Santosh Prakash Mathur v. State of U. P — 1990 DIGILAW 961 (ALL)

ORDER B. P. Singh, J. - Through this petition under Art. 226 of the Constitution of India, the petitioner, Sri Santosh Prakash Mathur, an officer belonging to the Public Works Department (hereinafter referred to as P.W.D.) of the Uttar Pradesh State Government, challenges the seniority list of the Engineers of the P.W.D. dated 20-4-1989 prepared by the State Government after decision of the Supreme Court in an earlier case P. D. Agarwal v. State of U. P., reported in AIR 1987 SC 1676 : (1987 Lab IC 1307) (hereinafter referred to as P. D. Agarwal's case). In order to appreciate the questions in controversy between the parties it is necessary to refer, in brief, to the past history of the Rules of the P.W.D. and the cases in which the disputes regarding seniority of the officers of the P.W.D. was raised and decided. 2. Initially all the branches of the engineering services of the State Government of Uttar Pradesh (then known as United Provinces) formed part of one intigrated Public Works Department, but in 1936 U.P. Service of Engineers Class II, Rules (Buildings and Roads Branch) pertaining to P.W.D. were framed in exercise of the powers conferred under Government of India Act (hereinafter referred to as the 1936 Rules). The identical rules were framed for the Irrigation Department. The only difference was in the nomenclature of the two services and in all other respects the rules were identical. 3. Rule 3(b) of these rules defines 'members of service' as a Government servant appointed in substantive capacity, under the provisions of these rules or rules in force previous to the introduction of these rules to a post in the cadre of the service. 4. 3. Rule 3(b) of these rules defines 'members of service' as a Government servant appointed in substantive capacity, under the provisions of these rules or rules in force previous to the introduction of these rules to a post in the cadre of the service. 4. Rule 5 of the Rules provides the following sources of recruitment : (i) by direct appointment from amongst engineer students who have passed out of Thomson Civil Engineering College, Roorkee, and who have completed a course of training in the Building and Roads Branch as engineer students after consulting the Public Service Commission; (ii) by the appointment after (sic) advertisement and after consulting the Public Service Commission; (iii) by the appointment of officers in the temporary service of the United Provinces Public Works Department, Buildings and Roads Branch, after consulting the Public Service Commission, provided that it will not be 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 service after consultation with the commission; (iv) by promotion of members of the United Provinces Subordinate Engineering Service in the Pubic Works Department, Building and Roads Branch, who have shown exceptional merits; (v) by promotion on computers in the Public Works Department, Buildings and Roads Branch, who have shown exceptional merits and who are technically qualified. 5. Rule 23 of the Rules provides that 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 the same date, their seniority inter se shall be determined according to the order in which their appointment has been notified. 6. Under the 1936 Rules the U. P. Service of Engineering Class I (comprising the posts of Executive Engineers and above) and U. P. Service of Engineers Class II (comprising posts of Assistant Engineers) were created but these two services were merged in 1948 into one new service with posts in Junior scale (corresponding to old Class II) and senior scale (corresponding to old Class I). Surprisingly no new rules were framed for the new service created in the year 1948 and from 1948 on-wards appointments to the senior scale posts were made by promotion only from the the officers of the Junior scale. Surprisingly no new rules were framed for the new service created in the year 1948 and from 1948 on-wards appointments to the senior scale posts were made by promotion only from the the officers of the Junior scale. Perhaps the new rules were not framed as they were not required because basically the service remained and only the nomenclature of the service was changed and the G. O. creating the new Rules could not have repealed or changed the Statutory Rules of 1936, 1936 Rules continued to apply to the new service. On 7th December, 1961 an office memorandum No.4162EBR/XXIII-PWD- 90 FBR/ 1954 was issued by the Government through which new principles for the recruitment to the permanent and temporary posts in the P.W.D. were laid down. The portion of this memorandum, so far as is relevant for the present case, is quoted as under : "The principles regulating selection for recruitment to permanent and temporary posts of Assistant Engineers in the various State Engineering Services have been under the consideration of Government for some time post and after through consideration the Governor is pleased to order that in future direct recruitment to both permanent and temporary vacancies of Assistant Engineers (Civil, Electrical and Mechanical) in the Public Works, Irrigation and Local Self-Government Engineering Departments will be made on the resluts of competitive examinations to be conducted by the Public Service Commission. Candidates possessing technical and other qualifications prescribed in the rules for the Uttar Pradesh Service of Enginers in the Departments concerned will be eligible to appear at the examination for that particular service. 