JUDGMENT Barin Ghosh, C.J. (Oral) Sri Rakesh Kumar Uniyal approached the Public Services Tribunal in 2004 with two principal prayers, namely, to change his seniority position in the seniority list and to accord him salaries of Assistant Engineer less salaries of Junior Engineer for the period between 5th December, 1985 to 8th February, 2000. The Tribunal has rejected the claim for change of seniority of Sri Uniyal but has accepted his claim for payment of salary to the extent and for the period as mentioned above. Being aggrieved thereby, while Uttarakhand Jal Sansthan has filed a writ petition challenging that part of the order of the Tribunal, whereby the Tribunal has directed Uttarakhand Jal Sansthan to pay the aforementioned salaries to the extent and for the period, as mentioned above, to Sri Uniyal, similarly Sri Uniyal has filed a writ petition challenging that part of the judgment of the Tribunal, whereby his claim for change of his seniority has been rejected. In the circumstances, both the writ petitions were heard together. 2. Undisputed facts of the case are that Uttar Pradesh Water Supply and Sewerage Act, 1975 authorised establishment of Jal Sansthans. The State of Uttar Pradesh established, amongst others, Jal Sansthan known as Garhwal Jal Sansthan. In Garhwal Jal Sansthan, Sri Uniyal joined as a Junior Engineer on 4th May, 1977. On 12th December, 1983, Section 27-A was inserted in the said Act and, thereby, the State Government became entitled to provide for creation of one or more services of such officers and servants as the State Government may deem fit common to Jal Sansthans or to Jal San, Nagar Mahapalikas and Nagarpalikas in the State, but of course by Rules. The said section also authorized the State Government to prescribe the method of recruitment and conditions of service of persons appointed to any such service. Section 27-A of the Act was, therefore, only an enabling provision and, in terms thereof, by making Rules, the State Government could do what it had been authorized to do by and under the said Section. The fact remains that until 3rd December, 1985, the State Government did not make any Rules and, accordingly, did not exercise its enabling power under Section 27-A of the Act. 3. The fact remains that until 3rd December, 1985, the State Government did not make any Rules and, accordingly, did not exercise its enabling power under Section 27-A of the Act. 3. On 3rd December, 1985, General Manager of the Garhwal Jal Sansthan asked Sri Uniyal to discharge the duties of Assistant Engineer as and by way of stop gap arrangement. There is no dispute that Fundamental Rules applicable to State Government employees were also applicable to the employees of Garhwal Jal Sansthan. Inasmuch as, Sri Uniyal was asked to discharge the duties of a higher post, i.e. that of the post of Assistant Engineer, while he was still a Junior Engineer, in terms of U.P. Fundamental Rules (Financial Hand Book Volume II), he became entitled to salary / remuneration payable for the post of Assistant Engineer. In the letter, by which Sri Uniyal was asked to discharge the duties of Assistant Engineer, it was mentioned that salaries of Assistant Engineer will be paid to him on the approval of the State Government. Garhwal Jal Sansthan approached the State Government for obtaining such approval. The Government did not disclose its mind to Garhwal Jal Sansthan in regard to its request for granting approval. Therefore, there was neither any approval, nor disapproval on the part of the Government in the matter of request made to it by Garhwal Jal Sansthan for permitting it to pay salaries of Assistant Engineer to Sri Uniyal. Sri Uniyal continued to discharge his duties attached to the post of Assistant Engineer. The said state of affairs clearly indicates that the Government despite knowing that Sri Uniyal, a substantially appointed Junior Engineer, has been asked by the General Manager of Garhwal Jal Sansthan to discharge the duties of Assistant Engineer, did not interfere in discharge of such duties by Sri Uniyal. At the same time, the State Government did not give approval to pay Assistant Engineer’s salary to Sri Uniyal. 4. In 1986, the Government of Uttar Pradesh made Rules in exercise of its power under Section 27-A of the Act. While making the said Rules, no attempt was made to address the situation, as was prevalent in the instant case. The said Rules did not specifically deal with seniority questions. 4. In 1986, the Government of Uttar Pradesh made Rules in exercise of its power under Section 27-A of the Act. While making the said Rules, no attempt was made to address the situation, as was prevalent in the instant case. The said Rules did not specifically deal with seniority questions. In the circumstances in 1990, the Government of Uttar Pradesh issued a Circular and, thereby, indicated that seniority will be counted from the date the person starts getting salary in the post, for which seniority is to be determined. 5. With effect from 9th November, 2000, the State of Uttar Pradesh was bifurcated for creation of the State of Uttarakhand. Garhwal Jal Sansthan, a body corporate constituted by and under the Act having perpetual succession, was situate and its operational area February, 2000. In that background, Sri Uniyal approached the Tribunal for correction of his seniority. Having had not received the salaries payable to Assistant Engineer for the period between 5December, 1985 to 8was within the territory of the State of Uttarakhand and accordingly, upon creation of the State of Uttarakhand, the administrative control over the said Jal Sansthan vested in the State of Uttarakhand. Prior thereto on 8th February, 2000, Garhwal Jal Sansthan promoted substantially Sri Uniyal to the post of Assistant Engineer. Subsequent thereto in 2002, by merger of Garhwal Jal Sansthan and Kumaon Jal Sansthan, Uttaranchal Jal Sansthan was created. Uttaranchal Jal Sansthan came up with a seniority list of Assistant Engineers. In that, it was shown that Sri Uniyal is entitled to count his seniority as Assistant Engineer only with effect from 8th February, 2000, a claim for that was also put forward in the claim petition filed before the Tribunal. 