M. KATJU, J. ( 1 ) THIS writ petition has been filed for a mandamus directing the respondents to consider and decide the claim of the petitioner for being promoted to the post of Superintending Engineer in minor Irrigation Department and Rural Engineering Services, U. P. , in accordance with the relevant service rules and for quashing the impugned order dated 19. 7. 2002 (Annexure-1 to the writ petition) passed by the respondent No. 1 by which respondent Nos. 3, 4 and 5 were promoted as Superintending Engineer without considering the claim of the petitioner. ( 2 ) HEARD learned counsel for the parties. ( 3 ) THE petitioner was appointed as Assistant Engineer in Minor Irrigation Department, U. P. , on 16. 12. 1980 and was promoted as Executive Engineer vide order dated 11. 9. 1989. It is alleged in para 4 of the writ petition that he made several representations thereafter claiming further promotion to the post of Superintending Engineer in U. P. Service of Engineers (Minor Irrigation department) Rules, 1991 (hereinafter referred to as the Rules) copy of which is Annexure-2 to the writ petition, ( 4 ) THE petitioner was ultimately promoted as Superintending Engineer on temporary basis on 19. 5. 1997. It is alleged that he was given an assurance that he would be promoted on regular basis as and when the Departmental Promotion Committee meets for this purpose. However, no departmental Promotion Committee after 1995 met and the petitioner was harassed by the then minister Markandey Chand, Minister of Minor Irrigation, U. P. and the petitioner was transferred by order dated 8. 1. 1999 to a non-functional post against which he filed Writ Petition No. 1910 of 1999 in which this Court passed an interim order due to which the petitioner continued as superintending Engineer at Jhansi Circle. The petitioner was then placed under suspension by order dated 4. 6. 1999, against which Writ Petition No. 24759 of 1999 was filed in which the suspension order was stayed. Thereafter the financial and administrative powers of the petitioner were withdrawn against which Writ Petitton No. 28512 of 1999 was filed in which also an interim order was passed. He was then reverted to the post of Executive Engineer against which he filed Writ Petition No. 7830 of 1999 and this Court passed an interim order due to which the petitioner is continuing as Superintending Engineer. He was then reverted to the post of Executive Engineer against which he filed Writ Petition No. 7830 of 1999 and this Court passed an interim order due to which the petitioner is continuing as Superintending Engineer. These writ petitions were finally disposed of by judgment dated 16. 3. 2001 vide Annexure-3 to the writ petition. As regard the prayer for promotion, this Court observed that the same shall be considered by the Department when it makes promotion. ( 5 ) IN para 13 of the writ petition it is stated that on the day this Court passed order dated 19. 7. 2002, Annexure-4 to the writ petition the respondent No. 1 promoted the respondent Nos. 3, 4 and 5 who were juniors to the petitioner to the post of Superintending Engineer vide annexure-1 to the writ petition without considering the case of the petitioner for promotion. ( 6 ) IN para 15 of the writ petition it is stated that in the seniority list dated 22. 8. 1998 copy of which is Annexure-5 the petitioner was placed at serial No. 77 while the respondent Nos. 3, 4 and 5 are at serial Nos. 96, 86 and 102 respectively. This shows that the respondents are Juniors to the petitioner but yet have been promoted ignoring the claim of the petitioner. In para 16 of the writ petition it is stated that the vacancy of Superintending Engineers existed in 1995 and it was only the petitioner who was entitled for promotion to the post of Superintending Engineer under the Scheduled Caste quota and hence was given promotion as Superintending Engineer on temporary basis but thereafter Departmental Promotion Committee was not constituted for considering the claim of the petitioner for promotion. The Departmental Promotion Committee met in the year 2002 but ignoring the rightful claim of the petitioner it selected and promoted respondent Nos. 3, 4 and 5. In para 17 of the writ petition it is stated that the respondents are not eligible for promotion, as they have not completed the minimum requirement of service for promotion. It was only the petitioner who was eligible for promotion in view of his