JUDGMENT 1. - This writ petition having been filed by the State of Rajasthan and not by the persons who were private respondents No. 2 to 9 before the Tribunal, arises out of a judgment dated 26.3.97 passed by the Rajasthan Civil Services Appellate Tribunal Jaipur, ('Tribunal') in Appeal No. 508/97 of the present respondent whereby the Tribunal issued following directions - "In view of the discussions made above the appeal is partially accepted and the respondent State is directed to prepare and finally publish the inter-se-seniority list in the light of the directions given by the Apex Court in the judgment stated above i.e. Vijay Singh Deora etc. v. State, Civil Appeal No. 14985 of 1995 out of SLP (C) No. 21784/96 decided on 3.10.96 (reported in 1997 (3) SCC 118 ) and to consider the claim of the appellant for promotion to the next higher post accordingly and if the appellant is found fit for promotion against vacancies of earlier years then to revise or modify the impugned orders accordingly with all consequential benefits so allowed to his juniors." This petition has come up in second inning by way of remand by the Division Bench of this Court in State of Rajasthan v. R.S. Bhargava (DB Civil Special Appeal (W) No. 61/2001 decided on 20.02.2001) setting aside earlier judgment of this Court (SB) passed on 14.12.2000 because this Court had earlier decided this petition holding it squarely covered by the decision of this Court (DB & SB) rendered in Anil Kumar v. State of Rajasthan (DB Civil special Appeal No. 1494/1999 decided on 3.4.2000) but it was set aside by the Apex Court in Civil Appeal No. 1048/2001 (arising out of SLP (C) No. 12800 of 2000) by decision dated 6.2.2001. 2. 2. In Anil Kumar's case (supra) the Single Bench by an order dated 21.9.1999 made the petition absolute by holding that the controversy was covered by a judgment of the Apex Court in Vijay Singh Deora v. State of Rajasthan ( 1997 (3) SCC 118 ), but the Apex Court held that in Deora's case (supra) the applicability, effect or validity of Rule 28 of the Rules, 1967 had not been dealt with at all because in that case seniority was not fixed on the basis of this Rule and, therefore, it was held by the Apex Court that the questions raised in Anil Kumar's case were not covered by that decision of Vijay Singh Deora's case. 3. Facts for the purpose of this petition are briefly stated thus. R.S. Bhargava (hereinafter to be referred as 'writ respondent') upon having been selected by the Selection Committee was appointed as Junior Engineer in the Public Health Engineering Department (PHED) Rajasthan Jaipur and he joined on 18.4.1973. He is a Graduate in Engineering holding degree of B.E. (Mech.) in the year 1969 from Birla Institute of Technology & Science, Pilani. From 1.4.1975 Junior Engineers' cadre was divided into two categories of (i) Degree holder as Junior Engineers & (ii) Diploma Holders as Sub Engineers but this decision was made effective from 22.6.76 by Govt, notification dated 22.6.76 and thereby they stood called & named as Junior Engineers (Degree holders) and Junior Engineers (Diploma Holders). In a seniority list dated 19.1.1980 of substantive Junior Engineers, his name stood at S. No. 23, while respondent Nos. 2, 3 & 4 (in appeal before Tribunal) (to be referred as "private respondents" stood at S. No. 24, 25 & 27) and other private respondents did not figure in that list of BE or AMIE degree holder Engineers. 4. Admittedly, the private respondents were initially diploma holders and qualified their AMIE subsequent to the writ respondent (RS Bhargava) e.g. K.C. Goyal on 8.8.76, Sudhir Gupta (BE) on 19.1.1976, B.L. Sonar (AMIE) on 1.8.75, AP Gaur (AMIE) in 1980, K.C. Arora (AMIE) in 1976, B.L. Dabi (BE) in 1980, R.N. Mathur (BE) on 2.1.1984 & R.C. Purohit (BE) in 1981. Similarly despite the writ respondent having been eligible for promotion, private respondents No. 2, 3 & 4 were promoted as Asstt. Similarly despite the writ respondent having been eligible for promotion, private respondents No. 2, 3 & 4 were promoted as Asstt. Engineer prior to the writ respondent on urgent temporary basis U/r 28 of the Rajasthan Engineering Services (Public Health Branch) Rules, 1968 for four months or till regularly selected candidates in accordance with methods of recruitment are made available vide order dated 11.1.1980, which was assailed by the writ respondent in appeal No. 91/80 before the Tribunal which granted stay order restraining the State Government from extending the period of promotion of the private respondents No. 2, 3 & 4 beyond four months. However, in the meanwhile, the writ respondent was also promoted as Asstt. Engineer from the date afore named private respondents were given promotion. Ultimately the writ respondent was selected by DPC and he was regularly promoted as Asstt. Engineer against the vacancy of 1980 by order dated 15.2.82 where under the writ respondent was put at S. No. 10 in merit while private respondents who were also regularly selected & promoted were put at S. No. 11, 12 & 13, being junior to him. Similarly, private respondents (K.C. Goyal, R.D. Suthar) were given promotion to the post of AEN by order dated 3.9.82 for the vacancies of 1982. 