to the post of Assistant Superintendent referred to in Annexure - 3. 36. The question is what is the effect of the recommendations contained in Annexure - 3 followed by the Vice-chancellor's order dated 21.5.76 (Annexure - 4) promoting the petitioner to the post of the Assistant Superintendent, of which the formal appointment order is Annexure - 5 dated 24.5.76. The opposite parties' contention is that the appointment was of no consequence because it was only on a temporary post, vice K.S. Bajpai. The noticeable fact in this regard is that although the vacancy was temporary, it was known to be a long term vacancy as specifically mentioned in Annexure - 3 and there is no indication that vacancy ceased at any moment of time prior to the petitioners appointment in a substantive vacancy of the Assistant Superintendent. Where appointment on a long term vacancy is immediately followed by an appointment in substantive vacancy, then in the absence of any rule to the contrary the1 benefit of appointment even on temporary post has to be given to the appointee. Apart from officiation in a permanent post, an employee can officiate even in a temporary vacancy in the higher post caused by death, or retirement of the incumbent of otherwise, as held in the case of Arun Kumar Chatterji v. South - Eastern Railway and others, (1985) 2 SCC 451 (Para II). So long as the promotion is not purely fortuitous, or ad hoc, the continuous officiation is relevant for determining seniority. So long as the promotion is not purely fortuitous, or ad hoc, the continuous officiation is relevant for determining seniority. Here the officiating promotion of the petitioner, described to be made in temporary capacity, on the post of Assistant Superintendent, vice K. S. Bajpai who was promoted as officiating Superintendent was neither fortuitous, nor ad hoc, because it was specifically described to be a long term vacancy (vide Annexure - 3 read with Annexure - 5), the appointment thereon was made by selection by a Committee appointed for the purpose, and it is not shown that ever since the petitioner took over as such on 25.4.76, he was ever reverted to his substantive post. Such continuous officiating appointment cannot be ignored for the purposes of determining seniority. See the cases of G.P. Doval v. Chief Secretary,Government of Uttar Pradesh, (1984) 4 SCC 329 : 1985 UPLBEC 4 (SC) and D.K. Mitra v. State of U.P., (1985) Supp. SCC 243. 37. The second ground of attack is that the Departmental Promotion and Screening Committee did not hold any interview and gave no reasons for holding opposite party No. 6 to be unfit and, therefore, the order superseding the opposite party No. 6 was arbitrary. In the absence of any rule, there was no necessity of holding any interview; it should be enough for the Departmental Promotion and Screening Committee to examine the records and arrive at its own decision about the suitability of the incumbents. It is not said that the Departmental Promotion and Screening Committee had no records before it. Similarly, in the absence of any specific rule, it is not necessary for a Departmental Promotion and Screening Committee to record reasons for holding an incumbent to be unfit for the promotion. 38. The order dated 21.5.76 (Annexure - 4) of the Vice-chancellor promoting the petitioner to the post of Assistant Superintendent is also challenged on the ground that prior approval of the Executive Council was not obtained. The contention loses much of its force in view of the admitted cases of the opposite parties that since the Executive Council was burdened with more serious and urgent issues. The contention loses much of its force in view of the admitted cases of the opposite parties that since the Executive Council was burdened with more serious and urgent issues. Orders of appointment and confirmation arc generally being issued by the Vice-chancellor according to the exigency of the situation and these orders are placed before and noted by the Executive Council (vide para 81 of the counter - affidavit of opposite parties 1, 2,4, and 5, and para 79 of the counter - affidavit of opposite party No. 6). It is admitted that the recommendation (Annexure - 3) followed by the Vice-chancellor's order dated 21. 5. 76 (Annexure - 4) and the formal order dated 24.5.76 (Annexure - 5) were considered by the Executive Council on 30.8.76 and was accepted by the Executive Council. This constitutes ratification of the order of appointment of the petitioner on the post of Assistant Superintendent, and will date back to the date of last continuous appointment. See the case of G.P. Doval v. Chief Secretary, Government of U.P. (supra). 39. The opposite parties have also emphasised in this connection that a selection committee which met on 29 the of August, 1976, recommended the appointment of opposite party No. 6 on a newly created additional post of Assistant Superintendent, and that recommendation also was considered by the Executive Council in the meeting dated 30.8.76 and was accepted. The contention is that the appointment of both, the petitioner and opposite party No. 6 on the post of Assistant Superintendent would operate from the date of approval of the Executive Council, i.e., 30.8.76, and since opposite party No. 6 was originally senior to the petitioner as Senior Assistant (as mentioned in Annexure - 3), the opposite party No. 6 would also be senior to the petitioner as an Assistant Superintendent. The contention is not valid because while the petitioner had been appointed with effect from 24. 5.76 (Annexure - 5) on Vice Chancellors order dated 21.5.76 (Annexure - 4), there had been no such appointment in the case of opposite party No. 6. The contention is not valid because while the petitioner had been appointed with effect from 24. 5.76 (Annexure - 5) on Vice Chancellors order dated 21.5.76 (Annexure - 4), there had been no such appointment in the case of opposite party No. 6. In the proceedings of the Executive Council on 30.8.76 while the pre - existing appointment of the petitioner on the post of Assistant Superintendent was accepted by the Executive Council, in respect of the opposite party No. 6 there was only an order that he may be so appointed and in consequence thereof he was actually appointed as Assistant Superintendent with effect from 1.9.76. In any view of the matter, the petitioner, thus was holding an appointment on the post of the Assistant Superintendent since before the opposite party No. 6 came to hold a similar appointment. 