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2009 DIGILAW 553 (JK)

Ab. Qayoom v. M. A. Chesti

2009-11-16

BARIN GHOSH, MUZAFFAR HUSSAIN ATTAR

body2009
Muzaffar Hussain Attar, J. 1. Governor in exercise of powers conferred by Proviso to Section 124 of Constitution of Jammu and Kashmir formulated Rules titled "Jammu and Kashmir Soil Conservation (Gazetted) Service Recruitment Rules, 1984" (for short Rules of 1984). Vide notification SRO 287 dated 28th June 1984, Rules of 1984 were notified in Government Gazette and became operational. 2. Rules relevant for the disposal of this case are reproduced as under:- "Rule 1 (2) They shall come into force from the date of their publication in the Government Gazette. Rule 2. (b) (d) & (f), (b) "Cadre" means the cadre of the service; (d) "Member of the Service" means a person appointed to a post in the service under the provisions of these rules; (f) "Service" means the Jammu and Kashmir Soil Conservation (Gazetted) Service: Rule 3, Constitution of Service.-(1) From the date of commencement of these rules there shall be constituted the Jammu and Kashmir Soil Conservation (Gazetted) Service. (2) The Government may at the commencement of these rules appoint to service any person who at the commencement of these rules is holding any post in its sanctioned scale of pay included in the cadre of the service; Provided that for purposes of initial constitution of service the person holding any post included in the cadre of the service in its sanctioned scale of pay shall be given an opportunity before such appointment to opt for the service within fifteen days from the commencement of these rules. Rule 5. Qualification and method of recruitment.-(1) No person shall be eligible for appointment or promotion to any post in any class, category or grade in the service unless he possesses the qualifications as laid down in the Schedule `II and fulfils other requirements of recruitment as provided in the rules and orders for the time being in force. Class Category Designation and Cadre Minimum qualification Method of recruitment 1 2 3 4 5 III A Assistant Soil Conservation Officer/Tech. Assistant Assistant/Engineer (Agri. ) (1050-1710), By promotion from:-(i) Class V, Category A, B and C of officers having five years experience in the case of Category A and seven years in the case of Category B and C possession of a certificate course in Soil Conservation Survey from Dehra Dun shall be a desirable qualification; and (ii) Category IV-A of officers with 2 years experience. B Assistant Engineer (1050-1710), By promotion from the incumbents holding the post of Assistant Survey Officers, provided they possess a Bachelors Degree in Civil Engineering or A. M. I. E. (Civil) and have five years experience in the line. In case no qualified hand possessing the aforesaid qualifications and experience is available in the Department, then by deputation from P.W.D of an officer possessing these qualifications and experience. C Assistant Agrostologist (1050-1710), By promotion from Class V Category A & B with five years experience in Agrostology. V A Research Asstt./Soil Conservation Asstt. (900-1460) B. Sc Agriculture or B. Sc. Agriculture Engg. or M. Sc Botany. (i) 50 % by direct recruitment (ii) 50 % by promotion from trained DDR Range Officers in Class VI Category A with 2 years experience and Asstt. Survey Officer with 5 years experience. B Assistant Research (875-1400) B. Sc. Agriculture or M. Sc. Botany or B. Sc. Agriculture Engg. -do- C Photo Interpreter (875-1400) B. Sc. Agriculture or M. Sc. Botany (i) 50 % by direct recruitment (ii) 50 % by promotion from trained DDR Range Officers in Class VI, Category A with 7 months training course from IPI Dehra Dun 3. By operation of Rule 3 read with rule 1 (2) of Rules of 1984, the J&K Soil Conservation (Gazetted) Recruitment Service (for short Service) was constituted. Rule 3 (2) of rules of 1984 authorized Government to appoint to Service any person holding any post in the sanctioned scale of pay included in the cadre of service. 4. On the plain reading of the above said provisions of Rules of 1984 what emerges is that by mere constitution of service, no one would automatically become member of service, which is, otherwise, high lighted by Rule 2 (d) of Rules 1984. For becoming member of service issuance of appointment order by Government is statutory requirement. 