Barin Ghosh, C.J. (Oral) On 25th April, 1964, in exercise of powers conferred by proviso to Article 309 of the Constitution of India and in supersession of all existing orders on the subject, the Governor of Uttar Pradesh was pleased to make the Rules called the Subordinate (Gazetted) Medical Service (Ayurveda and Unani) Rules 1964. Rule 5 thereof provided two sources of recruitment in the service, namely direct recruitment and promotion. Rule 14 of the said Rules provided the procedure for direct recruitment and mandated that selection should be done by the Commission, meaning thereby, the Public Service Commission, Uttar Pradesh. Similarly, Rule 16 thereof made it also clear that in the matter of promotion the Public Service Commission, State of Uttar Pradesh, shall be the final recommending authority. Rule 17 of the said Rules directed preparation of waiting list on the basis of the recommendation of the Commission, and sub Rule (1) of Rule 18 authorized the Governor to make appointment from both the lists, one having been appointed from one list, the other from the second list, namely one by direct recruitment and the other by promotion. Sub Rule (2) of Rule 18 of the said Rules is as follows: “(2) The Governor may, without consultation with the Commission, make appointments in temporary or officiating vacancies for a period not exceeding one year from amongst person who are eligible for permanent appointment to the Service under these rules.” On 1st of February 1986, a few people were appointed on ad hoc basis, when Dr. Hari Mohan Arya and Dr. Jamuna Dutt Dwivedi were also appointed on ad hoc basis for a period of one year or until selection by the Commission, whichever is earlier. It appears that on or before 1st February 1987, no selection by the Commission was made. The appointments thus given on 1st February, 1986, came to an end on 31st January 1987, but still then without there being any appointment or extension, the persons thus appointed, including Dr. Hari Mohan Arya and Dr. Jamuna Dutt Dwivedi, purported to continue to discharge their duties and despite their being no direction, they were paid their remunerations, even after 31st January, 1987. Hari Mohan Arya and Dr. Jamuna Dutt Dwivedi, purported to continue to discharge their duties and despite their being no direction, they were paid their remunerations, even after 31st January, 1987. On 7th of August 1989, Rule 10 was inserted in the U.P. Regularisation of Ad Hoc Appointments (On Posts within the purview of the Public Service Commission) Rules 1979, and in terms thereof the provisions of the said Rules were directed to apply mutatis mutandis also to any person directly appointed on ad hoc basis on or before 1st October 1986, and continuing in service as such on the date of insertion of the said Rule i.e. on 7th August 1989. It has been claimed and contended that the persons who were appointed on 1st January, 1986, were regularised in terms of the provisions contained in the said 1979 Rules, except Dr. Hari Mohan Arya and Dr. Jamuna Dutt Dwivedi. We, however, have not been informed as to how in terms of the provisions contained in the 1979 Rules, those persons who were appointed by the order dated 1st February 1986, could at all be regularised, in asmuchas, in terms of their appointment they could not continue to serve as on 7th August 1989. In asmuchas, regularisation of those others are not subject matter of any of these writ petitions, we need not go into the same. However, it appears to us that in asmuchas, by reason of the appointment order of Dr. Hari Mohan Arya and Dr. Jamuna Dutt Dwivedi they could not in Law be in service as on 7th August 1989, the case of Dr. Hari Mohan Arya and Dr. Jamuna Dutt Dwivedi was not considered under the said Rules of 1979. When the 1964 Rules were invouge, the Government decided to appoint part time/daily wage doctors. The appointment letters issued in favour of such part time/daily wage doctors clearly indicated that they are being appointed as part time/daily wage doctors, who shall be entitle to a monthly remuneration of ` 1,500/- calculated at the rate of ` 50/- per day, to work six days in a week for full time as per popular hospital timings. It has been submitted by learned Senior Counsel, Mr. It has been submitted by learned Senior Counsel, Mr. Dobhal, that after those doctors were engaged as part time/daily wage doctors, they used to be re-engaged after a gap of about two or three days after serving for a period of almost one year. Later on, in 1989, steps were taken to appoint similar such part time/daily wage doctors in place of those who were then serving, and for that purpose an advertisement was published. It was submitted that the said advertisement was successfully challenged before the Hon’ble Allahabad High Court, when the Hon’ble Allahabad High Court also issued a direction for regularisation of such part time/daily wage doctors, within a period of six months. The said direction was affirmed by the Hon’ble Supreme Court sometime in the year 1999. But no step was taken in that regard. It appears that before the said order was passed by the Hon’ble Allahabad High Court, on 1st October 1991 a decision was taken to give ad hoc status to the part time/daily wage doctors, and at the same time, it was decided to take up on hand appropriate action required to be undertaken for regularising them. In the meantime, however, the 1964 Rules were repealed by the Uttar Pradesh State Medical (Ayurvedic and Unani) Service Rules, 1990. In terms of the 1990 Rules, the source of recruitment of Ayurvedic and Unani doctors was by direct recruitment, through Commission. Rule 25 of the said Rules provided that the Government may relax any of the rules contained in the said Rules to ward off undue hardship. It