JUDGMENT - PATANKAR P.S., J.:—The fight between the direct recruits and promotees, relating to their claim as to seniority, has again been staged before this Court in this appeal. The many decisions of the Apex Court, as regards different similar services, are the best testimonials of this fight. This Appeal involves Assistants from the Urban Development and Public Health Department. We may straightway say that the contentions raised before us on behalf of both the sides are not entirely new and covered to a large extent by the earlier Division Bench judgments of this Court and Supreme Court judgments. 2. The respondents Nos. 1 and 2 herein are the original petitioners. They are the promotee candidates. Respondents Nos. 3 and 4 herein are the respondents Nos. 2 and 3 to the petition who represent the direct recruits. The appellant-State herein was the respondent No. 1 to the petition. The reference regarding parties hereafter shall be made with reference to the original petition. 3. The petitioners have challenged the final seniority list of the Assistants dated 7th August, 1985 issued by the respondent No. 1. It is in respect of the former Urban Development and Public Health Department of respondent No. 1. On the basis of the said list, provisional seniority list of Superintendents came to be issued by the General Administration Department of respondent No. 1 dated 30th September, 1985. According to the petitioners both these lists are illegal and invalid and required to be quashed, since they did not allot proper seniority to them. According to the petitioners, the final seniority list of Assistants came to be prepared on 15th March, 1980 and the same should have been treated as legal and valid and on that basis the list of Superintendents should have been prepared. 4. The learned Single Judge of this Court granted the prayers of the Petitioners holding that these lists have been prepared on the unfounded assumption of inflation of number of vacancies, and in view of later Supreme Court Judgments, the view taken by the Division Bench of this Court in the judgment dated (11th July, 1978 in Special C.A. No. 201 of 1971)1 and (Special C.A. No. 687 of 1981)2, has undergone erosion and so cannot hold good now. 5. 5. The Division Bench of this Court in its judgment mentioned supra dealt with the problem in respect of several branches of the Secretariat of Respondent No. 1 for the post of Junior Assistants. The Rules and the executive instructions relied upon in this petition were the same which came to be relied upon and considered, except the three which are issued by respondent No. 1 after the said decision was delivered. The Division Bench carried out the exercise of appreciating the said material available till the date of the decision. “On 22nd May, 1957 the Government of Bombay in exercise of the powers conferred on it by the proviso to Article 309 of the Constitution of India amended the Bombay Civil Services Classification and Recruitment Rules, 1939. Rule 138 of the Rules of 1939 was substituted as under:— A. Upper and B. Lower A. Upper Division:— (i) Superintendents:—Appointments shall be made by promotion from among Senior Assistants. (ii) Senior Assistants :—Appointments shall be made by promotion from among Junior Assistants. (iii) Junior Assistants :— Appointments shall be made either:— (a) by nomination on the results of a competitive examination held by the Bombay Public Service Commission, or (b) by promotion from among members of the Lower Division: Provided that not more than one out of every four vacancies in the post of Junior Assistants shall ordinarily be filled by promotion.” 6. The abovementioned Rules themselves did not provide as to how the seniority between the direct recruits and the promotees should be regulated. In the absence of such Rules, the different Departments of the Secretariat went on fixing inter se the seniority between the promotees and direct recruits according to their own understanding and there was no uniformity. The Government therefore decided to do away with this anomaly and attempted to lay down the Rules for fixation of seniority of the direct recruits and the promotees inter se, for the first time, by issuing the Circular dated 25th September, 1961. The Circular was titled 'seniority fixation of direct recruits and the promotees inter se'. The said Circular was the basis of the earlier litigation and the material part was to the following effect : ''The above practice followed by certain Secretariat Departments is not correct. The ratio of promotion, prescribed by Government is only for regulating promotion of members of the Lower Division, to the Upper Division. The said Circular was the basis of the earlier litigation and the material part was to the following effect : ''The above practice followed by certain Secretariat Departments is not correct. The ratio of promotion, prescribed by Government is only for regulating promotion of members of the Lower Division, to the Upper Division. It is not intended that the ratio should be used for fixing the seniority of promotees vis a vis direct recruits, in the Upper Division. Seniority of persons promoted to the Upper Division has to be fixed with reference to the date of continuous officiation and in the case of those appointed by direct recruitment, from the date of appointment. If any members of the Lower Division are promoted in excess of the prescribed ratio on account of non-availabi1ity of direct recruits they will be liable to be replaced by the P.S.C. selectees. Accordingly, when