JUDGMENT Hon’ble Sudhir Agarwal, J.—Heard Sri Amit Saxena, learned counsel for petitioners. None appeared on behalf of respondents, though matter has been called in revised. Hence, we proceed in the matter to decide the same ex parte after hearing learned counsel for petitioners. 2. Dispute relates to promotion to the post of Assistant Registrar (Co-operatives). 3. Recruitment, appointment and condition of service to the post of Assistant Registrar (Co-operatives) is governed by U.P. Co-operatives Service Rules, 1979 (hereinafter referred to as ‘Rules, 1979’). As per Rule 4, post of Assistant Registrar is a Group-B post. Rule 5 provides for sources of recruitment and Clause 5 deals with Assistant Registrar and reads as under : “5. Sources of recruitment.—Recruitment to the various categories of posts in the service shall be made from the following sources : (5) Assistant Registrar.—(I) By promotion, on the basis of merit, from amongst the members of the Subordinate Co-operative Service, Group I, who have put in minimum of 5 years’ service as such on the first day of the year of recruitment. (ii) By direct recruitment through the Commission : Provided that the recruitment to the posts of Assistant Registrar shall be so arranged that, as far as possible, 50 per cent of the posts are held by promotee and 50 per cent by direct recruits.” (emphasis added) 4. Rule 19 deals with manner of promotion to post of Assistant Registrar and reads as under : “19. Recruitment by promotion to the post of Assistant Registrar.—Recruitment by promotion to the post of the Assistant Registrar shall be made on the basis of merit in accordance with the Uttar Pradesh Promotion by Selection in Consultation with Public Service Commission (Procedure) Rules, 1970 as amended from time to time.” (emphasis added) 5. Rule 30 provides for regulation of other matters, not provided specifically under Rules, 1979. It reads as under : “30. Regulation of other matters.—In regard to the matters not specifically covered by these rules or by special orders, persons appointed to the service shall be governed by the rules, regulations and orders applicable generally to Government servants serving in connection with the affairs of the State.” 6. Petitioners and respondents 5 to 37 were appointed as Co-operative Inspectors, Group-I. As per averments made in para 1 and 3 of writ petition, petitioners and respondents 5 to 7 were appointed by direct recruitment in 1980. 7. Petitioners and respondents 5 to 37 were appointed as Co-operative Inspectors, Group-I. As per averments made in para 1 and 3 of writ petition, petitioners and respondents 5 to 7 were appointed by direct recruitment in 1980. 7. Recruitment, Appointment and Condition of Service of Co-operative Inspectors, Group-I is governed by Subordinate Co-operative Service Rules, 1979 (hereinafter referred to as ‘Subordinate Rules, 1979’). Inspector, Group-I is defined in Rule 3 (i) and reads as under : “Inspector, Group I” means Co-operative Inspectors, Group 1 and includes officers holding the posts of District Co-operative Officer, Additional District Co-operative Officer, Senior Additional District Co-operative Officer, Senior Farming Inspector, Executive Officer (Processing, Senior returns Inspector and such other subordinate executive posts as may be declared by the State Government as such from time to time;” 8. As per Rule 5 of Subordinate Rules, 1979 sources of recruitment to post of Inspectors, Group-I is 50% by direct recruitment through U.P. Public Service Commission (hereinafter referred to as ‘Commission’) and 50% by promotion through Commission from amongst Inspectors, Group-II, who have put in at least five years’ service. There was some dispute with regard to seniority of Inspectors, Group-I engaging some litigation between persons working in said cadre. For recruitment year 1988-89, it is said that 35 vacancies of Assistant Registrar (Co-operatives) were available, which were to be filled in by promotion from Co-operative Inspectors, Group-I. The criteria for promotion, as already said, is merit. The procedure for selection has to be followed as per provisions contained in U.P. Promotion by Selection in Consultation with Public Service Commission (Procedure) Rules, 1970 (hereinafter referred to as ‘Rules, 1970’). 9. Rule 8 provides for preparation of an eligibility list and if there are more than 12 vacancies, the eligibility list is required to contain three times the number of vacancies subject to a minimum of 50. 10. Rules 11 and 12 talk of Selection Committee and selection and reads as under: “11. Selection Committee.—A Selection Committee consisting of the following shall be constituted by the appointing authority : (i) the Chairman or member representing the Commission who will be the Chairman of the Committee; (ii) the appointing authority; and (iii) a senior officer of that or any other department nominated by the Government, provided that where the appointing authority is the Governor the head of that department shall ordinarily be nominated under this clause. 12. 12. Fixing of dates for selection.—(1) The appointing authority shall in consultation with the Commission fix a date for selection: Provided that the process of selection may spread over the dates more than one. (2) In case the Commission or the appointing authority considers it necessary that all or any of the candidates included in the eligibility list or lists should be interviewed by the Selection Committee, the appointing authority shall call such candidates or candidate as the case may be, for the purpose on the aforesaid date or dates. (3) The Selection Committee shall in case case consider the character rolls of the candidates and may consider any other factor relevant in its opinion.” 11. The select list prepared by Selection Committee needs be approved by Commission vide Rule 14 of Rules, 1970 and, therefore, vide Rule 15 Appointing Authority shall rearrange the names of selected candidates in order of seniority and thereafter proceed for making appointment. 