JUDGMENT By the Court.—As prayed for by Mr. G.C. Upadhyay, learned Standing Counsel, let the names of respondents 4 to 8 of the writ petition be added as respondents. 2. Respondents 1 to 3-appellants, aggrieved by order dated 17.12.2008 passed by a learned Single Judge in Civil Misc. Writ Petition No. 35533 of 1996, have preferred this appeal under Rule 5 Chapter VIII of the Allahabad High Court Rules. 3. Short facts giving rise to the present appeal are that writ petitioner­respondent No. 1 herein, is a Forest Guard and was earlier posted at Nainital. He made request for his transfer and by order dated 19.6.1984 of the Principal Conservator of Forest, he was transferred from Western Circle to Eastern Region and posted at Varanasi. A seniority list of the Forest Guards of the Varanasi Region was circulated by letter dated 17.3.1990 in which the name of respondent No. 1-Mahanand Singh finds at serial No. 15, whereas that of Thakur Prasad Misra at serial No. 17. Promotion to the post of Forester is governed by Rule 16 of the Lower Subordinate Forest Service Rules, 1980 (hereinafter referred to as ‘the Rules, 1980’), which inter alia provides that promotion shall be made on the basis of seniority subject to the rejection of unfit. By order dated 12.5.1991, a larger number of persons were promoted as Forester which included Thakur Prasad Misra. Writ petitioner-respondent No. 1 challenged the order of promotion of said Thakur Prasad Misra, inter alia, contending that he being senior to him ought to have been promoted. By way of an interim order dated 8.11.1996, this Court directed for consideration of the representation of respondent No. 1. In the light of the aforesaid order, representation of respondent No. 1 was considered and rejected by order dated 15.2.1997 of the Conservator of Forest, Varanasi Region. While rejecting the representation of respondent No. 1, the Conservator of Forest has observed that Thakur Prasad Misra was granted promotion, as his name figured above respondent No. 1 in the seniority list. He further observed that as respondent No. 1 was transferred at his own request, in view of Rule 28 of the Rules, 1980, he was placed at the bottom of the seniority list. Respondent No. 1, by way of an amendment, challenged the aforesaid order of the Conservator of Forest dated 15.2.1997. 4. He further observed that as respondent No. 1 was transferred at his own request, in view of Rule 28 of the Rules, 1980, he was placed at the bottom of the seniority list. Respondent No. 1, by way of an amendment, challenged the aforesaid order of the Conservator of Forest dated 15.2.1997. 4. It was contended before the learned Single Judge that the seniority list, as circulated by letter dated 17.3.1990, shows respondent No. 1 senior to Thakur Prasad Misra and, as such, he ought to have been promoted as Forester. It was pointed out that promotion to the post of Forester is to be made on the basis of seniority subject to the rejection of unfit, as such denial of promotion to respondent No. 1 was illegal. 5. Prayer of respondent No. 1 was resisted on the ground that by virtue of Rule 28 of the Rules, 1980, respondent No. 1 was required to be placed at the bottom of the seniority list and in case it is done, he is junior to Thakur Prasad Misra and, therefore, there is no fault in granting promotion to Thakur Prasad Misra. 6. The submission advanced on behalf of respondent No. 1, found favour with the learned Single Judge and he observed that as the name of respondent No. 1 is above Thakur Prasad Misra in the seniority list, that shall govern the field and accordingly, the learned Single Judge directed for promotion of respondent No. 1 with effect from 12.5.1991. The learned Single Judge further observed that if any post of Forester is vacant, Thakur Prasad Misra shall not be reverted. 7. Mr. G.C. Upadhyay, learned Standing Counsel, appearing on behalf of the appellants, submits that undisputedly respondent No. 1 was transferred from one Circle to another at his own request and in view of Rule 28 of the Rules, he was required to be placed at the bottom of the seniority list. 8. Mr. lndal Singh, however appearing on behalf of respondent No. 1 submits that the Rules, as relied on by the appellants, shall not govern the field and in fact, it shall be governed by U.P. Government Servants Seniority Rules, 1991. He also points out that when the name of respondent No. 1 is above Thakur Prasad Misra in the seniority list, for the purpose of promotion the seniority list shall govern the field. 9. He also points out that when the name of respondent No. 1 is above Thakur Prasad Misra in the seniority list, for the purpose of promotion the seniority list shall govern the field. 9. Having appreciated the rival submission, we find substance in the submission of Mr. Upadhyay. It is not in dispute that respondent No. 1 was transferred from one circle to another at his own request. Rule 28 of the Rules provides for transfer from one circle to another. Relevant portion of Rule 28 of the Rules reads as follows : "28. Transfer.—Conservator of Forests may transfer a Jamadar, Moharrir or a Guard within the divisions under his charge, Additional Chief Conservator of Forest may do so within the circles under his charge and the Chief Conservator of Forest may transfer from a circle under the charge of an Additional Chief Conservator of Forest to a circle under the charge of another Additional Chief Conservator of Forest.” Note : Normally transfer of a person outside his cadre shall not be made. If the transfer is made on the request of the official, he shall be placed for seniority below the last man in the cadre to which he is transferred. If he is transferred otherwise than on his request, he shall retain his lien in his own cadre and transfer in such a case shall be as a temporary measure only.” 10. The same provides that if the transfer is made on the request of the official, he shall be placed for seniority below the last man in the cadre to which he is transferred. 11. It is further not in dispute that at the time when respondent No. 1 was transferred from Nainital Circle to Varanasi Region, Thakur Prasad Misra was working in that Region. Thus, de jure respondent No. 1 ought to have been shown as junior to Thakur Prasad Misra. 12. We are of the opinion that in case the placement of respondent No. 1 and Thakur Prasad Misra in the seniority list as held by the learned Single Judge is taken up to be legal for the purpose of reckoning inter se seniority between them, it shall be in the teeth of Rule 28 of the Rules. 13. It is well settled that in case of conflict between the factual and the legal situation, the latter will prevail. 13. It is well settled that in case of conflict between the factual and the legal situation, the latter will prevail. Here by force of Rule 28 of the Rules, respondent No. 1 has to be treated as junior to Thakur Prasad Misra. As regards the contention of respondent No. 1 that it is the U.P. Government Servants Seniority Rules, 1991 shall prevail, we are of the opinion that by virtue of Rule 3 thereof, it shall have overriding effect notwithstanding anything to the contrary contained in any other service rules. The same, however, does not make any provision as regard to the determination of inter se seniority on transfer of an employee from one Region to another. As such, the U.P. Government Servants Seniority Rules, 1991, has no bearing so far as the seniority of respondent No. 1 vis-a-vis Thakur Prasad Misra is concerned. 14. It may be worth mentioning that respondent No. 1 was transferred in the year 1984 and, as such, the rule determining the seniority on transfer prevalent at that time, shall govern the field. In our view, the rule governing the seniority, i.e., Rule 28 of the Rules, 1980, shall prevail notwithstanding the fact that the seniority list does not reflect the same. 15. Once it is held that respondent No. 1 is junior to Thakur Prasad Misra, the promotion of Thakur Prasad Misra on the principle of seniority-cum-rejection of unfit cannot be faulted. We are of the opinion that the learned Single Judge committed an error in holding that the seniority list will prevail despite the effect of Rule 28 of the Rules, 1980. 16. Accordingly, this appeal is allowed, order of the learned Single Judge dated 17.12.2008, is set aside. However, there shall be no order as to costs. ———