ORDER R. M. Sahai,J. - The short question of law that has been raised in these petitions filed by Executive Engineers of Public Works Department, while assailing final seniority list of Assistant Engineers prepared by State Government in pursuance of directions issued by Hon'ble Supreme Court in P. D. Agrawal. v. State of U. P., AIR 1987 SC 1676 : (1987 Lab IC 1307), is that petitioners having been appointed substantively against temporary vacancies in the cadre were entitled to reckoning of their seniority from that date and not from the date. they were selected by Commission in future examinations against permanent vacancies. Direction is also sought against selection for the post of Superintending Engineer without first preparation of seniority list of Executive Engineers, the immediately lower scale. Lack of opportunity to petitioner before change of principle on which tentative list was prepared was yet another ground of attack. 2. To he more precise the petitioners in Civil Misc. Writ Petitions Nos. 7846 of 1989 and 92,14 of 1989 claim to have been selected in 1962 and 1963 in competitive examinations conducted by Public Service Commission but appointed against temporary vacancies being lower in order of merit. But they were successful in future examinations and were appointed against permanent vacancies in 1966 and 1967. When seniority list of 1982 was prepared their seniority was reckoned from 1962 and 1963 respectively. But in the final list they have been placed from 1967 and 1968. Their claim is that since seniority has to be reckoned from the date a person became a member of service the petitioners should he deemed to have become member of service on the date they were appointed against temporary vacancies as even those appointments were -substantive and not ad hoc. In Civil Misc. Writ Petition No. 12319 of 19,10 the officer was appointed against temporary vacancy after approval from Commission in 1969. Subsequently he appeared against 12 permanent vacancies advertised in 1971. And was placed at serial No. 18. Since five general and two Scheduled Caste did not join he made representation for being allocated one of the permanent vacancies. It was not acceded to by Government. But his claim petition was allowed by Service Tribunal in 1979 and he was directed to he allocated against one of permanent vacancies of 1971. And was placed at serial No. 18. Since five general and two Scheduled Caste did not join he made representation for being allocated one of the permanent vacancies. It was not acceded to by Government. But his claim petition was allowed by Service Tribunal in 1979 and he was directed to he allocated against one of permanent vacancies of 1971. His claim is that in the seniority list his seniority has been reckoned from 8th February, 1974 i.e. the (Lite from which he has been placed against the permanent post in pursuance of Government Order dated 4th March. 1980. Whereas his seniority should be reckoned from 8th August. 1969. Since all of them are working as Executive Engineers since long and promotion to the next higher scale, that is, Superintending Engineer is due they further claim that, the eligibility criteria fixed by Government of fifteen years service inclusive of five years as Executive Engineer was arbitrary. They insist that selection to higher grade should be made from officers of immediately lower grade and not otherwise. According to them in any case no promotion could be made to higher scale without first preparing seniority list of Executive Engineers. 3. Engineering service of Public Works Department comprised of Class I and 11 officers. But when U. P. Service of Engineers (Building and Road Branch) Rules was framed the two services were merged and the junior" scale in the cadre became of Assistant Engineers whereas senior scale in ascending order became of Executive Engineers, Superintending Engineers. Additional Chief Engineers and Chief Engineer. History of the rules, method of selection and appointment under it till 1961,. thereafter, under Office Memorandum dated 7th December, 1961 and the two amendments of 1969 and, 1971 have been gone into detail in earlier decision by this court and the two decisions of Hon'ble Supreme Court in Baleshwar Das v. State of U.- P., AIR 1981 SC 41 : ( 1980 Lab IC 1 155) and P. D. Agarwal v. State, AIR 1987 SC 1676 : (1987 Lab IC 1307). Suffice it to mention that under Rule 5 of 1936 Rules the direct appointments either from Engineering College or after advertisement or from temporary service of Public Works Department were visualised after consultation with Public Service Commission. Suffice it to mention that under Rule 5 of 1936 Rules the direct appointments either from Engineering College or after advertisement or from temporary service of Public Works Department were visualised after consultation with Public Service Commission. And till 1961 nearly two hundred such engineers had been recruited who were approved by Public Service Commission by Government Order No. 1826 dated 23-7-1958, G.O. No. 4617'of 24-12-1959 and G.O. No. 5819 of 19th November. 