40. The next stage for consideration of the cases of petitioner and opposite patty No. 6 relates to the time of confirmation on the post of Assistant Superintendent. On 3.9.77 the Executive Council took a decision to fill all the higher posts in the ministerial cadre (which includes the Central Accounts Office) on the principle of seniority-cum-merit (vide Annexure - 8). the Screening Committee constituted for the purpose examined the question of confirmation of the petitioner and opposite No. 6 on 9.1.78. It recommended the confirmation of the petitioner on the post of the Assistant Superintendent with effect from 24.5.77, just one year after the commencement of the petitioner's appointment on the post of Assistant Superintendent - It is admitted that the normal period of probation is one year - but refused to recommend the confirmation of opposite party No. 6 with the observation that opposite party No. 6 had been superseded earlier (vide Annexures 3 to 5) and had failed to show his worth when given a chance. The recommendation, contained in Annexure - 6 was accepted by the Vice-chancellor who passed an order on 27.1.78 confirming the petitioner with effect from 24.5.77 contained in Appendix - G of Annexure - 7. This order was approved by the Executive Council in its meeting dated 30.6.78 contained in Annexure - 7. The effect of Annexures - 6 and 7 is that the petitioner stood confirmed on the post of Assistant Superintendent with effect from u s 77 while opposite party No. 6 was not. 41. This order was approved by the Executive Council in its meeting dated 30.6.78 contained in Annexure - 7. The effect of Annexures - 6 and 7 is that the petitioner stood confirmed on the post of Assistant Superintendent with effect from u s 77 while opposite party No. 6 was not. 41. The case of the opposite parties is that the recommendation of the Screening Committee refusing to confirm opposite party No. 6 was erroneous because it considered the un - communicated adverse entires for the years 1975 - 76, 1976 - 77 in the character roll of opposite party No. 6. A perusal of Annexure - 6 would show that the Committee considered the representation of opposite party No. 6 and also examined the character roll entires for 1975 - 76 and found that not only the opposite party No. 6 had been superseded on the earlier occasion but also "later on did not show his worth on the seat on which he worked and did not justify his continuance on the post of Assistant Superintendent." It is clear from this statement in Annexure - 6 that not only the adverse entries for the years 1975 - 76 and 1976 - 77 were considered by the Committee but also the representation of the opposite party No. 6 and also the fact that opposite party No. 6 could now show his worth in the discharge of his function as Assistant Superintendent so much so that his continuance on that post was not justified. It cannot, therefore, be said that the decision of supersession of opposite party No. 6 rested solely on the adverse entires of 1975 - 76 and 1976 - 77, there was other material also. Further it is stated in para 15 of the rejoinder affidavit that the representation of opposite party No. 6 which was considered by the Committee in its meeting dated 9.1.78 was against the character roll entries of 1975 - 76 and 1976 - 77. It cannot therefore be held to be proved that the entries remained un - communicated or the case of opposite party No. 6 in respect thereof was not considered. It cannot therefore be held to be proved that the entries remained un - communicated or the case of opposite party No. 6 in respect thereof was not considered. It is noticeable in this connection that Annexure C - 11 by which the adverse entries were expunged by the Vice-chancellor, is dated 7.6.86 and clearly mentions that the representations on which those orders were passed, had been made on 21.3.78 and 26.9.83. In our opinion the delayed making of the representation itself indicates that the case of opposite party No. 6 including that against the adverse entry, would have been considered by the Selection Committee. It is also noticeable that opposite party No. 6 has not filed the copy of his representation dated 21.3.78; in para 4 of his supplementary affidavit dated 26.3.87 he did not indicate the date of his representation. In his letter dated 25.6.83, Annexure C - 10 addressed to the Vice Chancellor he gave the dates of a number of representations made by him in the matter of confirmation orders dated 27.1.78 of the petitioner on the Screening Committee's report, Annexure - 6, but these do not include representations bearing dates of 21.3.78 or 26.9.83, on the basis of which the order dated 7th of June, 1986, Annexure C - 11 expunging those entries was passed. 42. It has next been urged on behalf of the opposite parties that, after all the appointment of opposite party No. 6 to the post of Assistant Superintendent has been approved by the Screening Committee on 29.8.76 but that fact was not considered by the Screening Committee in its meeting dated 9.1.78. That is not correct. It will be recalled that the Selection Committee's recommendation dated 29.8.76 was the same which came up before the Executive Council on 30.8.76 alongwith the recommendation dated 30.4.76, Annexure - 3 in favour of the petitioner. It is clear from Appendix - G to Annexure - 7 containing the proceedings of the Screening Committees meeting dated 9.1.78 that the Committee had noticed that not only opposite party No. 6 had been superseded but had failed to show his worth when given a chance. That obviously was a chance none other than the one following the decision dated 30.8.76 on the recommendations dated 29.8.76. That obviously was a chance none other than the one following the decision dated 30.8.76 on the recommendations dated 29.8.76. It must be stated therefore that the Screening Committee of 9.1.78 did consider the fact that the Selection Committee of 29.8.76 had recommended his appointment as Assistant Superintendent but further found that even when opposite party No. 6 had been given that chance, he failed to show his worth. 