does not appear that in exercise of such power, the Government at any point of time, dispensed with the requirement of selection through the Commission. The ad hoc status thus granted to those by the order of 1st October 1991, was therefore, dehors the rules. Be that as it may, those ad hoc doctors, having acquired ad hoc status on 1st October 1991, continued to serve thereafter. There is yet another type of appointments which, according to learned counsel Mr. D.S. Patni, were made on 18th June 1988, on the term that such appointment will be for one year or until selection by Commission, whichever is earlier. The Commission could not supply the vacancies before expiry of one year. There is yet another type of appointments which, according to learned counsel Mr. D.S. Patni, were made on 18th June 1988, on the term that such appointment will be for one year or until selection by Commission, whichever is earlier. The Commission could not supply the vacancies before expiry of one year. People who were appointed on 18th June 1988, continued even after expiry of one year on the same premise as above. These ad hoc doctors continued to remain ad hoc until the date of creation of the State of Uttarakhand. After creation of the State of Uttarakhand, they continued to remain ad hoc doctors. On 7th August 2002, the Uttaranchal Regularisation of Ad Hoc Appointments (on Posts within the Purview of the Public Service Commission) Rules 2002, came into force. In terms thereof, any person who was appointed on ad hoc basis on or before 13th June 1998, and was continuing in service as such on the date of commencement of said Rules became entitled to be considered for regularisation. Accordingly, all such doctors, who were either appointed on ad hoc basis, or were given the ad hoc status in 1991, or who were appointed on ad hoc basis prior thereto for a period of one year only, but continued to remain as such in view of the default on the part of the State, came to be considered for regularisation. The 2002 Rules, under which the case of regularisation of those doctors had to be considered, provided that seniority of persons regularised would be counted only from the date of their appointment on being regularised. This created trouble for those doctors, in asmuchas, in the meantime, many a person had been selected by the Commission and appointed substantively as doctors, but after ad hoc appointments were given to those ad hoc doctors. Those ad hoc doctors, then engineered filing of a writ petition in this court, registered as Writ Petition No. 337 of 2004 (S/B) purportedly through their Association. In the writ petition it was contended that those ad hoc doctors are similarly situate to that of Dr. Chandra Prakash and others, as was dealt with by the Hon’ble Supreme Court in the case of Dr. Chandra Prakash and others Vs. In the writ petition it was contended that those ad hoc doctors are similarly situate to that of Dr. Chandra Prakash and others, as was dealt with by the Hon’ble Supreme Court in the case of Dr. Chandra Prakash and others Vs. State of U.P. and another, reported in (2002) 10 Supreme Court Cases 710, and accordingly, seniority list of Ayurvedic and Unani doctors should also be prepared, in the manner the Hon’ble Supreme Court directed preparation of seniority list of those doctors dealt with in said judgment, in asmuchas Rule 21 of the 1964 Rules, provided that seniority in the service will be determined by the date of the order of appointment in a substantive vacancy. It was not highlighted in the writ petition that in view of Sub Rule (2) of Rule 18 of the 1964 Rules, the Governor had no authority to make an appointment beyond one year. Believing that the writ petition has been filed by the Association representing all Ayervedic and Unani doctors, the court passed an order directing preparation of the seniority list on the basis of the ratio of the judgment rendered by the Hon’ble Supreme Court in the case of Dr. Chandra Prakash and others. Accordingly, a seniority list was prepared, where it was shown that those ad hoc doctors are entitled to seniority from the date they were appointed as ad hoc doctors. This seniority list was challenged by filing the subsequent two writ petitions in the year 2009, where it was contended that the respondents in those writ petitions filed in the year 2009, having been regularised under the 2002 Rules, in terms of the provisions contained therein could only gain their seniority from the date of their regularisation, and not from a date earlier thereto. In response to the said writ petitions it was contended that the seniority list under challenge has been prepared on the basis of a judgment rendered in the writ petition filed by the Association. In response to the said writ petitions it was contended that the seniority list under challenge has been prepared on the basis of a judgment rendered in the writ petition filed by the Association. In the circumstances, petitioners who filed the subsequent writ petitions in 2009, approached the court seeking review of the order passed on the writ petition filed in 2004 and contended that the order of the court passed on the said writ petition was without notice to them, and accordingly, the order passed thereon could not affect them, but the purport of the order directly affects them and in any event, the said order could not be passed without hearing them. This court allowed the review application, and recalled the order that was passed on the writ petition filed in 2004. In the circumstances, all these three writ petitions have been listed for hearing, where the question is whether, the 1964 Rules are akin to the Rules looked at and dealt with by the Hon’ble Supreme Court in the case of Dr. Chandra Prakash and others. In that