1962. From 1961 onwards selections were held by Public Service Commission and the petitioners, like P. D. Agarwal. were selected but appointed against temporary vacancies being lower in order of merit. Later on they appeared in subsequent selections and were appointed against permanent vacancies. As a consequence therefore, they were confirmed earlier and appointed as Executive Engineers also earlier. Whereas temporary Assistant Engineers who had been approved by Commission till 1901 were confirmed later than petitioners. Similarly some of petitioners own batch mate who like petitioners were selected in 1962 and 1963 but were appointed against temporary vacancies being lower in order of merit and were either not selected in subsequent examination against permanent vacancies or did not take up subsequent examination, were : confirmed against permanent vacancies later. But all such persons have been shown as senior to petitioners. 4. Litigation has been going on between these officers for the last two decades now. But despite spate of petitions and at least three Supreme Court decisions the finality appears to be as far as it was. Reasons for it are many, Ad hoc appointments and promotions over long years, delay in sending names for approval to Commission and undue gap in holding regular selection after 1961 coupled with administrative orders or even Rules framed favourable to one of the other group resulting in creation of vested interests out to obstruct finality at every stage and for good reasons as well. However, much of the field, as already stated has been covered in earlier decisions. First such occasion, to determine seniority, arose in case of Baleshwar Das v. State, AIR 1981 SC 41 an engineer of irrigation department. but since there were no separate rules for irrigation department for long and these very rules applied, the decision has a direct bearing on determination of seniority of engineers of Public Works Department as well. First such occasion, to determine seniority, arose in case of Baleshwar Das v. State, AIR 1981 SC 41 an engineer of irrigation department. but since there were no separate rules for irrigation department for long and these very rules applied, the decision has a direct bearing on determination of seniority of engineers of Public Works Department as well. The Hon'ble Court while deciding competitive claim of seniority amongst graduate engineers directly recruited by the Public Service Commission through competitive examinations, graduate engineers once appointed in numbers but later absorbed after consultation with Public Service Commission and Diploma Holders later promoted as Assistant Engineers resolved it by adverting to Rule 23 of U.P. Service of Engineers (Building and Road Branch) Class 11 Service Rules of 1936, which is still operative by construing the expression "according to the date of order of appointment", read with cl. (b) of Rule 3 defining"member of service" to mean appointment to a permanent or temporary post as both the posts were cadre post by including even the period of officiation as, "officiating service in a post is for all practical purposes of seniority as good as service on a regular basis'. The Hon'ble Court further noticed that even though "permanent posts and temporary posts are, in ordinary officialnse (sic) sharply different but in historical context of the evolving U.P. Service of Engineers this partition do their bounds divide", therefore, the Hon'ble Court did not see, "any reason to hold that when engineers are appointed to temporary post but after fulfilment of all the tests for regular appointments including consultation with Public Service Commission they are not appointed in a substantive capacity". And the final conclusion was, "Deducting therefore, we get the further guidelines that the order of appointment in a substantive capacity is the significant starting point for reckoning seniority". In effect the Temporary Assistant Engineers were held entitled to reckoning of their seniority from the date of their appointment in service. Law thus laid down on same rules having not been applied in preparation of seniority list of Public Works Department, due to amendments made in rules, resulted in another litigation raising; even constitutional issue. of invalidity of 1969' and 1971 Rules being violative of Arts. Law thus laid down on same rules having not been applied in preparation of seniority list of Public Works Department, due to amendments made in rules, resulted in another litigation raising; even constitutional issue. of invalidity of 1969' and 1971 Rules being violative of Arts. 14 and 16, ending finally in Supreme Court in what is ; known as P.D. Agarwal's case, (1987 Lab IC 131)7) which reiterated earlier view that, "since that cadre of the service of engineers consists of both temporary and permanent posts and as such there can be substantive appointment against temporary posts of the cadre in accordance with the provisions of the service rules. When a temporary Assistant Engineer is selected and appointed by the Government with the approval of the Public Service Commission after fulfilment of all the tests prescribed in the said rules, he, shall be deemed to be member of the service and as such the entire length of service from the date of his becoming member of the service is to be reckoned in computing the seniority of the Assistant Engineers appointed substantively to temporary posts in service in accordance with the provisions of R. 23 as it was prior to its amendment by,1971 rules. We have also held that on the plea of not being confirmed, long years of service rendered by an Assistant Engineer, though appointed to a temporary post substantively cannot be arbitrarily cut off and excluded for determining seniority." The Hon'ble Court further affirmed the decision of this Court and held amended