seniority cum suitability but yet the respondents for mala fide reasons did not constitute the Departmental promotion Committee and waited for seven years after which they promoted respondent Nos. 3, 4 and 5. It was only the petitioner who was eligible for promotion in view of his seniority cum suitability but yet the respondents for mala fide reasons did not constitute the Departmental promotion Committee and waited for seven years after which they promoted respondent Nos. 3, 4 and 5. In para 18 of the writ petition it is stated that the respondent Nos. 3, 4 and 5 do not have the minimum requirement for promotion as Superintending Engineer as they do not possess 15 years service which is the mandatory requirement of the service rules. On the other hand, the petitioner has rendered 22 years of service with the Department Including 12 years as Executive engineer and about 4 years as Superintending Engineer on temporary basis but yet he has not been considered for promotion as Superintending Engineer. In para 19 of the writ petition it is stated that the respondent Nos. 3, 4 and 5 were posted as Executive Engineer at Hamirpur and jhansi Division and were the subordinate officers of the petitioner since at the relevant time, the petitioner had continued as Superintending Engineer at Jhansi Circle. These respondents were also placed under suspension along with the petitioner in June. 1999 but it is alleged that the respondent Nos. 3 and 5 surrendered themselves by giving illegal gratification and hence they were given clean chits. The respondent No. 3 was exonerated vide order dated 11. 12. 2001 and the respondent No. 5 was exonerated by order dated 22. 12. 2001 and they were promoted as superintending Engineer, but since the petitioner did not surrender but instead approached this court by a writ petition for redressal of his grievance an enquiry was held and concluded against him after expiry of more than three years and his case for promotion was not considered. True copies of the orders dated 11. 12. 2001 and 22. 12. 2001 are Annexures-6 and 7. ( 7 ) A counter-affidavit has been filed on behalf of respondent Nos. 1 and 2. In para 4, it is stated that the respondent Nos. 3, 4 and 5 are senior to the petitioner. The seniority list of the Assistant engineers dated 19. 3,1996 is still in existence, copy of which is Annexure-C. A. 1 to the counter-affidavit. In para 5 it is stated that as per Second Amendment of the Engineering Service rules, 1991, which was notified on 10. 1. 3, 4 and 5 are senior to the petitioner. The seniority list of the Assistant engineers dated 19. 3,1996 is still in existence, copy of which is Annexure-C. A. 1 to the counter-affidavit. In para 5 it is stated that as per Second Amendment of the Engineering Service rules, 1991, which was notified on 10. 1. 1995 the promotion of respondent Nos. 3. 4 and 5 was considered in accordance with the Second Amendment. True copy of the said amendment is annexure-C. A. 2. In para 6 it is stated that the petitioner was substantively appointed in 1985 and in the year 1995 he had not completed the required requisite qualification and as such he could not be considered for the purposes of promotion. In para 7 it is stated that the order dated 19. 5. 1997 by which the petitioner was given charge of Superintending Engineer in stopgap arrangement cannot be said to be a regular promotion order. True copy of the said order is annexure-C. A. 3. In para 9 it is stated that the Writ Petition No. 1910 of 1999 was dismissed by this Court but this fact has not been disclosed by the petitioner. In para 12 it is stated that whenever the petitioner will be eligible for promotion according to his seniority he will be considered for promcaon if there is any vacancy. In para 14, it is stated that since the respondent nos. 3. 4 and 5 are senior to the petitioner hence they have been considered for promotion and whenever the petitioner is eligible he will also be considered. ( 8 ) IN para 15 of the counter-affidavit it is stated that the seniority list dated 22. 8. 1998 was cancelled by the Government vide notification dated 26. 11. 2001 and before the said date the said seniority list had been stayed by this Court in Writ Petition No. 30717 of 1999, vide its order dated 4. 5. 1999, and as such, at the time of consideration of promotion of the respondent Nos. 3. 4 and 5 the said seniority list dated 22. 8. 