5. Post of Assistant Engineer (Agri) (1050-1710) is to be filled up by promotion from class V category "A" officers having five years experience and from category "B" and "C" having seven years experience. Class V category "A" is post of Research Assistant/Soil Conservator Assistant (960-1460) and class V category "B" is post of Assistant Research Officer (875-1400). 6. Respondent No.1 vide Government Order No. 1629 GD of 1980 dated 23.8.1980 was adjusted in the Directorate of Soil Conservation Department against available post of Assistant Research Officer (475-850). Class V category "A" is post of Research Assistant/Soil Conservator Assistant (960-1460) and class V category "B" is post of Assistant Research Officer (875-1400). 6. Respondent No.1 vide Government Order No. 1629 GD of 1980 dated 23.8.1980 was adjusted in the Directorate of Soil Conservation Department against available post of Assistant Research Officer (475-850). Vide Government order No. 114-FST 1983 dated 3.9.83 respondent No.1 was appointed in relaxation of rules as Assistant Research Officer in the pay scale of (875-1400) against available vacancy in Directorate of Soil Conservation against direct recruitment quota. Government order No. 339-FST of 1984 dated 25.10.84, however, provided that appointment of respondent No.1 as Assistant Research Officer will take effect from 23rd August 1980 for purposes of seniority and no monitory benefits were allowed to respondent No.1 for this period. Government order No. 235-FST of 1985 dated 16.12.1985 provided the respondent No.1 to hold charge of Assistant Engineer (Agri) as stop gap arrangement in his own pay and grade in Directorate of Soil Conservation. 7. Vide Government order No. 57/agri of 1987 dated 2nd Feb. 1987 appellants services were temporarily placed at the disposal of the Directorate of Soil Conservation. 8. Vide order No. 274-FST 1989 dated 15.09.89, in terms of Rules 3(2) of Rules of 1984, the officers mentioned in the said Government order were appointed to the Service by absorbing them in the service. The said Government order No. 274-FST is reproduced as under:- "GOVERNMENT OF JAMMU AND KASHMIR CIVIL SECTT: FOREST DEPARTMENT Sub:-Absorption of officers in J&K Soil Conservation (Gazetted) Service. Order : No: 274-FST of 1989 Dated : 15-09-1989 In pursuance of rule 3 of Jammu and Kashmir Conservation (Gazetted) Service Recruitment Rules, 1984 issued vide SRO sick mark Soil Conservation Department are absorbed permanently in the Jammu and Kashmir Gazetted Soil Conservation Service:- S. No. Name of the officer Post against which Parent Department absorbed in J&K Gazetted Soil Conservation Service 1. Sh. S.N. Macoo Assistant Engineer (Agri) Agriculture Deptt. 2. Sh. G.R. Khan Asstt. Soil Cons. Officer -do- 3. Sh. S.C. Gupta -do--do 4. Sh. R.K. Nagi Soil Conservation Asstt. -do- 5. Sh. B.D. Raina Assistant Agrostologist -do- 6. Sh. A.A. Mir Research Assistant -do- 7. Sh. A. Qayoom -do -do 8. Sh. N.A. Shahdad Soil Conservation Asstt. -do 9. Sh. Tariq Ahmad Asst. Research Officer -do 10. Sh. M.D. Shah Range Officer -do- 11. Sh. Abdul Bashir -do--do- 12. S.C. Gupta -do--do 4. Sh. R.K. Nagi Soil Conservation Asstt. -do- 5. Sh. B.D. Raina Assistant Agrostologist -do- 6. Sh. A.A. Mir Research Assistant -do- 7. Sh. A. Qayoom -do -do 8. Sh. N.A. Shahdad Soil Conservation Asstt. -do 9. Sh. Tariq Ahmad Asst. Research Officer -do 10. Sh. M.D. Shah Range Officer -do- 11. Sh. Abdul Bashir -do--do- 12. Sh. M.A. Chisti Soil Conservation Asstt. Soil Cons. Deptt. By order of the Government of Jammu and Kashmir. Sd/- (I.A. Khan) Special Secretary to Government Forest Department" Appellant figured at serial No.7 of said order and respondent No.1 at serial No.12. 9. Final seniority list was issued by Government, vide order No. 275 of 1989 dated 15.09.89 the appellant figured in annexure (II) of said Government order and his designation was shown as Research Assistant in the pay scale of 1700-2900 and his date of entry into services was shown to be 23.4.80. Respondent No.1 figured in annexure (III) holding the post of Assistant Research Officer in the pay scale of 1550-2800. The date of entry into service was shown as 6.11.74 and the date of promotion to the present grade as 26.9.80. Respondent No.1 vide Government order No. 278-FST 1989 dated 15.09.89 was ordered to be promoted subject to clearance of DPC, to the post of Assistant Engineer (Agri) in the pay scale 2000-3500. 