direct recruitment through the Public Service Commission is made next and candidates become available, it should be possible for the Department, to maintain the proportion by replacing all those who had been promoted in excess of the prescribed proportion, by direct recruits. The promotees who remain in the UPPER DIVISION will, however, count for seniority purpose their continuous Service, from the date of promotion to the Upper Division. The above procedure should be followed by all Departments in fixing the seniority inter se of direct recruits and promotees”. (Emphasis supplied). However, the circular failed to achieve its basic object and various departments of the Secretariat prepared seniority lists in different ways by interpreting the said circular in different ways. The seniority lists were mutually contradictory. The respondent No. 1 found that the circular of 1961 was being interpreted by some departments to the detriment of the direct recruits. The direct recruits made a representation to respondent No. 1 Due to the said representation, the respondent No. 1 in its General Administration Department issued Circular dated 27th March, 1969 in order to clarify what exactly the circular of 1961 intended to convey. The clarification was to this effect:— “3. The direct recruits made a representation to respondent No. 1 Due to the said representation, the respondent No. 1 in its General Administration Department issued Circular dated 27th March, 1969 in order to clarify what exactly the circular of 1961 intended to convey. The clarification was to this effect:— “3. To avoid a recurrence of the present state of affairs, all Departments of the Secretariat are requested to observe the following instructions in future:— (i) The Departments of the Secretariat should frame the estimates of their requirements of direct recruits on a realistic basis while forwarding their estimates to the General Administration Department; (ii) All Clerks promoted and appointed in the vacancies of Assistants which arise in each calendar year, in excess of their entitled quota, should be issued with “standard form of appointment” which should indicate that the promotion is fortuitous due to the non-availability of Public Service Commission recruits and the promotee-Clerks shall be liable to be replaced by the Public Service Commission recruits as and when available. It should also be added in the standard form of appointment that in view of the purely ad hoc and fortuitous nature of the promotions, the length of service put in by the promotee-clerks concerned, shall not count for the purpose of seniority; (iii) By 31st January of each year. the Departments should examine that total number of vacancies which occurred during the previous 12 calendar months and indicate the total number of clerks promoted to these vacancies in relation to the number of clerks entitled to the promotions within the accepted ratio of 1: 3. The promotees-clerks falling within the entitlement of ratio 1:3 may be notified that they would be entitled to count their length of service from the date of appointment of the previous calendar year for purpose of seniority vis a vis the Public Service Commission recruits. All the excess clerk-promotees should also be notified that they would be deemed to be holding the posts as fortuitous promotions and would be liable to be replaced by the next batch of Public Service Commission recruits; (iv) All Departments should review and bring uptodate the current seniority lists as of March 31, each year, incorporating the changes resulting from the replacement of the excess promotees by Public Service Commission recruits. An asteric should be shown against all excess promotee-clerks who may continue as Assistants, on a purely ad hoc and temporary basis.” In spite of the above circular, the Departments felt some difficulties in preparing the seniority lists. The first doubt which was entertained by the Department was whether there should be three direct recruits first, and then one promotee, or one promotee first and then three direct recruits. The second point on which the Departments had some difficulty was as to whether in the case of a promotee the actual date of commencement of continuous service in the Upper Division should be shown in the seniority list or the date of commencement after his entitlement according to the quota of vacancies should be worked out and shown in the seniority list. The respondent No. 1 in order to clarify the position, issued the Circular dated 9th December, 1969. It was clarified as follows:— “Government is pleased to clarify that the actual date of commencement of continuous service of the Assistant in Upper Division, as also the hypothetical date for the purpose of fixation of the seniority on the common list of Superintendents, should be shown in the seniority list. His seniority should, however, be according to the quota and his title for inclusion in the quota.” Since giving effect to this Rule of seniority issued in 1969 was to the detriment of the promotees it stood to go down very much in, the cadre and some of them were faced with the risk of even being thrown out of the cadre, they filed this Special C. A. No. 201 of 1971. During the pendency of the said petition, the respondent No. 1 issued one more circular as it was observed that uniform principles, in fixing the seniority of direct recruits and promotees, have not been followed. It was dated 14th August, 1974 and instructions came to be issued which were as follows :— “The matter has been considered