43. The further contention of the opposite parties is that the Screening Committee of 9.1.78 was concerned only with appointment on the post of Assistant Superintendent in substantive capacity and not with confirmation. There is no worth in this contention because the Executive Council specifically took a decision on the matters of confirmation as well as promotion and it can be safely presumed that the Executive Council discharged its function in a regular manner. 44. The Screening Committee, while approving the confirmation of the petitioner with effect from 24.5.77, had recommended that opposite party No. 6 might be placed on probation with effect from 6.12.77, the date on which S.P. Mittal, an Assistant Superintendent retired, (vide Annexure - 6); the opposite party No. 6 says that he made a representation to the Vice-chancellor who directed that till the matter of communication of adverse entires of opposite party No. 6 was clarified, the recommendation of the Screening Committee would be kept pending. The argument is that in view of this order, decision on the question of confirmation of the petitioner should not have been taken by the Executive Council, but that direction of the Vice-chancellor was not placed before the Executive Council. The opposite parties tried to make out that situation by Annexure A - 3, but there is no such order in Annexure A - 3. The specific case in the rejoinder - affidavit is that the Vice-chancellor's direction concerned only opposite party No. 6 personally and did not affect the rights of the petitioner. It must be remembered in this connection that at there time there were 2 posts of Assistant Superintendents, held separately by the petitioner and opposite party No. 6. The specific case in the rejoinder - affidavit is that the Vice-chancellor's direction concerned only opposite party No. 6 personally and did not affect the rights of the petitioner. It must be remembered in this connection that at there time there were 2 posts of Assistant Superintendents, held separately by the petitioner and opposite party No. 6. It is not unlikely that confirmation on those 2 posts could be ordered separately and since the orders regarding opposite party No. 6 rested upon his work and conduct including the character roll entries for the 2 years, the Vice-chancellor could have decided to keep the final decision on the question confirmation of opposite party No. 6 pending till the disposal of his representation without affecting the recommendation of confirmation of the petitioner. The result is that the order of confirmation of the petitioner with effect from 24.5.77 is valid and could not remain in suspense simply because opposite party No. 6 had filed a representation against his own non - confirmation. 45. The criterion of appointment in the higher posts in the ministerial cadre, which includes the post of Assistant Superintendent, on the principle of seniority-cum-merit adopted by the Executive Council on 3.9.77 (vide Annexure - 8) and was observed by the Screening Committee in its proceedings dated 9.1.78 (Annexure - 6), was challenged by the opposite parties on the basis of a representation made by the Karmchari Sangh of the University and it was urged that in view of the agreement between the Karmchari Sangh and the Vice-chancellor, the criterion settled was seniority and not merit. Annexure A - 4 is the order dated 19.1.78 of the Vice-chancellor on the representation made by the Karmchari Sangh, which was approved by the Executive Council on 29.5.78. The petitioner's case is that the Vice-chancellor's decision dated 19.1.78, Annexure A - 4 is irrelevant and the Executive Council's decision dated 29.5.78 did not alter or effect the Executive Council's decision dated 3.9.77. There is worth in this contention. The petitioner's case is that the Vice-chancellor's decision dated 19.1.78, Annexure A - 4 is irrelevant and the Executive Council's decision dated 29.5.78 did not alter or effect the Executive Council's decision dated 3.9.77. There is worth in this contention. The contents of Annexure A - 4 make it clear that the Karmchari Sangh had represented "that in some of the offices departmental seniority has been ignored while making promotions to the senior posts." The document goes on to say that after discussions with the Karmchari Sangh on their demand, it was agreed in principle that appointment to the senior posts should be made by promotion from amongst the lower cadres and for this purpose seniority fixed in 1968 be based upon. These contents of Annexure A - 4 do not lay down that seniority will be the sole Criterion for promotion. 46. The complaint only was that seniority had been ignored and not that promotion must not be made on the criterion of merit. All that the document purports to indicate is that in making promotion seniority was not to be ignored and that the seniority as fixed in 1968 was to be the basis. That apart the decision dated 19.1.78 contained in Annexure A - 4 could not abrogate the decision which had already been taken earlier and had become final. The settled law is that where rules are amended, the posts which fell vacant prior to the amendment of the rules, would be governed by the old rules and not by new rules. (See the case of Y.V. Rangaiah and others v. J. Sriniwasa Rao and others, (1983) 3 SCC 284 Para 9. We may state that rules can be amended retrospectively only if it is established that the date from which the rules are made to operate bears, either on the face of the rules or by intrinsic evidence, a reasonable nexus with the provisions contained in the rules specially when the retrospective effect extends over a long period of time. (Vide the case of B.S. Yadav and others v. State of Haryana and others, (1980) Supplement SCC 524 para 76) Annexure A - 4 dated 19.1.78 ended with the observation that wherever any officiating appointment is made in contravention of the decision and ignoring the seniority, that must be regularised. (Vide the case of B.S. Yadav and others v. State of Haryana and others, (1980) Supplement SCC 524 