JUDGMENT By the Court.—Heard Shri Vinod Sinha, learned counsel for the petitioner. Shri Ashok Khare, Senior Advocate assisted by Shri Umesh Vats appears for respondent Nos. 4, 5, 6, 7, 8, 10 and 11. Learned Standing Counsel appears for respondent Nos. 1, 2 and 3. 2. The service report submitted by the office on 25.10.2007 shows that the notices were served on respondent Nos. 6 to 12 and that the acknowledgment of notices is on record. The notices have returned unserved on respondent Nos. 9 and 11. In respect of respondent Nos. 4, 5, 7, 8 and 10 neither acknowledgment nor undelivered notice has returned back. They are however represented by Shri Umesh Vats. All the respondents except respondent No. 9 are served. 3. The petitioner has prayed for quashing the order of his regularisation dated 2.11.2006, and final gradation/seniority list of the dated 18.11.2006 issued by the Director, National Savings, U.P. Lucknow. 4. The facts of the case, in brief are that the petitioner applied and was selected on the post of Investigator-cum-Computer in the National Savings Department of Uttar Pradesh on 18.12.1985 along with others. On 21.2.1992 a final seniority list was issued after inviting and disposing of the objections. The Additional Director (Savings) placed the petitioner at serial No. 3. Shri Bipin Bihari Pandey and five others were placed from serial No. 27 to 32. It is stated that out of the posts of 50 Investigators-cum-Computers, out of 65 posts were upgraded from the pay scale of Rs. 1400-2300 to Rs. 1600-2660 as Statistical Assistant by Government Order dated 5.10.1994. The petitioner’s post was upgraded as Statistical Assistant on 7.10.1994. In this order also Shri Bipin Bihari Pandey and others were placed below the petitioner. 5. One Shri Nav Nath Prasad Yadav serving as Investigator-cum-Computer was given promotion as District Savings Officer by an order dated 24.6.1992 ignoring the seniority of the petitioner. The petitioner along with Shri Chandra Mohan Srivastava and others filed Claim Petition No. 2385 of 1994 in the State Public Service Tribunal Lucknow claiming promotions on parity with Shri Nav Nath Prasad. One Shri Nav Nath Prasad Yadav serving as Investigator-cum-Computer was given promotion as District Savings Officer by an order dated 24.6.1992 ignoring the seniority of the petitioner. The petitioner along with Shri Chandra Mohan Srivastava and others filed Claim Petition No. 2385 of 1994 in the State Public Service Tribunal Lucknow claiming promotions on parity with Shri Nav Nath Prasad. The Tribunal in its judgment dated 7.12.1998 found, despite the counter affidavit filed by the State respondents stating that Shri Nav Nath Prasad Yadav was promoted as a special case as he was handicapped and belongs to other backward classes category, that since the claimants were placed above Shri Nav Nath Prasad Yadav in the selection-cum-seniority list prepared on the basis of merit on 21.2.1992. They were also entitled for promotions. The Tribunal directed that since Shri Nav Nath Prasad Yadav was promoted as District Savings Officer in 1992, and thereafter as Assistant Director (Savings) in 1994 in violation of Articles 14 and 16 of Constitution of India, as no reservation or any preference was applicable to such candidates, could not be discriminated and the petitioners were also entitled for promotions. The Tribunal allowed the claim petition with following directions : “ORDER Both these claim petitions No. 2343/94 and 2385/94 are allowed. O.P. Nos. 1 and 2 are directed to consider claimants of both these claim petitions for promotion, first to the post of District Savings Officer and then to the post of Assistant Director (Savings) according to their seniority in the selection-cum-seniority list dated 21.2.92 (Annex. 2) from the dates their junior Nav Nath Prasad Yadav O.P. No. 3 was promoted to the said posts, as per rules then applicable, with all consequential services benefits within three months of the receipt of this order. No order is made as to costs. Sd/- 7.12.1998 (L.M. Dung Akoti) Member (Judl.)” 6. The department did not comply with the order for reasons which have not been brought on record. The department did not challenge the judgment of the Tribunal and that under the threat of non-compliance of the orders, the orders were issued by Director, National Savings, U.P. on January 8, 2001 promoting Shri Chandra Mohan Srivastava; Shri Kailash Narain Srivastava (the petitioner); Smt. Kumkum Singh and Shri Ram Bahadur Maurya as Assistant Directors (Savings), on the upgraded post. 7. 7. The claimants having succeeded in obtaining promotion as Assistant Directors (Savings) on January 8, 2001 made representations for arrears of salary; dearness allowance; house rent allowance and other allowances. The State Government allowed these benefits also by an order dated 28.7.2001. 8. A seniority list of Assistant Directors was thereafter circulated and that after deciding the objections, a final seniority list of the cadre was published in which the petitioner is shown junior to respondent Nos. 4 to 12. 