10. The appellant being aggrieved of the government order No. 278-FST 1989 challenged the same in writ petition, which was registered as SWP No. 1491/89. On contest the writ petition was decided in favour of appellant and government order No. 278-FST of 1989 was quashed by ld. Single Judge vide judgment dated 28th Oct. 1993. The ld. Single Judge, arrived at said conclusion by relying on and interpreting the order No.274-Fst of 1989 dated 15.09.1989 which provided for appointment of persons to the service. Relevant paragraphs of the judgment are reproduced as under:- "It appears that the petitioner and respondents No. 3 and 4 were working in the Agricultural Department and had been sent on deputation to the Soil Conservation Department at various points of time. On 15th September, 1989, Govt. Order No. 274-FST of 1989 dated 15.09.1989 came to be issued by the Special Secretary to Govt. On 15th September, 1989, Govt. Order No. 274-FST of 1989 dated 15.09.1989 came to be issued by the Special Secretary to Govt. Forest Department whereby as many as 12 persons including the petitioner and respondents No. 3 and 4 were absorbed permanently in the Jammu and Kashmir (Gazetted) Soil Conservation Service constituted by and under 1984 Rules. In this order, whereas the name of petitioner figures at S. No. 7 those of respondents No. 3 and 4 figure at S. No. 9 and 12 respectively. The stand taken by the respondents is not only untenable, but wholly devoid of any merit. It appears that the respondents committed an illegality in ignoring the petitioner from consideration process while granting promotion to respondents No. 3 and 4 and in order to cover up their lapse, have how set-up this, assailable and exceptionable defence. It is the admitted case of the parties that respondents No. 3 and 4 are junior to the petitioner. The parties have also admitted that respondents No. 3 and 4 were before their promotion in Class-V category `B whereas the petitioner at that time was in Class-V category `A. It is also admitted case of the parties that category `A in Class-V carried higher pay scale than category `B in the same class. If, therefore, the petitioner and respondents No. 3 and 4 were fully eligible, ignoring the petitioner from the process of consideration and in the same process promoting the respondents No. 3 and 4 would be a patent violation of Articles 14 and 16 of the Constitution. The only point therefore, to be considered is whether the petitioner at the relevant time possessed the experience of five years or not. The requirement in Schedule-II is that the officers in Class-V category `A should have five years experience. It is not either mentioned or stated as to in what capacity, on what posts and in what manner this experience of five years has to be counted, calculated or taken into account. All that is mentioned is that the person for being eligible for promotion should have experience of five years, if he is an officer in Class-V category `A. In this back-drop, if we view and look at annexure-II to Govt. Order No. 275-FST/89 dated 15.09.1989, we will find that the petitioners date of promotion to Class-V category `A has been shown to be 23.04.1980. Order No. 275-FST/89 dated 15.09.1989, we will find that the petitioners date of promotion to Class-V category `A has been shown to be 23.04.1980. One cannot shut ones eyes from this stark reality and glaring fact which stares at ones face. If the petitioner undoubtedly is stated and mentioned to have been promoted to Class-V category `A on 23.04.1980, can one be allowed to allege that he did not have five years experience in that class or category in 1989 when the impugned orders granting promotion to respondents 3 and 4 were issued by the respondents. I have totally failed to understand as to in what particular manner do the respondents want me to calculate the petitioners experience. From whatever angle one looks at the controversy, one cannot loose sight of the fact that the petitioner did have experience of more than five years in 1989 and, therefore, was eligible for consideration. A patent illegality was committed while promoting respondents No. 3 and 4 because the petitioner was not considered, even though he was not only eligible for such consideration, but was senior and superior to these respondents. No ground exists whereby such an illegality can be condoned. For the foregoing reasons, therefore, I allow this petition and by issuance of writ of certiorari quash and set-aside the impugned orders. By issuance of writ of mandamus I direct respondents No. 1 and 2 to fill up the posts in accordance with the observation and directions hereinabove given. All the consequences shall