para 76) Annexure A - 4 dated 19.1.78 ended with the observation that wherever any officiating appointment is made in contravention of the decision and ignoring the seniority, that must be regularised. It is apparent that in the face of these directions contained in Annexure A - 4 the Executive Council had approved in its later meeting dated 30.6.78 (Annexure - 7) the confirmation of the petitioner with effect from 24.5.77. On the face of it he University authorities were aware that although according to the decision contained in Annexure A - 4 seniority was to be given due weight and was not to be ignored, it did not prevent the authorities from applying the principle of seniority-cum-merit, adopted on 3.9.77. Further even on the rule of seniority subject to rejection of unfit, opposite party No. 6 had been found to be unfit and it was only as a matter of concession that he was allowed to be placed on probation as Assistant Superintendent with effect from 6.12.77., die date on which S.P. Mittal retired. No legal infirmity therefore can be held to exist in the confirmation of the petitioner on the post of the Assistant Superintendent with effect from 24.5.77. 47. The subsequent event of the promotion of opposite party No. 6 as Superintendent by order dated 5.2.79 of the Vice-chancellor and the appointment of the petitioner as Internal Auditor by the same order led to the writ petition No. 3531 of 1980 and was quashed by this Court. In consequence of the order of this Court, opposite party No. 6 was reverted to the post of Assistant Superintendent with effect from 18.5.81, while the petitioner was appointed to officiate as Superintendent with effect from 2.7.81 for a period of six weeks which was further extended on ad hoc basis by order dated 31.8.81 of Vice-chancellor. These are Annexures 15 and 18. We would agree with the learned counsel for the opposite parties that after the decision of the High Court, it was open for the opposite parties to examine the question of inter se seniority of the petitioner and opposite party No. 6. These are Annexures 15 and 18. We would agree with the learned counsel for the opposite parties that after the decision of the High Court, it was open for the opposite parties to examine the question of inter se seniority of the petitioner and opposite party No. 6. It was then that by an order dated 20/21st July, 1981, Annexure - 16, the Vice-chancellor appointed a Committee of 4 members consisting of Sri H. K. Seth and others to examine the list of confirmation and promotion submitted by the Finance Officer and to submit its recommendations by 7.8.81 after consideration of the representations. The Committee after a personal hearing of both the parties and a consideration of the representations held the petitioner to be senior to opposite party No. 6 in its recommendations dated 17.8.81 (Annexure - 20). The contention of the opposite parties is that the Committee was not constituted for deciding the dispute between die petitioner and opposite party No. 6. It appears from Annexure - 16 that the Committee was constituted by the Vice Chancellor and not by the Executive Council and was subsequently substituted by a 5 member Committee constituted by the Executive Council itself on 16.2.82. This 5 member Committee was headed by the Vice-chancellor himself and included S/Sri S.K. Narain, J.N. Kaul, H.K. Seth and Dinesh Chandra. This Committee submitted a report dated 8.5.82, Annexure - 22 holding the petitioner to be senior to opposite party No. 6. 48. The opposite parties case is that although the said 5 member Committee was constituted for considering seniority and confirmation of the employees of the Central Accounts Office including the petitioner and opposite party No. 6, the report holding the petitioner to be senior to opposite party No. 6 does not contain any reason for the decision. It is not show that under any rule or provision of law or principle of natural justice it was required for this Committee to record reasons; it was not a quasi - judicial function. The noticeable feature of Annexure - 22 is that the 5 member Committee gave an opportunity to both the parties to represent their case personally and went through all the records and gave due consideration to the arguments of both sides and thereupon came to the conclusion that the petitioner was senior to opposite party No. 6. The noticeable feature of Annexure - 22 is that the 5 member Committee gave an opportunity to both the parties to represent their case personally and went through all the records and gave due consideration to the arguments of both sides and thereupon came to the conclusion that the petitioner was senior to opposite party No. 6. There seems to be no reason to consider the findings of the Committee to be illegal or improper, it was based upon relevant material and this Court cannot act as if sitting in appeal over it. 49. The next ground of attack in respect of Annexure - 22 by the opposite parties is that the recommendation was withdrawn by the Vice-chancellor in the Executive Council's meeting dated 12.5. 82 for the purposes of re - examination and legal opinion. The petitioner has challenged this withdrawal as malafide, arbitrary and without jurisdiction. In our opinion the contention is correct. The Committee had been constituted by the Executive Council in its proceedings dated 16.2.82. The recommendations of the Committee could be considered only by the Executive Council itself; it was the duty of the Executive Council to take a decision on the recommendation of the Committee. The Vice-chancellor had no jurisdiction to withdraw the recommendations of the Committee. It would have been a different matter if the Executive Council itself deferred a decision on the recommendations awaiting legal opinion; but that was not done. We are clearly of the opinion that the Vice-chancellor was not competent to withdraw the recommendations dated 8.5.82 (Annexure - 22). Moreover the Vice-chancellor himself was a member of the 5 member Committee and had concurred with the findings of the Committee. His withdrawal thereof could not but be termed as arbitrary and vitiated by malice in law if not also by malice in fact. 50. Even so, the legal opinion