JUDGMENT : 1. The Petitioner V.K. Kharbanda who was commissioned in the Army on 6th September, 1970 and was released on 3.12.1975 and thereafter was selected through U.P. Public Service Commission in the P.C.S. Cadre in pursuance of the examinations held in the year 1980, was since allotted the seniority in the said cadre of 1981 batch, challenged the vires of Rule 3 (1) of U.P. Non-Technical (Class-II) Service (Reservation of Vacancies for Demobilised Officer) Rules, 1973 and also that of the Rule 3 (b) of U.P. Non-Technical (Class-II/Group 'B') Services (Appointment of Demobilised Officers) Rules, 1980 which has the similar provision with respect to definition of Demobilised Officer. The aforesaid Rule 3 (1) and 3 (b) as it existed is being reproduced below: Rule 3(1) - Ten per cent of the permanent vacancies in all Non-Technical (Class-II) Services to be filled substantively by direct recruitment through competitive examination in any year, shall be reserved for being filled in by the Disabled Defence Service Officers, Emergency Commissioned Officers and the Short Service Commissioned Officers of the Armed Forces of the Union who were commissioned on or after November 1, 1962 but before January 10, 1968 and again on or after December 3, 1971 and released at any time thereafter. Provided that the reservation so made shall be utilized first for the appointment of Disabled Defence Service Officers, and, if any such vacancies still remain unfilled, the same shall then be made available to other Emergency Commissioned Officers and Short Service Commissioned Officer. Rule 3(b) - "Demobilished Officer" means Disabled Defence Service Officer, Emergency Commissioned Officer and the Short Service Commissioned Officer, of the Armed Forces of the Union who was commissioned on or after November 1, 1962 but before January 10, 1968 or on or after December 3, 1971 and released at any time thereafter. 2. The aforesaid Rules excluded from the definition of Defence Service of Demobilised Officer the person who joined the Army service during the gap period commencing from 11.1.1968 to 2.11.1971. The Petitioner having been commissioned as an officer in the Army on 6th September, 1970, thus was not entitled for counting the period of his Army Service while determining the seniority in the P.C.S. cadre. 3. The Petitioner having been commissioned as an officer in the Army on 6th September, 1970, thus was not entitled for counting the period of his Army Service while determining the seniority in the P.C.S. cadre. 3. Challenge made by the Petitioner on the ground of discrimination, i.e. giving of the benefit of Army Service to only those who were recruited during Indo-China War and thereafter denying the same benefit to the Petitioner who also fought Indo-Pak War and was commissioned only for a period of five years, was duly accepted by the High Court in a writ petition filed by the Petitioner bearing No. 7409 of 1986. 4. In this writ petition the Petitioner challenged the vires of Rule 3 (1), and 3 (b) of Rules, 1973 and 1980 alleging that they were discriminatory in nature and violative of Article 14 of the Constitution inasmuch as they provided for special seniority for Disabled Defence Service Officer and Short Service Commission of Armed Force, who were commissioned on or after 1st November, 1962 but before January 10, 1968 and again to those who were commissioned on or after 3rd December, 1971 but denied the same to persons who were commissioned after January 10, 1968 and before December 3, 1971 without there being any rational basis for the same. The Petitioner further pleaded that there was no justification to deny the same benefit to persons who had been commissioned to Armed Forces after January 10, 1968 and before December 3rd, 1971 because they also belong to the same class. 5. This writ petition was allowed by the High Court on 25.4.1990. 6. As a result of the aforesaid decision of the High Court the Petitioner was treated to be a Demobilised Officer and his seniority was fixed in the 1970 batch as against the pre-fixed seniority of 1981 batch and he was also given all consequential benefits. 7. SLP filed by the State Government before the Apex Court, was dismissed on 16th September, 1993. But the Apex Court in the SLP filed by one Ram Janam Singh who was not impleaded in the writ petition, but was directly affected like many other Officers like him, set aside the orders passed by the High Court, and allowed the appeal vide judgment and order dated 25.1.1994. 8. But the Apex Court in the SLP filed by one Ram Janam Singh who was not impleaded in the writ petition, but was directly affected like many other Officers like him, set aside the orders passed by the High Court, and allowed the appeal vide judgment and order dated 25.1.1994. 8. Supreme Court in the aforesaid judgment, i.e. Ram Janam Singh vs. State of Uttar Pradesh and Another, (1994) 2 SCC 622 , observed as under: It appears that the framers of the 1973 and 1980 Rules while treating the persons who had been commissioned on or after November 1, 1962, but before January 10, 1968 and again on or after December 3, 1971, took into account the circumstances and the background in which such persons were commissioned in Armed Forces, i.e. when the nation was faced with foreign aggressions and the cry of the time was that persons should join the Armed Forces to defend the integrity and sovereignty of the nation. It is well known that many persons in such situation are not inclined to join Armed Forces and only those with feeling for the honour of the nation rise to such occasions. In this background, if such persons have been treated as a separate class for extending any benefit in the matter of seniority, none can make any grievance and their classification can be upheld even in the light of Articles 14 and 16 of the Constitution. 9. The Court further observed, we fail to understand as to how persons who joined after the emergency was over, i.e. after January 10, 1968 and before December 3, 1971 when another emergency was imposed in view of the foreign aggression, can be treated on a par or on the same level. It need not be pointed out that such persons were on the lookout for a career and joined the Armed Forces of their own volition. It can be presumed that they were prepared for the normal risk in the service of the Armed Forces. Those who joined Armed Forces after November 1, 1962 or December 3, 1971, not only joined Armed Forces but joined a war which was being fought by the nation. It can be presumed that they were prepared for the normal risk in the service of the Armed Forces. Those who joined Armed Forces after November 1, 1962 or December 3, 1971, not only joined Armed Forces but joined a war which was being fought by the nation. If the benefits extended to such persons who were commissioned during national emergencies are extended even to the members of the Armed Forces who joined during normal times, members of the Civil Services can make legitimate grievance that their seniority is being affected by persons recruited to the service after they had entered in the service without there being any rational basis for the same. 10. After taking note of the judgment of Dhan Singh and Others vs. State of Haryana and Others, AIR 1991 SC 1047 , wherein the Apex Court had considered the plea as to whether the persons commissioned before November 1, 1962 were entitled to add the period of army service, which admittedly included their service during the period of emergency, answered in negative, holding that the relevant rule only extended the benefit of army service to persons, who joined Army on or after November 1, 1962 after declaration of emergency because such persons belonged to a separate class for preferential treatment and also the case of Union of India and Others vs. Dr. S. Krishna Murthy and Others, (1989) 4 SCC 689 , in which the Apex Court had held that persons who had joined after the declaration of emergency, had voluntarily offered their services for the defence of the country during the period of emergency, they belonged to a separate class and there was no question of discrimination in giving any benefit in matters of seniority by the rules which were under challenge, finally held that the Petitioner was not entitled to claim seniority by counting his period of army service and the Rules aforesaid were not discriminatory nor violative of Articles 14 and 16 of the Constitution. 11. On the aforesaid reasoning the Supreme Court recorded a finding that the plea that even persons who joined army service after cessation of foreign aggression and revocation of emergency have to be treated like persons who have joined army service during emergency due to foreign aggression is a futile plea and should not have been accepted by the High Court. On the aforesaid reasoning the Supreme Court recorded a finding that the plea that even persons who joined army service after cessation of foreign aggression and revocation of emergency have to be treated like persons who have joined army service during emergency due to foreign aggression is a futile plea and should not have been accepted by the High Court. Their Lordships also made the following observation which would be relevant for deciding the controversy namely: It need not be impressed that whenever any particular period spent in any other service by a person is added to the service to which such person joins later, it is bound to affect the seniority of persons who have already entered in service. As such any period of earlier service should be taken into account for determination of seniority in the later service only for some very compelling reasons which stand the test of reasonableness and on examination can be held to be free from arbitrariness. 12. The Supreme Court while allowing the aforesaid appeal also directed that if in the light of the judgment of the High Court, the seniority of the Petitioner has been fixed, the State Government shall re-fix, the seniority in view of the aforesaid judgment. Consequently the Petitioner was again given seniority of 1981 batch instead of 1970 batch. 