follow. No order as to costs. CMP No. 4489/89 is disposed of." 11. Respondent No.1 challenged the judgment passed by ld. Single Judge in SWP No. 1491/89 by filing Letters Patent Appeal, but same was dismissed. Special Leave Petition filed before Honble Supreme court was also dismissed, resultantly the judgment dated 28.10.93 attained finality both on the facts and in the law. The government in compliance with the judgment of the ld. Single Judge issued Government order No. 243-FST 2002 dated 24th April 2002 whereby and whereunder the order of promotion issued in favour of respondent No.1 was rescinded. Government order No. 339-FST of 2000 dated 18th August 2000 was issued which had the effect of superceding the Government order No. 274-FST of 1989 and the service was ordered to be afresh constituted from 28th June 1984. Government order No. 339-FST of 2000 dated 18th August 2000 was issued which had the effect of superceding the Government order No. 274-FST of 1989 and the service was ordered to be afresh constituted from 28th June 1984. Respondent No.1 figured in this government order but appellant did not figure therein. In terms of Government order No. 340-FST of 2000 dated 18th August 2000 the appellant besides some other officers were ordered to be absorbed in the service with effect from 17.02.1987. 12. Vide Government No.430-FST of 2002 dated 17th Oct. 2002 on the recommendation of DPC and PSC, government accorded sanction for clearance of respondent No.1 for his promotion to the post of Assistant Engineer(Agri) w.e.f 28th June 1984. Appellant being aggrieved of the issuance of said Government order and promotion of respondent No.1 to the post of Assistant Engineer (Agri) filed contempt petition No. 305/02. The appellant also filed writ petition SWP No. 1423 of 2002 challenging the said order. In the contempt petition the respondents were directed to explain their position. The Government issued order No.343-FST of 2003 dated 17th July 2003 which had the effect of rescinding the order of promotion issued in favour of respondent No.1 vide Government Order No. 430-FST of 2002. The writ petition filed by appellant was, accordingly, dismissed as not pressed. Respondent No.1 being aggrieved of the Government order No. 343-FST of 2003 challenged the same by filing writ petition which was registered as SWP No. 1444/03. The ld. Single Judge vide judgment dated 20th May 2005 quashed the Government order No. 343-FST of 2003 dated 17.10.2003 which was impugned in the writ petition. The appellant being aggrieved of the said judgment has challenged the same in this LPA. 13. We have heard learned counsel for parties. Considered the material and the record produced by Mr. Azharul Amin, ld. counsel for Public Service Commission. 14. Mr. R.A. Jan, ld. counsel, for appellant submitted that Government order No. 430-FST of 2002 dated 17th Oct. The appellant being aggrieved of the said judgment has challenged the same in this LPA. 13. We have heard learned counsel for parties. Considered the material and the record produced by Mr. Azharul Amin, ld. counsel for Public Service Commission. 14. Mr. R.A. Jan, ld. counsel, for appellant submitted that Government order No. 430-FST of 2002 dated 17th Oct. 2002 vide which respondent No.1 was ordered to be promoted to the post of Assistant Engineer (Agri) having been passed in violation of the court judgment, the Government was duty bound to rescind the same as the government while issuing the said order had not compiled with the mandate of the judgment passed in SWP No. 1491/89, in as much as the appellant was excluded for being considered for being promoted to the post of Assistant Engineer (Agri). ld. counsel referred to and relied upon case titled Ram Chandra Tripathi v. U.P Public Services Tribunal IV and ors reported in (1994) 5 SCC 180 to state that when an order is passed by Executive Authority in violation of the court orders, there is no requirement of giving an opportunity of hearing to the beneficiary thereof before rescinding of the said order. The ld. counsel further submitted that the appellant was denied consideration for being considered for being promoted and appointed to the post of Assistant Engineer (Agri), notwithstanding this fact, that writ court in its judgment dated 28.10.93 handed down in SWP No. 1491/89 had recorded a finding of fact that the appellant possessed the requisite eligibility for being considered for being promoted and appointed to the post of Assistant Engineer (Agri). The learned counsel submitted that non consideration of appellant for such promotion besides being violative of constitutional guarantees as contained in Article 16 of the Constitution of India is also violaltive of the judgment of this court passed in SWP 1491/89. 