P. B. MAJMUDAR, J. ( 1 ) SINCE common point is involved in both the petitions, both are hereby disposed of by this common judgement and order. So far as Special Civil Application No. 949 of 1987 is concerned, the same is filed by the concerned employee - Shashikant Kanji Rachani challenging the order passed by the Gujarat Civil Services Tribunal dated 15th October, 1986 passed in Appeal No. 434 of 1985 by which the Tribunal has allowed the appeal filed by the respondent no. 5 herein. So far as Special Civil Application No. 1035 of 1987 is concerned, the same is filed by the Superintending Engineer, Public Health Circle, Gujarat Water Supply and Sewerage Board, Ahmedabad, challenging the said order of the Tribunal in the aforesaid appeal. Respondent no. 5 approached the Service Tribunal on the ground that in view of Rule 13 (i) of the Training and Examination Rules, he is senior to the present petitioner. The case of the respondent no. 5 before the Tribunal was that he and the present petitioner have passed the prescribed examination on 16th November, 1977 but since he has secured higher percentage of marks as compared to the present petitioner, he was required to be treated as senior. The respondent no. 5 accordingly preferred an appeal before the Tribunal, with a prayer that he be declared as senior to the present petitioner for the purpose of promotion to the post of senior clerk and consequently for a further promotion to the post of head-clerk. The Tribunal has narrated the facts in paragraph 4 of the judgement and as per the same, the respondent no. 5 was appointed as work-charged clerk on 10. 10. 1973 while the present petitioner was appointed as work-charged clerk on 1. 4. 1973. It is accordingly not in dispute that the present petitioner was appointed earlier in point of time as compared to respondent no. 5 so far as the post of work-charged clerk is concerned. Subsequently, the petitioner as well as respondent no. 5 appeared at the same time in the examination, which is prescribed for the purpose of appointment to the post of clerk on temporary establishment from the work-charged establishment. It is the say of the respondent no. 5 that since he had secured higher percentage of marks as compared to the present petitioner, he was required to be shown senior to the petitioner. It is the say of the respondent no. 5 that since he had secured higher percentage of marks as compared to the present petitioner, he was required to be shown senior to the petitioner. According to respondent no. 5, he was placed at serial no. 26 in the list of successful candidates while the petitioner was placed at serial no. 43. As per rule 11, the clerks of work-charged establishment are not eligible for appointment to the post of clerks on temporary establishment unless they pass the post training examination and have put in 5 years service. So far as the present petitioner is concerned, at the relevant time, he had completed 5 years of service ahead of respondent no. 5 as he was appointed earlier in point of time as a clerk in the work-charged establishment. Since the Department has considered the petitioner as senior to respondent no. 5, ultimately, by an order dated 13. 12. 1984, the petitioner was posted as Head Clerk. Being aggrieved by the aforesaid order, by which the petitioner was posted as Head Clerk, respondent no. 5 approached the Tribunal by way of Appeal, as, according to the respondent no. 5, he was required to be shown as senior to the present petitioner in view of Rule 13 of the PWD Resolution dated 30. 1. 1972 (the Training and Examination Rules ). The Tribunal decided the question about inter se seniority between the petitioner and respondent no. 5. The Tribunal came to the conclusion that the respondent no. 5 (appellant before the Tribunal) had passed the examination by obtaining higher percentage of marks as compared to the present petitioner and as both of them, i. e. respondent no. 5 and the petitioner, have passed the examination on the same day, the respondent no. 5 was required to be treated as senior to the petitioner as per Rule 13 (i ). The Tribunal accordingly allowed the said appeal. The Tribunal also came to the conclusion that respondent no. 5 herein is required to be promoted to the post of Deputy Accountant in preference to the present petitioner. The Tribunal also granted consequential reliefs to respondent no. 5 regarding deemed date of promotion to the post of head clerk. The Tribunal accordingly allowed the said appeal. The Tribunal also came to the conclusion that respondent no. 5 herein is required to be promoted to the post of Deputy Accountant in preference to the present petitioner. The Tribunal also granted consequential reliefs to respondent no. 5 regarding deemed date of promotion to the post of head clerk. The aforesaid order of the Tribunal is under challenge at the instance of the petitioner-employee as well as at the instance of the State Government and accordingly two Special Civil Applications are filed before this Court challenging the said order of the Tribunal. ( 2 ) THE question which is required to be decided in both these Special Civil Applications is whether the view of the Tribunal is correct in connection with fixing of inter-se seniority between the petitioner and the respondent no. 5. The Tribunal has mainly relied upon Rule 13 (i) of Training and Examination Rules, 1982. It is required to be noted that the seniority of Class-III employees, i. e. persons to be taken up on temporary establishment from the work-charged establishment is provided in sub- rule (i) of Rule 13 of the said Rules. The relevant rule reads as under:-"13. (I) the inter-se seniority of work-charged clerks for the purpose of appointment to the post of clerks in the various PWD offices on their temporary establishment should be fixed with reference to the date of passing the examination and if the date of examination is the