5. The dispute arose when pursuant to a decision dated 8.3.85 in appeal Nos. 496/79 & 499/79, review DPC was met resulting in having passed an order on 10.7.87, the writ respondent was assigned promotional year 1981 by shifting from 1980 whereas private respondents juniors to him were given promotions against vacancies of earliers years, a chart indicating aforesaid position (quoted in para 11 of appeal before tribunal) is reproduced as follows - Sr. No. Name Year of promotion as per review DPC 1 Shri K.C. Goyal, AMIE, 1976 1977 2 Shri K.C. Arora, AMIE, 1976 1979 3 Shri A.R Gaur, AMIE, 1980 1980 4 Shri Sudhir Gupta, BE, 1976 1980 5 Shri B.L. Sonar, AMIE, 1975 1980 6 Shri G.L. Dabi, BE, 1980 1980 7 Shri R.N. Mathur, BE, 1981 1981 8 Shri R.C. Purohit, BE, 1981 1980 6. It was the case of the writ respondent in his appeal before Tribunal that in appeal Nos. It was the case of the writ respondent in his appeal before Tribunal that in appeal Nos. 496/79 & 499/79 since he was not arrayed as party respondent therefore, the decision of the Tribunal (pursuant to which review DPC had met resulting in adversely effecting the writ respondent's promotion year) could not adversely effect him (writ respondent). Hence the writ respondent challenged that order dated 10.7.87 in appeal before the Tribunal, during the pendency of which, further orders were issued on 19.9.92, 30.12.92 (marked as Ex R/2 & R/3 in reply to the appeal) as a result of further review DPCs and which too was ultimately merged into order dated 6.4.1994 issued reviewing all previous orders and thereby his appeal was amended by writ respondent assailing orders dated 10.7.87 & 6.4.1994. Reply to the appeal as also amended appeal was filed by the State (writ petitioner). After hearing the parties, the learned Tribunal by its judgment dated 26.3.97 allowed the appeal in terms of the directions quoted above. Hence this writ petition. 7. It is the case of the petitioner State that the private respondents had entered into the service as Engineering Subordinate in the year 1967 while the writ respondent in the year 1973 and as per Rules prevalent then, they were eligible for promotion to the post of AEN, so they were considered & given promotion as per their seniority keeping in mind the date of their regular appointment by selection through RPSC, from the year 1977 onwards till the year 1981. 8. Shri Manish Bhandari learned counsel for the State petitioner contended that the learned trial Tribunal had taken cognizance of a notification dated 7.12.85 which has no application to the present matter because all private respondents were promoted as AEN much prior to 1985 as against vacancies of 1978 onwards till 1981, inasmuch as the Tribunal erred in having placed much reliance upon the decision of the Apex Court in Vijay Singh Deora's case (supra) whereas it has no relevance as it pertained to the Irrigation department having different circumstances and facts being not identical to the case at hand. 9. 9. Shri Bhandari contended that the learned Tribunal failed to consider that decision in Vijay Singh Deora's case (supra) (pertaining to Irrigation Engineers) had no application to the present case because it was a case where this Court decided the matter in respect of amendment made in the Rules in the year 1985 whereas all private respondents were already promoted as AEN to the vacancies prior to 1985 and, therefore none of them were given benefit of amended Rules of 1985 thereby neither 1985 amendment had any application nor the decision of the Apex Court. 10. Per contra, Shri R.S. Bhargava writ respondent appearing in person urged that with an oblique motive to defend private respondent at the cost of the State exchequer, the State petitioner concealed the vital fact of R.6(4) of Rajasthan Engineering Subordinate Service (Public Health Branch) Rules, 1967 (for short, "PHE Rules") which has been considered by the Apex Court in Vijay Singh Deora's case in accordance with identical, rather word by word similar to Rule 6(1 A) of the Rajasthan Engineering Subordinate Service (Irrigation Branch) Rules, 1967 (for brevity "IES" Rules), which is a law declaring it prospective in operation. Shri Bhargava further contended that there is no dispute as to his appointment as Junior Engineer (Degree holder) in 1973, and similarity in R.6(1A) of the IES Rules inserted by notification dated 7.12.85 being identical word by word in R.6(4) of PHE Rules leading to determination of seniority and eligibility of private respondents in seniority list of Junior Engineers Degree Holder. Lastly Shri Bhargava contended that the State petitioner has no right to approach the Court and deserves to be thrown out at any stage of litigation as held by the Apex Court in SP Chengal Varaya Naidu v. Jagannath ( 1994 (1) SCC 1 ). 