1998 was not in operation as the same was stayed by this Court. Subsequently it was cancelled by the State Government and as such the seniority list dated 22. 8. 1998 was never given effect to. and the seniority list dated 19. 3. 3. 4 and 5 the said seniority list dated 22. 8. 1998 was not in operation as the same was stayed by this Court. Subsequently it was cancelled by the State Government and as such the seniority list dated 22. 8. 1998 was never given effect to. and the seniority list dated 19. 3. 1996 was always in operation and the promotion of candidates was considered in view of the seniority list dated 19. 3. 1996. The cancellation order of seniority list dated 26. 11. 2001 is Annexure-C. A. 4 to the counter-affidavit. In para 16, it is stated that the petitioner was not eligible for promotion in 1995. At that time there were seven vacancies on the post of Superintending Engineers, four in general category and 3 in reserved category and these had to be considered in accordance with the seniority list prepared by the Department, but since that seniority list was stayed by this court hence the seven vacancies were filled up only in the year 2002. In para 17, it Is stated that the promotion order dated 19. 7. 2002 is in respect of those officers who are senior to the petitioner and not a single Junior to the petitioner has been promoted. In para 19, it is stated that the petitioner has got alternative remedy to approach U. P. Public Services Tribunal. ( 9 ) SEVERAL other affidavits have been filed e. g. , supplementary-affidavit, supplementary counter-affidavit and rejoinder-affidavit. Before adverting to them it may be useful to refer to the relevant service rules. The relevant rule is Rule 5, which states as follows : "source of recruitment.--Recruitment to the various categories of post in the service shall be made from the following. sources. . . (3) Superintending Engineer.--By promotion from amongst the substantively appointed executive Engineers who have completed at least fifteen years total service (including at least six years as Executive Engineer) on the first day of year of recruitment. " ( 10 ) A perusal of the above rule shows that for promotion as Superintending Engineer, one must be a substantively appointed Executive Engineer who has completed at least 15 years total service including six years as Executive Engineer on the first day of the year of recruitment. The petitioner joined as Assistant Engineer on 16. 12. " ( 10 ) A perusal of the above rule shows that for promotion as Superintending Engineer, one must be a substantively appointed Executive Engineer who has completed at least 15 years total service including six years as Executive Engineer on the first day of the year of recruitment. The petitioner joined as Assistant Engineer on 16. 12. 1980 and hence there is no doubt he has now completed more than 15 years of service. In fact he has completed about 22 years and his service was regularised as Assistant Engineer w. e. f. 3. 12. 1985. He was prompted as Executive Engineer vide order dated 11. 9. 1989, as stated in para 24 of the writ petition. The petitioner has submitted that he is entitled to be considered for promotion under Rule 5 (3) of the Service Rules, since he had completed six years as Executive Engineer and more than 15 years of service at the relevant time. ( 11 ) IN the counter-affidavit filed on behalf of the respondent Nos. 3, 4 and 5 it is stated that the departmental Promotion Committee met on 5. 7. 2002 and it considered the question of promotion of all the eligible candidates for the post of Superintending Engineers and found the contesting respondents to be suitable. Hence they were promoted on 19. 7. 2002. The petitioner was not considered as his services were terminated by order 13. 9. 2001 but he was reinstated on 7. 8. 2002 and thus on the date when the Departmental Promotion Committee met the petitioner had not been reinstated. It is further alleged in para 8 of the said counter-affidavit that the petitioner was not selected against Scheduled Caste quota but on the post meant for disabled officers of the Army. In para 9 of the counter-affidavit it is stated respondent Nos. 3, 4 and 5 are senior to the petitioner, and they were eligible for promotion as Superintending Engineer, and were rightly promoted. The Service Rules of the 1991 were first amended on 2. 12. 