same it should be determined on the basis of higher percentage of marks obtained in the examination. Thus those who pass the examination earlier shall become senior in the cadre of clerks on temporary establishment to those who pass it later and those who secure higher percentage of marks should be considered senior to those who have secured lower percentage of marks. Their names should accordingly be arranged in the order of merit for the purpose of appointment to the posts of clerks on temporary establishment. If the percentage of marks obtained by them is same, the seniority should be determined with reference to the length of service without disturbing their inter se seniority at the circle level and if their length of service is equal, their inter-se seniority should be determined according to their age. If the percentage of marks obtained by them is same, the seniority should be determined with reference to the length of service without disturbing their inter se seniority at the circle level and if their length of service is equal, their inter-se seniority should be determined according to their age. The seniority of persons who appear only in remaining papers and are declared successful by virtue of exemptions earned by them in previous examinations should be, fixed among themselves by taking a total of the marks obtained in all the papers in different examinations and then, placed below all those who have passed the examination in all papers at a time. " ( 3 ) AT this stage reference also is required to be made to Rule 11, which reads as under:-"rule 11. They shall not be eligible for appointment on the posts of clerks on temporary establishment unless they pass the post-training examination, and have put in 5 years service. " ( 4 ) SO far as rule 11 is concerned, it is in connection with the requirements regarding appointment to the post of clerk on temporary establishment and as per the same, an employee is required to have completed five years continuous service as work-charged clerk. So far as Rule 13 (i) is concerned, it is in connection with inter se seniority of the work-charged clerks for the purpose of appointing the person on the post of clerk on temporary establishment. Rule 13 (i) (ii) is in connection with determining the inter se seniority and if the candidate has obtained higher percentage of marks in the said examination such person is required to be shown as senior. As stated earlier, it is the said rule which is heavily relied upon by the Tribunal at the time of deciding the appeal. It is not in dispute that the present petitioner was appointed earlier in point of time compared to respondent no. 5 as a clerk in work-charged establishment. Accordingly, the present petitioner was appointed prior in point of time as compared to respondent no. 5. Subsequently, both of them have appeared in the post training examination which is prescribed for the purpose of taking a person on temporary establishment from work-charged establishment. Ultimately, both of them were found successful in the said examination on 16th November, 1977. Accordingly, the present petitioner was appointed prior in point of time as compared to respondent no. 5. Subsequently, both of them have appeared in the post training examination which is prescribed for the purpose of taking a person on temporary establishment from work-charged establishment. Ultimately, both of them were found successful in the said examination on 16th November, 1977. It is no doubt true that the present petitioner secured lesser percentage of marks as compared to respondent no. 5 herein. However, it is required to be noted that the petitioner herein had put in 5 years of continuous service. It is not in dispute that the present petitioner-employee was appointed earlier in point of time as compared to respondent no. 5 on the post of junior clerk on temporary establishment as he was appointed by an order dated 25th May, 1978. At the time when the petitioner was appointed on the aforesaid post as a junior clerk on temporary establishment, the respondent no. 5 was not even eligible to be appointed as admittedly he had not completed five years of continuous service as work-charged employee. Subsequently, the respondent no. 5 was appointed as a temporary clerk after completing the aforesaid five years service on 19. 2. 1979. The said factual aspect makes it clear that the present petitioner was appointed earlier in point of time as compared to respondent no. 5 so far as the appointment as a clerk in temporary establishment is concerned. In paragraph 7 of Special Civil Application No. 1035 of 1987, which is filed by the Superintending Engineer of the Department it is averred that on 27th September, 1983 the Department published provisional seniority list of junior clerks of public health circles of Saurashtra zone. The name of the present petitioner was shown at serial no. 6 and the name of the respondent no. 5 was shown at serial no. 23. On the basis of the said seniority list, the petitioner and respondent no. 5 with other employees were promoted to the post of senior clerk. In the said seniority list the present petitioner was shown at serial no. 9 while respondent no. 5 was shown at serial no. 17. The aforesaid fact, which is, as such, not in dispute, clearly shows that all throughout the petitioner was shown as senior to respondent no. 5 herein. Apart from the aforesaid aspect, the respondent no. In the said seniority list the present petitioner was shown at serial no. 9 while respondent no. 5 was shown at serial no. 17. The aforesaid fact, which is, as such, not in dispute, clearly shows that all throughout the petitioner was shown as senior to respondent no. 5 herein. Apart from the aforesaid aspect, the respondent no. 5 herein has never challenged the decision of the Department by which he was shown junior to the present petitioner. The respondent no. 5 in fact took the benefit of