11. As regards earlier service of Engineering Subordinates (Diploma Holder), Shri Bhargava (writ respondent) also urged that proviso 4 to R. 6 of PHE Rules, 1967 inserted by notification dated 30.5.77 did not count such earlier service and thus seniority had to be determined by specific R. 28 of Rules, 1967, for which the Apex Court directed in its decision in V.S. Deora v. State (supra). 12. 12. Having heard the learned counsel for the State petitioner and the writ respondent, himself, and considered their rival contentions so also material on record, in my view, two fold issues are involved as to (1) whether decision of the Apex Court in V.S. Deora's case (supra) is squarely applicable to the writ respondent's grievance raised in his appeal before the Tribunal; (2) what is the applicability, effect or validity of Rule 28 of PHE Rules 1967 to the writ respondent's case pleaded in his appeal. Let me first advert to the provisions of recruitment & seniority determination under the PHE Rules, 1967 & 1968 for the posts of JEN & AEN.Part III of the ''PHE Rules" pertains to recruitment and its Rule 6 prescribes methods of recruitment after the commencement of these Rules which shall be made by the following methods in the proportion indicated in column 3 of the Schedule- (a) direct recruitment (in accordance with part IV of these Rules), and (b) promotion (in accordance with part V of these rules). (c) absorption .... xxx xxx xxx There are six proviso to Rule 6, For the present issue, proviso (4) is relevant, which was inserted in PHE Rules for the first time by notification dated 30.5.1977 which reads as under- "(4) If a sub engineer attains qualifications required for Junior Engineer, he shall be entitled on his application and subject to availability of vacancies, to be appointed as Junior Engineer by transfer against the quota of direct recruitment, but in that case his seniority amongst Junior Engineers shall be counted from the date of occurrence of vacancy of a post of Junior Engineer and actual appointment thereto." 13. The aforequoted proviso (4) to R.6 was substituted by notification dated 7.12.1985 which reads as follows- "(4) If a Diploma Holder Junior Engineer attains the qualification of B.E. (Civil/Mechanical/Electrical), or AMIE, he shall be entitled on his application and subject to availability of vacancy, to be appointed as Junior Engineer (Degree Holder) by transfer against the quota of direct recruitment but in that case, his seniority amongst the Junior Engineers (degree holders) shall be determined from the date of occurrence of vacancy against which such Junior Engineers (Degree holder) has been appointed on the post of Junior Engineer (degree holder) and one third of his previous experience shall be counted as experience on the post of Junior Engineer for the purpose of promotion to the next higher post." Similar proviso, quoted above, had also been firstly inserted by notification dated 2.11.76 in the "IES" Rules i.e.- "(1A) If sub-Engineer attains qualifications required for Junior Engineer, he shall be entitled on his application and subject to availability of vacancies, to be appointed as Junior Engineer by transfer against the Quota of direct recruitment but in that case his seniority amongst Junior Engineers shall be counted from the date of actual appointment on occurrence of vacancy of Junior Engineer." 14. This proviso (1A) of IES Rules was then substituted as had been done in case of PHE Rules by notification dated 7.12.1985 as follows - "(1A) If a diploma holder Junior Engineer attains the qualification of B.E. (Civil/Mechanical/Electrical), or AMIE, he shall be entitled on his application and subject to availability of vacancy, to be appointed as Junior Engineer (Degree holder), by transfer against the quota of direct recruitment but in that case his seniority amongst the Junior Engineers (Degree holders) shall be determined from the date of occurrence on the post of Junior Engineer (Degree Holder) and one third of his previous experience shall be counted as experience on the post of Junior Engineer for the purpose of promotion to the next higher post." 15. In PHE Rules, R.28 deals with Seniority, as per which seniority of persons appointed to the lowest posts of the Service or lowest categories of posts in each of the group/section of the service, as the case may be, shall be determined from the date of confirmation of such persons to the said posts. In PHE Rules, R.28 deals with Seniority, as per which seniority of persons appointed to the lowest posts of the Service or lowest categories of posts in each of the group/section of the service, as the case may be, shall be determined from the date of confirmation of such persons to the said posts. But U/r 28, in respect of persons appointed by promotion to other higher posts in the service or other higher categories of posts in each of the group/section in the service, as the case may be, it has been provided that seniority of such persons shall be determined from the date of their regular selection to such posts. 