13. After the aforesaid appeal of Sri Ram Janam Singh was allowed by the Supreme Court resulting into quashing of the order of the High Court and consequent re-fixation of seniority of the Petitioner in 1981 batch on 18th March, 1994, the Petitioner filed another writ petition challenging the aforesaid re-fixation of seniority by filing Writ Petition No. 315 (SB) of 1994. In this writ petition, the Petitioner prayed for quashing of the order dated 18th March, 1994 and also for issuing writ in the nature of mandamus commanding the opposite parties not to implement the seniority list so prepared and for reconsideration of the order, cancelling the grant of benefits and promotion including the grant of Special Grade/Selection Grade and also to allow him to work in the same grade and pay Scale, which was given to him as a result of his fixation of seniority in pursuance of the High Court's judgment. 14. 14. The Petitioner being conscious that his seniority cannot be re-determined or altered in the teeth of the verdict of the Apex Court, gave a statement before the Court that in this writ petition he would not agitate the question of seniority but only confines his prayer for continuing with the other benefits granted to him in pursuance of the High Court's order. A Division Bench of this Court as an interim direction directed the State Government to consider his representation with respect to the grant of all other benefits other than the benefit of seniority, to which the Petitioner had become entitled in view of the judgment passed by the High Court. The representation of the Petitioner, in this regard was rejected by the State on 19th April, 1994 and he was reverted to two level lower pay scale and thus the interim order stood complied with. 15. The Petitioner again filed a writ petition bearing Writ Petition No. 499 of 1994 (SB) challenging the order passed on the representation, i.e. 19th April, 1994 making a prayer for issuance of a writ in the nature of mandamus commanding the opposite parties not to reduce the pay scale of the Petitioner as it existed prior to issuance of two orders on 19th April, 1994. In the meantime it appears that the Supreme Court pronounced a judgment on 16th January, 1995 in the case of State of U.P. vs. Jitendra Nath Singh, filed by the State against the judgment and order passed by the High Court on 22.5.1990 in pursuance of which the seniority of Jitendra Singh was fixed as Demobilised Officer vide order dated 1.4.1991 wherein the Supreme Court dismissed the said appeal of the State. 16. The Petitioner, therefore, again filed a writ petition bearing Writ Petition No. 419 (SB) of 1995 for getting his seniority determined in the P.C.S. (Executive) Cadre as was given to Jitendra Nath Singh who was also in the same Cadre. This writ petition was decided by the learned single Judge during sitting in vacation jurisdiction on 1st June, 1995 directing the State Government to decide the representation within given time, keeping in mind the benefit given to Jitendra Nath Singh. 17. This writ petition was decided by the learned single Judge during sitting in vacation jurisdiction on 1st June, 1995 directing the State Government to decide the representation within given time, keeping in mind the benefit given to Jitendra Nath Singh. 17. It may be put on record that after the judgment passed by the Apex Court, after some time, the State was brought under the President's Rule, the Petitioner appears to have moved various representations and representations were also made by his wife raising the plea of discrimination in the matter of determination of seniority and his plight of not being recognized as Demobilised Officer in pursuance of the existing Rules, the validity of which already stood upheld by the Supreme Court. In these representations it was requested that the Rules be amended and one such representation made by the wife of the Petitioner was received in the office of His Excellency the Governor on 16.1.1996. This representation makes a curious reading as it not only narrates the agony of the Petitioner of not being treated as Demobilised Officer under the existing rules, but also proposes the text of amendment in the Rules, so as to bring all such officers who were commissioned in the Army during the gap period, become entitled for counting their Army Service for the purpose of seniority in the P.C.S. cadre. 18. The Petitioner even thereafter could not get the desired relief, therefore, he filed another writ petition bearing Writ Petition No. 805 (SB) of 1996 praying for issuance of a writ of mandamus directing the opposite parties namely; the State Government to grant the benefit of Army Service while determining the seniority of the Petitioner in P.C.S. (Executive) Cadre by amending the U.P. Non-Technical (Class-II) Services (Reservation of Vacancies for Demobilised Officers) Rules, 1973, and U.P. Non-Technical (Class-II) Service (Reservation of Vacancies for Demobilised Officers) Rules, 1980 read with U.P. Non-Technical (Class-II) Services (Reservation of Vacancies for Demobilised Officers), Rules, 1990 by inclusion of the gap period from 11.1.1968 to 2.12.1971. The Court on 19th August, 1996 directed the State Government to dispose of the representation of the Petitioner in accordance with Rules or to show cause as to why the Petitioner cannot be granted benefit of service in Army as has been given to other similarly situated persons. The representation of the Petitioner was decided and rejected on 22.10.1996. 19. The Court on 19th August, 1996 directed the State Government to dispose of the representation of the Petitioner in accordance with Rules or to show cause as to why the Petitioner cannot be granted benefit of service in Army as has been given to other similarly situated persons. The representation of the Petitioner was decided and rejected on 22.10.1996. 19. After the rejection of the representation of the Petitioner, he further submitted a memorial on 6th December, 1996 to His Excellency the Governor of U.P. whereupon the Governor on 9th December, 1996 called for a report from the Law Department. The opinion of the Law Secretary and that of Principal Secretary Law was taken. The Principal Secretary, Law gave his opinion on 31.12.1996, saying that, though the Rules of 1980 can be amended with retrospective effect but it is doubtful that whether the same can be done in view of the judgment of the Apex Court in the case of Ram Janam Singh as it may amount to contempt proceedings and further litigation, which amended rules might have the effect contrary to the judgment of the Apex Court. However, he also observed that no doubt those officers who fought for the country in Bangla Desh war though commissioned during the interregnum period between 10.1.1968 to 3.12.1971 do form a separate class and the department may consider to give them limited benefit in matters of seniority by amending the Rules of 1980 with retrospective effect. The Administrative department may, if it so decides, undertake an exercise as to how and to what extent such benefit can be given. Even such a measure may give rise to litigation but that can be defended on the ground that they form a separate class who participated in the war of 1971. As far as the claim of the Petitioner is concerned, the Principal Secretary also noted and opined that the Petitioner under the existing rules cannot claim benefit under the Rules by citing the cases of other officers namely; one Sri Jitendra Nath Singh and Dilbagh Singh, and that he has no case under the 1980 Rules after the judgment passed by the Apex Court in the case of Ram Janam Singh. 20. The Principal Secretary noted that the Petitioner cannot claim the benefit by citing the cases of other officers namely; Sri Jitendra Nath Singh and that of Sri Dilbagh Singh. 20. The Principal Secretary noted that the Petitioner cannot claim the benefit by citing the cases of other officers namely; Sri Jitendra Nath Singh and that of Sri Dilbagh Singh. Sri Jitendra Nath Singh was a case of Medical Department, who did not belong to P.C.S. cadre whereas Sri Dilbagh Singh was commissioned on 3.12.1971, so he fell within the definition of Demobilised Officer. The Principal Secretary, however, observed that the Supreme Court has not placed any Bar in amending the Rules, and therefore, if the rules are amended, there is no question of violating the orders of the Apex Court in the case of Ram Janam Singh. He also took note that Sri Jitendra Nath Singh though did not belong to P.C.S. Cadre and was recruited during the gap period i.e. 11.1.1968 to 2.11.1971 was given the benefit of Army Service towards his seniority and therefore, the Petitioner and like officers be also awarded the same benefit in case the Rules are amended. He also cited the case of Chairman and Managing Director, Punjab National Bank and Others vs. Rajendra Nath Chawla, (1996) 7 SCC 282 , saying that the Legislature cannot override any judicial decision without removing foundation of that judgment by retrospective amendment of concerned legal provision and another case of B.S. Yadav and Others vs. State of Haryana and Others, AIR 1981 SC 561 , saying that such a power to make such law is vested by Article 309. 21. The Governor in the note put up by the Principal Secretary, put his signatures approving the said proposal on 4.2.1997. However, since before the aforesaid recommendation approved by His Excellency the Governor could be acted upon, the elected popular Government came into power, therefore, the matter was again placed before the then Chief Minister Ms. Mayawati who did not approve the said proposal and rather she ordered that the action be taken only in accordance with the judgment passed by the Apex Court, meaning thereby, that the proposal approved by the Governor was not to be carried through. 22. Mayawati who did not approve the said proposal and rather she ordered that the action be taken only in accordance with the judgment passed by the Apex Court, meaning thereby, that the proposal approved by the Governor was not to be carried through. 