the promotion order by which he was promoted as a senior clerk and at that time he never challenged the action of the Department complaining about the petitioners seniority or the action of promoting the petitioner earlier as a senior clerk. It is at a later stage when the petitioner was promoted to the post of accountant that ultimately he approached the Tribunal making a complaint about such seniority. In my view, the Tribunal has committed serious error of law in allowing the appeal preferred by respondent no. 5 before it. It is required to be noted that the petitioner of Special Civil Application No. 949 of 1987 was appointed as a clerk earlier as compared to respondent no. 5. At the time when the said employee was promoted as junior clerk on temporary establishment, respondent no. 5 was not even appointed as junior clerk on temporary establishment as he had not completed 5 years of service as a clerk in work-charged establishment. It is an admitted fact that even in the seniority list prepared in the year 1983 the present petitioner was shown as senior to the respondent no. 5. So far as list of junior clerks of public health circle of Saurashtra zone is concerned, in the said list also the petitioner is shown at serial no. 9 while respondent no. 5 was shown at serial no. 17 and all throughout the respondent no. 5 has not challenged his placement in the said list. It is only when the question of giving further promotion to the post of Deputy Accountant arose, the respondent no. 5 ultimately approached the Tribunal by way of filing the appeal. 9 while respondent no. 5 was shown at serial no. 17 and all throughout the respondent no. 5 has not challenged his placement in the said list. It is only when the question of giving further promotion to the post of Deputy Accountant arose, the respondent no. 5 ultimately approached the Tribunal by way of filing the appeal. It is required to be noted that as per the seniority of the senior clerks, the petitioner was promoted as Deputy Accountant and it cannot be said that the Department has committed any error in promoting the petitioner ahead of respondent no. 5 so far as the post of Deputy Accountant is concerned. Rule 13 (i) cannot be read in isolation and it has to be read along with Rule 11. It is required to be noted that in order to be eligible to be appointed as a clerk in temporary establishment one is required to fulfill both the criteria, namely, five years continuous service as work-charged clerk as well as passing the post-training examination. The Tribunal has given complete go-bye to Rule 11 which is incorrect. It would have been a different matter if the petitioner and respondent no. 5 who were eligible at the same time to be appointed as temporary clerk and if both of them had appeared in the examination on the same day, naturally, percentage of marks obtained in the examination is required to be taken into consideration as per Rule 13 (i ). But, in the instant case, the respondent no. 5 was not eligible for being appointed as temporary clerk at the time when the petitioner was appointed as clerk on temporary establishment. Under these circumstances, he cannot be shown to be senior to the present petitioner. Therefore, simply because the petitioner and respondent no. 5 had appeared in the same examination itself is not sufficient for giving the benefit of seniority to the respondent no. 5 on the basis of rule 13. It is required to be noted that at the time when the petitioner of Special Civil Application No. 949 of 1987 was appointed to the post of clerk on temporary establishment, the respondent no. 5 herein was not even eligible for such appointment in view of the fact that he has not completed stipulated number of service as per rule 11. 5 herein was not even eligible for such appointment in view of the fact that he has not completed stipulated number of service as per rule 11. Under these circumstances, he cannot claim seniority over the petitioner of Special Civil Application No. 949 of 1987. If the interpretation of the Tribunal is accepted then the effect of the same would be that the respondent no. 5 will be getting the seniority qua the petitioner of Special Civil Application No. 949 of 1987 even though on the date on which petitioner of Special Civil Application No. 949 of 1987 was appointed to the post of clerk on temporary establishment, the respondent no. 5 was not even eligible to be appointed and yet he will get eligibility from the date on which he was not even entitled to be appointed. In the instant case, since the present petitioner of Special Civil Application No. 949 of 1987 was appointed as a clerk earlier and simply because he has obtained lesser percentage of marks in the examination later in point of time, his earlier service cannot be wiped out so far as seniority of the petitioner on the post of clerk on temporary establishment is concerned. It is also required to be noted that it would have been a different thing if respondent no. 5 was even otherwise found eligible to be appointed as a clerk on temporary establishment on the same date on which the petitioner of Special Civil Application No. 949 of 1987 was appointed on the said post. In the instant case, the respondent no. 5 was not found to be eligible to be appointed as a clerk on temporary establishment when the petitioner was appointed as such and naturally he cannot get seniority over the petitioner of Special Civil Application No. 949 of 1987. Even otherwise, as pointed out earlier, the respondent no. 5 had never even challenged his placement in the said seniority list and at a later point of time he approached the Tribunal when the question of appointment on the post of Deputy Accountant had arisen by way of filing the appeal. 19. 11. Even otherwise, as pointed out earlier, the respondent no. 5 had never even challenged his placement in the said seniority list and at a later point of time he approached the Tribunal when the question of appointment on the post of Deputy Accountant had arisen by way of filing the appeal. 