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." 7. It appears that 1936 Rules were amended in the years 1969 and 1971 (Rules 3(c), 5, 6 and 17 were amended in the year 1969 through Government Notification and Rules 23 relating to seniority was amended in the year 1971 through another Government Notification) and thereafter a seniority list of the officers of the P.W.D. was notified in the year 1971. This list was challenged by a directly appointed Assistant Engineer in the P.W.D. in his already pending Writ Petition No. 8374 of 1969 and was quashed by a single Judge of this Court by the judgment dated 14th September, 1972, Special Appeal was filed and was dismissed by a Division Bench of this Court and thereafter the Special Leave Petition filed in the Supreme Court against the above mentioned judgment of the Division Bench was also dismissed on 8th September, 1975. 8. It appears that a period of inaction on the part of the State followed and after vascillating for a few years, a fresh list of seniority was notified on 29th July, 1980. This new list of seniority was prepared keeping in view the amended 1936 Rules as amended by the notifications issued in 1969 and 1971. 9. Again this seniority list was challenged before Lucknow Bench of this Court in six writ petitions. All these six writ petitions were heard together and were converted into writ petitions of a representative capacity after due publication of the notice so that all the officers of the P.W.D. affected by the impugned seniority list could apply for impleadment and could forward their respective points of view as they were to be directly affected one way or the other depending if the impugned seniority list was upheld or quashed. Writ Petition No. 2447 of 1980 (V.N. Mittal v. State and others) was treated as the leading case. All these writ petitions were partly allowed on 14-1-1982 by a Division Bench of the Court (a photo state copy of the judgment was provided by the learned counsel for the petitioner and both the learned counsel for the parties have referred to this judgment during the course of their arguments) and the seniority list dated 29-7-1980 along with the supplementary seniority list was quashed; the notifications dated 28-6-1969 and 26-1-1971 amending the 1936 Rules were also quashed (the other pronouncements in this Division Bench judgment are not relevant for the purposes of presenting the history of litigation). 10. Some of the affected officers, P.D. Agarwal and others, went in appeals before the Supreme Court against the judgment of the Division Bench dated 14-1-1982 and their appeals were dismissed; the judgment and order of the High Court quashing the seniority list dated 29-7-1980 together with supplementary list dated 18-12-1980 and 19-12-80 was affirmed. 10. Some of the affected officers, P.D. Agarwal and others, went in appeals before the Supreme Court against the judgment of the Division Bench dated 14-1-1982 and their appeals were dismissed; the judgment and order of the High Court quashing the seniority list dated 29-7-1980 together with supplementary list dated 18-12-1980 and 19-12-80 was affirmed. Rules 3(c) 5 and 6 of 1936 Rules as well as R. 23 of 1973 Rules were also quashed. The memorandum dated 21-1-1980, providing that for the selection on the post of Superintending Engineer the officer must be a confirmed Executive Engineer, was also quashed and the State Government was directed to prepare a fresh seniority list of engineers in the P.W.D. 11. The present seniority list was prepared and notified by the State Government on 20-4-1989. 