16. Similar provisions for reckoning seniority are prescribed U/r 28 of the IES Rules as under- "28. Seniority-Seniority of persons appointed to the lowest post of the service or lowest categories of posts in each of the Group/Section of the Service, as the case may be, shall be determined from the date of confirmation of such persons to the said post but in respect of persons appointed by promotion to other higher post in the Service or other higher categories of posts in each of the Group/Section in the service, as the case may be, shall be determined from the date of their regular selection to such posts." 17. At the inception and prescription of the PHE Rules, 1967, the cadre of Engineering service consisted of Engineering Subordinate (Civil) & (Mechanical) - both of which were to be filled up 100% by direct recruitment from amongst the Diploma or Degree holders in Civil or Mechanical Engineering, but by notification of 1976 this Engineering Subordinate cadre was bifurcated among two cadres viz. (i) Junior Engineer & (ii) Sub Engineer in both the subjects of Civil or Mechanical Engineering and both these posts of Junior or Sub Engineer were of direct recruitment. In other words, Junior Engineers were degree holders while Sub Engineers were diploma holders. It is crystal clear that in the Schedule to the PHE Rules, 1967, post of Engineering Subordinate (Mechanical) notwithstanding it had been bifurcated or given different nomenclature either Junior or Sub Engineer (degree or diploma holder) has been put in one group with a prescription of 100% of direct recruitment. It is crystal clear that in the Schedule to the PHE Rules, 1967, post of Engineering Subordinate (Mechanical) notwithstanding it had been bifurcated or given different nomenclature either Junior or Sub Engineer (degree or diploma holder) has been put in one group with a prescription of 100% of direct recruitment. As regards seniority U/r 28 of PHE Rules, 1967, proviso (iii) to R.28 provides that the seniority inter-se of persons appointed to post in a particular Group by direct recruitment on the basis of one and the same selection, shall follow the order in which their names have been placed in the list prepared by the Appointing Authority U/r 20. 18. The post of Assistant Engineer (Mechanical or Electrical) is covered by Rajasthan Service of Engineers (Public Health Branch) Rules, 1968 (for short "PHE Rules, 1968"), and it is prescribed to be filled up 50% by direct recruitment and rest of 50% by promotion. Since the controversy relates to the promotional post of Assistant Engineer (Mech. or Elec.), I deem it proper to consider the provisions related thereto only. Admittedly as per Notification No. F8 (ll)MPH/70 dated 22.6.76 (which was made effective by notification No. 8(11) MPH/70 Gr. Ill dated 18.6.77), this 50% post of AEN was required to be filled up 25% from among the cadre of Junior Engineer (Mech. or Elec.) and 25% from among the cadre of sub Engineer & Foreman-1 (Mech. or Elec.) and further in case of Junior Engineer, Degree with three years experience as Junior Engineer, was must whereas in case of Sub Engineer, prescribed Diploma with 10 years experience while in case of Foreman-1, only 15 years service as Sub Engineer was must. 19. Admittedly, under PHE Rules there were three categories of Engineering subordinates namely Degree, Diploma and Certificate holders before 1977. 19. Admittedly, under PHE Rules there were three categories of Engineering subordinates namely Degree, Diploma and Certificate holders before 1977. The eligibility for promotion to the post of AEN was 3 years, 10 years & 15 years' experience against 25% promotion quota as per Schedule to the Rajasthan Service of Engineers & Allied posts (Public Health Branch), Rules, 1968 (for short, PHE Rules, 1968) from among common seniority list of degree, diploma & certificate holders, but by notification dated 22.6.76 amendment was made in PHE Rules, 1968 so as to increase promotion quota from 25% to 50% with further sub-division in equal ratio of 25 : 25 to be filled up from among Junior Engineer (Degree holders) having eligibility of 3 years experience and among (i) sub Engineers & Foreman-1 having eligibility of 10 years & 15 years experience. 