22. Again with the change of political scenario in the State Sri Kalyan Singh became the Chief Minister and the matter was again placed before him seeking his approval for amending the Rules as per earlier approval granted by the Governor with a note that while doing so the seniority of Sri Ram Janam Singh shall not be disturbed and therefore, whether steps be taken for amending the Rules with retrospective effect but protecting the seniority of Sri Ram Janam Singh, over and above Sri Kharbanda, by placing him below Ram Janam Singh but over Raja Ram Upadhyay. Sri Kalyan Singh on 20.11.1997 ordered that action taken in pursuance of the judgment and order passed by the Apex Court should be kept intact and no amendment is required. The Chief Minister thus put a complete stop on this matter which was re-agitated by the Petitioner by filing a memorial before the Governor when the State was under the President's Rule. 23. The record shows that even after the decision of two successive Chief Ministers that no change can be effected in the seniority of the Petitioner and there is no need to amend the Rules in view of the judgment of the Apex Court in the case of Sri Ram Janam Singh, the matter was again got referred through the then Speaker of Vidhan Sabha Sri Kesari Nath Tripathi, on which the Secretary put his note saying that when the action has already been taken in compliance of the order of the Apex Court, there was no justification for amending the Rules with retrospective effect, as it will nullify the effect of the judgment and order passed by the Apex Court and would also affect the seniority of the persons who went to the Supreme Court and whose seniority stands determined as per directive of the Supreme Court. The then Chief Minister Sri Kalyan Singh put his signatures below the note which means that he approved the said opinion/views of the Secretary. 24. The then Chief Minister Sri Kalyan Singh put his signatures below the note which means that he approved the said opinion/views of the Secretary. 24. The aforesaid record which was shown to all counsel for the parties thus establishes that the approval granted by the Governor during President's Rule on 4.2.1997 for amending the Rules with retrospective effect was soon thereafter rejected by the then Chief Minister Ms. Mayawati on 16.4.1997 and again by the successor Chief Minister Sri Kalyan Singh, on 20.11.1997. He maintained the aforesaid stand even on reference made by Sri Kesari Nath Tripathi and thus did not find it appropriate that the Rules be amended that too with retrospective effect so as to give benefit to Sri Kharbanda for counting his Army service for the purposes of seniority. 25. The State Government took into that any deviation/modification or amendment of the Rules with retrospective effect would mean; nullifying the judgment of the Apex Court with respect to determination of seniority of the officer who went to the Supreme Court and whose seniority already stood determined in terms of the directive issued by the Court. 26. Despite the aforesaid decision, the then Speaker Sri Kesari Nath Tripathi again wrote a letter on 24th January, 1998 for amending the Rules for the benefit of those Officers who fought in Indo-Pak War and suggested that either the Rule be amended so as to give benefit to Sri Kharbanda of his Army services and if it is not possible, such officer be treated as a separate class and a separate cadre and one Ex-cadre post be created in the pay scale of Rs. 4,500-5,700 for appointing him on the said post. 27. On the aforesaid proposal the Principal Secretary Law ruled out the possibility of amending the Rules so as to give benefit of seniority, since the matter already stood concluded by the judgment of the Apex Court and any amendment in the Rules would certainly affect the officers whose seniority already stood determined, despite the fact that the State was having power to amend the Rules with retrospective effect. He, however, suggested that the question of creating an Ex-cadre post for appointment of Sri Kharbanda on the said post after fixing his pay, may be considered. 28. On the aforesaid proposal, the Chief Minister made certain queries viz. He, however, suggested that the question of creating an Ex-cadre post for appointment of Sri Kharbanda on the said post after fixing his pay, may be considered. 28. On the aforesaid proposal, the Chief Minister made certain queries viz. that there were two other persons similarly situated as Sri Kharbanda, therefore, whether Ex-cadre post be created for all the three officers. He also enquired about their present place of posting namely ; the department in which they were working and whether the Ex-cadre post be created in every department and he also enquired that whether creating Ex-cadre post for these officers, would solve the problem finally or it would require creation of Ex-cadre post for every promotional channel till the Petitioner reaches the age of retirement. 29. The Chief Secretary put a note in favour of Sri Kharbanda wherein he made his case as against the two other similarly situated officers, saying that Sri Kharbanda was given the benefit of Army services in pursuance of the judgment and order passed by the High Court, both in the matter of seniority as well as in the matter of pay scale, which benefit had been taken away in pursuance of the order passed by the Apex Court in the case of Ram Janam Singh, whereas the two other officers did not have any such benefit of any order of the High Court in their favour namely; Sarva Sri R.S. Mallhan and Raj Pal Singh, who belonged to 1980 batch thus, are not entitled to the proposed benefit, and therefore, the benefit of Ex-cadre post be given only to Sri Kharbanda and he be given the pay scale accordingly. 30. The Chief Minister on consideration of the facts and whole issue on 25.1.1999 by specific order directed that no action need be taken at this stage. The record shows that thereafter the file was closed after an observation that V.K. Kharbanda was posted in Ex-cadre post in Panchayati Raj Department, however, the Rules could not be amended. 31. It is relevant to put on record at this juncture that even during pendency of the present petition, the Petitioner again got the matter reopened at the behest of Dr. 31. It is relevant to put on record at this juncture that even during pendency of the present petition, the Petitioner again got the matter reopened at the behest of Dr. Laxmi Kant Bajpai, the State Minister, Animal Husbandry for giving him the benefit of Army service by amending the Rules which shows that on the one hand the Petitioner exercised his influence for getting the Rules amended which is reflected by the facts narrated above wherein he remained unsuccessful, and on the other hand he filed series of writ petitions in the High Court. 32. The Petitioner though lost his plea of discrimination and claim of seniority in P.C.S. cadre by inclusion of his Army service, even then determination of his seniority made on 18.3.1994 as per the directive issued by the Apex Court, was challenged by him by filing Writ Petition No. 315 (SB) of 1994 but finding himself unable to overcome the order passed by the Apex Court he gave the statement that he does not lay his claim for seniority but only prays for protection of the benefits granted to him in pursuance of the order granted by the High Court, wherein the Court directed that his representation be considered. The said representation was rejected on 19.4.1994. 33. Since the said representation was rejected on 19th April, 1994 the Petitioner again filed a Writ Petition No. 499 (SB) of 1994, challenging the order passed on the representation making the same prayer and again filed Writ Petition No. 419 (SB) of 1995 on the dismissal of the SLP filed by the State in the case of State of U.P. vs. Jitendra Nath Singh, for getting the seniority determined in the P.C.S. cadre as was given to Jitendra Nath Singh. 34. In the aforesaid writ petition the State was again directed to consider the representation of the Petitioner vide order dated 1st June, 1995 and during the pendency of this writ petition he again filed Writ Petition No. 805 (SB) of 1996 for amending the Rules. 35. 34. In the aforesaid writ petition the State was again directed to consider the representation of the Petitioner vide order dated 1st June, 1995 and during the pendency of this writ petition he again filed Writ Petition No. 805 (SB) of 1996 for amending the Rules. 35. The aforesaid petition was again decided with a direction to decide the representation which was again rejected on 22nd October, 1996 and after the rejection of the representation he moved the Memorial to the Governor on 6th December, 1996 for amending the Rules which gave rise to the matter being considered by the State Government once again wherein the then Governor approved the proposal set up by the Principal Secretary, Law, i.e. for amending the rules with retrospective effect but soon thereafter within a span of two and half months the said proposal was rejected by the then Chief Minister of the elected popular Government which decision was kept intact by the successor Chief Minister namely Sri Kalyan Singh before whom the exercise was repeatedly made including the exercise made on the behest of the then Speaker Sri Kesari Nath Triapthi, twice. However, the Chief Minister did not agree for any change but being undaunted with successive rejection of the representations of the Petitioner, the Petitioner filed Writ Petition No. 805 (SB) of 1996, praying for the amendment of the Rules wherein it is said that the Court directed the State Government on 19.8.1996 to dispose of the representation of the Petitioner in accordance with Rules or show cause as to why the Petitioner cannot be granted benefit of service in Army as has been given to other similarly situated persons, when the Governor had approved the proposal on 4.2.1997. 36. In the aforesaid Writ Petition No. 805 (SB) of 1996, the Petitioner moved a Civil Miscellaneous Application on which application, the Court, after taking note that the State did not file counter-affidavit to the application for issuing direction to comply with the order of Governor dated 4.2.1997, despite time being granted to the learned standing counsel, the Court directed that necessary steps be taken within two weeks and in case counter-affidavit and rejoinder-affidavit be exchanged the matter be listed for hearing. 37. 37. Again matter was taken up by the same Bench when the State on 9.12.1999 filed an application for recall of the order dated 11.8.1999 on which application the Division Bench observed that instead of complying with the direction issued by the earlier order dated 11.8.1999 for complying with the order of His Excellency the Governor dated 4.2.1997, a recall application has been moved wherein the approval granted by the Governor on 4.2.1997 to the opinion given by the Law Department was not disputed and file was forwarded for making amendment in the rules because without making amendment in the Rules, the benefit could not be given to the Petitioner, the Court observed that it was not open to the Respondents to go behind the order passed by the Governor and thus rejected the application for recall of earlier order dated 11.8.1999. 