9. It is contended by Shri Vinod Sinha, appearing on behalf of the petitioner, that the petitioner was allowed promotion as District Savings Officer w.e.f. 24.6.1992, and thereafter as Assistant Director (Savings) w.e.f. 7.10.1994 vide promotion orders dated 8.1.2001, in pursuance of the judgment of the U.P. Public Services Tribunal dated 7.12.1998. The promotion was not on adhoc basis and thus the petitioner had a right to be treated as regularly promoted District Savings Officer w.e.f. 24.6.1992. He has been wrongly treated to be regularised on the promoted post of District Savings Officer w.e.f. 2.11.2006. There was no necessity to regularise the services of the petitioner as he was already promoted as regular District Savings Officer and on that basis he was also given the next promotion on the post of Assistant Director. Shri Sinha submits that the judgment of the Tribunal dated 7.12.1998 has become final. The order dated 28.7.2001 promoting the petitioner and three others has also become final and thus these orders must be truly reflected in the seniority list. The U.P. National Savings Executive Services Rules, 1997 (In short the Rules) were notified on 29.7.1997. Prior to the enforcement of these Rules, the appointment and promotions were made in accordance with the Government Orders and departmental instructions and thus the promotions made with effect from a date prior to the enforcement of the rules must be truly and correctly implemented. 10. Shri Ashok Khare, Senior Advocate, appearing for contesting respondents, who were appointed directly by selections in the Upper Subordinate Examinations conducted by U.P. Public Service Commission under the U.P. National Savings Executive Services Rules, 1997, submits that the order dated 18.12.1985, by which the petitioner was appointed as Investigator-cum-Computer was not a select list but a combined appointment order issued by the Assistant Director without specifying the seniority. The post of Investigator-cum-Computer was upgraded to Statistical Assistant vide Government Order dated 7.10.1994, and that the petitioner started working as Statistical Assistant only w.e.f. 7.10.1994, in the pay scale of Rs. 1600-2660. Earlier he was working as Investigator-cum-Computer in the pay scale of Rs. 1400-2300, and had worked under Shri Rajesh Kumar Vats, District Savings Officer, Allahabad respondent No. 4 from 1992 till 2001. 11. Shri Khare submits that Shri Nav Nath Prasad Yadav was illegally promoted as District Savings Officer by order dated 24.6.1992. A copy of the order of his promotion has been obtained under, The Right to Information Act, 2005. The order shows that no procedure whatsoever was followed for promotion and that Shri Nav Nath Prasad Yadav was appointed under the signatures of the then Cabinet Minister. The office has submitted a note with regard to the number of posts which were required to be filled up by direct recruitment and departmental promotion in the ratio of 50:50. The twenty three posts of District Savings Officers out of 63 were vacant at that time, and that according to the office note taking into account the number of person promoted, it was reported that two candidates could be promoted as District Savings Officer. On this proposal Shri Gulab Singh, belonging to scheduled caste and Shri Nav Nath Prasad Yadav, a handicapped category, belonging to other backward class were directed to be promoted under the orders of the Minister. This illegal promotion, according to Shri Khare, caused a cascading effect in the service and gave rise to expectations among those, who were juniors to Shri Nav Nath Prasad Yadav, working as Statistical Assistant. Shri Chandra Mohan Srivastava and three others filed a claim petition impleading Shri Nav Nath Prasad Yadav claiming promotions. The District Savings Officers, appointed subsequently by direct recruitment through U.P. Public Service Commission, liable to be affected by the orders, were not impleaded as parties in the State Public Service Tribunal. Shri Chandra Mohan Srivastava and three others filed a claim petition impleading Shri Nav Nath Prasad Yadav claiming promotions. The District Savings Officers, appointed subsequently by direct recruitment through U.P. Public Service Commission, liable to be affected by the orders, were not impleaded as parties in the State Public Service Tribunal. Instead of directing the respondents to consider the claims for promotion in accordance with the Rules of 1997 which had by that time come into force, the Tribunal directed that they be considered for promotion first to the post of District Savings Officer and then to the post of Assistant Director (Savings) according to their seniority in the selection-cum-seniority list dated 21.2.1992 from the date their junior Nav Nath Prasad Yadav was promoted, as per rules then applicable, with all consequential benefits. 12. It is contended by Shri Khare that in the absence of persons, who were going to be affected, the Tribunal did not have jurisdiction to direct the consideration of promotions. The Tribunal further erred in granting double promotions firstly to the post of District Savings Officer and then on the post of Assistant Director (Savings), without following the Rules of 1997, which had come into force by that date. He submits that the Tribunal wrongly assumed that Shri Nav Nath Prasad Yadav was junior to the claimants and then granted promotions under an authority which the Tribunal did not possess. The matter was not only confined to violation of Articles 14 and 16 of the Constitution of India, but also the applicability of the service rules and the effect of the orders on the persons who were directly appointed, and were seniors to the claimants, and under which they were working for a very long time. He submits that the petitioner Shri Kailash Narain Srivastava will not get the benefit of claiming seniority in the service, which is to be determined in accordance with the method of determining seniority of the State Government employees. The U.P. Government Servants Seniority Rules, 1991, are applicable to the service, and that only those persons, who