12. Sri Santosh Prakash Mathur has challenged this list dated 20-4-1989 and his case may be briefly stated as follows:- The petitioner, appointed as student engineer in P.W.D. on 13-8-1959, while working as student engineer, was appointed as temporary ex-cadre engineer along with some others by a G. O. No. 2086 dated 8-7-1959. An equal number of posts of temporary Assistant Engineers in the cadre was left unfilled for the period during which this ex-cadre posts were to continue. By G.O. No. 3339 dated 19th October, 1959 the petitioner was appointed as temporary Assistant Engineer in the P.W.D. with effect from 13-8-1959. This appointment was in the regular cadre. Other persons were also appointed in the same manner and all these appointments were continued in the P,W.D. in the regular cadre. Although the appointments as temporary Assistant Engineers continued on the year to year basis in consolation to the Public Service Commission, the approval of these appointments could not be obtained from the Public Service Commission and no interview were held from 1959 to August-September, 1962. On 7th December, 1961 the Government issued an office memo introducing a new method of recruitment through open market to temporary posts as well as permanent posts in the junior scale of the cadre of the P.W.D. engineering service. 13. Officers already serving in the department as well as some engineering graduates from open market appeared in the interview held by Public Service Commission in the months of August and September, 1962. 13. Officers already serving in the department as well as some engineering graduates from open market appeared in the interview held by Public Service Commission in the months of August and September, 1962. the Commission sent two lists of approved officers - one list comprising of the engineers already working in the department and another list comprising of the direct recruits who had come from the open market. The State Government issued two G.Os i.e. G.O. No. 5819 dated 19-11-1962 with regard to engineers who were already working in the department and G.O. No. 5820 dated 19-11-1962 regarding the recruites who had come from the open market and were not formerly in the service of the P.W.D. Fresh appointments were also issued to the engineers whose appointments were governed by G.O. No. 5820 dated 19-11-1962. The petitioner, like his other coteagues had undergone practical draining while direct recruites covered by G.O. No. 5820 dated 19-11-1962 were not required to undergo any practical training in view of the office memo dated 7-12-1961. In the seniority list dated 20-4-89 prepared by the Government after decision in P.D. Agarwal's case the petitioner has been placed at serial No. 156 whereas he ought to be in a place much higher in the list. The service rendered by the petitioner prior to 19-11-1962 has not been taken into consideration by the State Government and as such the provisions of Rule 23 of 1936 Rules were not complied with. The seniority has been fixed on the basis of the list submitted by the Public Service Commission on 18-10-1962. This list is alleged to have been prepared by the Public Service Commission on the basis of the merits already assigned by the Public Service Commission. This assignment of the seniority is contrary to Rule 23 of the 1936 Rules. The State Government is not bound to accept the recommendations of the Public Service Commission. The State Government has not taken into account the period of petitioner's service from 13-8-1959 to 19-11-1962 while fixing his seniority although the Government has been recognising the date of petitioner's appointment as 13-8-1959 for the purposes of increments etc. G.O. No.5819 dated 19-11-1962 was simply an approval; confirmation of the appointment of the petitioner and would relate back to 13-8-1959. Under Rule 23 of the 1936 Rules the petitioner was entitled to get his seniority fixed from 13-8-1959. G.O. No.5819 dated 19-11-1962 was simply an approval; confirmation of the appointment of the petitioner and would relate back to 13-8-1959. Under Rule 23 of the 1936 Rules the petitioner was entitled to get his seniority fixed from 13-8-1959. In case no interview for approval was held by the Public Service Commission between 1959 and August-September, 1962, the fault did not lay with the petitioner and he cannot be penalised for the inaction on the part of the State Government/ Public Service Commission. In view of the fact that the amended R. 23 of the 1936 Rules was struck down by the Superme Court in P.D. Agarwal's case, the principles of continuous officiation in the service should be applied in the petitioner's case. The same principle has been applied in the State Government to the Irrigation Department of the State. 