dated 25.2.82 contained in Annexure - 23 was that seniority ought to be determined on the basis of confirmation as was being done by the Government in regard to its own employees. The case of the opposite parties is that the legal opinion contained in Annexure - 23 could not be read in evidence and was not binding. The case of the opposite parties is that the legal opinion contained in Annexure - 23 could not be read in evidence and was not binding. Technically speaking a communication between a Legal Adviser and its client are privilege and may not be read in evidence as an advice rendered by the former to the latter; but it is certainly admissible to show whether the decision of the client is bonafide or malafide where the bonafides are challenged. Similarly, it is true that the legal advice of a counsel is not binding upon the client, but a public functionary who departs from a legal opinion rendered when sought, will have to be shown to have done so in good fath. There is substance in the contention of the petitioner that the refusal to abide by the legal opinion consciously sought was anything but bonafide. 51. The legal opinion was placed before the Executive Council on 21.8.82. The Executive Council did not day that the legal opinion was not correct; they chose to defer a decision thereon till the framing of the Service Conduct Rules for the University employees. The Rules did not come to be framed within any reasonable time.The postponement is challenged by the petitioner as arbitrary, unjustified and malafide. The reply of the opposite parties is that the Executive Council was quite competent to postpone the matters till the formation of Service Conduct Rules. We do not agree. It was the duty of the Executive Council to take a decision on the material which existed on 21.8.82. The Service Rules were still not in the picture and wherever the Rules would have been framed sometime in future, the retrospective operation of those Rules would be open to question. We have already indicated that not only the reasonable nexus would have to be established between the provisions of the Rules and the need of its being made retrospective, but also the vacancies which existed before the framing of the Rules would have to be governed by the provisions, whatever they may be, applicable before the enforcement of the Rules. The latest decision of the Supreme Court in die case of P.K. Dixit and others v. State of U.P., (1987) 4 SCC 621 : 1988 UPLBEC 43 (SC), establishes the situation beyond any doubt. The latest decision of the Supreme Court in die case of P.K. Dixit and others v. State of U.P., (1987) 4 SCC 621 : 1988 UPLBEC 43 (SC), establishes the situation beyond any doubt. The members of the Higher Judicial Service of Uttar Pradesh which figured before the Supreme Court, belonged to 2 categories : (1) those who were appointed before the enforcement of the U.P. Higher Judicial Service Rules, 1975 and (2) those appointed after the enforcement of those Rules. The Supreme Court held that the question of seniority, promotion and confirmation in respect of the officers appointed before the enforcement of the Rules would not be governed by the Rules. We are clearly of the opinion that the postponement of the consideration of the case of the parties regarding seniority pending formulation of Rules was arbitrary and malafide. 52. The next limb of the controversy between the parties relates to the date of confirmation of opposite party No. 6 on the post of Assistant Superintendent. It will be recalled that die petitioner had been appointed on a long term temporary vacancy of Assistant Superintendent on 24.5.76 (Annexure - 5). It is admitted that the period of probation is one year' the petitioner was confirmed on the post of Assistant Superintendent with effect from 24.5.77, approved by the Executive Council on 30.6.78 (Annexure - 7). On the contrary, opposite party No. 6 was appointed on a newly created post of Assistant Superintendent with effect from 1.9.76 in consequence of a decision of the Executive Council taken on 30.8.76. The performance of petitioner and opposite party No. 6 came up for consideration before the Screening Committee in its meeting dated 9.1.78. The Committee recommended the confirmation of the petitioner with effect from 24.5.77, refused to recommended the confirmation of opposite party No. 6 and recommended the latter to be placed on probation with effect from 6.12.77, the date on which S.P. Mittal, Assistant Superintendent retired. However, the Executive Council in its meeting dated 9.3.83 confirmed the opposite party No. 6 with effect from 6.12.77 itself and not on the date of expiry of one year's period of probation, i.e. 6.12.78. However, the Executive Council in its meeting dated 9.3.83 confirmed the opposite party No. 6 with effect from 6.12.77 itself and not on the date of expiry of one year's period of probation, i.e. 6.12.78. The contention of the opposite parties is that it is the right and privilege of the appointing authority, i.e. the Executive Council to appoint an incumbent substantively or on probation or to count the officiating period towards probation, hence opposite party No. 6 was validity confirmed with effect from 6.12.77 without placing him on probation. If in the normal course of things, the initial appointment is expected to be made on probation, then in the absence of any special features or proper reasons the appointment must be made on probation and confirmation must follow at the end of the period of probation. It the petitioner was placed on probation before confirmation on die post of Assistant Superintendent, there is no reason why opposite party No. 6 also should not have been placed on probation before confirmation; and if the authorities considered it appropriate to exempt opposite party No. 6 from being placed on probation, the petitioner also ought not to have been required to run a period of probation; to act otherwise would be discriminatory without reason. However, as contended on behalf of the petitioner in the alternative even if opposite party No. 6 be treated to be validity confirmed with effect from 6.12.77 on the post of Assistant Superintendent, the petitioner .continued to be senior to the opposite party No. 6 because he had been properly confirmed on the post of Assistant Superintendent with effect from 24.5.77. 