JUDGMENT : Hon’ble Sudhir Agarwal, J.—Heard learned counsel for petitioner. Learned Standing Counsel is present for State respondents. 2. Petitioner was given compassionate appointment on Class IV post vide order dated 16.8.1984. Thereafter looking into his qualification respondent No. 3, Joint Director, Education vide order dated 7.4.1998, appointed him on compassionate ground as Junior Clerk against supernumerary post, inasmuch as there was no vacant post in Class III cadre, as is evident from order dated 7.4.1998 itself. It is this order which has been cancelled by the impugned order 13.3.2000 by the same authority. 3. The order dated 7.4.1998 itself was patently illegal inasmuch as in absence of any vacancy question for promotion/appointment did not arise at all. Further promotion to class III post from class IV is made under a prescribed procedure under the relevant Rules and Government Orders, which contemplate that promotion from Class IV to Class III post shall be made on the basis of selection constituting written test, interview and typing test etc. 4. Learned counsel for the petitioner relying on Government Order dated 31.8.1982 stated that the petitioner being eligible for Class III post was rightly promoted by the competent authority. 5. Petitioner claims to have been appointed as Junior Clerk by Joint Director of Education. Recruitment of Class III Ministerial staff prior to 1998 was governed by the Subordinate Offices Ministerial Staff (Direct Recruitment) Rules, 1985 (hereinafter referred to as “Rules 1985”). Aforesaid Rules, by virtue of Rule 2 were applicable to Recruitment in all Ministerial posts of lowest grade, other than posts of Stenographer in all subordinate offices under control of the Government but excluding U.P. Secretariat, Offices of State Legislature, Lokayukt, Public Service Commission, High Court, Subordinate Courts, Office of Advocates General, U.P. and Establishment under the Control of Advocate General. In the present case, the office of Joint Director, Education, therefore, comes within the purview of aforesaid Rules, 1985. In the present case, the office of Joint Director, Education, therefore, comes within the purview of aforesaid Rules, 1985. “Ministerial Staff” is defined in Rule 4(g) and “Subordinate Offices” in Rule 4 (h) which read as under: “(g) Ministerial Staff” shall refer to the clerical staff of the subordinate offices which is required to be appointed by direct recruitment.” “(h) Subordinate offices” shall refer to all the offices under the control of the Government excluding the Uttar Pradesh, Secretariat, the offices of the State Legislature, Lok Ayukt, Public Service Commission, High Court, the subordinate Courts under the control and superintendence of the High Court, the Advocate-General, Uttar Pradesh and of the establishments under the control of the Advocate General.” 6. Rule 6 clearly provides that Recruitment to lowest grade in Ministerial Staff shall be made by direct Recruitment through a Selection Committee, referred to in Rule 17 on the basis of academic and other attainments, as provided in Rule 9. Proviso to Rule 6 provides that upto 15 per cent of vacancies in a particular subordinate office may be filled by appointing authority by promotions from amongst High School pass group ‘D’ employees of that office in accordance with orders of Government, issued from time to time. Thus in the light of Proviso to Rule 6, for the purpose of promotion of Group ‘D’ employee to Group ‘C’ post, we have to go through Government Orders and in this regard, we find four Government Orders, i.e. dated 1.1.1970, 21.8.1976, 19.5.1979 and 31.8.1982. 