JUDGMENT Umeshwar Pandey, J.—The respondent No. 1 Ram Sajan Shukla had challenged the order dated 14.10.1985, passed by the respondent No. 4 rejecting his candidature for promotion on the post of Junior Engineer in the department. 2. The respondent No. 1/ petitioner was working as Beldar in Tube Well Division of Irrigation Department, district Kanpur and while serving, he had obtained a diploma in Mechanical Engineering and had made application for recruitment as Junior Engineer for which the I.I.T., Kanpur, was duly authorised to conduct the test, etc. The respondent No. 4 on due scrutiny found that the respondent No. 1 was not entitled for the direct recruitment and his candidature was rejected. Being aggrieved with this rejection, the Writ Petition No. 1710 of 1986 was filed by the respondent No. 1, which was finally disposed of by the learned single Judge vide order dated 27.11.1992 directing the respondents to consider his candidature for promotion as Junior Engineer within a period of one month from the date of production of certified copy of the said judgment. Pursuant to the said order passed by the learned single Judge, the case of respondent No. 1 was considered by a Selection Committee which after due scrutiny found him as not eligible for promotion and communicated the same vide order dated 16.2.1993. This order of rejection for promotion of the respondent No. 1 on the post of Junior Engineer was again questioned in the aforesaid Writ Petition No. 1710 of 1986 by moving a misc. application by the respondent No. 1 and he made a prayer that the final order dated 27.11.1992 in writ petition be modified directing that he again be considered for such promotion, as he was wrongly not promoted in the year 1985. The learned single Judge, while entertaining this application in the aforesaid finally decided writ petition called upon the standing counsel to file counter-affidavit within three weeks and listed the case for 16.4.1993. The case was taken up on that date and when the Court found that the counter-affidavit was not filed by the respondents, it passed the order dated 16.4.1993 in the following terms : “Despite order of the Court dated 24.3.1993 no counter-affidavit has been filed. The case was taken up on that date and when the Court found that the counter-affidavit was not filed by the respondents, it passed the order dated 16.4.1993 in the following terms : “Despite order of the Court dated 24.3.1993 no counter-affidavit has been filed. In the circumstances of the case, I modify my judgment and direct that petitioner will be promoted as Junior Engineer, Irrigation within a month from the date of filing of certified copy of this order.” 3. After passing of the aforesaid order, the appellant moved an application dated 13.5.1993 for setting aside and to recall the order dated 16.4.1993. That application was taken up on 5.11.1993 and the same was rejected on that date. Another application dated 26.4.1994 for recalling the orders dated 5.11.1993, passed on the application dated 13.5.1993 was moved by the appellant. That application was allowed vide order dated 21.7.1995, whereafter immediately on the same day the application dated 13.5.1993, for recalling the order dated 16.4.1993 was taken up and the learned single Judge dismissed it. As a result thereof, the ex parte order dated 16.4.1993 remained operative. 4. As it transpires from the record the appellant aggrieved with the aforesaid two orders dated 16.4.1993 and 21.7.1995, filed a special leave petition before the Supreme Court which was dismissed on 16.9.1997 on the ground of unexplained inordinate delay in filing the same. The appellant, in addition to the said special leave petition, had also filed the present special appeal before this Court questioning those orders of the learned single Judge dated 16.4.1993 and 21.7.1995. A Division Bench of this Court earlier dismissed this appeal on 1.10.1996 on the ground of delay as well as on the ground of maintainability. 5. Aggrieved with the aforesaid order of dismissal of appeal, the present appellant-Executive Engineer, Tubewell Division, district Kanpur including the respondents, State of U. P. and Engineer in Chief, Irrigation Department, had preferred an Appeal No. 1029 of 1998 before the Apex Court which was heard by two Hon’ble Judges of the Supreme Court and was disposed of vide order dated 20.2.1998. The Supreme Court allowed the appeal and set aside the order dated 1.10.1996 of the Division Bench of this Court and remanded the special appeal for fresh disposal in accordance with law. 6. We have heard Sri Indra Raj Singh, learned counsel appearing for the appellant, Mr. The Supreme Court allowed the appeal and set aside the order dated 1.10.1996 of the Division Bench of this Court and remanded the special appeal for fresh disposal in accordance with law. 6. We have heard Sri Indra Raj Singh, learned counsel appearing for the appellant, Mr. Vishnu Sahai, learned counsel for the respondent No. 1 and the learned standing counsel representing the respondent Nos. 2 to 4 at length and have gone through the entire material available on the record. 