Rules 3(c), 5 and 6 of the 1969 Rules as well as Rule 23 of 1971 as arbitrary and ultra vires. The Hon'ble Court while protecting those who had been confirmed or promoted other than ad hoc, before 29th November, 1979 directed, "the authorities concerned to prepare a fresh seniority list of all the members of service in the cadre of Assistant Engineers in the Public Works Department on the basis of their length of service on the date they have been now basing service fulfilling all the requirements laid down in the service rules". The outcome of the two decisions in nut shell, therefore, is that a person appointed against a temporary or permanent vacancy after consultation with Public Service Commission before 1961 and selected in examination conducted by Commission after 1961 became member of the service from the date of appointment and his seniority shall be reckoned from that date. In other words length of service but not as ad hoc or officiating became the yardstick instead of date of confirmation or appointment against permanent post. In G.C. Gupta v. N.K. Pandey. AIR 1988 SC 268 : (1988 Lab IC 522) the Hon. Court reiterated it once again in respect of seniority amongst engineers of Public Works Department. The Hon'ble Court held, "seniority of the employees in service in question will be determined from the date when an employee has become a member of the service being appointed substantively to a post in the cadre of service, no matter whether the said post is permanent or temporary." 5. Length of service, excluding ad hoc or officiating, thus, stood finally determined as the yardstick for determining seniority of Assistant Engineers tinder R. 23 of U.P. Engineering Class 11 Rules. Is the claim of petitioners in Civil Misc. Writ Petitions Nos. 7846, 9214 and 12319 of 1989 on this ratio well founded?. Answer of it shall depend on effect of petitioners taking up subsequent examinations for getting out of uncertainty or insecurity of temporary service, encouraged rather permitted by department itself, Did it result in changing date of entry into service? Was there break in service. legal or factual? Since the initial appointment was in substantive capacity as even the temporary post against which petitioners were appointed after facing competitive examination was in cadre they became member of service as has been held in P.D. Agarwal, (1987 Lab IC 1307) (SC) and Saleshwar Das, (198() Lab IC 1155) (SC) cases. They could have become permanent as and when vacancy arose or they could appear in future examinations for same purpose. Appearance in examination or selection did not result into censure of their entry into service earlier. Unlike freshers they continued in service except that the nature changed from temporary to permanent. For such persons entry into service is one and that is initial appointment. Appearance in examination or selection did not result into censure of their entry into service earlier. Unlike freshers they continued in service except that the nature changed from temporary to permanent. For such persons entry into service is one and that is initial appointment. True that by jumping the queue such persons have been able to secure permanency earlier and climb on promotional ladder as well. But that they achieved on merits and hard work. Depriving such persons of this benefit would be unjust and inequitable. Persons who were temporary engineers and appointed with petitioners and they either did not take any chance or availed and were unsuccessful, therefore, were permanent much latter shall become senior to those who established their competency and merit. No construction of rule which results in such injustice can be countenanced. It would be giving premium against merit. Such construction may be violative of equality rule. For instance, it is not denied that persons shown at serial Nos. 263, 264 and 265 were persons who were selected and appointed against temporary costs like petitioners who either did not take up subsequent examination or did not appear but have been shown much above petitioners. It is both unjust and unfair. On the ratio of length of service from the hate of being appointed in service officers like petitioners are entitled to reckoning of their seniority from the date of their initial appointment. In Agarwal's case, (1987 Lab IC 1307) (SC), itself the Hon'ble Court while repelling contention of direct recruit for reckoning of seniority from the (late of confirmation held, "cadre of Assistant Engineers comprises of both permanent and temporary posts. Rule 3(b) specifically lays down that an Assistant Engineer becomes member of the service as soon as he is appointed in the substantive capacity even in a temporary post in the cadre. It, is inconceivable how a member of the service can be prevented from having his service reckoned from determination of seniority in the service from the date he became member of the service. The substituted R. 23 introduced in 1971.is on the face of it unreasonable. It, is inconceivable how a member of the service can be prevented from having his service reckoned from determination of seniority in the service from the date he became member of the service. The substituted R. 23 introduced in 1971.is on the face of it unreasonable. and arbitrary inasmuch as it purports to deprive a member, of the service from having his seniority reckoned on the ipse dixit of the rules that he has not been appointed in a substantive vacancy." Rule of