53. The first impugned order is the resolution dated 9.3.83 of the Executive Council in so far as it resolves to authorise the Vice-chancellor to decide the dispute the seniority between the petitioner and opposite party No. 6. We have already pointed out that the 5 member Committee, of which the Vice-chancellor was a member, had already taken a decision that the petitioner was senior to opposite party No. 6 and that the Executive Council in its meeting of 12.5.82 erroneously permitted the Vice-chancellor to withdraw the 5 member Committee report without discharging its own burden and duty of taking a decision itself. We have already found that the decision to withdraw the recommendation of the 5 member Committee was invalid, it necessarily follows that the Executive Councils authorisation on 9.3.83 to the Vice-chancellor to decide the dispute was also invalid. Moreover, if the Executive Council wanted the matter to be re - examined, the fair and reasonable course would have been to appoint another Committee without including any of the members of the 5 member Committee as its constituents. The Vice-chancellor having withdrawn the recommendation of the 5 member Committee made himself open to the charge of bias. The withdrawal necessarily implied that he did not agree with the opinion of the 5 member Committee. His taking up the job of deciding that very question himself would attract the doctrine of bias as a principle of natural justice. If he decided in favour of the petitioner, there would have been an opportunity for opposite party No. 6 to say that the Vice-chancellor as a member of the 5 member Committee had already decided against him and therefore the decision was biased; if he decided in favour of opposite party No. 6, it gave an opportunity to the petitioner to say that the Vice-chancellor was biased against him because he had already withdrawn the recommendation favourable to him. We hold therefore that the authorisation of the Executive Council in its resolution dated 9.3.83 to the Vice-chancellor to decide the dispute of seniority between the petitioner and the opposite party No. 6 is invalid and deserves to be quashed. 54. The next point concerns the appointment of opposite party No. 6 as Superintendent with effect from 12.3.82 by the second impugned order dated 14.3.83, Annexure - 29. It is pointed out by the petitioner that after the judgment of the High Court in the previous writ petition opposite party No. 6 had been reverted to the post of Assistant Superintendent and was subsequently appointed on the post of Superintendent with effect from 21.6.82 (vide Annexure - 28), but by the impugned order dated 14.3.83 the opposite party No. 6 was appointed to be Superintendent with effect from 12.3.82, the date on which opposite party No. 6 was still working as Assistant Superintendent. The opposite parties have no answer to it. The opposite parties have no answer to it. All that is stated, is that since there were 2 posts of Superintendent, on one of which the petitioner was working, there was nothing malafide in the order of the Vice-chancellor appointing opposite party No. 6 to the other post. That is no answer to the question as to how opposite party No. 6 was ordered on 14.3.83 to be the Superintendent with effect from 12.3.82 when the opposite party No. 6 was working as Assistant Superintendent on that date and the initial order of his appointment as Assistant Superintendent (Annexure - 28) was made operative from 21.6.82. There seems to be no legal basis for retrospective appointment on 14.3.83 to take effect from 12.3.82 in the face of the earlier order making the appointment with effect from 21.6.82. The second impugned order dated 14.3.83 (Annexure - 29) is therefore invalid; opposite party No. 6 was a properly appointed Superintendent only with effect from 21.6.82. (vide Annexure - 28). 55. Then comes the third impugned order, Annexure - 33 dated 25.6.83 followed by the formal order of even date, Annexure - 34 in pursuance of Annexure - 33. By that order, the Vice-chancellor held opposite party No. 6 to be senior to the petitioner. The petitioners case is that on the post of Assistant Superintendent he was confirmed earlier than opposite party No. 6 and, therefore, was senior to the latter; and since admittedly seniority on the post of Superintendent followed seniority on the immediately next below post i.e. Assistant Superintendent, he was senior to opposite party No. 6. It is also pointed out that die petitioner had already been appointed on the post of Superintendent on ad hoc basis with effect from 2.7.81 by order dated 10.7.81, Annexure - 15 in pursuance of the judgment of the High Court in the previous writ petition which appointment was further extended by order dated 31.8.81 (Annexure - 18) whereas the opposite party No. 6 was promoted to the post of Superintendent with effect from 21.6.82. Thus, besides being senior on the post of Assistant Superintendent, he was also holding appointment on the post of Superintendent since more than 11 months prior to opposite party No. 6. Thus, besides being senior on the post of Assistant Superintendent, he was also holding appointment on the post of Superintendent since more than 11 months prior to opposite party No. 6. The contention of the opposite parties is that on the basis of 1968 seniority list (Annexure A - 2) opposite party No. 6 was senior to the petitioner and consequently every other thing, i.e, confirmation on the post of Assistant Superintendent and promotion on the post of Superintendent would depend upon that seniority, hence the Vice-chancellor has correctly held opposite party No. 6 to be senior to the petitioner. It was also pointed out that the petitioner was allowed to continue to work as Superintendent with effect from 2.7.81 purely in a stop - gap arrangement which brought no benefit to him. 56. We have already dealt with the aspect of the so - called seniority list of 1968 and we have already held, for reasons recorded, that the petitioner was properly confirmed on the post of Assistant Superintendent with effect from 24.5.77 and that