were appointed substantively in the service could claim seniority over their juniors. The U.P. Government Servants Seniority Rules, 1991, are applicable to the service, and that only those persons, who were appointed substantively in the service could claim seniority over their juniors. He further submits that the Rule-5 (iv) of the Rules of 1997 provides that the appointment to the posts of District Savings Officer is to be made, 50% by direct recruitment through the Commission; 30% by promotion through the Commission from amongst substantively appointed Additional District Savings Officers, who have completed five years service as such on the first day of the year of recruitment, and the remaining 20% by promotion through the U.P. Public Service Commission from amongst substantively appointed Statistical Assistants in the pay scale of Rs. 1600-2660, who have completed five years service as such on the first day of the year of recruitment. The petitioner was not promoted through the U.P. Public Service Commission, and that the question whether there was any vacancy available for him under 20% quota was not considered. The promotion as such under the orders of the U.P. Public Services Tribunal, in the proceedings in which the respondent Nos. 4 to 12 were not impleaded as parties, would not give any benefit to the petitioner to claim seniority above the contesting respondents. 13. Upon hearing counsels for the parties and on perusing the records, we find that the promotion of Shri Nav Nath Prasad Yadav without following any procedure of selections for promotion to Class-II post was not in accordance with the law. There was no such quota reserved for handicapped persons and that a person belonging to other backward classes category could not by itself without prescribing any reservations in promotions be promoted without following any procedure at all. The orders of his promotion therefore cannot be relied upon to perpetrate further illegality in directing the promotions of Shri Chandra Mohan Srivastava and others including the petitioner. The Tribunal in its judgment dated 7.12.1997 failed to consider that during the pendency of the claim petition, the U.P. National Savings Executive Service Rules, 1997 were enforced by notification dated 29.7.1997 made under Article 309 of Constitution of India, in supersession of all existing rules. Under these rules the promotions could only be made in accordance with the quota prescribed, through U.P. Public Service Commission. Under these rules the promotions could only be made in accordance with the quota prescribed, through U.P. Public Service Commission. The petitioner was not promoted in his quota which was not worked out till that time and that the promotions were not made through the U.P. Public Service Commission. 14. We do not find any reasons on record for which the State Government did not choose to challenge the judgment of the Tribunal dated 7.12.1998. The absence of the reasons may not detain us as we are not concerned here with the validity of the judgment. The judgment however would not affect the rights of the contesting respondents who were directly selected in the 50% quota of direct recruitment through the U.P. Public Service Commission. They were not impleaded as parties to the proceedings in the Tribunal and thus their long standing seniority over the petitioner will not be affected by the order passed by the Tribunal and the consequential orders of promotions of the petitioner. 15. The petitioner had worked under respondent No. 4 at Allahabad as Statistical Assistant from 1992 to 2001. He could not have taken directly appointed District Savings Officers through U.P. Public Service Commission by surprise. The petitioner appointed as Statistical Assistant w.e.f. 7.10.1994 could not have been appointed as District Savings Officer w.e.f. 24.6.1992 i.e. before he was appointed on the feeding post of Statistical Assistant, and thereafter promoted as Assistant Director by order dated 8.1.2001 w.e.f. 7.10.1994, in purported exercise of implementing the order of the Tribunal. 16. The contesting respondents and the State have not challenged the orders of promotions of the petitioner and other claimants before the Tribunal. The petitioner therefore may keep his promotions and the benefits, but he cannot claim a march over the contesting respondents and claim seniority which is to be determined in accordance with the statutory rules. The promotion and seniority are two different concepts in service. The right to be promoted and the right to claim seniority on the basis of such promotions are not complementary to each other. The petitioner may have been promoted notionally under the orders of the Tribunal dated 7.12.1998, and received the second promotion as Assistant Director (Savings) also, without following the procedure prescribed under the rules. He cannot claim seniority unless he was validly promoted on the post of District Savings Officer. 17. The petitioner may have been promoted notionally under the orders of the Tribunal dated 7.12.1998, and received the second promotion as Assistant Director (Savings) also, without following the procedure prescribed under the rules. He cannot claim seniority unless he was validly promoted on the post of District Savings Officer. 17. The writ petition filed by the petitioner claiming seniority as District Savings Officer w.e.f. 24.6.1992 and to correct the long standing seniority list claiming to be senior to the persons who were appointed much before the order of his promotion and directly recruited as District Savings Officer, is dismissed. ————