fairness is so dear to the Rule of law that Courts have always evolved principle to avoid any injustice. For instance, in D.K. Mitra v. Union of India. AIR 1985 SC 1558 : (1985 Lab IC 1137) even though the departmental selection committee after interviewing candidates prepared two lists. Those found fit for permanent and substantive vacancies and B for officiating and temporary promotion, yet when the dispute arose about seniority between officers of list A and B the Hon'ble Court held that officers of B having been selected by same committee as A discharging similar functions and responsibilities were entitled to reckoning of seniority on length of service over those placed.in list A in latter year. In U.P. medical services seniority was to be determined, "by the date of appointment in a substantive vacancy". Question arose in State of U.P. v. M.J. Siddiqui, AIR 1980 SC 1098 : (1980( Lab IC 644), about the construction of this expression in Rule 18. The dispute was between promotees and direct who were appointed by the same procedure. But here the claim of promotees was that officers appointed temporarily were not entitled for reckoning of the period they were temporary in view of Rule 18. The claim was repelled and despite use of expression appointment in a substantive vacancy in Rule 18 Hon'ble Court bent the rule to allow benefit of length of service by holding that the delay in placing officers on probation must have been due to oversight. In fairness, therefore, there does not appear any reason to deny similar benefit to petitioners who are in better position in as much as they were appointed substantively against temporary vacancies and the seniority under the rules was to be determined from the date of appointment in the service and not from the date of substantive appointment. In fairness, therefore, there does not appear any reason to deny similar benefit to petitioners who are in better position in as much as they were appointed substantively against temporary vacancies and the seniority under the rules was to be determined from the date of appointment in the service and not from the date of substantive appointment. Since petitioners became member of service from the date they were appointed substantively against temporary vacancies their seniority had to be reckoned from that date. Seniority under rules being correlated with substantive appointment in service temporary or permanent and not on confirmation or appointment against permanent vacancy the petitioners who were appointed, admittedly, earlier against temporary vacancy in substantive capacity and neither ad hoc nor officiating are entitled to their seniority from date of their initial appointment in service. 6. Fairness and equity apart the claim appears to he well fortified on rules as well. For this purpose a look on relevant rules is necessary. Service of engineers was governed by U.P. Service of Engineers Class IL Rules, under R. 5 of it the recruitment was made from four sources out of which first three related to direct appointment and fourth by promotion. Sub-clause (i) to (iii) of the rule are extracted below : (i) By direct appointment from amongst Engineer Students who have passed out of the Thoma son Civil Engineering College, Roorkee and who have completed a course of training in the Buildings and Roads Branch as Engineer student after consulting the Permanent Board of Selection. (ii) By direct appointment after advertisement and after consulting a permanent Board of Selection. (iii) By the appointment of officers in the temporary service of the United Provisos Public Works Department, Buildings and Roads Branch after consulting a Permanent Board of Selection." In December 1961 an office Memorandum was issued providing for selection of both permanent and temporary engineers through competition by Public Service Commission. Clauses 2, 4 and 7 of the Memorandum read as under; "2. Successful candidates in order of merit will subject to the relevant rules regarding physical fitness and other matters, be appointed directly on probation against vacant permanent posts and those following will be appointed against temporary posts. 4. The candidates selected on the result of competitive -examination and appointed against permanent vacancies shall be placed on probation fora period of 3 years. However. 4. The candidates selected on the result of competitive -examination and appointed against permanent vacancies shall be placed on probation fora period of 3 years. However. in the case such directly recruited candidates who have served as Assistant Engineer in a particular department in it temporary capacity continuous period of temporary service rendered as Assistant Engineer immediately before selection for permanent post of Assistant Engineers may be allowed to count towards this period of probation. Temporary and officiating Assistant Engineers possessing the requisite technical qualifications will he eligible to appear in the competitive examination. The maximum age limit in the case of those working in the department with the approval of the commission, or after having been recruited by the Commission will be 40 Years." What is apparent from these clauses is that both permanent and temporary engineers were selected by same method, in same examination and were entrusted with similar responsibility and work. They were appointed -against permanent or temporary vacancy on placement in merit and availability of permanent vacancies. The