at best opposite party No. 6 came/to be confirmed on the post of Assistant Superintendent with effect from 6.12.77. It is the seniority in the post of Assistant Superintendent which governs the seniority for the post of the Superintendent and not the seniority of still lower posts as indicated in the so - called seniority list of 1968 (Annexure A - 2). It is true that the petitioners appointment on the post of Superintendent with effect from 2.7.81 was purely ad hoc, but there is absolutely no doubt that appointment continued to subsist throughout, whereas opposite party No. 6 came to be appointed for the first time on 21.6.82. The length of continuous appointment of the petitioner on the post of Superintendent was therefore definitely longer than that of opposite party No. 6; that length cannot be totally ignored. We are of the opinion that for the purposes of appointment on the post of Superintendent, the petitioner was senior to opposite party No. 6. 57. There is also another reason vitiating the decision of the Vice-chancellor dated 25.6.83 holding opposite party No. 6 to be senior to the petitioner. The Executive Council purported to authorise the Vice-chancellor by resolution dated 9.3.83 to decide the dispute of seniority between the petitioner and the opposite party No. 6. 57. There is also another reason vitiating the decision of the Vice-chancellor dated 25.6.83 holding opposite party No. 6 to be senior to the petitioner. The Executive Council purported to authorise the Vice-chancellor by resolution dated 9.3.83 to decide the dispute of seniority between the petitioner and the opposite party No. 6. The decision, Annexure - 33 specifically mentions that the Vice-chancellor arrived at the conclusion in consultation with the Finance Officer and the Registrar. The contention of the petitioners learned counsel is that the Executive Council had not authorised the Vice-chancellor to consult the Finance Officer or the Registrar for the purposes of making up his mind as to which the contending parties was senior and therefore the decision of the Vice-chancellor was without jurisdiction and illegal. The reply of the opposite parties is that the Vice-chancellor was not at all influenced by the Finance Officer of the Registrar and therefore the order is not invalid. There is no worth in the reply. An authority which is exercising delegated functions must act on his own and not on the judgment of others. There is a distinction between "advice" and "consultation". A delegated authority may obtain advice, but not consult. He can obtain legal advice from an expert in the field of law; he can obtain advice from the Finance Officer who admittedly has disciplinary control over the employees of Audit and Accounts Section of the University. He can seek the advice of the Registrar who is a still superior officer of the University; but after obtaining advice from these sources, he has to apply his own mind independently and exclusively. He cannot form his judgment on the basis of community of reasoning with the Finance Officer or/ and the Registrar. It has been held in the case of The Purtabpur Company Ltd. v. Cane Commissioner of Bihar and others, 1970 SC 1896 Para 14, as follows : - "14. He cannot form his judgment on the basis of community of reasoning with the Finance Officer or/ and the Registrar. It has been held in the case of The Purtabpur Company Ltd. v. Cane Commissioner of Bihar and others, 1970 SC 1896 Para 14, as follows : - "14. The executive officers entrusted with statutory discretions may in some cases be obliged to take into account considerations of public policy and in some context the policy of a Minister or the Government as a whole when it is a relevant factor in weighing the policy but this will not absolve them from their duty to exercise their personal judgment in individual cases unless explicit statutory provision has been made for them to be given binding instructions by a superior." In Halsbury's Laws of England , Fourth Edition, Volume 1, Para 31 the law has been stated as follows ; - "A body entrusted with a statutory discretion must address itself independently to the matter for consideration. It cannot lawfully accept instructions from, or mechanically adopt the view of, another body as to the manner of exercising its discretion in a particular case, unless that other body has been expressly empowered to issue such directions." Sri Kailash Nath Goyal, a retired Judge of our High Court has indicated in his fall" 1981 Edition at page 109 as follows : - " fu.kkZ;d vFkok tkWap vf/kdkjh ds fy, bruk gh i;kZIr ugha gS fd og Lo;a fu"i{k gks] cfYd ;g Hkh vko';d gS fd og fdlh mPprj vf/kdkjh ;k vU; O;fDr ds izHkko esa Hkh u vk,A " A statement that the decision was arrived at in consultation with the Finance Officer and the Registrar, establishes that there has been an application of mind of 3 authorities in a matter of delegation of the functions of the Executive Council to only one authority, which was not at all authorised by the Executive Council. Hence apart from the invalidity of the authority conferred by the Executive Council upon the Vice-chancellor to decide the question of seniority between the petitioner and the opposite party No. 6, the decision itself contained in Annexures - 33 and 34 is without jurisdiction. Orders, Annexures - 33 and 34 deserve to be quashed. 58. Hence apart from the invalidity of the authority conferred by the Executive Council upon the Vice-chancellor to decide the question of seniority between the petitioner and the opposite party No. 6, the decision itself contained in Annexures - 33 and 34 is without jurisdiction. Orders, Annexures - 33 and 34 deserve to be quashed. 