by Government and the following instructions are issued for the guidance of the Secretariat Departments. (a) The seniority of a Direct recruit and a promotee has always to be fixed with reference to the date of appointment of a direct recruit and the date of continuous officiation of a promotee excluding fortuitous period of his officiation. (a) The seniority of a Direct recruit and a promotee has always to be fixed with reference to the date of appointment of a direct recruit and the date of continuous officiation of a promotee excluding fortuitous period of his officiation. According to the recruitment rules framed by Government every fourth vacancy occurring in the cadre of Assistants shall ordinarily be filled in/promotion from Lower Division. Accordingly a promotee is entitled to get seniority from the date of his continuous officiating in the fourth vacancy to which he is entitled according to the ratio. The periods of his officiation in the earlier vacancies intended to be filled in by Direct Recruits will have to be treated as fortuitous and ignored for fixation of seniority. (b) For appointing the Lower Division Clerks to the post of Assistants by promotion it is not necessary to wait till the vacancies in the quota for direct recruits are actually filled in by the appointment of the Public Service Commission selected candidates. In other words it is not necessary to postpone the promotion of Lower Division Clerks on regular basis in the vacancies to which they are entitled according to the fourth vacancy rule on account of non-availability of direct recruits. The Lower Division Clerks who are thus promoted in vacancies according to the ratio will be eligible to get seniority from the date on which they fit in the ratio and the direct recruits whose date of appointment is later than the dates of promotion of such promotees on regular basis will be placed below them.” (c) It is incorrect to allot earlier deemed dates of appointment to direct recruits on the ground that those vacancies were intended to be filled in by them.” 7. After the decision was delivered by the Division Bench, further circular on the subject of fixation of inter se seniority of direct recruits and the promotees in the cadre of Assistants came to be issued on 29th September, 1978. In its preamble it mentions that the High Court has upheld the principles laid down by the Government in its Circular dated 25th September, 1969 for fixation of inter se seniority of direct recruits and promotees and has directed refixation of inter se seniority from 22nd May, 1957. Therefore certain directions came to be issued. In its preamble it mentions that the High Court has upheld the principles laid down by the Government in its Circular dated 25th September, 1969 for fixation of inter se seniority of direct recruits and promotees and has directed refixation of inter se seniority from 22nd May, 1957. Therefore certain directions came to be issued. To quote the same, they were as follows: While revising the seniority lists, the departments should bear in mind the following points, namely: (a) Seniority lists as on 1st November, 1956, should not be disturbed. (b) Seniority lists from the 2nd November, 1956 onwards should be prepared on the basis of vacancies occurring during the calendar year or during a shorter period, as the case may be, as shown in the appended statement. (c) Vacancies in the nomination quota which remain unfilled in any particular year due to non-avilability of direct recruits should be carried forward to the next calendar year. Ratio will not apply to such carried forward vacancies which will remain in the nomination quota only. The carried forward vacancies will, however, lapse when there is a change in the ratio of recruitment viz. on 1-2-1960, 1-2-1961, 1-9-1972 and 7-8-1976. (d) Promotees who remain in the quota in any particular year should be given seniority according to their dates of continuous officiation. Direct recruits whose dates of appointment are later than the dates of continuous officiation of the promotees in the quota will become junior to those promotees. Promotees who are in excess of the ratio will be pushed down to the next year/s. (e) Candidates from the limited Departmental Examination were allotted to the various departments after the 7th August, 1976 against the quota reserved for appointments by transfer of persons from the field officers. Their seniority should be fixed on the basis of their dates of appointment. (f) Ratio prescribed for recruitment does not decide seniority. The ratio only decides the number of vacancies required to be filed by different modes of recruitment. Seniority should be fixed on the basis of date of appointment in the case of a direct recruit and the date of continuous officiation in the case of a promotee who remains in the quota. Promotees who are found to be in excess of their quota in any particular year will not get seniority in that year. Seniority should be fixed on the basis of date of appointment in the case of a direct recruit and the date of continuous officiation in the case of a promotee who remains in the quota. Promotees who are found to be in excess of their quota in any particular year will not get seniority in that year. They will get seniority in a subsequent year/s, if they can be accommodated in the quota. (g) Deemed dates or hypothetical dates should not be assigned to direct recruits. (h) Seniority of Assistants who are transferred to new departments which came into existence after 2-11-1956 should first be fixed in their parent (original) departments and then refixed in the new departments.” There is also an accompaniment to the said resolution giving instructions for fixation of seniority for the relevant period as per those directions. 