38. It appears that the Petitioner, being not satisfied with the action of the State rather its failure to implement the aforesaid directive issued by the High Court for amending the Rules, in pursuance of the approval granted by the Governor, moved a contempt application namely; Criminal Miscellaneous Case No. 1639 (C) of 1999 in which on 3.2.2000 an affidavit was filed by Sri Pradeep Shukla, the then Secretary, (Appointment) Government of U.P. for exemption of his personal appearance wherein in paragraph 16 it was stated that the direction of the Court after rejecting the recall petition, is dated 9.12.1999 and the Petitioner has moved the contempt petition on 21.12.1999 and that the issue of enforcing of the said order of the Government is still being examined with its implications relating to para 15 of the Supreme Court order dated 25.1.1994. 39. The contempt Judge, however, taking it as an undertaking on the part of the State Government to amend the Rules inferred that the matter was being lingered on and the order dated 9.12.1999 directing for implementation of the order of His Excellency the Governor dated 4.2.1997 was not being complied with on the presumption that the State was delaying the issue, took serious note of the entire matter and that of the delay which was being caused in compliance of the aforesaid order and directed for its compliance. This order was passed on 19th April, 2000. 40. This order was passed on 19th April, 2000. 40. On 24th July, 2000, the contempt Court again took note of the fact that the direction issued by the Court on 9th December, 1999, for complying with the order of his Excellency the Governor dated 4.2.1997 has not been followed and despite serious concern having been expressed by the Court in its order, dated April 19, 2000, the Governor has yet not moved to execute the said order. This conduct of the Government was taken as flagrant violation of the Court's order and that of the order passed by the Governor. The Court observed that even the assurance given by the Respondent counsel before the Court on 1.5.2000 conveying the Government decision as also the order of his Excellency the Governor has been defied and observed that the Government has scanty regards for the orders of the Court and further it was reluctant to implement the order of the Governor. The Court, therefore, thus directed the Respondent to appear in person before the Court on 4th August, 2000 and to submit in writing by virtue of affidavit the Government stand on the issues involved with further direction that the entire matter, be placed alongwith the order before the Chief Secretary, so that the Government's version may come before the Court, i.e. on 4.8.2000. 41. It is not clear as to what orders were passed on 4.8.2000 but when on 16.8.2000 the matter was taken up the Court was informed that the Government on 3.8.2000 has taken a decision to revoke the reversion order dated 19.4.1994 by which the Petitioner was reverted to a lower pay scale and has set aside the order of reversion and an Ex-cadre post in the pay scale of Rs. 14,300-18,300 has been created for the Petitioner. With regard to the amendment of the Rules, the following order was passed: As regards the amendment of rules and authorising permission of the Governor, learned Counsel for the Respondent submits that the matter has to be referred to the Cabinet for approval in consonance with the order dated 9.12.1999 issued by this Court and in conformity with the order dated 4.2.1997, passed by His Excellency the Governor. As prayed for, 3 weeks' time is allowed for the Government to take a decision in compliance of this Court's order and the order passed by His Excellency the Governor, as referred to above. List on 24.8.2000 for perusal of the two orders referred to in Para 2 of the Respondent's affidavit. 42. The contempt Judge, however felt unhappy with the pairokari of Special Secretary who was present in the Court on 13.10.2000 and feeling that there was deliberate non-compliance of the Court's order, directed that the file of the Petitioner shall be dealt with by no other officer, other than an I.A.S. Officer and Secretary (Appointment) alone would be the custodian of the file. 43. On 24.11.2000, a request was made by the counsel for the State that the amendment of the Rules can be done only after placing the matter before the Cabinet which may take one month's time. The contempt Judge after granting the aforesaid time for the purposes, made it clear that necessary compliance, i.e. amendment in the rules should be done within the aforesaid period of one month by adopting the process whatever is required to be adopted and in case there is any hurdle, it should be removed forthwith otherwise the Court will have no option except to punish the opposite party for showing gross disobedience to the Court's order dated 11.8.1999 passed in Writ Petition No. 805 (SB) of 1996. The matter was directed to be listed on 8.1.2001. 44. It is in pursuance of the aforesaid directive the Rules were amended on 29.12.2000 and were promulgated by the State which were published in the Extraordinary Gazette namely; U.P. Non-Technical (Class-II/Group 'B') Services (Appointment of Demobilised Officers) (Second Amendment) Rules, 2000) (hereinafter referred to as the Rules 2000), which were given retrospective effect with effect from 6th August, 1978. 45. It is in pursuance of the aforesaid directive the Rules were amended on 29.12.2000 and were promulgated by the State which were published in the Extraordinary Gazette namely; U.P. Non-Technical (Class-II/Group 'B') Services (Appointment of Demobilised Officers) (Second Amendment) Rules, 2000) (hereinafter referred to as the Rules 2000), which were given retrospective effect with effect from 6th August, 1978. 45. It is the case of the Respondent that aforesaid amendment in the Rules was made despite the objection of U.P. Public Service Commission regarding the amendment be made with retrospective effect, which objection was taken twice, i.e. on 6.3.1998 and 2.8.2000, only under the fear of contempt as the contempt court continuously directed for compliance of the order passed by the Governor dated 4.2.1997 and also compliance of the order passed by the Division Bench in Writ Petition No. 805 (SB) of 1996, which is also evident by the fact that on 24.11.2000 the Court passed the order that in case the order is not complied with, by removing whatever hurdles are there, the Court will have no option but to punish the Secretary, the opposite parties were left with no other option except to amend the Rules. The aforesaid rules thus, were amended without the consent/ approval of the Union Public Service Commission and despite there being specific objection that the aforesaid Rules cannot be amended with retrospective effect as it would be prejudicial to the interest of other officers whose seniority already stands determined and who entered into the P.C.S. Cadre before the Petitioner and would also be in violation of the judgment of the Apex Court in the case of Ram Janam Singh. 46. The fact, however, remained that the Petitioner on amendment of the Rules, i.e. on coming into force the (Second Amendment) Rules, 2000 wherein the persons recruited in the Army during the gap period were also brought under the definition of Demobilised Officers was given the benefit of his Army service in counting his seniority and determination of pay scale in the P.C.S. Executive Cadre on 6.1.2001. 47. The controversy once again arose as the Petitioner moved an application in the pending Writ Petition No. 805 (SB) of 1996 for getting it dismissed as not pressed, after the Rules were amended and he was given the benefit of amended Rules, 2000 in the matter of seniority and other consequential benefits. 47. The controversy once again arose as the Petitioner moved an application in the pending Writ Petition No. 805 (SB) of 1996 for getting it dismissed as not pressed, after the Rules were amended and he was given the benefit of amended Rules, 2000 in the matter of seniority and other consequential benefits. This application was though opposed by the State as well as other Respondents who were allowed to intervene in the writ petition; they being the officers who were directly affected by the amendments in the Rules as they had become junior to the Petitioner in the P.C.S. cadre though were recruited prior to him in the said service and were also senior to him but after the counting of army service in favour of Petitioner, they became junior, the Petitioner after saying that the Rules have been amended and the consequential benefits have been given after the interim stay order stands confirmed, insisted that the petition be dismissed as not pressed. 48. The Respondents plea that since the benefit of the amended Rules and consequential benefits were given to the Petitioner in pursuance of the interim order, therefore, the writ petition be heard on merits could not persuade the Court to decide the writ petition on merits but on the request of the Petitioner the Court dismissed the writ petition as not pressed vide order dated 12.1.2001 and vacated the interim order, wherein following observations were made: We are of the view that as the writ petition is not pressed, it may be dismissed and interim orders, granted in this writ petition, be vacated. It is for the Respondent to approach the authorities for the withdrawal of the benefits which have accrued to the Petitioner in pursuance of the interim orders passed by this Court, for which no direction is necessary. The writ petition is accordingly dismissed and the interim orders passed in this writ petition are vacated. 49. In pursuance of the liberty given aforesaid despite the objection of the intervenors, the writ petition was got dismissed as not pressed, and the interim order was vacated. 50. The writ petition is accordingly dismissed and the interim orders passed in this writ petition are vacated. 49. In pursuance of the liberty given aforesaid despite the objection of the intervenors, the writ petition was got dismissed as not pressed, and the interim order was vacated. 