14. The case of the respondents is that the seniority of the petitioner has been fixed correctly. The date on which a temporary Assistant Engineer is selected and appointed by the Government with the approval of Public Service Commission after fulfilling all the conditions prescribed in the Rules shall be the date from which the Engineer shall be deemed to be a member of the service and it is from this date his entire length of service shall be counted for the purposes of determining his seniority as provided under R. 23 of 1936 Rules. The appointment of the petitioner prior to 19-11-1962 was not in accordance with Rules and as such the period of service rendered by the petitioner prior to 19-11-1962 was of; no avail to him so far as question of determining his seniority was concerned. Rule 23 of 1936 Rules lays down that the seniority in the service will be determined by the date of order of appointment in a substantive vacancy and where more than one person were appointed together then by the order in which they were arranged in the said order. The petitioner was appointed in substantive capacity on 19-11-1962 by G.O. No. 5819 and his seniority in the department has been reckoned from that date. It is not open to the State Government to disturb the order of merit laid down by the Public Service Commission in the merit list. The petitioner was appointed in substantive capacity on 19-11-1962 by G.O. No. 5819 and his seniority in the department has been reckoned from that date. It is not open to the State Government to disturb the order of merit laid down by the Public Service Commission in the merit list. Purely ad hoc employees or employees on purely officiating basis or employees purely working for a temporary period in the cadre of Assistant Engineer in P.W.D. are not entitled to the benefit of service as they cannot be treated as a member of the service on the basis of such appointments. The seniority list in question has been prepared in accordance with the directions contained in P.D. Agarwal's case. 15. As has been observed earlier identical rules governed the Irrigation Department of the State of Uttar Pradesh. The Supreme Court, in the case of Baleshwar Das v. State of U. P., AIR 1981 SC 41 : (1980 Lab IC 1155) in which the question of seniority of the Irrigation Department of the U. P. State Government was involved, has observed as follows (at page 1166 (of LIC) : "What, in the context, is a substantive capacity vis-a-vis an appointment to a post? In our view the emphasis imported by the adjective "substantive" is that thing is substantive if it is "an essential part or constituent or relating to what is essential." (Black's Legal Dictionary, 4th Edn. p. 1597). We may describe a capacity as substantive, if it has "independent existence" or is of "considerable amount or quantity". What is independent in a substantial measure may reasonably be described as substantive. Therefore, when a post is vacant, however, designated in officialism, the capacity in which the person holds the post has to be ascertained by the State. Substantive capacity refers to the capacity in which a person holds the post and not necessarily to the nature or character of the post. To approximate to the official diction used in this connection we may well say that a person is said to hold a post in a substantive capacity when he holds it for an indefinite period especially of long duration in contradistinction to a person who holds it for a definite or temporary period or holds it on probation subject to confirmation. Once we understand ''substantive capacity" in the above sense, we may be able to rationalise the sutiation. Once we understand ''substantive capacity" in the above sense, we may be able to rationalise the sutiation. If the appointment is to a post and the capacity in which the appointment is made is of indefinite duration, if the Public Service Commission has been consulted and has approved, if the tests prescribed have been taken and passed, if probation has been prescribed and has been approved, one may well say that the post was held by the incumbent in a substantial capacity. 16. In the case of P.D. Aggarwal v. State of U. P., AIR 1987 SC 1676 : (1987 Lab IC 1307) the Supreme Court has observed as follows (at page 1313 (of LIC): "It appears that a similar question about the yardstick for determination of seniority between the Assistant Engineers appointed substantively to temporary posts of the cadre and those Assistant Engineers appointed against the permanent posts on probation and confirmed in the said post, came up for consideration before this Court in Civil Appeal No. 1717 of 1981. In that appeal we have already considered this aspect of the case and relying on the decision in Baleshwar Dass v. State of U.P.; N.K. Chauhan v. State of Gujarat, (1977) 1 SCR 1037 : AIR 1977 SC 251 : (1977 Lab 1C 38) we have held that since the cadre of the service of engineers consists of both temporary and permanent posts and as such there can be substantive appointments 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 has to be reckoned in computing the seniority of the Assistant Engineers appointed substantively to temporary posts in the 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, the long years of service rendered by an Assistant Engineer though appointed to a temporary post substantively cannot be arbitrarily cut off and excluded in determining seniority." Their Lordships of the Supreme Court