8. However, certain doubts were entertained with reference to the directions contained in para 3(c) of the resolution dated 29th September, 1968 by some departments about the exact connotation of the word 'lapse' used in connection with the lapsing of vacancies when the ratio changes. The same came to be clarified by Resolution of G.A.D. dated 15-1-1979 to the effect that the intention was not that vacancies which remained unfilled either in the cadre of direct recruits or that of promotees should be left out totally or ignored at such time. It was pointed out that when there will be a change in the ratio, such unfilled vacancies in the quota either of direct recruits or of promotees or those belonging to special examination should be carried out forthwith to the next period and added to the vacancies occurring in that period and the revised ratio be made applicable to the total vacancies for working out the post to be filled in by nomination and promotion after such revision of the ratio. It seems that as direct recruits were put to disadvantage because of the resolution dated 15th January, 1979, they made a representation. Therefore, the issue was re-examined and resolution dated 15th January, 1979 came to be superseded by the resolution dated 2nd July, 1979. It seems that as direct recruits were put to disadvantage because of the resolution dated 15th January, 1979, they made a representation. Therefore, the issue was re-examined and resolution dated 15th January, 1979 came to be superseded by the resolution dated 2nd July, 1979. It was directed that 'the vacancies from any particular quota which remain unfilled when the ratio is changed should be carried forward and added to the vacancies which become available in that particular quota under the revised ratio.' In short, the vacancies from the nomination quota, the promotion quota or a limited department quota which remain unfilled when the ratio was changed, should be carried forward and added to the respective quota which would become available under the revised ratio (emphasis supplied). Illustration was also given how to carry out those directions. 9. On 14th January, 1980, provisional seniority list of Assistants working in the Urban Development and Public Health Department came to be prepared. It came to be finalised by Circular dated 15th March, 1980. The statement in that respect was attached as 'A' to that Circular. Statement 'B' was attached showing the distribution of vacancies between the direct recruits and promotees. 10. It seems that the direct recruits represented to Government that certain basic mistakes have crept in the said finalised list, in that the number of vacancies computed have been inflated. The Government was satisfied that there were basic errors and prima facie the final seniority list issued under Circular dated 15th March, 1980 did not take into account the principles enunciated by G.A.D., a revised provisional seniority list was published under Government Circular dated 31st August, 1982. Suggestions and objections were called. Informal hearing was given to the parties and the Government by the Urban Development Department Resolution dated 7th August, 1985 published the final seniority list. It was mentioned that in view of the Division Bench Judgment of this Court, mentioned above, and the orders issued by G.A.D. on 29-9-1978, 15-1-1979 and 2-7-1979 this list has been prepared further, in consonance with the principles enunciated by the Supreme Court in the case of (Shri Bishan Sarup Gupta v. Union Government)3, A.I.R. 1972 S.C. 2627 the G.A.D. advised the Department to adopt the three principles in determining the number of vacancies. The principles material for our purpose are— “(i) Only those vacancies should be taken into account in which persons have been continuously officiating; (ii) posts which were vacant need not be filled in retrospectively and” It was stated that this advice was not taken into consideration while finalising the seniority list and, therefore, it was required to be recast. The number of vacancies available during the various block periods, their distribution, etc. and the reasons for the changes in the seniority list of 15th March, 1980 came to be mentioned in the appended statements 'B' and 'C'. The effect of this was that the names of the petitioners have gone down in this list of seniority. A common seniority list of superintendents from the various departments of Mantralaya came to be published by Circular dated 30th September, 1985 by G.A.D. It was of all those Superintendents who have completed or deemed to have completed 3 years' service continuously on the post of Superintendent as on 1-4-1982. The petitioners' names were not to be found in it. The petitioners have challenged the final seniority list published under the Resolution dated 7th August, 1985 and the list of Superintendents published under the Circular dated 30th September, 1985. 