50. The State Government, therefore, on representation of the affected officers, again amended the aforesaid Rules on 3.2.2001 by promulgating The Uttar Pradesh Non-Technical (Class II/Group 'B') Services (Appointment of Demobilised Officers) (Third Amendment) Rules, 2001, (hereinafter referred to as (Third Amendment) Rules, 2003), which came into effect on 3.2.2001 by means of which the original Rules as it stood prior to (Second Amendment) Rules, 2000, i.e. the original Rules as exist in 1973 and 1980 Rules, again stood revived with effect from 6th August, 1978. 51. The effect of (Third Amendment) Rules, 2001 is that the Petitioner was again relegated to his seniority of 1981 batch as per the Rules, 1973 and Rules, 1980 as against his claim of seniority of 1970 batch. 52. Learned Counsel for the parties have advanced lengthy arguments in support of their respective pleas which can be summarised as under: 1. The rules in question namely ; Rules 3 (1) and 3 (b) of U.P. Non-Technical (Class II) Services (Reservation of Vacancies for Demobilised Officers) Rules, 1973 and U.P. Non-Technical (Class II/Group 'B') Services (Appointment of Demobilised Officers) Rules, 1980 and consequently the U.P. Non-Technical Class II/Group 'B') Services (Appointment of Demobilised Officers) (Third Amendment) Rules, 2001 are discriminatory and that if the benefit can be given to those commissioned officers who are recruited after 2nd December, 1971 and have been released any time thereafter including such recruits also who were recruited when there was no proclamation of emergency then why such benefit could not be given to the Petitioner who in fact had participated in the Indo-Pak war. 2. The amendment in the rules namely, promulgation of (Second Amendment) Rules, 2000 was not as a result of contempt proceedings or in pursuance of the interim order passed in Writ Petition No. 805 (SB) of 1996 but was an independent and conscientious decision of the State Government and, therefore, the dismissal of the writ petition could not have been taken as liberty to the State to re-amend the rule by deleting the aforesaid rules, and substituting the original rules by enacting (Third Amendment) Rules, 2001. 3. 3. The rules having been amended and benefit of the same having been given to the Petitioner, the benefit of seniority and pay scale already given to the Petitioner could not have been taken away nor could stand withdrawn by the amendment of rules subsequently. 4. The approval granted by the Governor on 4th February, 1997 was necessarily to be acted upon as the State Government was not having any authority to go beyond the said proposal and that any amendment in the rules with retrospective effect could not have been treated as a violation of judgment passed by the Apex Court in the case of Ram Janam Singh, particularly when the seniority of Ram Janam Singh was being protected. 53. The Petitioner had specifically stated before the Court that he is not claiming seniority over and above Ram Janam Singh despite he being given the benefit of army service and, therefore, the rules could not be said to be violative of the judgment of the Apex Court and in any case the State was fully competent to amend the rules with retrospective effect so as to give the benefit of army service to the Petitioner irrespective of the fact that it may have the effect of nullifying the judgment of the Apex Court in respect of the determination of seniority of the Petitioner. 54. 54. In regard to the plea that rules in question are arbitrary and discriminatory, in so far as it does not specify any criteria for awarding the benefit of army service to those recruits who are commissioned after 2nd December, 1971 and have been released at any point of time, thereafter while denying the said benefit to the Petitioner and like officers who were commissioned for a period of only five years during the gap period, it has been urged by the learned Counsel for the Petitioner that this plea appears to have not been raised before the Supreme Court in the case of Ram Janam Singh and, therefore, the plea is liable to be considered by this Court, suffice it would be to mention that if the vires of the rules has been upheld by the Apex Court, it will not be open for the High Court to re-examine its validity on any point which has already been considered by the Supreme Court and also on such point which though were available and could have been raised but has not been raised before the Supreme Court. The rules as it existed and as it survives today were well before the Supreme Court and the plea of discrimination and arbitrariness of the rules which was though upheld by the High Court was specifically rejected by the Supreme Court. 55. The rules having already been declared as intra vires and not being hit by Articles 14 and 16 of the Constitution could not be subjected to any further scrutiny nor can be held to be bad in law. Reference can be made to the Constitution Bench judgment, in the case of Daryao and Others vs. State of U.P. and Others, AIR 1961 SC 1457 , wherein it was held that "it is in the interest of the public at large that a finality should attach to the binding decisions pronounced by courts of competent jurisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation. If these two principles form the foundation of the general rule of res judicata, they cannot be treated as irrelevant or inadmissible even in dealing with fundamental rights in petitions filed under Article 32. 56. If these two principles form the foundation of the general rule of res judicata, they cannot be treated as irrelevant or inadmissible even in dealing with fundamental rights in petitions filed under Article 32. 56. In the case of Devilal Modi, Proprietor, M/s. Daluram Pannalal Modi vs. Sales Tax Officer, Ratlam and Others, AIR 1965 SC 1150 , the Supreme Court while dealing with the writ petition filed before the High Court after the judgment in the earlier appeal filed by the Supreme Court which required the Petitioner to pay the tax and penalty imposed upon him observed as under: ...In other words, the effect of the earlier decision of this Court is that the Appellant is liable to pay the tax and penalty imposed on him by the impugned order. It would, we think, be unreasonable to suggest that after this judgment was pronounced by this Court, it should still be open to the Appellant to file a subsequent writ petition before the Madhya Pradesh High Court and urge that the said impugned order was invalid for some additional grounds. In case the Madhya Pradesh High Court had upheld these contentions and had given effect to its decision, its order would have been plainly inconsistent with the earlier decision of this Court, and that would be in consistent with the finality which must attach to the decisions of this Court as between the parties before it in respect of the subject-matter directly covered by the said decision.... 57. Reliance has also been placed upon the case of State of U.P. vs. Nawab Hussain, (1977) 2 SCC 806 , where the Respondent before the Supreme Court has challenged the order of dismissal from service in the High Court by means of a writ petition, which was dismissed. Subsequently, he filed a suit on the ground that he could not have been dismissed by the Deputy Inspector-General of Police as he has been appointed by the Inspector-General of Police. The High Court accepted the said plea arising out of dispute which became the subject-matter of challenge before the Supreme Court. The Supreme Court by making following observation set aside the order passed by the High Court: It is also not in controversy that, that was an important plea which was within the knowledge of the Respondent and could well have been taken in the writ petition. The Supreme Court by making following observation set aside the order passed by the High Court: It is also not in controversy that, that was an important plea which was within the knowledge of the Respondent and could well have been taken in the writ petition. But he contented himself by raising the other pleas that he was not afforded a reasonable opportunity to meet the case against him in the departmental inquiry and that the action taken against him was mala-fide. It was, therefore, not permissible for him to challenge his dismissal in the subsequent suit, on the other ground that he had been dismissed by an authority subordinate to that by which he was appointed. That was clearly barred by the principle of constructive res-judicata and the High Court erred in taking a contrary view. 58. Reference has also been made of the case of Forward Construction Co. and Others vs. Prabhat Mandal, Andheri, AIR 1986 SC 391 , wherein the Supreme Court made the following observation : So far as the first reason is concerned, the High Court in our opinion was not right in holding that the earlier judgment would not operate as res-judicata as one of the grounds taken in the present petition was conspicuous by its absence in the earlier petition. 