JUDGMENT 1. In this bunch of writ petitions the dispute is regarding the seniority between the promotees from the post of Overseer, subsequently designated as Junior Engineers, as Assistant Engineer and prayer has also been made by the petitioners to promote them considering their total length of service and those who are eligible may be given promotion upto the post of Executive Engineers as well. As common question of law are involved in these petitions, as such they have been bunched together and are being disposed of by this common judgment. 2. There are three petitioners in W. P. no. 321 of 1981. Petitioner no. 1 passed the examination of M. I. in the year 1969 while petitioners 2 and 3 passed the qualifying examination conducted by the department, which was necessary to make them qualify for their promotions to the next higher post of the Assistant Engineer in the year 1970. After becoming qualified the petitioners were promoted to the posts of Assistant Engineers w.e.f. 2361970, 1721972 and 1681972 respectively from out of the promotion quota of 25%. During this period from 1965 to 1980 no interview took place by the Public Service Commission for approval of the candidates as Assistant Engineers who were promoted from amongst the Junior Engineers and the interview only took place in 1980. Petitioner no. 1 was thrown back to the vacancy of 197980 while petitioners 2 and 3 were pushed back to the vacancies of 197677. In writ petition no. 1536 of 1981 petitioner no. 1 was appointed as Overseer in 1955 and was confirmed as such in 1959 while petitioner no. 2 became Overseer in 1959 and confirmed in 1963. They passed the qualifying examination in 1965 but were promoted in 1970 as Assistant Engineers. Their names were also sent to the Public Service Commission but they were approved for the vacancies of 197980 and 197879 respectively. In writ petition no. 2468 of 1981 there are two petitioners which were appointed as computers in 1957 and were confirmed as such in 1965. It has also been stated that the post of Junior Engineer at the time of the petitioner's promotion was in the scale of Rs. 120250 while the post of Computers was in the highest scale of Rs. 120300. Both of them were approved against temporary posts of Assistant Engineers for the year 197071. It has also been stated that the post of Junior Engineer at the time of the petitioner's promotion was in the scale of Rs. 120250 while the post of Computers was in the highest scale of Rs. 120300. Both of them were approved against temporary posts of Assistant Engineers for the year 197071. In writ petition no 5264 of 1981 the sole petitioner was approved for the post of overseer in 1955 and was confirmed on his post in 1956. In 1965 he passed the qualifying examination of Assistant Engineer and was interviewed for approval in 1980 and was put in the approved vacancy of 197980. In W.P. no. 3656 of 1982 also the seniority is disputed. In all these writ petitions the petitioners were shown as juniors and their position in the seniority list has been disputed. 3. Rules regarding the appointment and the other conditions of service were made in 1936 and were called as U.P. Service of Engineers Rules, 1936. These Rules were amended in 1969. These Rules make provisions for recruitment, qualifications and promotions. Rule 5 and rule 12 of the said Rules read as under: Rule 5: Sources of recruitment: Recruitment to the service shall be made by the Government: (i) By direct appointment from amongst Engineer students who , have passed out of the Thompson Civil Engineering College, Roorkee and who have completed a course of training in the buildings and roads branch as Engineer student after consulting the Public Service Commission. (ii) By the appointment after the advertisement and after consulting the Public Service Commission. (iii) By the appointment of officer in the temporary service of the United Provinces Public Works Department Buildings and Roads Branch after consulting the Public Service Commission provided that it willbe necessary to consult the commission in the case of appointment of a temporary officer to a permanent vacancy, if he has already been appointed to a temporary post in the cadre of the service after consultation with the Commission. (iv) By promotion of members of the United Provinces Subordinate Engineering Service in the Public Works Department Buildings and Roads Branch, who have shown exceptional merit. Rule 12 as amended vide Government Notification no. 3428 EBR/2370 EBR86 dated 481987 reads as under: 12. (iv) By promotion of members of the United Provinces Subordinate Engineering Service in the Public Works Department Buildings and Roads Branch, who have shown exceptional merit. Rule 12 as amended vide Government Notification no. 3428 EBR/2370 EBR86 dated 481987 reads as under: 12. Recruitment by promotion to the post of Assistant Engineers shall be made on the basis of merit in accordance with U.P. Promotion by selection in consultation with public service commission (Procedure) Rules, 1970 as amended from time to time. 4. In 1970, State Government framed Rules known as U.P. Promotion by selection in consultation with Public Service Commission (procedure) Rules, 1970. These Rules were amended on July 4, 1972 and Rule 7A and 7B were added. Rules 7A and 7B were challenged in this Court in case of Ram Copal Shukla v. State of U.P. and others. The Division Bench consisting of Hon'ble U.C. Srivastava and K. N. Goyal, JJ held that these Rules were ultravires. This decision has been confirmed by the Supreme Court in case 5/a/e of U.P. and another v. Ram Gopal Shukla (1981 AIR SC 1041). The above notification has been published in U.P, Gazettee Extraordinary dated 481987. Thus 1970 Rules were not applicable for promotion to the post of Assistant Engineers before 481987 but the State Government held selection for promotion of