appointment thus against temporary vacancy was due to non- availability of sufficient number of vacancies. That is why all such temporary engineers. were further permitted to appear in competitive examination obviously to gain permanency. For such engineers who were thus selected in subsequent examination clause 4' provided that continuous period of temporary service may be allowed to count towards the period of probation. Thus the link between temporary and permanent was maintained. And rightly as even temporary engineers were in the cadre and appointment as temporary engineers was in substantive capacity. This benefit. namely, of counting temporary period towards probation, under Cl. 4, was not available to officiating engineers even though Cl. 7 permitted them to appear in subsequent examination. The rules, therefore, did not visualise complete severance of a temporary engineer when he was appointed and selected in latter examination like an officiating, or a fresher selected from a different service. This scheme was maintained even when rules were amended as is clear from R. 17 added in 1969. Rule 23 which deals with seniority as it stood earlier or as it stands after stricking down of abnoxious part. This scheme was maintained even when rules were amended as is clear from R. 17 added in 1969. Rule 23 which deals with seniority as it stood earlier or as it stands after stricking down of abnoxious part. reads as under "Seniority in the Service shall be determined according to the date of order of appointment to it, provided that if the order of appointment of two or more candidates bears same date, their seniority inter se shall he determined according to the order in which their appointment has been notified". Expression order of appointment has been construed in P.D. Aggrawas's case, (1987 Lab IC 1307) (SC), as the order when an officer was appointed substantively against temporary or permanent post. Since petitioners were appointed after facing Commission substantively against temporary post they entered into service from the date of appointment. In absence of any rule to the contrary rather specific provisions referred to earlier their service as temporary engineer in the cadre for reckoning length of service, cannot he ignored. In D.K. Mitra'scase, AIR 1985 SC 1558 : 11985 Lah,IC 1137) (SC), it was held that non-availability of permanent vacancies could not work to prejudice of temporary engineers for determining their seniority. Relying on O.P. Singhla v. Union of India, AIR 1984 SC 1595 :(1984 Lab IC 1659), the Hon'ble Court observed, "to our mind the petitioners are entitled to say that they should he considered at par, for the purposes of fixing seniority with those appointed to permanent posts in substantive capacity..........for the purpose of determining seniority among promotees, the petitioners should he treated as having been appointed to permanent vacancies from the respective dates of their original appointment and the entire period of officiating service performed by them should be taken into account as if that service was of the same character as that performed by the substantive holders of permanent posts". Therefore, from whatever angle the claim is examined it appears seniority of such temporary engineers, unlike ad hoc or officiating, who were initially appointed substantively against temporary vacancies but selected latter against permanent posts, is liable to be reckoned from date of initial appointment. 7. Therefore, from whatever angle the claim is examined it appears seniority of such temporary engineers, unlike ad hoc or officiating, who were initially appointed substantively against temporary vacancies but selected latter against permanent posts, is liable to be reckoned from date of initial appointment. 7. Sheetanchor of the State is the observation of the Hon'ble Supreme Court in State of Gujarat v. C.G. Desai, AIR 1974 SC 246 : (1974 Lab IC 187), extracted below (para 16) : "If a person, like any of the respondents, who avoid the long tortuous wait, Leaves his position in the never ending queue of temporary officiating Deputy Engineers etc. looking for promotion, and takes a short-cut through the direct channel, to Class II service, he gives up once for all, the advantages and disadvantages, that go with channel of promotion and accepts all the handicaps and benefits which attach to the group of direct recruits. He cannot, for his direct recruitment claim benefit of both worlds. It will settle that so long as the classification is reasonable and the person falling in the same class are treated alike, there can be no question of violation of constitutional guarantee of the equal treatment." But this observation was made for reasons mentioned earlier which is extracted below (para 15) : "It is manifest that direct recruits and promotees in Class 11 constitute two distinct groups or classes. This classification has a historical background and a rational basis. the promotees from the lower ranks have only one chance of getting into Class II Service, as against three available to the direct recruits. Further, for a considerable time, recruitment by promotion from the ranks of temporary officiating Deputy Engineers etc. to Class It Service remained frozen with consequent stagnation and loss of incentive in the service. Circumstances being what they are, promotees, at the time of their entry into Class II Service, are, broadly speaking, for older than the direct recruits, and, many