7. The learned counsel for the respondent No. 1 at the very outset raised the same arguments, which were raised before the Division Bench which had found the arguments quite acceptable that the appeal was not maintainable at the instance of the appellant-Executive Engineer, Tube-well Division, District Kanpur. The learned counsel, while emphasizing the same aspect of the matter, referred the case law of Chief Conservator of Forests, Government of A. P. v. Collector and others, 2003 (51) ALR 124 ; Cyril E. Fernandes v. Sr. Myria Lydia and others, AIR 1977 SC 2145 and Babu Ram Verma v. Sub-Divisional Officer, Akbarpur, District Faizabad and others, 1996 (Suppl) RD 10. 8. That earlier order dated 1.10.1996 of the Division Bench in this special appeal dismissing it on the ground of maintainability was, as stated above, challenged before the Supreme Court in Appeal No. 1029 of 1998 and the said appeal was allowed by a Bench of two Hon’ble Judges of the Supreme Court vide order dated 20.2.1998. The Apex Court allowing the appeal recorded certain categorical findings in the present context of the maintainability of the appeal at the instance of the Executive Engineer, Tubewell Division, district Kanpur. The following observations of the Hon’ble Supreme Court are important to notice : “The learned Judges of the Division Bench, in our opinion, clearly fell in error in holding that the Executive Engineer, Tubewell Division, district Kanpur, could not be said to be a person aggrieved so as to maintain the special appeal. The Executive Engineer, Tubewell Division, district Kanpur had been arrayed as respondent No. 3 in the writ petition, which was disposed of on 27.11.1992 and which order later on came to be modified on 16.4.1993. Since, the order dated 16.4.1993 was also impugned in the special appeal, it could not be said that Executive Engineer, Tubewell Division, district Kanpur was not competent to maintain the appeal. Since, the order dated 16.4.1993 was also impugned in the special appeal, it could not be said that Executive Engineer, Tubewell Division, district Kanpur was not competent to maintain the appeal. So far as the delay of four months is concerned, in the facts and circumstances of the case, that delay should not have been put against the appellant in view of the proceedings which had taken place between 27.11.1992, when the writ petition was initially disposed of and 21.7.1995, when the application for recalling the orders was finally rejected. The explanation for delay was reasonable. Delay ought to have been condoned. The impugned order, therefore, cannot be sustained. We, accordingly, set aside the impugned order and condoning the delay in filing the special appeal, remand the special appeal to the Division Bench for its fresh disposal in accordance with law.” 9. While the aforesaid point of maintainability was being argued, the learned standing counsel representing the respondent Nos. 2 to 4, on the query of the Court, had expressed his no objection, in fact, his willingness for the State of U. P. (respondent No. 2) to join as appellant in this case. It is true that, as observed by the Supreme Court in case of Chief Conservator of Forests (supra), it cannot be disputed that in a lis dealing with the matter concerning the State, it is a necessary party, as per the implication of Section 79 of the Code of Civil Procedure and no officer of the Government can file a suit or initiate any proceeding in a Court in the name of the post he is holding. Obviously, this special appeal was not filed by the respondent No. 2, the State of U. P. but it was filed by its officer-the Executive Engineer upon which the preliminary objection raised about the maintainability of the appeal. The Bench had earlier dismissed this appeal vide order dated 1.10.1996, as already stated above. The Apex Court in the appeal filed against the said order of dismissal, allowed the Civil Appeal No. 1029 of 1998, referred to above, and set aside the dismissal order with certain observations, as quoted above. The specific observation has come that ‘it could not be said that Executive Engineer, Tubewell Division, district Kanpur was not competent to maintain the appeal’. The specific observation has come that ‘it could not be said that Executive Engineer, Tubewell Division, district Kanpur was not competent to maintain the appeal’. After this observation of the Apex Court, we do not find that there is any legal propriety for again holding that the appeal at the instance of the Executive Engineer as aforesaid is not maintainable. At the worst, the appeal can be treated as bad for non-joinder of the State of U. P. as an appellant. As already referred to above, the State when did not have any objection to join as an appellant, we in order to avoid further complications, have passed a separate order of the date on the order sheet directing transposition of respondent No. 2-State of U. P. through its Secretary Irrigation Department as appellant No. 2. This has been done to remove the defect of appeal for non-joinder of necessary appellant, also keeping in view the fact that the State of U. P. now appellant No. 2 was also an appellant before the Apex Court in the aforesaid Appeal No. 1029 of 1998. If any irregularity was there that has already been rectified. 