11. The main thrust of the argument relates to the method of calculation of the vacancies. The learned Advocate for the petitioners contended that quota should have been drawn on the basis of available vacancies. He submitted that the seniority list dated 15-3-1980 was drawn on the basis that there existed 205 vacancies which were available vacancies during the relevant period. He invited our attention to Ex. B which contains Statement 'B' mentioning in column 3 the number of vacancies. The total number thereof comes to 205. He pointed out statement 'A' to the said seniority list at Ex. B giving names of candidates numbering 132 which were actually filled in vacancies and not available vacancies. He further tried to rely upon the Government Circular dated 15-4-1980 which is supposed to form Statement 'C' to the seniority list dated 15-3-1980. It gives total number of vacancies as 205. In our view, it is difficult to rely upon the said Circular dated 15-4-1980, since it was not relied upon by the petitioners in the petition. He further tried to rely upon the Government Circular dated 15-4-1980 which is supposed to form Statement 'C' to the seniority list dated 15-3-1980. It gives total number of vacancies as 205. In our view, it is difficult to rely upon the said Circular dated 15-4-1980, since it was not relied upon by the petitioners in the petition. It was nowhere mentioned in the petition and was produced for the first time in the Court below at the time of hearing. Further, it is not possible to understand why it was issued after the said final list dated 15-3-1980 was published and even then it was supposed to form part of the said list. The possible explanation is that it was issued to justify the quota of promotees as mentioned in it. The Circular dated 27- 3-1969 in para 3( ii) clearly states that all clerks promoted and appointed in the vacancies of Assistants, which arose in each year, in excess of their entitled quota, should be treated as purely ad hoc or fortuitous promotees. This shows that ratio was fixed initially for the purpose of appointment and not for the strength of cadre. The Government Resolution dated 29th September, 1978 in para 3(c) makes clear that vacancies in the nomination quota when remained unfilled in any particular year due to non-availability of direct recruits should be carried forward to the next calendar year and the ratio will only apply to such carried forward vacancies which will remain in the nomination quota only. This point was finally explained by the Government Resolution dated 2-7-1979 pointing out that the vacancies from any permissible quota which remained unfilled when the ratio is changed should be carried forward and added to the vacancies which become available in that particular quota under the revised ratio. As this was not followed by the Public Health and Urban Development Department in spite of the advice tendered by the General Administration Department the quota was based upon total number of vacancies and the said final list dated 15-3-1980 was drawn. This led the direct recruits to dispute the method of calculating the existing number of vacancies. They made the grievance that the number of vacancies computed have been inflated and the principles enunciated by G.A.D., as quoted above, have not been followed. This led the direct recruits to dispute the method of calculating the existing number of vacancies. They made the grievance that the number of vacancies computed have been inflated and the principles enunciated by G.A.D., as quoted above, have not been followed. The Government considered this and found that there were various mistakes and, therefore, there was nothing wrong in superseding the seniority list dated 17-8-1985, which contained Annexure 'C' mentioning the number of vacancies available during the various block periods, distribution etc. and the reasons for the changes in the seniority list. The petitioners have not alleged or able to show how those reasons are not correct except saying that number of vacancies have been illegally reduced from 205 to 132. The Government Circular and Resolution mentioned earlier pointed out quota is to be found out on the basis of filled in vacancies and the quota remaining unfilled in each category is to be carried forward and added in the quota available for the next year. 12. The learned Advocate for the petitioners raised subsidiary contention that the advice given by the G.A.D. was not in consonance with the Division Bench judgment of this Court, mentioned above, and the Government Resolutions and Circulars issued prior to the said judgment. First in our view, no such question was raised before the Division Bench and was decided by it. There was no question of calculation of vacancies involved. It has been raised for the first time in this petition. Further, the advice given by G.A.D. was not at all contrary to the earlier Government Resolution and Circulars but it was in fact in accordance with the same. Both the sides tried to rely upon the judgment of the Supreme Court reported in A.I.R. 1972 S.C. 2627, Bishan Sarup Gupta v. Union of India and others in support of its case. In the said case, Rule 4 of the Income-tax Class I, Grade II Service Recruitment Rules referred to recruitment of candidates to vacancies in the service. It authorised the Government to determine the method or methods to be employed for the purpose of filling in particular vacancies or such vacancies as required to be filled in during any particular period or the number of candidates to be recruited by each method. It authorised the Government to determine the method or methods to be employed for the purpose of filling in particular vacancies or such vacancies as required to be filled in during any particular period or the number of candidates to be recruited by each method. The vacancies for any particular year being ascertained, not more than one-third of the same were to go to the promotees