of the promotees may have less than 7 years to go before attaining the age of superannuation. to Class It Service remained frozen with consequent stagnation and loss of incentive in the service. Circumstances being what they are, promotees, at the time of their entry into Class II Service, are, broadly speaking, for older than the direct recruits, and, many of the promotees may have less than 7 years to go before attaining the age of superannuation. If in the case of both these groups of promotees and direct recruits, with different background and similar circumstances, the period of seven years eligibility service were to start from the date of their absorption in Class II, then, for most of the promotees their would be a rare chance of ever getting promotion as Officiating Executive Engineer. The classification is thus based on intelligible differentia". Moreover, in Desais case the pre-selection service which was attempted to get tacked was officiating service and not the substantive service in the cadre. Further the decision was given on specific Rules 6, 7 and 8 of the Rules which were applicable to the service of Engineers in that State. In the present case the reckoning of seniority has to be done under Rule 23 after construing which the Hon'ble Court directed the State Government to prepare the seniority list on length of service. And there appears no rationale to exclude the period during which petitioners functioned as Temporary Engineers. Bye reckoning the seniority from the initial date from which such officer became member of service it is not period prior to appointment which is being tacked but the period during which the officers worked in the cadre in substantive capacity is not being arbitrarily excluded or cut-off. 8. Nor is there any merit in claim that these officers having been appointed against permanent vacancies of 1963-64 or 1964-65 their.seniority could not be counted from a date prior to it. Seniority under R. 23 is not to be reckoned from appointment against permanent post but from the date a person entered into service. Since the period served as temporary engineer is also to be counted appointment against vacancy of any year is irrelevant for reckoning seniority. 9. True, it may result in petitioners moving up in the seniority list over their own batchmates of 1967 or 1968 or even those who were selected and appointed directly against permanent vacancies earlier to it, but that would be because petitioners entered the service earlier than them. 9. True, it may result in petitioners moving up in the seniority list over their own batchmates of 1967 or 1968 or even those who were selected and appointed directly against permanent vacancies earlier to it, but that would be because petitioners entered the service earlier than them. If Santosh Kumar Mittra and others who were appointed along with Sri V.C. Agarwals against temporary vacancy in November 1962 and were lower in the order of placement than him have been reckoned as senior to those selected latter against permanent vacancies, there appears no rationale to deny,same to petitioners. 10. Having disposed of principal grievance of petitioners it may now be examined if they are entitled to any direction that no promotion to the post of Superintending Engineer be made unless seniority list of Executive Engineer is prepared. It stands admitted that no seniority list of Executive Engineer has ever been prepared. Obviously because the cadre is of Assistant Engineer. And-the posts in higher scale that is Executive Engineer, Superintending Engineer or Additional Chief Engineer are promotional posts. They are even outside purview of Commission. In absence of any rule it is open to Government to issue orders or instructions regulating procedure, method, and manner of appointment and lay down criteria for it. The eligibility criteria for promotion to the post of Superintending Engineer and Additional Chief Engineer were laid down by the Governor for the first time in 1980 and it was provided that only permanent Executive Engineers were liable to be considered for it. Further in the year of selection they must have completed fifteen years of engineering service in the State including six years as Executive Engineer. This order was considered by the Hon'ble Supreme Court in Aggarwal's case, (1987 Lab IC 1307). And the first requirement namely confinement of field of eligibility to permanent Executive Engineers only was quashed. Since the other part remained untouched it shall be deemed to have been upheld. That is why petitioners have not challenged its validity. But they want to reach the same destination by an indirect route. It cannot be permitted. The petoners are also precluded on principle of constructive res judicata in either challenging its validity or getting out of its effect or applicability directly or indirectly. Even otherwise the claim appears to be devoid of any merit. But they want to reach the same destination by an indirect route. It cannot be permitted. The petoners are also precluded on principle of constructive res judicata in either challenging its validity or getting out of its effect or applicability directly or indirectly. Even otherwise the claim appears to be devoid of any merit. The order envisages experience of at least fifteen years in engineering service. The condition is neither arbitrary nor unreasonable. It only purports to lay down eligibility criterion which appears to be just and proper for a higher, post with greater responsibility. 