have further observed in the above noted case as follows (at page 1320 (of LIC) : "We further hold that so far as the temporary Assistant Engineers who have been appointed substantively to temporary posts and have been working for years together after being duly recruited and selected by the Public Service Commission as required under the service rules have become members of the service but so far as purely ad hoc employees or employees on purely officiating basis or employees purely for a temporary period in the cadre of Assistant Engineer in Public Works Department being not members of the service in accordance with the service rules are not entitled to have the benefit of their such adventitious, purely ad hoc and temporary service being not appointment substantively even to a temporary post will not be reckoned for determination of seniority unless and until they become members of the service in accordance with the provisions of service rules. Only those ad hoc appointees whose services have been regularised by the regularisation rules framed under proviso to Art. 309 of the Constitution after being duly selected by the Selection Committee and becoming member of the service, will be entitled to seniority only from the date of order of appointment after selection in accordance with those regulations as provided in Rule 7 of the regulations." 17. In a recent case of Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra, AIR 1990 SC 1607 : (1990 Lab IC 1304) a Constitutional Bench of the Supreme Court had the occasion to again consider the principles regarding determination of seniority of the Engineers of the State of Maharashtra. Although the dispute in the above cited case was for the seniority in a promotional cadre the principles laid down also hold good for the present case. Although the dispute in the above cited case was for the seniority in a promotional cadre the principles laid down also hold good for the present case. The Supreme Court has observed as follows : "To sum up, we hold that (at page 1324 (of ILC) : (A) once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority. (B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with at he rules, the period of officiating service will be counted. 18. In the case of V.C. Agarwal v. State of U. P., 1989 UPLBEC 477: (1990 Lab IC 663) a Division Bench of this Court (of which I was one of the members) has held as follows (at page 668 (of LIC) : "Seniority under Rules had co-related with substantive appointment in service, temporary or permanent and not on confirmation of the appointment against permanent vacancy. The petitioners, who were appointed temporarily earlier against temporary vacancies in substantive capacity and neither ad hoc nor officiating, are entitled to their seniority from the date of their initial appointment in service." 19. Thus, the legal position, as it emerges from the above cited decisions (in two of these decisions 1936 Rules were considered and interpreted by the Supreme Court), may be stated as under: 20. Seniority in the service of the P.W.D. shall be determined from the date on which an officer becomes the member of the service. An officer becomes a member of the service according to the date of order of appointment. Appointment can be made against a permanent as well as a temporary post in the service. Appointment against a temporary post in the service will amount to appointment to it from the date of such an appointment is made in accordance with 1936 Rules and not otherwise. Appointment can be made against a permanent as well as a temporary post in the service. Appointment against a temporary post in the service will amount to appointment to it from the date of such an appointment is made in accordance with 1936 Rules and not otherwise. Persons appointed on ad hoc or provisional or purely temporary basis for a specified or limited period cannot claim any benefit of such appointment when the appointment is made not under the 1936 Rules but under some other executive order. However, there may be an exception if initial appointment, though not made in accordance with 1936 Rules, is allowed to continue uninterruptedly and subsequently is regularised in accordance with the Rules framed specially for the purpose and in that case the entire period from the date of the initial appointment shall be counted towards seniority. 21. The main argument of the learned counsel or the petitioner is that the petitioner was appointed substantively against a temporary post in the service in accordance with G.O. No. 3339EBR/XXIIIWB-2EBR/59 dated October, 19, 1959, issued by the State Government P.W.