19. 11. 2003 ( 5 ) IT is argued by Mr D. G. Chauhan, learned counsel for the petitioner in Special Civil Application No. 1035 of 1987 that the petitioner of Special Civil Application No. 949 of 1987 was admittedly appointed earlier in point of time as compared to respondent no. 5 on the post of work-charged establishment and admittedly he has completed five years service earlier as compared to respondent no. 5 on the said post and after passing post training examination he was appointed earlier as compared to respondent no. 5 on the temporary establishment as a clerk. He submitted that a person can appear in the post-training examination within the period of 5 years of such appointment as a work-charged clerk and on that ground the petitioner and respondent no. 5 appeared in the examination at the same time but since the petitioner had also completed five years of requisite period and passed the examination was appointed as a clerk on temporary establishment. Respondent no. 5, though appeared in the examination along with the present petitioner at the same time, yet he was not appointed as a clerk on temporary establishment because he was required to wait till he completed five years of qualifying service for the purpose of appointment as a temporary clerk. I also find substance in the argument of Mr Chauhan. As pointed out earlier, it would have been a different thing if the petitioner and respondent no. 5 both were eligible to be appointed on the same day as a temporary clerk and both of them had passed the examination on the same day, in such eventuality, percentage of marks would have been relevant for the purpose of fixing seniority. Considering the aforesaid aspect of the matter, the Tribunal has committed an error in allowing the appeal of the respondent no. 5 mainly by relying upon Rule 13 (i) and ignoring Rule 11 altogether. Considering the aforesaid aspect of the matter, the Tribunal has committed an error in allowing the appeal of the respondent no. 5 mainly by relying upon Rule 13 (i) and ignoring Rule 11 altogether. In this view of the matter and reading rules 11 and 13 together and considering the facts of the case, the Tribunal has committed a serious error by coming to the conclusion that the present respondent no. 5 is required to be treated as a senior to the present petitioner and on that basis he is entitled to get the promotion to the post of Deputy Accountant is concerned. The entire resolution dated 31st August, 1972 is produced by Mr Chauhan in his petition. The said resolution is regarding scheme for training and passing the post-training examination in respect of clerks on work-charged establishment for the purpose taking them as clerks on temporary establishment. Rule 3 (1) as well (ii) of the Training and Examination Rules provide as under:-"rule 10 in order to be eligible for appointment to the post of clerk on temporary establishment, they shall have to pass the post-training examination in not more than three chances within three years (i) from the date of their completing two years continuous service on work charged establishment after attaining 23 years of age, or (ii) from the date of commencement of training class held for them immediately after (a) he has completed 2 years continuous service on work charged establishment or (b) date of coming into force of rules, or (iii) from the date from which these rules shall come into force, whichever is latest and subject to the condition that they shall be on passing the examination, will be eligible for appointment on the regular establishment after completion of 5 years continuous service as provided for in para 1 (ii) of the G. R. , P. W. D. , No. TSE-1164 (18)-G, dated 29th October, 1971, provided that the persons belonging to scheduled castes and scheduled tribes may be given one more chance which shall have to be availed of within one year from the date of the expiry of the period mentioned in this rule. Provided further that no person on work-charged establishment shall be permitted to receive training and to appear at the examination unless he satisfies all the conditions, other than completion of 5 years service prescribed in G. R. , P. W. D. No. TSE-1164 (18)-G, dated 29th October, 1971. ""rule 11. They shall not be eligible for appointment on the posts of clerks on temporary establishment unless they pass the post-training examination, and have put in 5 years service. " ( 6 ) FOR the administrative convenience if the department is taking the examination batch-wise and on that basis if the respondent no. 5 had appeared in the examination along with the petitioner even though he is junior, yet, he is required to undergo five years continuous service. In that view of the matter, even though the respondent no. 5 appeared in the examination within five years tenure, yet, he was required to wait for substantive appointment as a temporary clerk till he completes five years service as a clerk and naturally therefore even though he had passed the post-training examination, he was not immediately appointed as a clerk on temporary establishment. When respondent no. 5 was not even otherwise qualified or eligible as per the Rules for being appointed as a clerk on temporary establishment, he cannot claim seniority over the present petitioner, simply because he had passed the examination by securing more percentage of marks. ( 7 ) IN view of what is stated above, the order of the Tribunal is not sustainable and the same is required to be quashed and set aside. Even otherwise, the appeal of respondent no. 5 was required to be dismissed by the Tribunal on the ground of delay and laches. Accordingly, both the petitions are allowed. Order of the Tribunal is quashed and set aside. Rule is made absolute in each of these petitions. No order as to costs. .