59. A reference can be made of the case of Delhi Cloth and General Mills Ltd. vs. Shambhu Nath Mukherji, (1977) 4 SCC 415 , when while repelling the contention of the Appellant with regard to the challenge to Section 10 of Industrial Disputes Act on a fresh ground which was not considered by the Apex Court in its earlier judgment, while upholding the vires of Section 10 of the Act, the Supreme Court held as under: It is submitted by Mr. Dial that in that decision this Court was only required to consider the objection raised on the score of Article 14 on a ground which is different from the one he would like to take before us. We are, however, unable to accept this submission. If this Court held Section 10 as intra vires repelled the objection under Article 14 of the Constitution it would not be permissible to raise the question again by submitting that a new ground could be raised to sustain the objection. We are, however, unable to accept this submission. If this Court held Section 10 as intra vires repelled the objection under Article 14 of the Constitution it would not be permissible to raise the question again by submitting that a new ground could be raised to sustain the objection. It is certainly easy to discover fresh grounds of attack to sustain the same objection, but that cannot be permitted once the law has been laid down by this Court holding that Section 10 of the Act does not violate Article 14 of the Constitution. In the case of U.P. State Road Transport Corporation vs. State of U.P. (2005) 1 SCC 444 , the question arose that whether the High Court could have reopened the issue and re-examine the question as to whether the draft scheme dated 13.2.86 had lapsed under Sub-section (4) of Section 100 of the Act when the Supreme Court had already specifically considered the said question in two earlier decisions. The Supreme Court found that the High Court committed manifest error of law in re-examining the question and recording a finding, which is totally at variance with the earlier decisions of the Supreme Court. Relevant is paragraph 12, which reads as under: This Court having specifically considered the question in two earlier decisions as to whether the draft scheme dated 13.2.86 had lapsed under sub-section (4) of Section 100 of the Act and having recorded a clear finding that the Scheme had not lapsed, it was not at all open to the High Court to examine the said question all over again and to hold that the draft scheme had lapsed. The decision rendered by this Court concluded the controversy and it was not permissible to any party or to any Authority/Tribunal or Court, including the High Court to reopen the issue and to record a contrary finding. We are clearly of the opinion that the High Court committed manifest error of law in re-examining the question and recording a finding, which is totally at variance with the earlier decisions of this Court. 60. We are clearly of the opinion that the High Court committed manifest error of law in re-examining the question and recording a finding, which is totally at variance with the earlier decisions of this Court. 60. Reliance is also being placed upon the Full Bench decision of this Court in the case of Krishna Utensils, Rampur vs. State Financial Corporation and Others, AIR 1989 All 226 , wherein challenge to the vires of U.P. Public Moneys (Recovery of Dues) Act, on the ground of supposed lack of legislative competence, after the Supreme Court's judgment in the case of Director of Industries, U.P. and Others vs. Deep Chand Agarwal, (1980) 2 SCC 332 , which expressly upheld the constitutionality of the enactment, was not allowed to be raised. In that case also counsel tried to distinguish that decision on the ground that in that case there was no challenge to the legislative competence of the State Legislature to enact U.P. Public Moneys (Recovery of Dues) Act. The Full Bench, while holding that it was not open for the High Court to re-examine the validity of the Act, observed as under: We think that the constitutionality of the enactment having been upheld by the Supreme Court, it is not open to this Court to re-examine the vires of the enactment on the ground suggested by the learned Counsel. The Division Bench in the case in 1984 All LJ 768, rightly held that after the decision of the Supreme Court it is not open to this Court to re-examine the validity of the Act. 61. That being so we refuse to entertain the plea and hold that the aforesaid plea is absolutely misconceived. 62. The plea that the amendment in the Rules was not made as a result of directive issued by the High Court in Writ Petition No. 805 (SB) of 1996 nor in pursuance of the orders passed by the contempt court, is to be tested in the light of the facts and circumstances which led to the Amendment in the Rules and promulgation of (Second Amendment) Rules, 2000. 63. We need not reproduce the chain of litigation which the Petitioner had woven and his undaunted efforts to seek the benefit of Army Service towards seniority both by approaching the Court of law and also by exercising his political influence on the administrative side. 64. 63. We need not reproduce the chain of litigation which the Petitioner had woven and his undaunted efforts to seek the benefit of Army Service towards seniority both by approaching the Court of law and also by exercising his political influence on the administrative side. 64. The record as already referred to above shows that the approval of the Governor dated 4th February, 1997 before could be given life and breath by amending the Rules, died its death on the refusal to amend the Rules by the successive two Chief Ministers, though the matter was referred again and again including two times by the then Speaker Sri Kesari Nath Tripathi for giving the benefit of seniority to the Petitioner but the then Chief Minister did not agree with the proposal. It was finally decided that the Rules need not be amended and the judgment of the Apex Court be followed. It was also considered that any amendment in the rules with retrospective effect would mean nullifying the judgment of the Supreme Court in the case of Ram Janam Singh and also in changing or disturbing the seniority of those P.C.S. officers who had entered into P.C.S. service before the entry of the Petitioner and whose seniority stands determined accordingly in accordance with the judgment of the Apex Court. 65. In view of specific case of the State that the Governor's approval dated 4th February, 1997, since was no more in existence, the question of issuing any directions or interim mandamus to comply with the said proposal and to amend the Rules with retrospective effect nor could have been arisen nor could have been asked for. The record reveals that this proposal which was approved by the Governor when the State was under the President's rule on 4.2.1997 lost its significance soon thereafter when the elected Chief Minister Ms. Mayawati did not agree with the same and directed that the action be taken only in pursuance of the judgment of the Supreme Court in the case of Ram Janam Singh. Thereafter Sri Kalyan Singh, the successor Chief Minister also reiterated the same view and rather in specific terms on 20.11.1997 ordered that the action taken in pursuance of the judgment and order of the Apex Court should be kept intact and no amendment is required. Thereafter Sri Kalyan Singh, the successor Chief Minister also reiterated the same view and rather in specific terms on 20.11.1997 ordered that the action taken in pursuance of the judgment and order of the Apex Court should be kept intact and no amendment is required. Again when on 24.1.1998 the then Speaker Sri Kesari Nath Tripathi asked for the amendment in the Rules, it was said that the amendment in the Rules is not possible so as to give benefit to those officers who fought in Indo-Pak War, but such officer be treated as a separate class and separate cadre and one Ex-cadre post be created in the same pay scale, the Chief Minister on consideration of the facts and the whole issue on 25.1.1999 directed that no proceedings need be taken at this stage. 66. Despite the aforesaid factual position with respect to the approval of the Governor to the proposal for amending the Rules with retrospective effect on 4.2.1997, a Division Bench of this Court on a Civil Miscellaneous Application filed by the Petitioner in Writ Petition No. 805 (SB) of 1996 directed that the order passed by the Governor aforesaid be complied with. Even on the application for recall of the order dated 11.8.1999 the Court observed that since the approval granted by the Governor on 4.2.1997 to the opinion of law Department was not disputed and the file was forwarded for making amendment in the Rules, it was not open to the Respondent to go behind the order passed by the High Court for recall of the order dated 11.8.1999. The Petitioner armed with the aforesaid order filed the contempt petition, which proceedings we have already brought on record in preceding paragraphs, wherein the contempt court directed that if the amendment in the Rules is not done by removing all the hurdles within the time provided, the Court will have no option but to punish the Secretary. This order was passed on 24.11.2001 fixing 8.1.2001 as the date in the contempt proceedings. It was in this back ground, the rules were amended by promulgating the (Second Amendment) Rules, 2001 on 29th December, 2000 and that too even without the consent or approval of the Union Public Service Commission who had twice objected that the Rules cannot be amended with retrospective effect. 67. It was in this back ground, the rules were amended by promulgating the (Second Amendment) Rules, 2001 on 29th December, 2000 and that too even without the consent or approval of the Union Public Service Commission who had twice objected that the Rules cannot be amended with retrospective effect. 67. Sequence of events aforesaid and the orders passed by the Court on Civil Miscellaneous Application moved in the writ petition and also in the contempt petition, establish beyond doubt that the State was having no option but to comply with the directive issued by the Court irrespective of the fact whether the consent of Public Service Commission was given to amend the Rules or not and whether the Rules could be so amended, with retrospective effect and merely because in the amended Rules or in the proceedings, it does not specifically find mention that the Rules are being amended because of the contempt proceedings. It would not allow the Court to ignore the facts resulting into the Rules being amended with retrospective effect. 68. Even otherwise, if the Rules were to be amended because of the contempt proceedings it did not require that the said fact should have been mentioned in the Rules or should have been mentioned in the Gazette. Such a fact has to be gathered from the surrounding circumstances itself and the manner in which the rules have been amended. There cannot be any slightest doubt that the Rules in question were amended because of the orders passed by the Court including those passed in contempt proceedings, which orders were passed because of the interim direction issued by the Court in the pending writ petition. (Second Amendment) Rules, 2000 was thus enacted though consciously but only in compliance of the interim direction issued by the Court and the compliance required to be made in the contempt proceedings. 69. (Second Amendment) Rules, 2000 was thus enacted though consciously but only in compliance of the interim direction issued by the Court and the compliance required to be made in the contempt proceedings. 