(B) Department, Lucknow (Annexure-3) to the writ petition and, as such, his date of appointment to the service is to be treated as 13-8-1959 in terms of the above mentioned G.O. In the alternative Shri B.D. Mandhyan has argued that in case the appointment through 1 he above mentioned G.O. is that regarded as a,. appointment under the Rules, the G.O. No. 5819 EBR/ XXIII-PWD dated 19-11-1962 through which the petitioner was appointed to the service should be taken as an appointment through which the earlier appointment of the petitioner through G.O. dated 19-10-1959 was regularised. 22. In order to appreciate the arguments, the G.O. dated 19-10-1959 is to be examined in detail. the subject of the G.O. is "Appointment of candidates of 1958 Batch as Tempy. and Offig. Asstt. Engineers in the Sarvajanik Nirman Vibhag. "The G.O. further reads that the Governor is pleaded to approve of the appointment on a provisional basis of the following persons as temporary and officiating Assistant Engineers in the Sarvajanik Nirman Vibhag in the pay scale of Rs. 250-25-400-EB-30-700-EB-50-850 (with a starting pay of Rs. and Offig. Asstt. Engineers in the Sarvajanik Nirman Vibhag. "The G.O. further reads that the Governor is pleaded to approve of the appointment on a provisional basis of the following persons as temporary and officiating Assistant Engineers in the Sarvajanik Nirman Vibhag in the pay scale of Rs. 250-25-400-EB-30-700-EB-50-850 (with a starting pay of Rs. 300/- per mensem) with effect from the date of which each of them completes one year's practical training till March 31, 1960, unless terminated earlier without prior notice, on the terms and conditions given in the new general rule published with Government Notification No. 0-230-IIB-1953, dated January 30, 1953. The last portion of this G.O. reads as follows: "Copy forwarded for information to the Sachiv, Lok Seva Ayog, Uttar Pradesh, Allahabad, in continuation of Government Endorsement No. 1660 (iii) EBR/XXIII-PWD-2EBR/59 dated May 18, 1959 and Govt. Endorsement No.2086(iii) EBR/ XXIII PWD-2EBR/59, dated July 8, 1959, with the remark that the above mentioned appointments have been made on a provisional basis under Regulation 5(a) of the Uttar Pradesh Service Commission (Limitation of Functions) Regulations, 1954." A bare reading of the above G.O. makes it clear that the appointment of 17 Engineers in the Servajanik Nirman Vibhag including the petitioner was purely on a temporary and officiating basis. Their services could be terminated without prior notice and the terms and conditions of the service were to be governed by G.O. dated 30-1-1953. further more, while forwarding the copy for information to the Secretary of the Public Service Commission, U.P., it was specifically stated that the appointments were made on a provisional basis under Regulation 5(a) of the Uttar Pradesh Service Commission (Limitation of Functions) Regulations, 1954, (hereinafter referred to as the 1954 Regulations). Thus, this G.O. relating to the appointment of the petitioner in the P.W.D. no where mentions the 1936 Rules wherein the source of recruitment has been specifically detailed. On the other hand, this G.O. categorically states that the appointments were made on a provisional basis under Regulation 5(a) of the 1954 Regulations. These 1954 Regulations were made in order to overcome the difficulty which the Government was facing in making appointment to the posts which fall within the purview of the Public Service Commission and due to some unavoidable reasons the recommendations from the Public Service Commission were not received in due course. These 1954 Regulations were made in order to overcome the difficulty which the Government was facing in making appointment to the posts which fall within the purview of the Public Service Commission and due to some unavoidable reasons the recommendations from the Public Service Commission were not received in due course. Under these circumstances, the Governor was empowered to appoint a person to a post, which came within the purview of the Public Service Commission, without consulting the Public Service Commission for one year only. It appears that the appointment of the petitioner on the basis of the G.O. dated 19th October, 1959 continued up to the year 1962 and it also appears that in the meantime the Public Service Commission was also consulted. There is no material on the record from which the nature of consultation could be gathered. But once the appointment of the petitioner was made under the 1954 Regulations, the consultation with the Public Service Commission could have been regarding this appointment. By no stretch of imagination this appointment of the petitioner through G.O. dated 19th October, 1959, can be regard as an appointment under the 1936 Rules. 