20. Though amendment by notification dated 30.5.77 in PHE Rules, 1967 was made with retrospective effect from 1.4.75 but in another matter this Court quashed its retrospectivity from 1.4.75 and thereby it became effective from 30.5.77, itself. This amendment was not regarding bifurcation of cadre but by it a new proviso (4) to R.6 was inserted in PHE Rules, 1967 entitling Sub-Engineer (diploma holder) to be appointed as Junior Engineer (degree holder) on attaining the degree qualification by transfer which is irrespective of any date like 1.4.75 or 30.5.77. Thus from this amendment, itself, it is crystal that there were already two distinct cadres i.e. Degree & Diploma holders, before amendment by notification dated 30.5.77. 21. Be that as it may, at the time of appointment in 1973, cadre of the writ respondent (degree holder) was definitely different than cadre of private respondents (diploma holders) though appointed in 1967 but cannot be equated before amendment 30.5.77, because the private respondents being diploma holders & holding post of sub Engineer could be appointed as Junior Engineer only on having qualified in the requisite degree subject to newly added proviso (4) to R.6 of PHE Rules, 1967 and then promoted as AEN as per service rules existed then before amendment effective from 30.5.77 against promotion quota reserved for degree holder Engineering Subordinate Junior post or Jr. Engineer, as the case may be, and once they (diploma holder Sub Engineer) admittedly acquired degree qualifications in 1976 onwards (supra) after writ respondent's appointment of 1973 as Jr. Engineer, as the case may be, and once they (diploma holder Sub Engineer) admittedly acquired degree qualifications in 1976 onwards (supra) after writ respondent's appointment of 1973 as Jr. Engineer (Degree holder), the private respondents cannot be held senior to the writ respondent in the inter-se seniority list of Junior Engineer for promotion as AEN (Mech.) against 25% promotion quota reserved for Jr. Engineer. 22. Before 1977, no Engineering subordinate (Diploma Holder) could be promoted as Assistant Engineer because being diploma holders and appointees of 1967, all private respondents did not have requisite no 10 years' experience as envisaged in Schedule to the PHE Rules, 1968 despite their having qualified in degree of BE/AMIE in,the year 1976 onwards further because of the reason that before 1977, there was no provision in PHE Rules, 1967 to appoint again an Engineering Subordinate (Diploma Holder) to the post of Junior Engineer even on attaining degree qualification during service and such a provision had been inserted in the PHE Rules, 1967 by new proviso (4) to R. 6 entitling an Engineering Subordinate Diploma holder (now named as Sub Engineer to be appointed as Junior Engineer (Degree Holder) by transfer on acquiring degree qualification of BE/AMIE, that too on his request or application but subject to the newly added proviso (4) to R.6 which restricted seniority to be reckoned from the date of actual appointment on occurrence of vacancy of Junior Engineer (Degree Holder)). 23. Whereas the writ respondent being degree holder Engineering Subordinate (i.e. Junior Engineer) & being appointee of 1973 was eligible on having completed three years experience as Junior Engineer for promotion to the post of AEN in the year 1976, itself, against 25% promotion quota of that post. That being so, the State petitioner, itself, treating the writ respondent senior to the private respondents & rectifying its mistake, promoted the writ respondent as AEN from the date his junior private respondent Nos. 2, 3 & 4 were promoted by order dated 19.1.1980 and this temporary promotion U/r 28 of the PHE Rules, 1968 culminated into his regular selection by the DPC for promotion to the post of AEN against the vacancy of 1980 by order dated 15.2.1982 by placing him at S.No. 10 while other private respondents were placed junior to him at S.Nos. 11, 12, 13 in the order of a merit. 11, 12, 13 in the order of a merit. This position could not have been changed in case of the writ respondent at least by way of any review DPC, may be under the judicial orders passed by the appellate Tribunal or Court of law without affording him a hearing or issuing notice or arraying him party to that litigation, if any by any of the incumbents, as has happened in appeal Nos. 496/79 & 499/79 to which the writ respondent was not impleaded as party, inasmuch as the judgment in these appeals referred to above, has no bearing to the present case because it was a case between RPSC selected candidates & screened persons. 24. Even otherwise private respondents could not be deemed to have been appointed as Junior Engineers against the vacancies of earlier years than their having acquired BE/AMIE degree (i.e. 1976 to 1983) for promotion to the post of AEN either against the promotion quota 25% of Junior Engineer (Degree Holder) or that of sub-Engineer (Diploma Holder), at least much prior to the writ respondent because they could not be promoted as AEN before completing three years as degree holder JEN reckoning from their having qualified in BE/AMIE degree in view of provisions contained in PHE Rules, 1968. Thus viewed, allotting them (private respondents) years earlier to their completion of three years as Junior Engineers (Degree Holders) and further allotment of years of promotion as AEN to the private respondents over & above and earlier than writ respondent under the impugned orders of review DPC were in flagrant violation of basic requirement of PHE Rules, 1968 read with PHE Rules, 1967. 