69. The Petitioner after finding that the Rules have been amended and he has been allocated the desired seniority and pay scale, created a situation, by moving an application for dismissal of the writ petition as not pressed, denying the right of the Respondent State and the intervenors to get the matter adjudicated by the Court as to whether the Rule could be amended with retrospective effect or not, though the main relief claimed in the Writ Petition No. 805 (SB) of 1996 was for amending the Rules with retrospective effect. 70. A writ petition cannot be filed for having only an interim order/ direction and that the interim order merges in the final order which is passed in the writ petition. The interim direction issued for amending the rules as claimed in the writ petition would thus survive only till pendency of the writ petition or till the interim order is vacated or modified. In case of dismissal of the writ petition, the interim order would lapse and would stand discharged whereas if the writ petition is allowed the same will merge accordingly in the final order. Even if the Petitioner had been allowed the advantage of amendment in the rules under the interim order of the Court, it could not have been assumed by the Petitioner that he has been granted the final relief prayed for in the writ petition. 71. The application of the Petitioner to get the writ petition dismissed as not pressed after amendment of the Rules and the seniority benefit being given to him under the said Rules, was thus rightly objected to, by the State as well as by the intervenor who prayed that the writ petition be decided on merits but the Petitioner did not allow it to happen, and insisted that the petition be dismissed as not pressed. The Court as per wish of the Petitioner, though dismissed the writ petition as not pressed but also vacated the interim order with a further liberty to the Respondent to approach the authority for the withdrawal of the benefits which have accrued to the Petitioner in pursuance of the order of the Court. 72. The Court as per wish of the Petitioner, though dismissed the writ petition as not pressed but also vacated the interim order with a further liberty to the Respondent to approach the authority for the withdrawal of the benefits which have accrued to the Petitioner in pursuance of the order of the Court. 72. The aforesaid orders made it clear that on the request of the Petitioner, the writ petition was dismissed and the interim order was vacated with liberty to the Respondent to approach the authority for withdrawal of benefit accrued to the Petitioner in pursuance of the interim order. The intervenor did approach the Government for the purpose and the State Government amended the Rules namely (Second Amendment) Rules, 2000 by substituting them with the (Third Amendment) Rules, 2001 and thus reviving the earlier original rules w.e.f. 6th August, 1978. The benefit granted under the interim order was thus taken away in accordance with the liberty given and in terms of the dismissal order passed by the Court. 73. Legally speaking, the benefit given to the Petitioner was dependent on the final outcome of the writ petition and merely because the interim order was complied with, that too under the circumstances aforesaid, would not divest the other officers who were senior to the Petitioner in P.C.S. cadre, but for the promulgation of (Second Amendment) Rules, 2000 and whose seniority stood determined in pursuance of the judgment of the Apex Court, to claim that in view of the dismissal of the writ petition the Petitioner's challenge stands rejected and consequently the effect of the interim order which pre-judiciously affects their seniority and service career be nullified. 74. The argument that once the benefit of (Second Amendment) Rules, 2000 was given to the Petitioner in the matter of seniority, the subsequent amendment of (Third Amendment) Rules, 2001 could not have allowed the State to withdraw that benefit is also of no assistance to the Petitioner for maintaining his seniority under the (Second Amendment) Rules, 2000 which stands deleted and substituted by (Third Amendment) Rules, 2001. 75. 75. The benefit of seniority having not been given to the Petitioner under the final orders of the Court but only in pursuance of the interim directions wherein the Court itself granted liberty to withdraw the benefit given to the Petitioner, in pursuance of the interim order while dismissing the writ petition as not pressed, leaves no room for questioning the action of the State in withdrawing the said benefit. This order of dismissal of the writ petition as not pressed with the aforesaid liberty was passed in presence of the Petitioner and was in his full knowledge and curiously enough on his own writ petition for amending the Rules, with retrospective effect which he himself got dismissed as not pressed. It is strange that the Petitioner was asking the dismissal of the writ petition as not pressed and the Respondent intervenor and the State were opposing the said prayer on the ground that the petition be decided on merits, so as to have a verdict on the points as to whether the amendment could be made with retrospective effect or not and whether any such amendment could be made at all, but the Petitioner avoided to have any decision from the Court got the petition dismissed as not pressed. 76. For analysing the aforesaid plea namely that the benefit once given or having accrued to the Petitioner by means of (Second Amendment) Rules, 2000 could not have been taken away by (Third Amendment) Rules, 2001 and that amendment made with retrospective effect would not violate the judgment of the Apex Court in the case of Ram Janam Singh, it would be appropriate to consider the same in view of the law propounded in the following cases: 77. In the case of P.S. Mahal and Others vs. Union of India and Others, (1984) 4 SCC 545 , the Supreme Court vide judgment dated 11.12.1974 has held that in absence of any statutory rules governing the inter se seniority of the Executive Engineers promoted from two sources, the seniority inter se should be determined on a general principle indicated in the memorandum dated 22.6.1949 on the basis of length of continuous officiation in the grade. The rule making authority then came forward with a set of recruitment rules in exercise of power under proviso to Article 309 and gave it retrospective effect from a date prior to the judgment of the Supreme Court referred to above. When the seniority list was re-determined on the basis of the statutory recruitment rules, the Supreme Court held that since by the earlier judgment, it has been held that the inter se seniority of Executive Engineers promoted from the grade of Assistant Engineers up to 11.12.1974 would be governed by the rule of length of continuous officiation, that direction and decision cannot be set at naught by the subsequent recruitment rules coming into force and giving the same retrospective effect. The Court, therefore, directed that in respect of appointees prior to the promulgation of the recruitment rules the seniority has to be determined on the basis of decision in A.K. Subraman and Others vs. Union of India and Others, (1975) 1 SCC 319 . The Supreme Court in this case observed as under: Here the decision in A.K. Subraman case, which is relied upon by the Petitioners is not a mere declaratory judgment holding an impost or tax to be invalid, so that a validation statute can remove the defect pointed out by that judgment and validate such impost or tax. But it is a decision giving effect to the right of the Executive Engineers promoted from the grade of Assistant Engineers to have their inter se seniority with Executive Engineers promoted from the grade of Assistant Executive Engineers determined on the basis of rule of length of continuous officiation by issue of a writ directing the Government of India to amend or revise the seniority list in accordance with such rule of seniority. Rules 2 (iii) and Rule 2 (iv) seek to substitute with retrospective effect a totally different rule of seniority in place of that recognized and given effect by the decision in A.K. Subraman case. That obviously cannot be done. Rules 2 (iii) and 2 (iv) cannot by retrospective alteration of the rule of seniority nullify the decision in A.K. Subraman case, which has recognized and given effect to an existing rule of seniority and issued a writ against the Government of India on that basis. That obviously cannot be done. Rules 2 (iii) and 2 (iv) cannot by retrospective alteration of the rule of seniority nullify the decision in A.K. Subraman case, which has recognized and given effect to an existing rule of seniority and issued a writ against the Government of India on that basis. If by reason of retrospective alteration of the rule of seniority, the decision is rendered erroneous, the remedy may be by way of review, but so long as the decision stands, it cannot be disregarded or ignored and it must be obeyed by the Government of India despite Rules 2 (iii) and 2 (iv) so far as the Executive Engineers promoted from the grade of Assistant Engineers and Assistant Executive Engineers up to December 11, 1974, are concerned. This view taken by us finds complete support from the judgment of Madan Mohan Pathak and Another vs. Union of India and Others, (1978) 2 SCC 50 . 