15. The sheet anchor of the argument of Mr. Z.A. Shah, learned senior Advocate appearing on behalf of respondent No.1 is that the basis of judgment dated 28.10.93 was order No. 274-FST of 1989 dated 15.09.1989 vide which the officers were absorbed in the service. The order No. 274-FST of 1989 dated 15.09.1989 having been superceded vide government order No. 339-FST of 2000 dated 18th August 2000 consequently knocked out the basis of the judgment dated 28.10.93, so in the wisdom of ld. The order No. 274-FST of 1989 dated 15.09.1989 having been superceded vide government order No. 339-FST of 2000 dated 18th August 2000 consequently knocked out the basis of the judgment dated 28.10.93, so in the wisdom of ld. counsel no advantage and benefit can flow from said judgment to the appellant. The ld counsel further submitted that the post of Assistant Engineer (Agri) being available in the service prior to absorption of appellant in the service, the appellant could not be considered for being promoted and appointed to the said post. The ld counsel, accordingly, submitted that the LPA being misconceived merits rejection. 16. The People of this country have given to themselves the Constitution, which Constitution in its legal and philosophical scheme has clearly and specifically delineated the frontiers of three important organs of the State viz, executive, legislature and judiciary. Every organ of the State is charged with definite duty by and under the Constitution, and every organ is duty bound to obediently and faithfully follow the mandate of the Constitution to secure the purpose and goals underlying Constitution. 17. The judiciary in the three organs of the State with the advancement of time has assumed perceptible importance in the affairs of State. This organ of the State is charged with sacred duty to preserve and protect the basic structure and basic features of the Constitution. The institution of judiciary is performing delicate duty of doing the balancing act between different organs of the State. Our constitution on the one side is loaded with fundamental rights available to an individual and on the other side is founded on the bed-rock of achieving the goals of maintaining and preserving the rule of law. The arbitrary, malafide and unjust exercise of power by Executive organ of the State is frowned upon by constitutional courts and such actions are struck down in exercise of its Constitutional powers. Our Constitution has made our country sovereign, democratic and republic State and any assault by any authority to undermine the basic features of the Constitution are to be repelled with full vigor and complete force. 18. The three organs of the State, being principal pillars of our democratic set up have to respect each other by working within defined boundaries. Our Constitution has made our country sovereign, democratic and republic State and any assault by any authority to undermine the basic features of the Constitution are to be repelled with full vigor and complete force. 18. The three organs of the State, being principal pillars of our democratic set up have to respect each other by working within defined boundaries. Any effort to transcend the Constitutional barriers will have the affect of destroying the basic structure of the Constitution and the mutual collision may result in subverting the very Constitution itself. The three organs of the state are thus, duty bound to exhibit extreme caution, care and restraint in the exercise of their power and authority. The three organs of the State in our constitutional scheme cannot afford to tread the path of collision as consequences thereof can be catastrophic. The executive is duty bound to follow the directions, orders and judgments of the court of law. Any streak of Executive authoritys defiance may usher the state into an anarchical situation. 