case, as noticed by the Hon’ble Supreme Court, Rule 17(2) of the 1945 Rules, which governed the subject matter of the case before the Hon’ble Supreme Court, provided that the Governor may make appointments in temporary or officiating vacancies from amongst person who are eligible for permanent appointments to the service under the said Rules. Therefore, the power of the Governor to make appointment under the said Rules, was unrestricted. In the instant case, the power of the Governor to appoint was not unrestricted, it was limited only for one year. The Governor had no power to make an appointment in a temporary or officiating vacancy for a period exceeding one year. As mentioned above, wherever the Governor made appointment, such appointment was only for a period not exceeding one year. It was specifically mentioned in the appointment orders that the appointments will not exceed one year. It was mentioned that the appointments may be for a lesser period, in the event the Commission is able to make selection. Despite such appointments being not more than one year, taking advantage of the default of the administration in the affairs of the State, those doctors continued to serve. Their continuation was dehors the 1964 Rules. Such continuation was not covered by the 1964 Rules. Despite such appointments being not more than one year, taking advantage of the default of the administration in the affairs of the State, those doctors continued to serve. Their continuation was dehors the 1964 Rules. Such continuation was not covered by the 1964 Rules. In 1990, the Rules were altered whereafter, as aforesaid part time/daily wage doctors got the status of ad hoc appointees. As aforesaid, the said Rules did not authorise regularisation and at the same time did not authorise appointment otherwise than through the Commission, and although the Governor had power to relax the rules, he never relaxed the rules permitting appointment otherwise than through the Commission. Ad hoc appointments given to those part time/daily wage doctors were, therefore, dehors the rules. In any event, Rule 9 of the said Rules provided that seniority of the persons shall be determined from the date of their substantive appointments. Therefore, until such time, persons are substantively appointed, in terms of the mandate contained in the said Rules, no one could claim seniority. The fact remains, that those ad hoc doctors were substantively appointed only on being regularised under the 2002 Rules. In the circumstances, looking from whatever point of view, it is impossible to contend that the ratio of the judgment of the Hon’ble Supreme Court rendered in the case of Dr. Chandra Prakash and others is at all applicable to the case of ad hoc doctors dealt with above and represented by the Association. In consequence thereof, the one and the only conclusion would be that the writ petition by the Association was malafide and was aimed at to reach to some of the members of the Association unjust benefits to the deprivation of the other members of the Association, and for that matter the Association has resorted to suppresio veri and suggestio falsi. Learned counsel Mr. D.S. Patni, appearing on behalf of the Association, cited a number of judgments of the Hon’ble Supreme Court, in order to impress us that a person is entitled to count his seniority from the date he starts discharging his duties in the post in respect whereof he is seeking his seniority to be counted. We do not feel that any of these judgments of the Hon’ble Supreme Court deals with a matter even remotely connected with those ad hoc doctors, whose cause learned counsel Mr. D.S. Patni is seeking to espouse. We do not feel that any of these judgments of the Hon’ble Supreme Court deals with a matter even remotely connected with those ad hoc doctors, whose cause learned counsel Mr. D.S. Patni is seeking to espouse. Further, in none of those judgments, there is even a hint that a person, discharging duties attached to a post where he has been permitted to discharge duties in default of administration and contrary to law governing the subject, will be entitled to count seniority from the date he starts discharging such duties. Learned counsel Mr. M.C. Pant, appearing on behalf of some of the respondents in the writ petitions filed in 2009, submitted that the petitioners of those writ petitions should have approached the Tribunal. It has not been stated in the counter affidavit, filed by the client of Mr. M.C. Pant, that, at the time when these writ petitions were filed, the Tribunal was functioning. It is common knowledge that, during a substantial part of 2009, the Tribunal was not functioning in view of absence of Judicial Member. In asmuchas, the writ petition filed by the Association fails, and the same is dismissed, the seniority list, being the product of the earlier order passed on the said writ petition, which stands recalled, and which seniority list was challenged in the subsequent writ petitions, looses its ground to support. Admittedly, in the said seniority list, seniority of the people have been shown from the date they did not get substantive appointment in the service, which is contrary to Rules. In the circumstances, those two writ petitions are allowed by quashing the seniority list under challenge with a direction to prepare seniority list strictly in accordance with Law, and while doing so to count seniority from the date of substantive appointment in the service. However, the case of Dr. Hari Mohan Arya and Dr. Jamuna Dutt Dwivedi, whose regularizations are not under challenge, may be considered on the basis that if they could be regularised under the 2002 Rules, they could also be regularised under the 1979 Rules and for not doing so they cannot be penalised. _____________