25. Admittedly, upon bifurcation of cadre of Engineering Subordinates into that of Junior Engineers & Sub Engineers as a result of amendment in PHE Rules, 1967 & 1968, no separate seniority list of Junior Engineers (Degree holders) & Sub or Junior Engineers (Diploma Holders) had been issued. 26. 25. Admittedly, upon bifurcation of cadre of Engineering Subordinates into that of Junior Engineers & Sub Engineers as a result of amendment in PHE Rules, 1967 & 1968, no separate seniority list of Junior Engineers (Degree holders) & Sub or Junior Engineers (Diploma Holders) had been issued. 26. Once undisputably, the private respondents qualified their AMIE or degree after bifurcation of cadre of Engineering Subordinate into Junior Engineer & Sub Engineer, the writ respondents was undoubtedly eligible for promotion to the post of AEN upon having fallen in zone of consideration much earlier than private respondents who were then not degree holder, in view of his seniority as Junior Engineer (Degree Holder) and in that view of the matter U/r 6(4) of the PHE Rules, 1967, private respondents could not have been Junior Engineers earlier than their acquiring degree qualification in any case because the Rules provided that they could be given appointment by transfer as Junior Engineer on their application and on occurrence of the vacancy. It means that upon bifurcation there were two distinct cadres of Degree Holder Junior Engineer & Diploma Holder JEN. 27. It means that upon bifurcation there were two distinct cadres of Degree Holder Junior Engineer & Diploma Holder JEN. 27. Moreover, for further promotion to the post of AEN from among Engineering Subordinate Service either degree or diploma or certificate holder - for each of which different years' experience is prescribed under promotional service Rules, 1968 (PHE) besides different promotion quota prescribed thereunder and that apart as a result of amendment in the nature of bifurcation of Engineering Subordinate Service from 30.7.77 into two different cadres as Junior Engineer (Degree Holder) & Sub Engineer (Diploma Holder) with consequential amendment in the PHE Rules, 1967 or 1968, itself, even for the purposes of change of cadre from diploma holder to degree holder, so also for determination of seniority in the event of change of cadre, ibid., in the light of amended new proviso (4) to R.6 of the PHE Rules, 1967, I am of the considered view that a separate seniority list of such engineers either diploma or degree or certificate holders while holding either the post of Junior Engineer or Sub Engineer on the date of consideration for higher promotion with reference to their appointment as such by express order or otherwise ought to have been prepared for consideration of promotional post of AEN against different promotional quota vacancies having arisen from time to time, in view of provisions contained in R.6(4) so also principal seniority R. 28 of the PHE Rules, as is legislative intent while framing the main rules so also incorporating the amendment, and having failed to do so, a series of litigation has crept changing the complexion of the entire matter besides resulting in conflicting decisions in view of different sets of circumstances of various cases of litigating party like the present one, which could have easily been avoided by the State instrumentality as the present case is a glaring example resulting in this situation. In the present case, while on the one hand, the State has issued letter No. F1(50)PHE/91 dated 22.9.97, order No. 1(15) PHE/96 dated 29.8.97, order No. Fl(16)PHE/96 dated 29.8.97, final seniority list of degree holder JENs as on 30.5.77, & order No. PH/Estt/234/97-98 dated 13.10.97 which are marked as Annexures 1 to 5 to show the compliance of the impugned order, itself, of the Tribunal dated 26.3.96, contrarily the State petitioner has been challenging the order of the Tribunal, itself which conduct by itself is not in keeping with the healthy principles of polity as such a conduct deserves to be deprecated. 