78. In the case of P. Mohan Reddy vs. E.A.A. Charles and Others, (2001) 4 SCC 433 , the Supreme Court held that directions given by the Court in relation to a rule of seniority must be followed in preparing the seniority list unless a valid rule to the contrary with retrospective effect comes into existence. In this case the Supreme Court after considering the case of P.S. Mahal (supra) observed as under: A conspectus of the aforesaid decisions of this Court would indicate that even though an employee cannot claim to have a vested right to have a particular position in any grade, but all the same he has the right of his seniority being determined in accordance with the Rules which remained in force at the time when he was borne in the cadre. The question of re-determination of the seniority in the cadre on the basis of any amended criteria or rules would arise only when the amendment in question is given a retrospective effect. If the retrospective of the Rule is assailed by any person then the Court would be entitled to examine the same and decide the matter in accordance with law. If the retrospective of the Rule is assailed by any person then the Court would be entitled to examine the same and decide the matter in accordance with law. If the retrospective of Rule is ultimately struck down, necessarily the question of redrawing the seniority list under the amended provisions would not arise, but if, however, the retrospective is upheld by a Court then the seniority would be redrawn in accordance with the amended provisions of the employees who are still in the cadre and not those who have already got promotion to some other cadre by that date. Further, a particular rule of seniority having been considered by the Court and some directions in relation thereto having been given, that direction has to be followed in the matter of drawing up of the seniority list until and unless a valid rule by the rule-making authority comes into existence and requires otherwise. It may be further stated that if any rule or administrative instruction mandates drawing up of seniority list or determination of inter se seniority within any specified period then the same must be adhered to unless any valid reason is indicated for non-compliance with the same. 79. The Supreme Court in the aforesaid case came to the conclusion that seniority of Deputy Tehsildars appointed between the dates 10.4.1980 to 10th September, 1992 was required to be determined in accordance with the pre-amended Rules and not in accordance with the Rules which came into existence in September, 1992. 80. 79. The Supreme Court in the aforesaid case came to the conclusion that seniority of Deputy Tehsildars appointed between the dates 10.4.1980 to 10th September, 1992 was required to be determined in accordance with the pre-amended Rules and not in accordance with the Rules which came into existence in September, 1992. 80. The emphasis of the Petitioner that if any right has occurred and or any privilege had accrued that shall remain unaltered, even if, the Rule under which it has been conferred is substituted by another Rule with retrospective effect, cannot be considered without taking note of the fact that the Petitioner himself throughout contended that he be given seniority of the Army service by amending the Rules with retrospective effect which naturally would take away the already determined seniority of those officers including Ram Janam Singh who admittedly were recruited to P.C.S. cadre prior to the entrance of the Petitioner in the said service and whose seniority was determined as per the then existing Rules, vires of which has been upheld by the Supreme Court, wherein the Court has also given a direction that the seniority of the Petitioner should be re-fixed as per the then existing Rules, if he had already been given the benefit of the judgment of the High Court. Any amendment of the Rules with retrospective effect that too after the judgment of Ram Janam Singh's case by the Supreme Court would necessarily take away the accrued right of such officers in the matter of seniority which stands determined as per the Rules in existence and as per the directive of the Supreme Court. 81. In the case of Union of India vs. Tushar Ranjan Mohanty, 1994 (1) SCC 450, it was held that the benefit acquired under the existing rules cannot be taken away by an amendment with retrospective effect and that retrospective amendment cannot take away the vested right. 82. 81. In the case of Union of India vs. Tushar Ranjan Mohanty, 1994 (1) SCC 450, it was held that the benefit acquired under the existing rules cannot be taken away by an amendment with retrospective effect and that retrospective amendment cannot take away the vested right. 82. In the case of R.S. Ajara and Others vs. State of Gujarat and Others, (1997) 3 SCC 641 , it was again held that a benefit that has accrued under the existing rules cannot be taken away by an amendment with retrospective effect and no statutory rule or administrative order can whittle down or destroy any right which has become crystallized and no rule can be framed under the proviso to Article 309 of the Constitution which affects or impairs the vested rights. 83. In the case of Chairman, Railway Board and Others vs. C.R. Rangadhamaiah, (1997) 6 SCC 623 , the Supreme Court reiterated that an amendment having retrospective operation which has the effect of taking away a benefit already available to the employees under existing rule is arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution. 84. The cases of Commissioner of Agricultural Income Tax, Trivandrum vs. Kerala Estate Mooriad Chalapuram, (1986) 3 SCC 584 and that of Ex-Capt. K.C. Arora and Another vs. State of Haryana and Others, (1984) 3 SCC 281 , have also been cited with respect to aforesaid proposition of law. 85. A conspectus of the aforesaid decision makes it clear that in view of the direction issued by the Supreme Court in the case of Ram Janam Singh, wherein the Rule of Seniority has been upheld and the challenge to its validity on the ground of discrimination has failed after holding that the Petitioner or like officers who joined the Army during the gap period did not fall within the same class who joined Army service at the call of the nation and seniority having been determined accordingly, the same could not have been put to nought by making a Rule and giving it a retrospective effect. This would deliberately mean nullifying the judgment of the Apex Court in the case of Ram Janam Singh which is also evident by the fact that the Law Department did make a suggestion that though the Rules be amended with retrospective effect but the Petitioner be placed below Ram Janam Singh but over and above Raja Ram Upadhyay and other officers. This kind of negotiable approach could not have been made in law as either the Rules as amended would have applied to all the members of the service or to none. In any case, no Rule could have been enacted as aforesaid so as to cause prejudice to a certain group of persons or officers in the same cadre and to protect the interest of some officers though they are all similarly situated. 86. The stand of the Petitioner that it was also proposed that the Rules be amended with retrospective effect but he would be placed in the seniority list below Ram Janam Singh, and over and above Raja Ram Upadhyay, also would not justify the amendment in the Rules, with retrospective effect, as the officers similarly situated as Ram Janam Singh cannot be deprived of their seniority in the P.C.S. cadre simply because they had not approached the Supreme Court although in principle and as per the law laid down by the Supreme Court, they were entitled to the seniority over and above the Petitioner and were also placed as such in the seniority list. 87. Here it is important to note that the Petitioner himself did not allow the Court to delve on the validity of the Rules as he preferred to get his petition dismissed as not pressed despite the objection raised by the State and intervenors. The question, therefore, before the Court in these writ petitions is limited to the extent that whether he having been granted the benefit of seniority under the (Second Amendment) Rules, 2000 would stand relegated to the seniority as determined earlier under the pre-amended Rules, which have again brought into force with effect from 6th August, 1978 by means of (Third Amendment) Rules, 2001. 88. We for the reasons aforesaid are of the view that the Petitioner shall stand relegated to the seniority as determined under the pre-amended Rules in pursuance of the directive issued by the Supreme Court in the case of Ram Janam Singh. 89. 88. We for the reasons aforesaid are of the view that the Petitioner shall stand relegated to the seniority as determined under the pre-amended Rules in pursuance of the directive issued by the Supreme Court in the case of Ram Janam Singh. 89. So far the implementation of the proposal of Law Department as approved by the Governor on 4.2.1997 is concerned, it requires us to put on record once again that the aforesaid proposal/approval did not remain in existence as soon as the popular Government came into power. The two successive Chief Ministers time and again did not agree to amend the rules and rather refused the request and therefore, on the date when an interim order was passed in Writ Petition No. 805 (SB) of 1996 on 11.8.1999, which was reaffirmed on 9.12.1999, there was no such proposal/approval in existence. There was no question of complying with the proposal which was no more alive and was not in existence on the date of passing of the interim order. The argument that since the Governor has approved the proposal and, therefore, it was necessarily to be acted upon misses the very fact that the aforesaid proposal was reconsidered by the two Chief Ministers and was not approved and rather it was decided that no amendment in the Rules was required and the action taken in pursuance of the judgment of the Apex Court shall be kept intact. There was thus no occasion for the Petitioner to seek any interim mandamus for amending the Rule with retrospective effect, on the strength of the approval of the Governor dated 4.2.1997 nor was there any reason for filing the contempt petition, which action was nothing but an act of arm twisting. 90. The Petitioner on finding that liberty has been given to the Respondent to withdraw the benefit given to him under the interim direction also moved an application on 31.1.2001 for recall/modification of the order dated 12.1.2001, by means of which the petition was dismissed as not pressed with liberty to withdraw the benefit accrued under the interim order and the interim order was vacated but on this application the Court did not modify the order but gave liberty to the Petitioner also to challenge the (The Amendment) Rules, 2001 in accordance with law. On the basis of the aforesaid observation, this writ petition has been filed challenging the (Third Amendment) Rules, 2001. 91. The plea on merits of the Rules is one and the same namely, the Rule is arbitrary and discriminatory. The validity of the Rules having already been upheld by the Supreme Court, the challenge to the same is no more open. We have already given our reasons in the earlier part of the judgment for rejecting the said plea. 92. The argument that the benefit accrued cannot be taken away nor would stand withdrawn by a subsequent amendment also thus, cannot be accepted for the reasons recorded by us. 93. For the aforesaid reasons we do not find any merit in the writ petitions, they are hereby dismissed.