10. Now we come to the merits of the matter. The learned counsel for the appellant, while drawing our attention to the several events, which had taken place before and after filing of the Writ Petition No. 1710 of 1986 has taken us to the facts that the petitioner/respondent No. 1 was initially appointed in this department as work charge and later on become a Beldar. He applied for direct recruitment as Junior Engineer in the department of Irrigation. The test, etc. for such recruitment was conducted by the I.I.T., Kanpur through respondent No. 4. On due scrutiny, the petitioner-respondent No. 1 was not found entitled for direct recruitment on account of being over age and as such his candidature was rejected. It was against this order of rejection of the petitioner-respondent No. 1 that he came up in Writ Petition No. 1710 of 1986 which was finally decided on 27.11.1992 directing the respondents to consider the petitioner’s candidature for promotion as Junior Engineer. In pursuance of this order of learned single Judge dated 27.11.1992, the department took up the matter of his promotion on the post of Junior Engineer and finding him not suitable for the same it was refused. In pursuance of this order of learned single Judge dated 27.11.1992, the department took up the matter of his promotion on the post of Junior Engineer and finding him not suitable for the same it was refused. So far as the aforesaid writ petition was concerned that had been finally decided by the learned single Judge vide order dated 27.11.1992 and in compliance of the direction issued therein, the respondents had taken all appropriate actions. The petitioner when was not found suitable for promotion, the same was refused by the department. The learned counsel for the appellant, in this context has submitted that if the petitioner was aggrieved with the order of the department whereby he was not found suitable for promotion on the post of Junior Engineer, it was a new cause of action for him for a fresh writ petition. A misc. application in the same Writ Petition No. 1710 of 1986 had been moved for grant of fresh relief on the aforesaid fresh cause of action. The learned counsel for the appellant relying upon the case law of State of U. P. v. Brahm Datt Sharma, 1987 (1) AWC 760 (SC) : 1987 UPLBEC 282 (SC), has stressed that after 27.11.1992 when the writ petition of the respondent No. 1 had been finally decided, nothing was left pending before the Court and no misc. application could be filed in the same petition to revive proceedings in respect of a fresh cause. In the aforesaid case of State of U. P. (supra), the Apex Court has observed as below : “The High Court’s order is not sustainable for yet another reason. Respondents’ writ petition challenging the order of dismissal had been finally disposed of on 10.8.1984, thereafter nothing remained pending before the High Court. No miscellaneous application could be filed in the writ petition to revive proceedings in respect of subsequent events after two years. If the respondent was aggrieved by the notice dated 29.1.1986 he could have filed a separate petition under Article 226 of the Constitution challenging the validity of the notice as it provided a separate cause of action to him. The respondent was not entitled to assail validity of the notice before the High Court by means of a miscellaneous application in the writ petition which had already been decided. The respondent was not entitled to assail validity of the notice before the High Court by means of a miscellaneous application in the writ petition which had already been decided. The High Court had no jurisdiction to entertain the application as no proceedings were pending before it. The High Court committed error in entertaining the respondents’ application which was founded on a separate cause of action. When proceedings stand terminated by final disposal of writ petition it is not open to the Court to re-open the proceedings by means of a matter which provided a fresh cause of action. If this principle is not followed there would be confusion and chaos and the finality of proceedings would cease to have any meaning.” 11. Relying upon the aforesaid case of State of U. P. (supra), the Division Bench of this Court in case of Rakesh Chandra Srivastava v. Santosh Kumar Mishra and others, 2002 (5) AWC 4321 (LB) : 2003 (50) ALR 71, has also observed as below : “We accordingly, following the aforesaid decisions of the Supreme Court in the case of State of U. P. v. Brahm Datt Sharma and another (supra), set aside the judgment and order dated 15.1.2002 of the learned single Judge and opine that the learned single Judge has no jurisdiction to pass such order in a miscellaneous application filed in the same proceeding in the writ petition when the writ petition itself has already been disposed of.” 12. In the present case, the undisputed facts are that Writ Petition No. 1710 of 1986 had already been finally disposed of on 27.11.1992 giving certain directions that due actions as required by the respondent in the petition had also been taken by them and the petitioner had already been considered for promotion on the post of Junior Engineer. He was found unfit. Now there was fresh cause of action available to the petitioner if he was aggrieved by the rejection of his promotion on the said post. He was not entitled to assail or question the said order of rejection for promotion by means of misc. application in the same writ petition which had already been decided. It appears quite obvious to us that the learned single Judge lacked jurisdiction to entertain the said misc. application of the petitioner as no proceedings were pending against him before the Court by then. The misc. application in the same writ petition which had already been decided. It appears quite obvious to us that the learned single Judge lacked jurisdiction to entertain the said misc. application of the petitioner as no proceedings were pending against him before the Court by then. The misc. application was actually filed on a separate cause of action and the remedy available to the petitioner-respondent No. 1 was only a fresh writ petition. 