19. Considering the case in hand on the basis of the above stated position emerging from our constitutional scheme it becomes writ large on the face of the record that the executive has transgressed its limits by bringing to naught judgment passed in SWP No. 1491/89 which had attained finality for the reason the LPA as also SLP filed against the said judgment were dismissed. In the said judgment, the ld. Single Judge, recorded a finding of fact that the appellant possessed the requisite eligibility for being considered and promoted to the post of Assistant Engineer (Agri). The order No. 274-FST of 1989 dated 15.09.1989 was considered and relied upon in arriving at a particular judicial decision. In our constitutional scheme, the executive wing of the State has neither power nor authority to undo the consequences flowing from said judgment by issuance of executive orders. The judgment of the Constitutional Court which has attained finality cannot be allowed to be defeated by the government in exercise of its executive power. The executive power of the State cannot be conceived to possess the potential to defeat the judgment rendered by the Constitutional Court. Any such effort, if permitted, would be pregnant with the consequences which would shake the very foundations of the Constitution. The executive power of the State cannot be conceived to possess the potential to defeat the judgment rendered by the Constitutional Court. Any such effort, if permitted, would be pregnant with the consequences which would shake the very foundations of the Constitution. The Constitutional courts have the power to review administrative action of the Executive Government and this power of judicial review is part of the basic structure of the Constitution. The executive Government does not have power to defeat the judgment of the Constitutional Courts by issuance of executive orders. Such effort, if permitted, would have the dangerous potential of rendering one important organ of the State viz judiciary a futile institution and the State cannot claim to be democratic State. This cannot be said to be intendment of the constitution makers. The executive government is duty bound to follow the judgment as the judgment of a court of law binds all the parties thereto. 20. Learned counsel for the respondent No.1 argued that the basis of judgment passed in SWP: No. 1491/89 was removed as the order No. 274-FST of 1989 dated 15.09.89 which had become basis for passing of the judgment was superceded by issuance of Goernment order No. 339-Fst of 2000 dated 18thg August 2000. The government had neither power nor authority to knock the basis out of the judgment dated 28.10.93 by issuance of Government order. The competent authority in the Government was and is duty bound to faithfully and obediently implement the judgment of the court rendered in SWP No. 1491/89. The Government order No. 430-FST of 2002 dated 17th Oct. 2002 has admittedly been, as found on examination of record of PSC, issued without considering the candidature of the appellant for the said post. The said government order was thus, nullity in the eye of law. 21. The Honble Supreme Court in case titled M.C Mehta petitioner v. U.O.I respondents at paragraph 47 (2) reported in 2002 SCC IV 356 has ruled that in our constitutional set up the orders and directions of the court cannot be nullified, modified or in any way altered by any administrative decision of the Centre or State government, relevant part therein is reproduced as under:- "(2). IA of the Union of India for extension of time to run diesel buses is dismissed with costs of Rs. 20,000 (twenty thousand only). IA of the Union of India for extension of time to run diesel buses is dismissed with costs of Rs. 20,000 (twenty thousand only). It is made clear, and it is obvious in our constitutional set-up, that orders and directions of this Court cannot be nullified or modified or in any way altered by any administrative decision of the central or the State Governments. The administrative decision to continue to ply diesel buses is, therefore, clearly in violation of this Courts orders." 22. For the above stated reasons, we hold that the Government in exercise of its executive power could not supercede the government order No. 274-FST of 1989 dated 15.09.1989 and the order passed to the said effect is nullity in the eye of law. 23. We have further considered the matter, from a different angle, as to whether respondent No.1 who was promoted and appointed to the post of Assistant Engineer (Agri), in the facts and circumstances of this case would get clothed with any right in law on the basis of the said promotion order. The writ court in SWP No. 1491/89 vide its judgment dated 28th Oct. 1993 had recorded a finding of fact that the appellant was eligible for being considered for being promoted and appointed to the post of Assistant Engineer (Agri). The