and the rest to the direct recruits. The ratio was not made dependent on whether any direct recruit was appointed in any particular year or not. Therefore, the Supreme Court called upon the respondent-Union Government to furnish the number of vacancies which had arisen from year to year. However, it could not be given. The Government could only give the number of appointments made in every year. In view of this, the Supreme Court observed that 'In our opinion, the promotees were entitled to one-third of the vacancies in particular year whether or not there was direct recruitment by competitive examination in that year.' The Supreme Court then went on to say “In the absence of any material which gives us the actual vacancies in a year, we think that in order to implement the mandamus as far as it can possibly be done, it would be reasonable to accept the figures of appointments in those years as substantially representing the actual vacancies. There is also a subsidiary reason why those figures may reasonably be accepted. It is true that the quota rule refers to vacancies but the vacancies are those vacancies which the Government wants to fill. It is the prerogative of the Government, reflected further in Rule 4 referred to above, whether any vacancy may be filled at all or not. Even if there are 100 vacancies in a particular year the Government is not bound to fill all those vacancies. It may fill only 90 of them and nobody can insist that the Government shall fill up all the vacancies. Therefore, it is implicit in the rule that the vacancies are vacancies which the Government wants to fill, whatever may be the actual number of vacancies. The actual appointments are, therefore, in the absence of any evidence to the contrary, the correct measure of the vacancies which the Government wanted to fill. Therefore, it is implicit in the rule that the vacancies are vacancies which the Government wants to fill, whatever may be the actual number of vacancies. The actual appointments are, therefore, in the absence of any evidence to the contrary, the correct measure of the vacancies which the Government wanted to fill. From that point of view also it will be permissible to proceed on the footing that the actual appointments represent the actual vacancies which the Government wanted to fill. “In our case, the Government circulars and resolutions mentioned above clearly suggest that quota is to be found out on the basis of vacancies filled in. Further there is no material placed before the Court showing how many vacancies Government wanted to fill up every year. Therefore, the actual appointments are to be taken as correct measure of the vacancies which the Government wanted to fill. Those vacancies were only 132 and not 205. Therefore, the G.A.D. gave advice to the Government, relying upon the ratio of this Supreme Court judgment, and in our view, the ratio of this judgment supports the case of respondents and not the petitioners. The Government Resolution dated 7-8-1985 publishing the revised final seniority list specifically mentions about this advice given by G.A.D. 13. In our case, it was necessary to find out the availability of existing vacancies in a particular quota at a particular time. This was not done when the list dated 15-3-1980 was published which led to serious disputes as to calculation of vacancies for implementing the quota rule. It was necessary to find out the actual vacancies in a particular quota and to operate it. It could not have been merely on the basis that there was mention of 205 vacancies. Quota could not be decided on that basis. Therefore, it became necessary to find out the actually filled in vacancies. The advice given by G.A.D. was, therefore, in consonance with the Supreme Court judgment in Bishan Sarup Gupta's case, and the Government Resolutions and circulars quoted above and seniority list dated 7-8-1985 came to be published. 14. We further find that the petitioners have not given details and particulars to substantiate their contention regarding the reduction of vacancies. It was not sufficient just to state that vacancies came to be reduced from 205 to 132. It was necessary to show how the quota of promotees was effected or reduced. 14. We further find that the petitioners have not given details and particulars to substantiate their contention regarding the reduction of vacancies. It was not sufficient just to state that vacancies came to be reduced from 205 to 132. It was necessary to show how the quota of promotees was effected or reduced. It was not sufficient to aver, that G.A.D. changed the criteria. It was necessary to establish the total number of vacancies the Government wanted to fill. We therefore find no substance in the contention of the petitioners that there was illegal reduction in vacancies or the seniority list dated 7-8-1985 was based on erroneous advice of G.A.D. In our opinion, the learned Single Judge was in error in holding that the quota was drawn, when the revised final list was published on 7-8-1985, on unfounded assumption of inflation in the number of vacancies. 15. We may mention here that the learned Single Judge has mentioned in the judgment as 'slots' or 'rota' when there is no such thing as 'slots' or no question of 'rota' involved. In fact the contention based on the theory of 'rota' was negatived expressly by the Division Bench of this Court in its judgment mentioned earlier. 