12. The Selection Committee considered candidates placed in eligibility list and made its recommendations. Thereafter respondents 5 to 37 were promoted on ad hoc basis vide order dated 13.2.1989. Petitioners were not selected. It is this order of promotion of respondents-5 to 37, which is under challenge. 13. Sri Amit Saxena, learned counsel for petitioners has challenged aforesaid promotion contending that : No. 1 - the eligibility list was prepared by Registrar Co-operative (respondent 3) and not Appointing Authority, therefore, the very eligibility list was illegal and not in consonance with Rule 8 of Rules, 1970; No. 2 - the eligibility list included persons, who had not passed departmental examination and having not been confirmed, placement of such persons in eligibility list is illegal. Such ineligible persons have also been selected and promoted, hence their promotion is also bad; No. 3 - the persons, who did not complete two years probation period satisfactorily, were liable to be terminated but instead thereof, they were allowed to continue and have now been selected, which is illegal. It is however, said that petitioners-1 to 5 and 7 also come in this category of unqualified persons. It is however, said that petitioners-1 to 5 and 7 also come in this category of unqualified persons. Only petitioner-6 and two others qualified departmental examination and fulfill all conditions under Rule 21 of Subordinate Rules, 1979 within two years of probation period, hence they were eligible and not others; and No. 4 - the names of unqualified persons could not have been placed above in seniority, to persons, who were qualified, and this also renders eligibility list, illegal. 14. Respondent State had not filed any counter-afidavit but during pendency of matter, it appears that there were several incidental proceedings including Contempt Petition No. 2308 of 1993 and pursuant to order passed therein, petitioners and others were given an opportunity of making representation to State Government, who was required to decide the same, after giving opportunity of hearing to all concerned parties and pursuant thereto, a detailed order has been passed on 23rd September 1998 (Annexure 30 to amended writ petition). Therein it has been stated that since seniority of Inspectors, Group-I was in dispute, Government decided to fill in the post of Assistant Registrar by ad hoc promotion. The procedure for ad hoc promotion was governed by a Government Order dated 30th November 1971, as modified by subsequent order dated 29th March 1986 and therein it was provided that field of eligibility and criteria for selection shall be the same as provided in relevant Rules, which talk of ‘merit’. Names of all petitioners were included in eligibility list and Selection Committee considered them also on ‘merit’. Promotions have been made on the basis of recommendations made by Selection Committee. 15. The first submission is that unless one has passed various examinations as provided in Rule 21 of Subordinate Rules, 1979 neither could have been placed in seniority list of Inspectors, Group-I nor could have been considered for promotion to post of Assistant Registrar under Rules, 1979. In our view, it has no substance and the very foundation of this argument is thoroughly misconceived. A person, who is selected for Inspector, Group-I is appointed under Rule 19(1) of Subordinate Rules, 1979 on the occurrence of substantive vacancy and such an appointment is a substantive appointment. A substantive appointment is not to be equated with confirmation under Rule 21, which is a subsequent stage. A person, who is selected for Inspector, Group-I is appointed under Rule 19(1) of Subordinate Rules, 1979 on the occurrence of substantive vacancy and such an appointment is a substantive appointment. A substantive appointment is not to be equated with confirmation under Rule 21, which is a subsequent stage. Once a person is appointed under Rule 19 on the occurrence of substantive vacancy, which is a substantive appointment, he stands placed on probation for a period of two years. Under Rule 22, seniority is to be determined on the basis of date of order of substantive appointment and not on the basis of confirmation. Petitioners as well as respondents-5 to 37 were all working as Inspectors, Group-I. Their continuance in service is not in dispute. For the purpose of promotion under Rules, 1979, only requirement under Rule 5(5) is that incumbent working as Inspector, Group-I must have rendered five years of service on first day of year of recruitment. There is no requirement that member of Subordinate Co-operative Service Group, to be eligible for promotion as Assistant Registrar, must be a permanently appointed or confirmed member of Group-I service. It also does not provide that such incumbent must have passed all the tests as contemplated under Rule 21 of Subordinate Rules, 1979 and attempt on the part of petitioners’ counsel to argue otherwise is nothing but an attempt to read something in Rule, 1979, which is not otherwise provided therein. Moreover though process of selection has been followed under Rules but the fact remains that promotion in question is only ad hoc and has been made in accordance with procedure prescribed in Government Orders dated 30th November 1971 and 29th March 1986. 