11. Much argument was attempted to be built on P.K. Mukherji v. State of Orissa, (1984) 3 Serv LR 562 : (1985 Lab IC 66) and Vijayadevraj v. G. V. Rao, (1983) 1 Serv LR 292 (Kant), in support of the submission that promotion to higher scale should be made from immediately lower scale that is Executive Engineer, therefore, the criterim for including service rendered as Assistant engineer was improper and in any case no action could be taken without first preparing seniority list of Executive Engineers. Promotion to the higher scale can be regulated by government. Any order passed by it must not violate Arts. 14 and 16. Since validity of the clause in 1980 order has already been upheld by Hon'ble Court the argument stands foreclosed. Moreover, the decisions relied turned on rules which were applicable to service of those States. In Mukherji case rule providing fro total length of service was struck down as violative of Art. 14. But that argument is not available in view of Aggarwal's case, (1987 Lab IC 1307). And in Vijayadevraj case the rule itself provided that a junior approved for promotion earlier than his senior shall be allowed to maintain his advantage. Neither decision is helpful. In any case there being a direct decision of Hon'ble Supreme Court on the Government order its effect cannot be eroded or diminished by taking recourse to the general principle laid down in these decisions, which were earlier in point of time as well. 12. Equally untenable is the argument of lack of opportunity. Admittedly in pursuance of decision in Aggarwal's case, (1987 Lab Ic 1307) (SC), tentative seniority list was circulated and objections were invited. Thereafter the final list was published after considering the objections and consulting Law department and the Advocate General. 12. Equally untenable is the argument of lack of opportunity. Admittedly in pursuance of decision in Aggarwal's case, (1987 Lab Ic 1307) (SC), tentative seniority list was circulated and objections were invited. Thereafter the final list was published after considering the objections and consulting Law department and the Advocate General. One may be satisfied with it or not but no objection of lack of opportunity can be raised. 13. This finishes consideration of legal submission. But certain objections of opposite parties remain to be dealt with one was the bar of constructive res judicata and second non-impleadment of necessary parties. For the first suffice it to say that petitioners only claim for application of principle laid down by Hon'ble Court in Agarwal's case for preparation of seniority list. In the earlier case they were claiming seniority from dale of substantive appointment against permanent vacancy. That was repelled. And length of service both permanent and temporary became law for determining seniority. Since that is not being adhered to the petitioners rightly came to this Court. As regards non- impleadment few of those who were approved prior to 1961 have not been impleaded. But since the order is not going to affect them their impleadment or non-impleadment is not i very material. Apart from that some of the 1962 hatch have been impleaded. In such matters where large number of officers are involved impleadment of substantial number has been held to be sufficient. As the purpose is that their view point should be placed. So far selectees or appointees after 1961 are concerned large number of them have been impleaded in Civil Misc. Writ Petition No. 7846 of 1989. Since seniority dispute is going on for Tong and promotion to post of Superintending Engineer was due the matters appeared to be urgent. Therefore petitioner was directed to file the notices to be served in the office of Chief Engineer who was directed to make effort to serve the opposite parties. Affidavit was filed at time of hearing that the order of this Court was complied. And notices were handed over in office of the Chief Engineer. Moreover, when these petitioners were presented appearance was put in on behalf of opposite parties and grant of interim order was oposted. Thereafter when no interim orders were granted in some of the petitions the opposite parties failed to instruct their counsel. And notices were handed over in office of the Chief Engineer. Moreover, when these petitioners were presented appearance was put in on behalf of opposite parties and grant of interim order was oposted. Thereafter when no interim orders were granted in some of the petitions the opposite parties failed to instruct their counsel. But that could not result in delaying hearing of petitions, as the State has already filed detailed counter-affidavit and appearance has been put in by many of the respondents. Petitions have been heard at length and all possible arguments have been advanced on behalf of both the promotees and those officers who were appointed in direct selection after I%2. To adjourn hearing and delay preparation of seniority list and promotion to the post of Superintending Engineer till service is affected individually would not have been conducive of in interest either of petitioners or respondents or non- impleaded respondents or service as a whole., In earlier petition i.e. Aggarwal's case (1987 Lab IC 1.107) (SC) and others when petition were heard in this Court they were heard as representative petitions irrespective of whether any objection was filed by one or the other member of service or he was represented or unrepresented. Although in earlier petitions specific order was passed after advertisement in papers that petitions shall be heard as representative petitions, but no such step should he taken in these petitions primarily clue to pressure built by opposite parties while hearing interim applications resulting in agreed date for decision at admission stage, therefore, no such objection can he taken. And it can well he presumed that all concerned in the department are aware that hearing on validity of seniority list is going on but if they choose to remain absent it is obvious that they have nothing further to say except what has been said by State or other colleague on their behalf. Principle of substantial representation has been held to be effective in Prabodh Verma v. State. 