16. The learned Advocate for the petitioners next contended that the quota rule has either broken down or collapsed or it came to be relaxed since promotee candidates came to be promoted in excess of their quota for number of years as the direct recruits were not available. However, we find that the petitioners have raised no such contention in the petition that the quota rule has broken down or collapsed. In fact the petitioners insist upon following the quota and the petition is based upon it. In spite of this, we are examining this contention as the learned Single Judge has observed that the judgment of the Division Bench has suffered erosion in view of the subsequent Supreme Court judgments. We further find that this contention was specifically raised before the Division Bench of this Court mentioned above and came to be negatived specifically. The Division Bench considered the factual aspect presented to it from 1961 to 1974. It was in relation to all the Departments from Mantralaya. The Division Bench observed “We also find no force in the submission of Mr. Desai that the quota rule has collapsed or that it is arbitrary.... The Division Bench considered the factual aspect presented to it from 1961 to 1974. It was in relation to all the Departments from Mantralaya. The Division Bench observed “We also find no force in the submission of Mr. Desai that the quota rule has collapsed or that it is arbitrary.... It is therefore not factually correct to say that the quota rule had collapsed.” The learned Advocate for the petitioners made an attempt to support his contention on the basis that position in Public Health Department and Urban Health Department was not considered. However, such an attempt cannot be countenanced since the observations made by the Division Bench related to all the departments of Mantralaya. This finding dealing squarely with the contention of the breakdown of quota rule was binding upon the learned Single Judge. The learned Judge tried to distinguish it on the ground that it has been eroded by the subsequent judgments of the Supreme Court. The learned Judge mainly relied upon A.I.R. 1983 S.C. 769, (A. Janardhan v. Union of India)4. In the said case, the question regarding seniority between the direct recruits to the post of Assistant Executive Engineer and the promotees from the post of Assistant Engineer fell for consideration. The Military Engineering Services Class I (Recruitment, Promotion and Seniority) Rules, 1949 were brought into operation from 1st April, 1951. Under Rules 3 and 4 of those Rules, the recruitment to MES Class I was to be made from two sources namely, by competitive examination in accordance with Part II of the Rules and the promotion in accordance with Part III of the Rules. Rule 4 prescribed a quota of 9 : 1 between direct recruits and promotees. During the years 1962, 1963 and 1964 particularly and until the year 1969, the Class I Service Rules were not statutory in character. The Union Government relaxed the Rule both in regard to recruitment by interview and in regard to the quotas fixed by the Rules for direct recruitment and recruitment by promotion to Class I Service. The 1949 Rules and the subsequent amendments thereto acquired statutory flavour in 1969 and 1949 Rules became statutory in character by incorporation only in 1969 and till then they were administrative instructions. The 1949 Rules and the subsequent amendments thereto acquired statutory flavour in 1969 and 1949 Rules became statutory in character by incorporation only in 1969 and till then they were administrative instructions. It was due to emergency situation in the market of recruitment of engineers between 1959 and 1969 and the dire need of urgently recruiting engineers which led the Government to make recruitment in relaxation of quota rule by foregoing the competitive examination and promoting subordinate ranks to Class I Service. The appellant and similarly situated persons were thus promoted to meet the dire need of service in relaxation of the quota rule. In view of these facts it came to be observed by the Supreme Court that when recruitment from two independent sources subject to prescribed quota, but the power is conferred on the Government to make recruitment in relaxation of the Rules, any recruitment made contrary to quota rule would not be invalid unless it is shown that the power of relaxation was exercised mala fide. It was also observed that the recruitment made to meet the exigencies of service by relaxing the quota rule, the promotion in excess of quota would be valid. It has further been observed that once the quota rule was fully relaxed between 1959 and 1969 to suit the requirements of service and the recruitment made in relaxation of the quota rule and the minimum qualification Rule for direct recruits was held valid, no effect could be given to the seniority rule enunciated in Para 3(iii) of Appendix V of the 1949 Rules, which was wholly interlinked with the quota rule and could not exist apart from it on its own strength. In our opinion, the ratio of this judgment is not at all attracted to the facts of the present case as there is no relaxation in our case and no power of relaxation is shown to us. Further, the final word is spoken by the Constitution Bench of the Supreme Court on this aspect in the judgment reported in A.I.R. 1990 S.C. 1607, (Direct Recruit Class-II Engineering Officers' Association ors. v. State of Maharashtra and others)5. This related to Class II Engineering Services from the State of Maharashtra and particularly the post of Deputy Engineers. Further, the final word is spoken by the Constitution Bench of the Supreme Court on this aspect in the judgment