28. Further as is the case of the writ respondent the State petitioner did not care to implement order of this Court as yet, passed in K.C. Goel v. State (DB Civil Writ Petition No. 560/79 decided on 6.10.88 as the amendment by notification dated 30.5.77 proviso (4) to R.6 of the PHE Rules. In K.C. Goel's case (supra) the amendment by notification dated 30.5.77 in PHE Rules, 1967 & dated 22.6.76 in PHE Rules, 1968 were held valid with prospective effect and thereby notifications dated 28.7.78 & 18.6.77 making amendments giving them retrospective effect from 1.4.75 in the Rules were quashed and this Court had directed "to prepare the seniority list afresh, treating earlier seniority list dated 21.5.79 as non-existence." Thus seniority list dated 21.5.79 quashed by this Court was common seniority list of degree, diploma & certificate holders but it did not mean as per that decision to prepare another common seniority list of three groups of Engineers as has been issued by the State petitioner on 14.6.91 under the garb of compliance of the judgment, or a seniority list of remaining degree holder Junior Engineers as on 30.5.77 as issued on 23.9.97 (Ann.4), whereas the only direction was to prepare seniority list as per provisions contained in amendment by notification dated 30.5.77 in PHE Rules, 1967.) 29. It is significant to note that seniority list issued by the State on 19.1.80 of Degree holder Junior Engineers in accordance with specific R.28 read with R.6(4) (inserted by notification dated 30.5.77) will remain in existence as long as provision of R.6(4) exists and that list has not been quashed. However, the writ respondent was regularly promoted as AEN (Mech.) against vacancies of the year 1980 by DPC order dated 15.2.82 which would not be changed. However, the writ respondent was regularly promoted as AEN (Mech.) against vacancies of the year 1980 by DPC order dated 15.2.82 which would not be changed. The private respondents were wrongly promoted prior to the writ respondent as AEN (Mech.) in violation of scheme of Rules, 1967 against 25% promotion quota of vacancies reserved for Junior Engineers (Degree Holders) only and in that view of the matter, the issue raised relates to wrong determination of seniority of Junior Engineers (Degree Holders) in accordance with R.6(4) of PHE Rules inserted by notification dated 30.5.77. 30. Over & above, admittedly, private respondent Nos. 2 to 9 despite their having been arrayed as party except respondent No. 7, had never appeared before the Tribunal during pendency of appeal No. 508/87 for more than 10 years maintaining studied silence, which culminated into the impugned order of the Tribunal, having been passed in favour of the writ respondent on 26.3.1997, inasmuch as the State petitioner has also not arrayed them as party to this writ petition nor those private respondents despite their being aggrieved by the impugned order as having been passed against them, have ever bothered to approach this Court assailing that impugned order, which itself shows their being satisfied with the results having acquiescenced to their relative seniority position as against the writ respondent. Therefore, it is apparent that the State appears to be indirectly espousing the cause of private been defending private respondents at the cost of State exchequer obviously with an oblique motive to humiliate the writ respondent so as to deprive him of his legal rights. The law is well settled that the settled position should not be permitted to be unsettled against the canons of law. 31. In Vijay Singh Deora's case (supra), crux of the question was integration of the three groups of Engineers, therefore, the issue was as to what will be the method or procedure for the purpose of determination of inter se seniority? It was a case where undoubtedly the appellant and his companions were appointed temporarily U/r 27 of IES Rules prior to 30.6.1978, but subject to the availability of the regularly recruited candidates in accordance with the Rules, and further admittedly there was no regular recruitment made by the Chief Engineer in accordance with the IES Rules U/r 6(a), and the screening committee found them eligible for appointment in the year 1984. The Apex Court held that inter se seniority of three groups has to be determined thus- (1) Seniority of Group A officers as Junior Engineer should be reckoned from respective dates on which substantive vacancies were available and Group A officers were appointed to those posts. Their seniority reckons from the respective dates of either initial appointment or date of availability of substantive vacancies, whichever occurs later; (2) Group B officers would get into quota prescribed for direct recruitment of graduate engineers from the date on which they became qualified by obtaining degree or the date when substantive vacancy became available; and (3) Similarly, seniority of Group C officers has to be determined from the date of their appointment on transfer or date of availability of substantive vacancy, whichever was later. However, the Apex Court made it explicit clear that if appointments are made dehors the rules, the entire length of service was required to be treated as fortuitous and excluded and if appointments are made after due consideration and according to the procedure, though on temporary