authorities who are respondents in the said writ petition, were duty bound to follow the mandate of the said judgment as the said judgment had attained finality. The Government order No. 430-FST of 2002 dated 17th Oct. 2002 vide which sanction was accorded to the clearance of respondent No.1 for promotion to the post of Assistant Engineer (agri) w.e.f 28th June 1984 was passed without considering the candidature of appellant for such promotion. The respondents having passed the said order in inveterate defiance to the judgment of this court rendered in SWP No.1491/89 is no order in the eye of law, as it cannot be countenanced, in our constitutional scheme that executive authority can with impunity keep at backburner the judgment of the court and flout the mandate contained therein. An Executive order conceived in such circumstances even if succeeds in delivering thereof will be an order void abintio in the eye of law. Such order, cannot said to clothe respondent No.1 with any right in law. An Executive order conceived in such circumstances even if succeeds in delivering thereof will be an order void abintio in the eye of law. Such order, cannot said to clothe respondent No.1 with any right in law. The respondent No.1 in such circumstances cannot be said to have become member of Class III of the service, so none of the protections under Article 311of the Constitution of India read with Section 126 of the Constitution of Jammu and Kashmir will be available to him. Rescinding of such order, would be only an act on the part of the executive government to follow the rule of law. In such circumstances the respondent No.1 would not be said to have been denuded of any benefit so would not attract the constitutional protections as contained in Article 311 of the Constitution of India and Section 126 of the Constitution of J&K. Respondent No.1 in such circumstances would not even be entitled for issuance of notice before cancelation of the promotion order. The judgment impugned in this LPA on this ground also cannot survive. 24. The Honble Supreme Court in case titled Authorized officer (Land Reforms) appellant v. M.M.Krishamurthy Chetty respondent reported in 1998(9) SCC 138 has held that even orders which may not be strictly legal are binding between the parties, if they are not challenged before the court. Para 2 of the said judgment is reproduced as under:- "According to the appellant once the judgment on the basis of which the High Court had directed to dispose of the dispute relating to the excess land had been reversed by this Court, the authorized Officer was justified in following the judgment of this Court instead of the judgment of the High Court. It need not be pointed out that the order passed by the High Court attained finality as it was not challenged before the Supreme Court. The order passed by the High Court directing the Authorised Officer to examine the dispute in the light of the judgment of the High Court in the case of Naganatha Ayyar v. Authorised Officer became final although the judgment on which the grievance had to be examined itself was reversed later by this Court. We find no fault with the reasoning of the High Court. We find no fault with the reasoning of the High Court. It is well settled that even orders which may not be strictly legal become final and are binding between the parties if they are not challenged before the superior courts. In the result the appeal fails and it is dismissed. No costs." 25. The respondent No.1 has been ordered to be cleared for promotion with effect from 28.06.84 when the Rules of the Service were notified. The schedule II makes an Assistant Research Officer eligible for being promoted to the post of Assistant Engineer (Agri) when he is possessed of seven years experience. No explanation is forthcoming as to how a person can be promoted and appointed to a higher post in service from a date on which he is appointed in the service against a lower post. We make these observations to indicate as to how in casual manner the executive has dealt with this case. 26. On the over all consideration of the matter, and for our above referred discussions we hold that the judgment under appeal is illegal, accordingly, we set aside the same. Consequently writ petition filed by respondent No.1 is dismissed. The official respondents will pass appropriate orders in accordance with mandate of the judgment preferably within a period of two months from the date copy of this order is served on them. Record be returned.