13. The petitioner-respondent No. 1 had initially applied for direct recruitment in which his candidature was rejected by respondent No. 4 on the ground of being overage etc. Against the rejection of his candidature when he filed the writ petition which, while being disposed of, had certain directions issued by the Court in pursuance to which the department conducted the test for promotion as envisaged under the Rules and the petitioner was found unfit. The learned counsel for the appellant has stressed that the impugned order of the leaned single Judge dated 16.4.1993 modifying his earlier directions and issuing mandamus to promote the petitioner as Junior Engineer within a month, was an order not permissible under law. For this submission, learned counsel has placed reliance upon the case of Deputy Inspector General of Police and another v. R. Mookan, 1988 SCC (L & S) 1753. The Apex Court in the aforesaid case has observed as below : “After hearing learned counsel for the parties, we are of the opinion that the directions, as given above, cannot be sustained. The Tribunal could only direct consideration of the case of the respondent and could not issue a direction to the respondent to hold him “fit for promotion” and to “promote” him as Sub-Inspector. The Tribunal travelled beyond its jurisdiction. We, therefore, consider it appropriate to modify the above direction.” 14. In the aforesaid view of the matter, we are of the opinion that the learned single Judge appears to have further travelled beyond the jurisdiction while making direction in the impugned order dated 16.4.1993. The Court does not normally make such order issuing writ of mandamus in favour of the petitioner to promote him on a particular post of higher grade/scale Union of India and others v. Lt. Gen. Rajinder Singh Katyan and another, JT 2000 (8) SC 276. Such assessment for promotion, etc. The Court does not normally make such order issuing writ of mandamus in favour of the petitioner to promote him on a particular post of higher grade/scale Union of India and others v. Lt. Gen. Rajinder Singh Katyan and another, JT 2000 (8) SC 276. Such assessment for promotion, etc. is generally not a business of the Court and it is on this principle that the Supreme Court in the case of Deputy Inspector General of Police and another (supra) did not find such direction of promotion given by the Tribunal as valid. While drawing our attention to the case law of Badrinath v. Government of Tamil Nadu and others, JT 2000 (Suppl 1) SC 346, the learned counsel for the respondent No. 1 tried to emphasise that in exceptional circumstances this general principle of the legal propriety can be kept aside and such mandamus for promotion, etc. can be issued by the Court. While issuing writ of mandamus in the aforesaid case of Badrinath (supra), the Apex Court has pointed out that : “it is not as if there are no exceptions to this general principle”. The Supreme Court, while discussing the facts of that case and finding that continuous unfair treatment had been meted out to the appellant by the respondent, observed that the same was a justifiable circumstance for issuing writ of mandamus and directing grant of super-time scale to the appellant. In the present case, the facts are otherwise. The petitioner challenged rejection of his candidature by the examining body, i.e., the respondent No. 4 on the ground of being overage in a direct recruitment of Junior Engineers. That petition was finally decided directing consideration of the petitioner for promotion on the post of the Junior Engineer. That direction was carried out by the respondents in the manner as provided for promotion of Beldar etc. as Junior Engineer in the department and he was not found fit for the same. It was thereafter that the petitioner-respondent No. 1 in a misc. application in the same writ petition, has again obtained the impugned order dated 16.4.1993 directing the respondents to promote him within a period of one month. The said impugned order again appears to be not justifiable on the facts and circumstances when it was passed ex parte as the State could not file its counter-affidavit for one or other reason. application in the same writ petition, has again obtained the impugned order dated 16.4.1993 directing the respondents to promote him within a period of one month. The said impugned order again appears to be not justifiable on the facts and circumstances when it was passed ex parte as the State could not file its counter-affidavit for one or other reason. As such, in our judgment, this order dated 16.4.1993 directing promotion of the respondent No. 1 cannot sustain in the eye of law and we feel inclined to interfere against the same and set it aside in this intra-court appeal. 15. As regards the other impugned order dated 21.7.1995, this order is also an order passed summarily by the learned single Judge observing that there was no justification for recalling the order dated 16.4.1993. As such, this order also requires our interference. 16. In result, this intra-court appeal is allowed with no order as to cost. The impugned orders dated 16.4.1993 and 21.7.1995, are hereby set aside.