basis, the seniority would start from the date of appointment. It has also been held that 'A' temporary appointee has no right to post nor does he get seniority unless regularly recruited in accordance with the rules and seniority would be reckoned from the date of substantive appointment when he started discharging the duty of the post. 32. It was case where Group A officers were appointed prior to 30.6.78 and were give 10 advance increments; Group B officers were appointed with diploma qualification and later as Group A officers & acquired degree qualification subsequently; while Group C officers on acquiring degree qualification were appointment on application by transfer after 30.6.78; therefore, the Apex Court held that unqualified became qualified subsequent to the appointment of qualified graduates because when Group A officers were screened by the committee all those found eligible for confirmation in temporary appointments made prior to 30.6.78, were held to be construed to have been regularly appointed to the post. Hence the Apex Court held that since there was no recruitment made by the Chief Engineer, the qualified Group A officers need to be treated as appointed as regular basis; otherwise, unqualified officers would become senior to the qualified graduates at the inception. 33. Hence the Apex Court held that since there was no recruitment made by the Chief Engineer, the qualified Group A officers need to be treated as appointed as regular basis; otherwise, unqualified officers would become senior to the qualified graduates at the inception. 33. As regards qualifying service for promotion as Assistant Engineer, the Apex Court held as under- "Qualifying service of Group 'A' officers for promotion as Assistant Engineer shall commence from date of availability of substantive vacancy against which they have been accommodated." Qualifying service for Group 'B' officers would commence from the date of availability of substantive vacancy against which they were accommodated. Any short fall in qualifying service may be made good by counting one-third service rendered as diploma-holder Junior Engineer by Group 'B' officer. ''Qualifying service for Group 'C' officers is to be reckoned from the date of appointment by transfer or from the date of availability of substantive vacancy, whichever is later. Any shortfall in qualifying service of Group 'C' officer may be made good by counting one-third of service as Sub-Engineer." (Para 9) ''The above criteria would do justice to all the three groups and no one would jump over the other and would not unjustly steal a march over the legitimate right of the other. Otherwise, in effect the qualified graduates would be pushed downwards and unqualified later entrants on acquisition of qualification would steal a march of the qualified. The High Court was not justified in treating amended Rule 6(1 A) with retrospective effect, since admittedly, it has been given prospective operation. The High Court was not justified in striking down the latter clause of the rules for computation of one third service for the purpose of next higher post." A critical & comparative analysis of relevant provisions quoted above makes its crystal that the principal & amended seniority R.28 & 6(4) of the PHE Rules, 1967 are undoubtedly similar besides identical to the parallel Engineering Service of the State Government's Irrigation Department, viz. IES Rules, 1967 (R.6(1A) & R.28) and the controversy raised by the writ respondent in his appeal before the Tribunal related to vital effect of R.6(4) of the PHE Rules, which has been considered at length by the Apex Court only in the matter of Vijay Singh Deora's case (supra) albeit in respect of identical & word by word similar set of R. 6 (1A) of the IES Rules, 1967 of the Irrigation Branch which is parallel Engineering service of the State Government and therefore, the decision is squarely applicable to the present set of circumstances. 34. Lastly I must part with conclusion that as held by the Division Bench of this Court in State v. Sekhar Gupta (DB Civil Writ Petition No. 180/83 decided on 20.10.1994). The State should not unnecessarily exercise over as to who is retained and who has been sent out when each of such persons had an opportunity to challenge the action before a Court of competent jurisdiction if they felt aggrieved. Thus it is not proper to disturb the order at the behest of the State alone when the parties who should have been aggrieved personally have not challenged the same before this Court. Even otherwise, I do not see anything basically wrong with the impugned order which would perpetuate any injustice or would seriously prejudice either the State Government and any of the parties. Hence I would not interfere with the impugned order.Resultantly, this writ petition fails and is hereby dismissed. No order as to costs.Writ Petition dismissed. *******