Assistant Engineers according to the procedure given in those Rules. Thus the procedure adopted by State Government and the Public Service Commission for promotion was wholly illegal and the assignment of vacancies year wise is against law and has to be struck down. 5. Under rule 12 extracted above which was made applicable with retrospective effect, promotions to the post of Assistant Engineers were to be made from the eligible candidates by preparing two separate lists. SubRule (4) of rule 12 provides that reasons were to be recorded in case a senior was to be passed over and the seniority subject to rejection of unfit was made the criterion for promotion. It has been contended by the petitioner that in fact 1970 rules applied only to 29 services which are mentioned in the annexure to the U.P. Public Service Commission (Limitation of function) regulation, 1954. U.P. Service of Engineers (Building and Road Branch) class II is not one of those 29 services. This has also been conceded in Ram Gopal's case (supra). U.P. Service of Engineers (Building and Road Branch) class II is not one of those 29 services. This has also been conceded in Ram Gopal's case (supra). The said rules were not applicable and yet the Public Service Commission applied the said Rules and the State government also accepted the same. The amended rules 7A and 7B were declared ultravires and the seniority made on the basis of such illegal selection becomes questionable. It is not a case in which seniority has been allotted to remain for years together. As a matter of fact the Public Service Commission made selection and interviewed the candidates and thereafter years of allotment were given to the candidates on the basis of 1970 Rules which were already declared ultravires. Under the Irrigation Manual also there is no provision for relaxation of qualifications and under rules there is no rule for relaxation and yet the State government has given such a relaxation and concession which do not get any sanction from the rules which were applicable. Some of the candidates were even declared successful after a lapse of nine years though two examinations were held in this intervening period. Seventeen candidates appeared in 1965 examination and were declared successful after a lapse of nine years. It was contended though there is no provision for relaxation of qualification under the rules yet the State government in order to accommodate its favorite candidates has been relaxing the qualifications and has declared unsuccessful candidates as passed subsequently and in the absence of any rules the relaxation was illegal. It was further contended that under the existing rules if certain rights had accrued including placement on the list, the same cannot be disturbed or diverted because of subsequent amendment in the rules so far qualifications are concerned. In the counter affidavit this stand had been justified by the State government by saying that the same is done on administrative grounds and the State Government is entitled to amend the Rules in Public interest, Even in 1980 some persons who were declared to have failed were placed higher in the seniority list over and above who had passed the examination earlier. In Jit Singh & Ors. v. State of Punjab and others, ( AIR 1979 SC 1034 ) the age of eligibility was reduced. In Jit Singh & Ors. v. State of Punjab and others, ( AIR 1979 SC 1034 ) the age of eligibility was reduced. The court observed that it was not permissible for the State government to reduce the requirement of continuous service from six years to four years for purposes of eligibility for promotion to the Punjab Police Service, because rule 14 as it stood at the relevant period of time when promotions of respondents were made, did not permit any general relaxation of the nature ordered by the State Government in 1963 or 1965. In R.K. Chaturvedi v. Divisional Superintendents, N.R. Moradabad and others ( AIR 1981 SC 357 ) which was a case of dispute regarding seniority between member of a particular unit who were drafted on that side than those who were senior to him and were in other unit but later on chose to come to the first unit, it was held that the Fireman Grade 'C who were drafted into the diesel unit earlier would not loose the benefit of their continuous service on the diesel side merely because others who were senior to them on the steam side came in or chose to come in on that side at a later stage. In A. Janardhana v. Union of India and others, ( AIR 1983 SC 769 ) it was held that a direct recruit who comes into service after the promotee was already unconditionally and without reservation promoted and those promotion is not shown to be invalid or illegal according to relevant statutory or nonstatutory rules should not be permitted by any principle of seniority to score a march over a promotee because that itself being arbitrary would be violative of Articles 14 and 16 of the Constitution. In G. P. Doval v. Chief Secretary of U.P. ( AIR 1984 SC 1527 ) it has been observed that approval operates from the date of initial appointment and not from the date of approval. In Umesh Chandra Shukla v. Union of India and Ors. ( AIR 1985 SC 1351 ) under the orders of High Court in the writ petition the names of candidates who had not initially secured the minimum qualifying marks by resorting to the devise of moderation particularly when there was no complaint either about the question papers or about the mode of validation. ( AIR 1985 SC 1351 ) under the orders of High Court in the writ petition the names of candidates who had not initially secured the minimum qualifying marks by resorting to the devise of moderation particularly when there was no complaint either about the question papers or about the mode of validation. The Court held that High Court had no power to do so and the device of moderation for increasing