1984 All LJ 931. In fact respondents themselves being keen for hearing of these petitions, due to stay granted in one of the petitions against promotion of Superintending Engineer, are precluded on principle of fairness as even though stay order expired during hearing and was not extended should not have been furnished occasion to raise such technical plea. 14. Issue yet is to what relief petitioners are entitled. 14. Issue yet is to what relief petitioners are entitled. Relief sought is against promotees and direct both impleaded or unimpleaded. So far two hundred temporary engineers recruited prior to 1962 are concerned they "had been rendering their services for long years since 1956 till 1961 then the said notification has been made by the Government have become members of the service in accordance with the provisions of the rules. Therefore, on the basis of the provisions of R. 23 as it was before the amendment made in 1971 these temporary Assistant Engineers are legally entitled to have their seniority reckoned from the date of their being member of the service no matter whether they are holding posts which remain as temporary for years together. It is quite clear that there are about 200 Assistant Engineers who have been appointed substantively by the Government with the approval of the Public Service Commission and as such the direct recruits appointed on the basis of the examination held under the 1969 rules cannot in any manner whatsoever encroach upon the rights of these substantively appointed Assistant Engineers to temporary posts in the matter of determination of their seniority in the said cadre of Assistant Engineers". (Agarwal's case) Therefore, the petitioners or others like them who admittedly, were selected and appointed initially against temporary vacancy under office memorandum of 1961 cannot claim any seniority over them. Their claim stands finally rejected by Hon'ble Court and they are precluded on rule of finality from agitating it. 15. Some attempt was made to claim seniority over those who were already working and were approved for appointment against temporary posts on 19th November, 1962 on basis of interview held by Public Service Commission. True that direct selectees were also approved for appointment on same day that is 19th November, 1962. But latter part of Rule 23 itself takes care of such a situation by providing seniority amongst officers who are appointed on same date shall be determined, "according to the order in which their appointment has been notified". From perusal of the two orders issued on 19th November, 1962 it is apparent that notification number of temporary engineers already working is 5819 whereas those of directs it is 5820. The officers of notification No. 5819 thus shall be reckoned as senior to officers of 5820. 16. Reverting to inter-se claim between directs. From perusal of the two orders issued on 19th November, 1962 it is apparent that notification number of temporary engineers already working is 5819 whereas those of directs it is 5820. The officers of notification No. 5819 thus shall be reckoned as senior to officers of 5820. 16. Reverting to inter-se claim between directs. Such officers can be grouped in two broad categories one those who were appointed along with petitioners temporarily I against substantive vacancies and others who were selected against permanent vacancies between the dates when petitioners were appointed against temporary vacancy substantively and selected again against permanent vacancies. Amongst such officers all those who were appointed after office Memorandum.of 1961 and were confirmed cannot be disturbed in view of the directions of Hon'ble Court in Aggarwal's case, (1987 Lab IC 1307) (SC). But so far others are concerned their seniority shall be determined as indicated earlier. Therefore, the petitioners who were appointed substantively against temporary vacancy shall be entitled to reckoning of their seniority from that date, irrespective of their subsequent selection against permanent vacancy. 17. In the result these petitions succeed and are allowed in part. Seniority list prepared by Government shall be modified and those officers who were appointed against temporary vacancies substantively after selection from Public Service Commission but were placed lower in order of merit and succeeded subsequently against permanent vacancies shall be granted seniority from the date they entered into service, namely, from the date they were appointed after facing Commission against temporary vacancy, subject to observations made above. In other respects petitions are dismissed. 18. In view of divided success parties shall bear their own costs.