23. Thereafter, through the Office Memorandum of December, 1961, a new method of recruitment for the officers of the P.W.D. and the Irrigation Department was introduced. This recruitment was through the Public Service Commission. As has been held in the case of Baleshwar Das v. State of U.P., AIR 1981 SC 41 : (1980 Lab IC 1155) the Office Memorandum of 1961 did not have the effect of overriding the 1936 Rules. This office Memorandum has to be read in harmony with the 1936 Rules. The petitioner was one of the many others who had appeared before the Public Service Commission in August/September, 1962 for interview. On the basis of their performance, the Public Service Commission made recommendations, as already mentioned, to the Government and it was on the recommendation of the Public Service Commission that the G.O. dated 19th November, 1962 was issued in which the petitioner figured at serial No. 57. Thus, in effect this appointment through the G.O. dated 19-11-1962 was a fresh appointment to the service by the Government. There is no mention of the fact that the services of the petitioner or others were being regularised. Thus, in effect this appointment through the G.O. dated 19-11-1962 was a fresh appointment to the service by the Government. There is no mention of the fact that the services of the petitioner or others were being regularised. In fact, it is not the case of the petitioner that any rules or regulations were passed in 1961 or 1962 under which his earlier service was regularised. These appointments through the G.O. dated 19-11-1962 were in fact made under Rule 5(iii) of the 1936 Rules and thus there was no question for regularisation of the services of the petitioner and others, who were already working in the P.W.D. 24. Thus, the arguments of the learned (counsel for the petitioner that the petitioner became a member of the service from 13-8-1959 on the basis of the G.O. dated 19-10-1959 and that the services of the petitioner were not regularised through the G.O. dated 19-11-1962 have no force. The conclusion is that the petitioner came to be appointed for the first time to the service in accordance with the 1936 Rules through the G.O. dated 19-11-1962 and prior to that he was working in the Department purely on ad hoc and provisional basis in accordance with the 1954 Regulations. 25. It may also be pointed out that similar contentions were raised by the Engineers of the category to which the petitioner belongs in Writ Petition No. 2447 of 1980 (V. C. Agarwal v. State of U.P.) decided on 14-1-1982 and the Division Bench while rejecting the above contentions had held as follows: "Persons appointed on ad hoc or provisional basis under the proviso to Regulation 5(a) cannot be treated as having been appointed to the service under Rule 5 of the 1936 Rules. They were appointed only to posts in the cadre, put only on a provisional basis, and did not become members of the cadre or of the service. As such they are not entitled as of right to have their service rendered under such appointments to be counted for purposes of seniority as against persons who got selected by RSC earlier either for temporary or for permanent posts under Rule 5 of the 1936 Rules read with OM. dated 7-12-1961". As such they are not entitled as of right to have their service rendered under such appointments to be counted for purposes of seniority as against persons who got selected by RSC earlier either for temporary or for permanent posts under Rule 5 of the 1936 Rules read with OM. dated 7-12-1961". The above conclusion reached by the Division Bench was neither overruled nor disturbed even by implication by the Supreme Court when the appeals against the said decision were heard and decided by the Supreme Court (P.D. Agarwal's case). The general principles of res judicata are applicable and the petitioner cannot re-open the findings recorded on this point in V.C. Agarwal's case. 26. It was next contended by the learned counsel for the petitioner that the seniority of the petitioner was fixed on the basis of the merit list forwarded by the Public Service Commission after the interview were held and that the said list was arbitrary because the Engineers who had joined the Department subsequent to the appointment of the petitioner were shown as senior petitioner and that at the most the recommendation of the Public Service Commission was of, advisory nature and should have been ignored by the State Government. On the other hand, the learned counsel for the respondents contended that the Public Service Commission must have taken into account all the considerations relevant to the merit of the petitioner vis-a-vis the other Engineers, who were appearing in the interview while preparing the merit list dated 18-10-1962 and it was not open to the State Government to ignore or question the correctness or propriety of the said merit list. 27. Under Art. 320 of the Indian Constitution, a State Public Service Commission has to conduct examination for appointment to the services of the State and the State Government is to consult the Commission on all matters