minimum qualifying marks being improper the list prepared by the High Court after adding moderation marks was struck down. In Shitla Prasad Shukla v. State of U.P. and others ( AIR 1986 SC 1859 ) it has been held that it would be reasonable to construe the section as enabling the Board to exercise the power to grant exemption prospective after considering the report and taking into account the relevant circumstances which would by the very nature of things be with prospective effect and not with retrospective effect. In State of U.P. v. Rafiquddin ( AIR 1988 SC 162 ) a case under U.P. Judicial Service Rules it was held that rules of natural justice do not apply to competitive examinations and that Government has no power to grant relaxation after result of examination is declared and that the amendment of Rules in 1972 was not applicable to examination held prior to the amendment. In O.P. Shingla v. Union of India ( AIR 1984 SC 1595 ) which was a case of seniority amongst members of Delhi Judicial Service relying on A. Janardan's case (supra) it was held the promotees who were so promoted under a statutory Rule and having been continuously officiating without break and their appointment not being illegal they are not to suffer because of letharginess of authorities in not converting temporary posts into permanent posts will be entitled to benefit of continuous officiation and in seniority list would not rank below direct appointee appointed subsequently. In G.S. Lomba v. Union of India ( AIR 1985 SC 1019 ) same principle was reiterated and application of principle of rotation of vacancies while preparing seniority list was held to be violative of Articles 14 and 16 of the Constitution of India. In unreported decision in the case of Shri D.P. Sharma and ors. v. Union of India & others C.A. no. In unreported decision in the case of Shri D.P. Sharma and ors. v. Union of India & others C.A. no. 413334 of 1984 decided on 2121989 which was a case under Armed forces Headquarters clerical service Rule, 1968 it was held that seniority determined before the coming in force of Rules cannot be taken away and the general rule is if seniority is to be regulated in a particular manner in a given period, it shall be given effect to and shall not be varied to disadvantage retrospectively. The legal position is that in the absence of any rule for granting relaxation the State Government in exercise of its executive powers could grant relaxation without doing away the requisite qualification. If the relaxation so granted were not regularised by valid rules with retrospective effect the promotion could not be disturbed after several years. But such promotees cannot get seniority where promotees fulfilling all the tests and promoted in accordance with the relevant Rules. If by virtue of such appointment the seniority of such persons stood determined it cannot be disturbed or changed by the rules with retrospective effect. The amended Rules of the year 1972 amending Rules of 1936 in these cases regarding qualifications cannot be given retrospective effect so as to effect the seniority already established and fixed notwithstanding the absence of any confirmation order for which the Government is responsible. The seniority will be determined for the date of continuous promotion and not from the date of confirmation and amendment in Rules cannot disturb such a seniority. 6. Thus those who are promoted by way of concession or grace or by reducing the qualifying marks and by getting the grace marks and were confirmed and/or given further promotion over and above those who were on the basis of qualification without any modification passed the test or examination but their confirmation was delayed by the department itself are not entitled to seniority which is to be decided only on the basis of date of continuous officiation and not by the date of confirmation or amendment of the rules which will be given prospective effect and not retrospective effect so as to disturb the seniority. 7. Writ petition no. 7. Writ petition no. 2468 of 1981 is by the computers who like Junior Engineers are entitled to be promoted as Assistant Engineers and they were also promoted but so far the seniority is concerned the dispute is the same as in earlier petitions. 8. Writ petition no. 5264 of 1981 is by Niranjan Deo Sharma who in the meantime has attained the age of superannuation. In case he is also senior to other persons obviously he would be entitled to confirmation; and consequential benefits though he cannot be given a promotion post of executive engineer and promotion on the said post is not automatic. In his case he was in the year 1966 deprived of the promotion because of the minor penalty which was ultimately set aside by the State government and his adverse remarks of 197576 and 197677 are there against which his representations are pending. 9. In the result, the writ petitions are allowed, and the impugned seniority lists in these petitions are quashed and the opposite parties are directed to decide the seniority of the petitioners in accordance with law; and in the light of observations made in this judgment within a period of six weeks from the date of presentation of a certified copy of this order before the concerned authorities. In writ petition no. 5264 of 1981 the extra relief is also granted and the opposite parties are directed to dispose of the representations of the petitioner against adverse entries if any pending within a period of one month from the date of producing a certified copy of this order. The opposite parties are further directed to give the consequential benefits including confirmation etc. of the petitioners after fixing their seniority within another period of six weeks from the date of deciding seniority as ordered within a period of six weeks. However, no order is made as to costs. (Petitions allowed.)