58. The petitioner has finally impugned the order dated 29.6.83, Annexure - 35, , by which opposite party No. 6 was confirmed on the post of the Superintendent with effect from 1.3.80. It is pointed out on behalf of the petitioner that Annexures - 35 dated 29.6.83 itself mentions that the post of the Superintendent was made permanent by the Government under G. O. dated 19.5.81 and, therefore, there was no question of the opposite party being confirmed on that post with effect from 1.3.80. It will also be recalled that the opposite party No. 6 was appointed to the post of the Superintendent with effect from 21.6.82, vide Annexure - 28 after the judgment of the High Court in die previous writ petition. The earlier appointment of die petitioner on the post of Superintendent by order dated 5.2.79, Annexure - 10 had already been quashed by the High Court in the said writ petition. After the High Court judgment the first appointment of opposite party No. 6 on the post of Superintendent was made effective from 21.6.82. It is difficult to see how opposite party No. 6 could be confirmed on the post of Superintendent with effect from 1.3.80 when neither the permanent post existed nor opposite party No. 6 functioning lawfully as Superintendent. The reply of the opposite parties 1, 2, 4 and 5 is paras 80 and 81 of the counter - affidavit and of opposite party No. 6 in paras 78 and 79 of the counter - affidavit of opposite party No. 6 is that the contents of Annexure A - 9 (corresponding to Annexure C - 9) and Annexure - 25 would reveal the exigency of the situation and that since the matter was urgent according to the prevailing circumstances, the Vice-chancellor acted within die power conferred upon him by the Act, Annexure A - 9/C - 9 is a Note of the Finance Officer for consideration in the meeting of the Executive Council on 9.3.83. The Note mentioned that confirmation of the various categories of posts of Class III staff of Central Accounts Office had been pending since long despite best efforts, that there were no service rules and that the Karmchari Sangh of the University as well as the affected staff were continuously pressing for die issue of confirmation orders. There is nothing in the Note which could show the existence of any urgency in the matter much less one which could justify passing an erroneous order. Annexure - 25 is a copy of the minutes of the special meeting of the Executive Council held on 6.1.1983 with the Vice-chancellor in the chair. It shows that Draft Service Rules were required to be sent to the Karmchari Sangh for their comments and suggestions. Perhaps the only urgency or rather pressure upon the University authorities to which the opposite parties referred, is the one exerted by the Karmchari Sangh. The pressure of the Karmchari Sangh could only persuade the authorities to take an early decision; it could not persuade them to pass wrong orders or such orders as were not in consequence with the existing and applicable laws. The rule of law cannot be abrogated nor the Statutes or the applicable laws thrown to the winds simply because Karmchari Sangh is able to pressurise the administration of the University to accede to certain demands. The entire exercise has to be done within the framework of the laws and if necessary, the laws themselves may be got amended; but so long as the laws exist and the State is governed by the rule of law, no amount of pressure and no urgency can be permitted to bring about an illegal, unjust and unfair situation. We are satisfied that the order confirming the opposite party No. 6 on the post of Superintendent with effect from 1.3.80 is wholly arbitrary and illegal, and must be quashed. 59. These arc all the points raised in this writ petition. Among the reliefs sought by the petitioner is a prayer for mandamus to direct the opposite parties to give effect to the recommendations of the 5 member Committee rendered on 8.5.82 contained in Annexure - 22 holding the petitioner to be senior to opposite party No. 6. It is clear that the opposite parties have been going on through misconceived exercises in determining the question. It is clear that the opposite parties have been going on through misconceived exercises in determining the question. The entire material has been placed before us and for reasons recorded, we are satisfied that the petitioner is senior to opposite party No. 6 and, therefore, there is no reason why a mandamus prayed for may not be granted. 60. There is another limb of the mandamus sought by the petitioner, he prays to be confirmed on the post of Superintendent with effect from 1.3.80. That is not possible. Whether a person should or should not be confirmed, depends upon the applicable rules and also bis performance on the post. We are not called upon to examine or determine the kind of performance of the petitioner; that has got to be done by the concerned authorities of the University. 61. before parting with this writ petition, we should like to say that opposite party No. 6 as well as the concerned authorities of the University have taken erroneous and untenable stand and decisions from time to time, and have forced the petitioner to seek his remedy in this Court despite his success once in the previous writ petition. We can see that the petitioner has been harassed. We would, therefore, award reasonable costs to him. 62. The writ petition is allowed and the resolution dated 9.3.83 of the Executive Council in so far as it authorises the Vice-chancellor to decide the dispute of seniority between the petitioner and opposite party No. 6, is quashed. The impugned order dated 14.3.83 contained in Annexure - 29 in so far as it makes the appointment of opposite party No. 6 as Superintendent to be effective from 12.3.82, is quashed; opposite party No. 6 shall be deemed to be promoted to the post of Superintendent with effect from 21.6.82 (vide Annexure - 28). The impugned orders dated 25.6.83 contained in Annexures - 33 and 34 to the writ petition are quashed and a mandamus shall issue to the opposite parties to give effect to the recommendations of the 5 - member Committee contained in Annexure - 22 is so far as it holds the petitioner to be senior to opposite party No. 6 for the purposes of the post of Superintendent. The impugned order, Annexure - 35 dated 29.6.83 in so far as it confirms opposite party No. 6 on the post of Superintendent with effect from 1.3.80, is quashed. It will be open to the concerned authorities of the University to examine the question of confirmation of the petitioner and opposite party No. 6 on the post of Superintendent and to pass suitable orders in that respect. 63. The petitioner shall get Rs. 1,500/ - as costs jointly and severally from opposite party No. 1 and opposite party No. 6.