reported in A.I.R. 1990 S.C. 1607, (Direct Recruit Class-II Engineering Officers' Association ors. v. State of Maharashtra and others)5. This related to Class II Engineering Services from the State of Maharashtra and particularly the post of Deputy Engineers. During the period from 1960 to 1970, adequate number of direct recruits were not available and large number of promotees therefore had to be appointed to officiate as Deputy Engineers on continuous basis. Those appointments were made after following the procedure applicable to regular promotions including consolidation and the Public Service Commission. The Constitution Bench considered the earlier judgments and summed up as follows:— “(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 regulisation of his service in accordance with the rules, the period of officiating service will be counted. (C) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if Rules are framed in this regard they must ordinarily be followed strictly. (D) If it becomes impossible to adhere to the existing quota rule, it should be substituted by an appropriate rule to meet the needs of the situation. In case, however, the quota rule is not followed continuously for a number of years because it was impossible to do so the inference is irresistible that the quota rule had broken down. (E) Where the quota rule has broken down and the appointments are made from one source in excess of the quota, but are made after following the procedure prescribed by the Rules for the appointment, the appointees should not be pushed down below the appointees from the other source inducted in the service at a later date. (E) Where the quota rule has broken down and the appointments are made from one source in excess of the quota, but are made after following the procedure prescribed by the Rules for the appointment, the appointees should not be pushed down below the appointees from the other source inducted in the service at a later date. (F) Where the Rules permit the authorities to relax the provisions relating to the quota, ordinarily a presumption should be raised that there was such relaxation when there is a deviation from the quota rule. (G) The quota for recruitment from the different sources may be prescribed by executive instructions, if the Rules are silent on the subject. (H) If the quota rule is prescribed by an executive instruction, and is not followed continuously for a number of years, the inference is that the executive instruction has ceased to remain operative.....” In view of this it is not possible to accept that the ratio of the Division Bench Judgment of this Court mentioned supra has been eroded in any manner. In the present case, the promotees were promoted on ad hoc basis and as a stop-gap arrangement. There was no relaxation of quota and the argument of relaxation based on the use of the phrase 'ordinarily' in the Government Circular dated 14-8-1984 referred to above came to be expressly negatived by the Division Bench Judgment of this Court. It was also held that promotions were ad hoc or fortuitous. We find that there was no relaxation thereafter or any such relaxation has been brought to our notice. Therefore, in our view, the judgment of the Supreme Court in the matter of A. Janardhan has not eroded the ratio of the Division Bench Judgment of this Court. In the present case, the Government was on the contrary from time to time insisting upon having the quota of direct recruits filled in. From time to time attempts were made to fill the quota of direct recruits and they might not have been available for a year or two in inadequate numbers, but it cannot mean that quota was broken down or abandoned during 1961 to 1980 or relaxed as alleged by the petitioners. We therefore reject this contention. 17. From time to time attempts were made to fill the quota of direct recruits and they might not have been available for a year or two in inadequate numbers, but it cannot mean that quota was broken down or abandoned during 1961 to 1980 or relaxed as alleged by the petitioners. We therefore reject this contention. 17. It was next contended that promotions should not have been treated as fortuitous or ad hoc since the directions given by the Government Circular dated 27-3-1969 were not followed. Clause 3 thereof provided that all clerks promoted in excess of their entitled quota should be issued with a standard form of appointment which should indicate that promotion is fortuitous or purely ad hoc and the length of service put in shall not count for the purpose of seniority. This was not followed. Assuming it was so, it cannot create estoppel against the Government or give any right to the promotee candidates to claim the higher posts. Hence, we reject this contention. 18. Before concluding, we may mention that there is no practical effect on the petitioners in this petition of this judgment. The petitioner No. 1 has retired in January 1991 as Under Secretary and petitioner No. 2 in February, 1991 as Under Secretary taking all benefits. This petition is not admittedly filed in representative capacity on behalf of the petitioners representing the promotee candidates. Respondents 3 and 4 were only sued in representative capacity representing direct recruits. 19. In the result, the appeal is allowed. The impugned judgment and order passed by the learned Single Judge dated 2nd December, 1987 are set aside and the Writ Petition No. 2496 of 1985 is dismissed. In the facts and circumstances of the case, there shall be no order as to costs. Appeal allowed. -----