1992 and thereafter again amended in 1995. Now the qualifying period is 12 years of service, and respondent Nos. 3, 4 and 5 have completed 14 years service including seven years as Executive engineer. True copy of the Second Amendment of the Rules is Annexure-5. The Service Rules of the 1991 were first amended on 2. 12. 1992 and thereafter again amended in 1995. Now the qualifying period is 12 years of service, and respondent Nos. 3, 4 and 5 have completed 14 years service including seven years as Executive engineer. True copy of the Second Amendment of the Rules is Annexure-5. It is alleged that ad hoc service cannot be counted with regular service for the purpose of calculating seniority in view of the G. O. dated 4. 2. 1983, Annexure-6 to the counter-affidavit. In para 10 of the counter-affidavit it is stated that the petitioner was not promoted on 19. 5. 1997 as Superintending engineer, but while discharging his duty on the post of Executive Engineer he was directed to look after the work of Superintending Engineer at Lucknow Headquarter in addition to his work as Executive Engineer. In para 11 it is stated that only local arrangement was made by which the petitioner was asked to work as Superintending Engineer. In para 12 it is stated that since the petitioner was never promoted as Superintending Engineer, hence the question of reversion on the post of Executive Engineer did not arise. In para 14 it is stated that the seniority list of 1996 is final and conclusive and was wrongly amended in 1998. A Writ Petition No. 30719 of 1998 was filed against it in which an interim order dated 4. 5. 1999 was passed vide Annexure-10. The state Government ultimately set aside the seniority list dated 22. 8. 1998 by order dated 26. 11. 2001, Annexure-11 to the counter-affidavit. The seniority list dated 22. 8. 1998 which has been made the basis of the present writ petition, has been set aside by the respondent No. 1 by order dated 26. 11. 2001. Till date the seniority list of 1996 has not been challenged, and hence it is final. ( 12 ) IT is further alleged in paragraph 15 of the counter-affidavit of respondent Nos. 3, 4 and 5 that the Departmental Promotion Committee consist of experts who are senior officers. Their decision is based on sufficient materials on record, and the Court cannot sit in appeal over the decision of the Departmental Promotion Committee The petitioner is junior to respondent Nos. 3, 4 and 5 that the Departmental Promotion Committee consist of experts who are senior officers. Their decision is based on sufficient materials on record, and the Court cannot sit in appeal over the decision of the Departmental Promotion Committee The petitioner is junior to respondent Nos. 3, 4 and 5 and he was not eligible for promotion in 1995 in view of amended Rule 3 as he had not completed the minimum requirement of service at that time. ( 13 ) IN paragraph 16 of the same it is stated that the 1996 Seniority List is final and conclusive. After the amendment in the Rules only 12 years of service was required for promotion as superintending Engineer. The respondent Nos. 3, 4 and 5 have been exonerated in the enquiry. The petitioners termination was no doubt set aside by the High Court but an S. L. P. is pending against that judgment in the Supreme Court. The respondents have joined as Superintending engineer In July, 2002. ( 14 ) IN paragraphs 1 and 2 of the supplementary-affidavit of the petitioner, it is alleged that the departmental Promotion Committee met on 19. 7. 2002 and promoted respondent Nos. 3, 4 and 5 although they did not have the minimum qualification of 15 years service for promotion as superintending Engineer. The petitioner was eligible for promotion in 1995 itself having completed 15 years service. The reply to this affidavit is given in the supplementary counter-affidavit where these allegations have been rebutted. ( 15 ) WE have also perused the two rejoinder-affidavits. Annexure-R. A. 3 to the rejoinder-affidavit in reply to the counter-affidavit of respondent Nos. 3, 4 and 5 is copy of the Judgment of the division Bench of this Court dated 4. 2. 2002 by which the petitioners dismissal order was quashed vide 2002 (1) ESC 479. As regards the seniority list, it is alleged in para 15 of the rejoinder-affidavit to the counter-affidavit of respondent Nos. 1 and 2, as well as in para 14 of the rejoinder-affidavit to the counter-affidavit of respondent Nos. 3, 4 and 5 that the petitioner came to know of the order dated 26. 11. 