16. Petitioners have been considered for promotion and not selected. The criteria of promotion is merit. When all the petitioners and respondents-5 to 37 are similarly placed, working as Inspectors, Group-I have performed their service for minimum length prescribed so as to become eligible for consideration for ad hoc promotion to the post of Assistant Registrar (Co-operatives), if petitioners have not been found meritorious enough vis a vis respondents-5 to 37 and have not been selected, this Court shall not look into the process of selection as if it is sitting in appeal over the assessment of merit made by Selection Committee. Scope of judicial review in such matter is extremely limited and only if it is shown that either selection is vitiated on account of mala fide or the procedure followed is contrary to the Rules or that the decision otherwise ex facie illegal i.e. there is some misrepresentation, fraud or misreading of documents, else Court shall not interfere with the objective consideration of merit by a Selection Committee. It is not expected from a Court to find out whether petitioners or respondents are more meritorious so as to make re-assessment of merit of the candidates for the reason that it is the job of Selection Committee under Rules and only, if there is a patent illegality, Court shall interfere and not otherwise. In the present case, petitioners have not been selected though considered on the same criteria of merit on which respondents-5 to 37 have been considered, and in absence of any material to show that selection is vitiated in law, we do not find any justification to interfere. 17. It is further submitted that as per Rules, 1970, eligibility list ought to have been prepared by appointing authority and Selection Committee must consist of a member of Commission. Since promotion in question was ad hoc and in accordance with Government Orders dated 30th November 1971 and 29th March 1986 and not a substantive promotion on the post of Assistant Registrar, therefore, Rules, 1970 strictly were not applicable. As per Government Orders 30th November 1971 and 29th March 1986, which were applicable for ad hoc promotion, only two things were to be seen. First, eligibility criteria provided in the Rules, and, second, criteria of selection. Both these things have been taken into consideration and thereafter promotions have been made. Therefore, challenge to the impugned ad hoc promotion on the basis of Rules, 1970 is wholly misconceived and has no basis. 18. Counsel for petitioners submitted that petitioners are senior to respondents and hence have a right to be promoted first on the basis of their seniority, particularly when no adverse material is available on record. The submissions ignores the fact that criteria for promotion is ‘merit’ and not ‘seniority’. The requisite criteria for promotion when is only merit, by no stretch of imagination it can be tampered with seniority. Seniority in the form of experience i.e. length of service may be one of the relevant factors amongst several others. The submissions ignores the fact that criteria for promotion is ‘merit’ and not ‘seniority’. The requisite criteria for promotion when is only merit, by no stretch of imagination it can be tampered with seniority. Seniority in the form of experience i.e. length of service may be one of the relevant factors amongst several others. In other words, when criteria is merit, persons who have more experience, may secure some marks on account of experience but that aspect cannot be equated with seniority, since seniority, as such, has no role to play, when criteria is ‘merit’. Seniority comes into picture only when incumbents are selected, then their names are re-arranged in order of seniority. 19. When criteria is merit all the persons within field of eligibility and zone of consideration have to be considered. The consideration of ‘merit’ means comparative merit of all candidates under consideration. Those who have highest merit, are selected without having any consideration to their seniority. The junior most person in the zone of consideration and field of eligibility compete with senior most when criteria is ‘merit’. When criteria is merit obviously promotion is by way of selection and it is not a matter of right. It cannot be claimed merely on the basis of seniority as held in State of Orissa v. Durga Charan Das, 1966 (2) SCR 907 . 20. In the matter of appointment by promotion from State Civil Service to Indian Administrative Service, where criteria was “merit and suitability”, Court in Union of India v. Mohan Lal Kapoor, 1974 SCR (1) 797, held that in such circumstances merit and suitability would be the governing consideration and not seniority. Seniority will play a secondary role and only when merit and suitability are roughly equal, seniority would be a determining factor and not otherwise. 21. Even in a case where “merit-cum-seniority” was criteria, in B.V. Sivaiah and others v. K. Addanki Babu and others, AIR 1998 SC 2565 , Court held that greater emphasis would be on merit and ability while seniority would play a less significant role. Seniority would be given weight only when merit and ability are approximately equal. 22. In the present case, since Rules provide criteria for selection are merit, we do not find that petitioners can raise any objection with regard to selection of persons on criteria of merit, merely, on the basis that petitioners are senior. Seniority would be given weight only when merit and ability are approximately equal. 22. In the present case, since Rules provide criteria for selection are merit, we do not find that petitioners can raise any objection with regard to selection of persons on criteria of merit, merely, on the basis that petitioners are senior. Moreover, promotion is wholly on ad hoc basis for the reasons that seniority of Inspectors was in dispute. 23. We find no apparent infirmity in the impugned promotion of respondents-5 to 37 which has been made in accordance with Government Orders dated 30th November 1971 and 29th March 1986. 24. The further contention of petitioners that unqualified, ineligible persons have been selected by referring Rules of Subordinate Rules, 1979 is thoroughly misconceived, as the same has no application in the case in hand, inasmuch as, under Rule 5(5) of Rules, 1979 no such eligibility is prescribed. The only eligibility for promotion is that an incumbent must have worked as a member of Group-I Co-operative Service for a period of five years on the first day of year of recruitment. 25. In the result, we find no merit in this petition. 26. Dismissed with cost of Rs. 5000/-. —————