6. The Tribunal has held that since Sri Uniyal worked as Assistant Engineer for the period between 5th December, 1985 to 8th February, 2000, he should be paid the salaries payable to Assistant Engineer less salaries of Junior Engineer as paid to him. On that, the Tribunal has also awarded interest at the rate of 9 per cent per annum. At the same time, the Tribunal has held that Sri Uniyal is not entitled to count his seniority from 5th December, 1985 as Assistant Engineer, inasmuch as, he did not receive the salary payable to Assistant Engineer since 5th December, 1985 in view of the said Circular of 1990. At the same time, the Tribunal has held that Sri Uniyal is not entitled to count his seniority from 5th December, 1985 as Assistant Engineer, inasmuch as, he did not receive the salary payable to Assistant Engineer since 5th December, 1985 in view of the said Circular of 1990. The said finding appears to be contradictory. Even the Tribunal has held that Sri Uniyal was entitled to salary from 5th December, 1985 and if such non-payment has been compensated by awarding interest, then the conclusion would be that Sri Uniyal was entitled to salary of Assistant Engineer from 5th December, 1985 which was wrongfully denied to him and, as such, in terms of the Circular of Government of 1990, Sri Uniyal should be deemed to be entitled to seniority from 5th December, 1985. 7. However, the matter of seniority could not be, nor can be decided on the basis of the Government Circular of 1990, nor it can be contended that Sri Uniyal was in law entitled to the salary of Assistant Engineer from 5th December, 1985 for the reasons discussed hereinafter. 8. Sri Uniyal, a Junior Engineer, was asked to discharge the duties of a superior post of Assistant Engineer. In terms of Rule 49 of U.P. Fundamental Rules (Financial Hand Book Volume-II), Sri Uniyal became entitled to salary of Assistant Engineer no sooner he was asked to discharge and he discharged the duties of Assistant Engineer. The question is, whether the General Manager was entitled to ask Sri Uniyal to discharge the duties of Assistant Engineer? It is not the contention of the Jal Sansthan that on behalf of the Jal Sansthan, the General Manager was not authorized to do what he had done. The contention of the Jal Sansthan is that what was done by the General Manager could be done by the State Government in view of insertion of Section 27-A in the Act. The said contention is rejected, for as indicated above, Section 27-A of the Act was only an enabling provision and the rights conferred thereby could only be exercised by making Rules and the Rules were made in 1986 and not on or before 3rd December, 1985, when the Jal Sansthan had full competence to do what its General Manager did in relation to Sri Uniyal. After having had done so, it was indicated that despite Sri Uniyal being entitled to salaries of Assistant Engineer, he will not be paid the same until an approval for payment of the same is received from the Government. The Government was approached to obtain approval. The Government did not refuse to give approval and at the same time, did not expressly give the approval. Despite knowledge of the fact that Sri Uniyal, a Junior Engineer, has been asked to discharge superior duties of Assistant Engineer and he is discharging such duties, the Government did not ask the Jal Sansthan not to permit Sri Uniyal to discharge such duties. Consciously and knowing fully well the stipulation contained in the December, 1985 did not come until 2004. Despite that, Sri Uniyal did not make his grievances felt before the Government in any form whatsoever. In the claim petition, the Government of Uttar Prdesh was not even made a party. It was the State of Uttar Pradesh, who alone could grant the approval for the State of Uttarakhand came to have effective control over Garhwal Jal Sansthan only after 9November, 2000, but much prior thereto on 8order dated 3th December, 1985 that unless approval is granted by the Government, Sri Uniyal will not be entitled to salaries payable to Assistant Engineer, Sri Uniyal accepted the said stipulation while joining and discharging the duties of Assistant Engineer. Sri Uniyal, having had done what he has done in the instant case with his eyes wide open, could not ask Jal Sansthan to pay salaries of Assistant Engineer to him until such time the Government had accorded approval thereto. No attempt was made by Sri Uniyal to obtain such an approval from the Government. The approval, which ought to have had come within a reasonable period from 5th February, 2000 Sri Uniyal had already become a permanent Assistant Engineer. 9. At the same time, the decision of the Government of Uttar Pradesh contained in the Circular of 1990 can only be treated as prospective. It could not be treated in respect of people who have already been asked to discharge duties of a superior post. 9. At the same time, the decision of the Government of Uttar Pradesh contained in the Circular of 1990 can only be treated as prospective. It could not be treated in respect of people who have already been asked to discharge duties of a superior post. It has been declared by the Hon’ble Supreme Court that in case, a person has been asked to discharge duties of a superior post and later he is confirmed or promoted regularly in that superior post and permitted to work in that post uninterruptedly from the date of his initial appointment until the date he has been appointed permanently in the said post, the person concerned shall be entitled to count his seniority from the date he was first asked to discharge the duties of the superior post. The conclusion, therefore, would be, having regard to the facts and circumstances of the case, that the order of the Tribunal cannot be sustained. The same must go, but at the same time, Sri Uniyal will be entitled to count his seniority in the post of Assistant Engineer with effect from 5th December, 1985, inasmuch as, undisputedly he had been permitted to discharge the duties attached to the said post uninterruptedly until he was permanently promoted to the said post on 8th February, 2000. 10. With the observations as above, the writ petitions are disposed of.