2001 for the first time when it was received in the office of the Chief Engineer on 1. 8. 2002, that is, after the Departmental Promotion Committee on 19. 7. 2002. 3, 4 and 5 that the petitioner came to know of the order dated 26. 11. 2001 for the first time when it was received in the office of the Chief Engineer on 1. 8. 2002, that is, after the Departmental Promotion Committee on 19. 7. 2002. ( 16 ) IN our opinion, once a dismissal order is quashed, it must be deemed in the eye of law that the dismissal never took place. Hence it must be deemed that the petitioner was in service throughout. This is a legal fiction, and our eyes should not boggle at this legal fiction. There can be no manner of doubt that the petitioner had completed the requisite service for promotion as superintending Engineer. The petitioner had been appointed as Assistant Engineer on 16. 12. 1980 and hence he completed 15 years of service on 16. 12. 1995. He completed 6 years as executive Engineer on 11. 9. 1995. No doubt the petitioners services were terminated on 13. 9. 2001 and hence the petitioner was factually not in service when the Departmental promotion Committee met on 19. 7. 2002 but since the termination order was quashed by the division Bench Judgment of this Court in Writ Petition No. 36106 of 2001. Sengu Ram v. Chief secretary, decided on 4. 1. 2002 vide Annexure-R. A. 3 to the rejoinder-affidavit, it has to be deemed in the eye of law that the petitioner was in service on 19. 7. 2002 when the Departmental promotion Committee met. ( 17 ) IT is well-settled that when a termination order is set aside by the Court, it has to be deemed that the employee has been throughout in service vide Surendra Kumar Verma v. Central government Industrial Tribunal, 1981 (1) LLJ 386 (SC) East India Industries Ltd. v. Industrial tribunal AIR 1955 Mad 242 (para 5), etc. In East End Dwellings Co. Ltd. v. Finsbury Borough council, (1951) 2 All ER 587, Lord Asquith observed : "if you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. The statute says that you must imagine a certain state of affairs. The statute says that you must imagine a certain state of affairs. It does not say that having done so, you must cause or permit your Imagination to boggle when it comes to the inevitable corollaries of that state of affairs. " this statement of law in respect of a statutory fiction has been consistently followed by the supreme Court. Reference in this connection may be made to the cases of State of Bombay v. Pandurang Vinayak Chaphalkar, AIR 1953 SC 244 , Chief Inspector of Mines v. Karam Chanad thapar, AIR 1961 SC 838 , J. K. Cotton Spg. and Wvg. Mills Ltd. v. Union of India. 1987 (Suppl.) SCC 350, M. Venugopal u. Divisional Manager. L. I. C. , (1994) 2 SCC 323 and Harish tandon v. A. D. M. , 1995 (1) AWC 106 (SC) : 1995 SCC 537 . ( 18 ) IN Gajraj Singh v. State Transport Appellate Tribunal 1996 AWC (Suppl.) 678 (SC) : 1997 (1) SCC 650 , (vide para 22), the Supreme Court observed : "legal fiction is one which is not an actual reality and which the law recognises and the Court accepts as a reality. Therefore, in case of legal fiction the Court believes something to exist, which In reality does not exist. It is nothing but a presumption of the existence of the state of affairs which in actuality is non-existent. The effect of such a legal fiction is that a position which otherwise would not obtain is deemed to obtain under the circumstances. " ( 19 ) IN Union of India v. M/s. Jalyan Udyog. AIR 1994 SC 88 , by a notification of the Central government, the date of actual import in the case of a ship which was imported as an ocean going vessel but was subsequently broken up was deemed to be the date of breaking up of the vessel. The Supreme Court observed that ordinarily no doubt customs duty is levied with reference to the date of actual import but in view of the aforesaid notification if the vessel is subsequently broken up the duty will be levied on the value and at the rate prevailing on the date of the breaking up. The Supreme Court observed that ordinarily no doubt customs duty is levied with reference to the date of actual import but in view of the aforesaid notification if the vessel is subsequently broken up the duty will be levied on the value and at the rate prevailing on the date of the breaking up. The Supreme Court observed : "by virtue of the fiction created by the proviso in the notification, the vessel is deemed to have been