relating to the method of recruitment to civil services and for civil posts. It is no doubt true that the power to appoint officers to the State services, including senior posts, vests with the Executive wing of the Government, but the power of the executive authority regarding these appointments in public services is very often misused if there are to checks and balances available. This generally leads to the evil of nepotism and favouritism. This generally leads to the evil of nepotism and favouritism. The framers of the Indian Constitution were aware of these short comings and were deliberately placing restrictions upon the power of Central/State Government by creating an authority independent of their control and influence in the matter of appointment to the civil services including higher posts. This was done on purpose because the framers of the Indian Constitution wanted to bid farewell to the system known as 'spoils system' which was prevalent in some parts of the country at that time. The provisions of Art. 320 of the Indian Constitution came up for consideration before the Supreme Court in the case of Jatinder Kumar v. State of Punjab, AIR 1984 SC 1850 . The Supreme Court has observed in the above case as follows (at page 1853 (of AIR) : "The establishment of an independent body like Public Service Commission is to ensure selection of best available persons for appointment in a post to avoid arbitrariness and nepotism in the matter of appointment. It is constituted by persons of high ability, varied experience and of undisputed integrity and further assisted by experts on the subject. It is true that they are appointed by Government but once they are appointed their independence is secured by various provisions of the Constitution. Whenever the Government is required to make an appointment to a high public service it is required to consult the Public Service Commission. The selection has to be made by the Commission and the Government has to fill up the posts by appointing those selected and recommended by the Commission adhering to the order of merit in the list of candidates sent by the Public Service Commission." Thus, the legal position is quite clear i.e., it is open to the State Government to accept or decline the recommendations made by the Public Service Commission. But, once the State Government accepts the recommendations made by the Public Service Commission regarding the appointment to the service, then appointments are to be made strictly in accordance with the order of merit as recommended by the Public Service Commission. It is not open to the State Government to change the merit list by applying the policy of pick and choose. Thus, the above argument o Shri S.D. Mandhyan also has no force. 28. It is not open to the State Government to change the merit list by applying the policy of pick and choose. Thus, the above argument o Shri S.D. Mandhyan also has no force. 28. It was also contended by the learned counsel for the petitioner that the State Government has been treating the date of appointment of the petitioner as 13th August, 1959 because increments etc. are given to the petitioner from that date. The above argument has no force. It is open to the Government to treat the date 13th August, 1959, for the purpose of increments and other benefits to the petitioner. But, this date 13th August, 1959 cannot be taken into consideration for determining the seniority of the petitioner vis-a-vis other officers of the P.W.D. 29. It was also contended that in the case of the Engineers belonging to the Irrigation Department of the Uttar Pradesh Government the State Government has reckoned the seniority of the Engineers taking into account their continuous service prior to the approval by the Public Service Commission. It may be that the Engineers of the Irrigation Department were not aggrieved by the said decision of the State Government and a wrong decision of the State Government cannot be the precedence for the officers of the P.W.D. 30. Lastly, it was contended by the learned counsel for the petitioner that in case regular selection was held in 1958, 1959, 1960 or 1961, the petitioner would have been considered by the Public Service Commission and, if selected, he would have been entitled to the seniority from that date. The argument is simply hypothetical and cannot be effectively answered unless some presumptions are made. It was quite possible that the petitioner, had there been any selection by the Public Service Commission prior to 1962 would not have succeeded in the selection. In that case, the petitioner would have been out of the P.W.D. If the fault lay with the State Government other officers of the P.W.D. cannot be punished for the same. Under these circumstances, the writ petition has no force and is hereby dismissed. There shall be no order as to costs.