Imported for breaking-up on the date it is broken-up. It is well-settled that where a fiction is created by a provision of law, the Court must give full effect to the fiction, and as is often said, it should not allow its Imagination to be boggled by any other considerations. Fiction must be given Its due play : there is to be no halfway stop. According to this notification, therefore, the date relevant for determining the value and rate of the customs duty chargeable in the case of two ships concerned in Jalyan Udyog is the date on which they were broken-up. " ( 20 ) THEREFORE, there can be no manner of doubt that the petitioner was fully eligible to be considered for promotion in December, 1995, when he completed 15 years of service and six years as Executive Engineer. ( 21 ) AS regard the U. P. Service of Engineers (Minor Irrigation Department) (Second amendment) Rules, 1995, copy of which is Annexure-C. A. 5 to the counter-affidavit of respondent Nos. 3, 4 and 5, a perusal of the same shows that the minimum qualifying service for promotion as Superintending Engineer remains 15 years, but if an eligible candidate is not available then in that case a person who has completed four years as Executive Engineer and 12 years of total service can be considered for promotion. 3, 4 and 5, a perusal of the same shows that the minimum qualifying service for promotion as Superintending Engineer remains 15 years, but if an eligible candidate is not available then in that case a person who has completed four years as Executive Engineer and 12 years of total service can be considered for promotion. The amended Rule 5 (3) states as follows : 3 v/kh{k. k vfhk;urkandeksfyd :i ls fu;qdr vf/kkklhvfhk;urkvksa esa ls ftugksaus Hkrhz ds o"kz ds izfkefnol ls iunzg o"kz dh lsok vf/kkklh vfhk;ark ds :i esan% o"kz dh lsok dks lfeefyr djrs gq;s iwjh dj yh gks] inksuufr }kjk] ijurq ;fn inksuufr ds fy;s mi;qdr ik= vh;fkhz miyc/ku gks rks vf/kkklh vfhk;urk ds in ij eksfyd :i lsfu;qdr ,sls O;fdr;ksa dks ftugksaus Hkrhz ds o"kz dsizfke fnol dks vf/kkklh vfhk;urk ds :i esa pkj o"kz dhlsok dks lfeefyr djrs gq;s ckjg o"kz dh lsok iwjh dj yhgks] lfeefyr djus ds fy;s ik=rk ds {ks= esa folrkj fd;ktk ldrk gs A ( 22 ) AS already stated above, the petitioner was eligible when the Departmental Promotion committee met on 5. 7. 2002 and by a deemed fiction he has to be treated in service on that date once his termination order was set aside by the judgment dated 4. 2. 2002. Hence in our opinion the proviso to Rule 5 (3) as inserted in 1995 to the Service Rules has no application, because an eligible person (the petitioner) was available. ( 23 ) IN para 9 of the counter-affidavit of the respondent Nos. 3, 4 and 5 these respondents admit that they have completed only 14 years of service and not 15 years. Hence they were not eligible to have been considered for promotion as Superintending Engineer as they had not put in 15 years of service. ( 24 ) IN Dr. Rqjinder Singh v. State of Punjab and others. 2001 (5) SCC 482 , it was held by the supreme Court that a person who has not completed the minimum period of qualifying service could not have been granted promotion as such promotion would be in violation of the rules. ( 25 ) AS stated in para 3 of the writ petition, the respondent Nos. 4 and 5 were appointed as assistant Engineer on 2. 11. 1987 and 4. 4. 1988 respectively. Respondent No. 3 also has not completed 15 years of service on 19. ( 25 ) AS stated in para 3 of the writ petition, the respondent Nos. 4 and 5 were appointed as assistant Engineer on 2. 11. 1987 and 4. 4. 1988 respectively. Respondent No. 3 also has not completed 15 years of service on 19. 7. 2002 when the Departmental Promotion Committee met as admitted in para 9 of the counter-affidavit of the respondents. ( 26 ) HENCE in view of the decision of the Supreme Court in Dr. Rajinder Singh v. State of Punjab and others, (supra), the promotion of respondent Nos. 3, 4 and 5 was clearly Illegal and it is hereby quashed. ( 27 ) THE writ petition is, therefore, allowed. The impugned order dated 19. 7. 2002 is quashed. The authorities are directed to consider the petitioner for promotion as Superintending Engineer treating him to be eligible under Rule 5 (3), and for this purpose the Departmental Promotion committee must meet within a month of production of certified copy of this order before respondent No. 1. The writ petition is allowed. No order as to costs. .