7. Under the aforesaid Government Orders, promotion of group ‘D’ employees in Group ‘C’ cadre is to be made by holding selection which consists of written test, interview, and marks obtained on the basis of annual character roll. Earlier Government Orders dated 1.1.1970, 21.8.1976 and 19.5.1979 were redrafted by Government Order dated 31.8.1982 and it contains entire procedure for selection. 7. Under the aforesaid Government Orders, promotion of group ‘D’ employees in Group ‘C’ cadre is to be made by holding selection which consists of written test, interview, and marks obtained on the basis of annual character roll. Earlier Government Orders dated 1.1.1970, 21.8.1976 and 19.5.1979 were redrafted by Government Order dated 31.8.1982 and it contains entire procedure for selection. Hence it would be appropriate to reproduce the same as under: ^^Øe la[;k&3 la[;k&37@1&1969&dkfeZd&2 izs"kd] Jh dusZy flag] Lkfpo] mRrj izns'k 'kkluA lsok esa] leLr foHkkxk/;{k ,oa izeq[k dk;kZy;k/;{k] mŒizŒA dkfeZd vuqHkkx&2 y[kuÅ% fnukad 31 vxLr] 1982 bZŒA fo"k;% oxZ &4 ¼vc lewg ^?k*½ ds deZpkfj;ksa ds fy;s oxZ&3 ¼vc lewg ^x*½ ds fuEure Js.kh ds fyfidh; inksa esa vkj{k.kA egksn;] mi;qZDr fo"k;d lela[;d 'kklukns'kksa] fnukad 1 tuojh] 1970] 21 vxLr] 1976 o 19 ebZ] 1979 ds lUnHkZ esa eq>s ;g dgus dk funsZ'k gqvk gS fd bl izdj.k ij f}rh; osru vk;ksx dh fjiksVZ esa dh xbZ laLrqfr dks /;ku esa j[krs gq, leqfpr :i ls fopkjksijkUr 'kklu }kjk ;g fu.kZ; fy;k x;k gS fd oxZ&4 ds fy;s oxZ&3 ds fuEure Js.kh ds fyfidh; inksa esa vkj{k.k dh la[;k 10 izfr'kr ls c<+kdj 15 izfr'kr dj nh tk;A vr,o mDr 'kklukns'kksa ds izkfo/kkuksa dks lek;ksftr djrs gq, bl izdj.k esa v|kof/kd fLFkfr fuEuor~ gksxh% izR;sd o"kZ oxZ & 3 ds fuEure Js.kh ds fyfidh; inksa esa gksus okyh LFkk;h ,oa ,d o"kZ ls vf/kd rd pyrh jgus okyh vLFkk;h fjfDr;ksa esa oxZ&4 ds gkbZLdwy vFkok mlds led{k ekU;rk izkIr ijh{kk ikl ,sls LFkk;h@ vLFkk;h deZpkjh ds fy, ftUgksaus prqFkZ Js.kh ds in ij ikap o"kZ dh fujUrj lsok dj yh gks] inksUufr }kjk 15 izfr'kr dk vkj{k.k iznku fd;k tk;sxkA ,slh inksUufr ds fufeRr oxZ&3 ds inksa ij HkrhZ ftl dk;kZy; esa gksuh gks mlh dk;kZy; esa dke djus oxZ&4 ds deZpkfj;ksa ds ekeyksa ij fopkj fd;k tk;sxk] ijUrq ;fn fdlh ftys esa dksbZ u;k dk;kZy; [kksyk tk; rks ml dk;kZy; esa oxZ&3 ds fuEure Js.kh ds fyfidh; inksa es ls 15 izfr'kr inkasa ij HkrhZ ds fy;s mfYyf[kr 'krksZ ds v/khu oxZ&4 ds lHkh lhfu;j deZpkfj;ksa ds ekeys ij fopkj fd;k tk;sxkA vkjf{kr fjfDr;ksa ds fy;s pquko Js"Brk ds vk/kkj ij ,d lk/kkj.k ijh{kk ysdj rFkk lk{kkRdkj djds fd;k tk;sxkA ijh{kk esa dsoy ,d iz'u&i= gksxk ftlesa nks loky gksaxs] ,d fdlh ljy fo"k; ij fgUnh fucU/k vkSj nwljk lkekU; KkuA pquko vadksa dk fooj.k fuEuor~ gS% Øekad fo"k; vf/kdre vad ¼d½ fyf[kr ijh{kk ¼izR;sd iz'u ds 15 vad½ 30 ¼[k½ lk{kkRdkj 10 ¼x½ pfj=&iath 10 dqy vad 50 tgka dsoy Vadd ds laoxZ esa HkrhZ dh tkuh gks] ogka ij Vkbi dh ijh{kk Hkh yh tk;sxhA 2- d`i;k mDr vkns'kksa dk vuqikyu lqfuf'pr fd;k tk; rFkk orZeku fu;eksa esa] ;fn dksbZ gks] rn~uqlkj la'kks/ku djus ij fopkj dj fy;k tk; ,oa vko';d dk;Zokgh lqfuf'pr dh tk;A Hkonh;] dusZy flag] lfpoA** Serial No. 3 No. 37/1-1969- Karmik -2 From: Shri Karnel Singh Secretary Government of Uttar Pradesh To, All Heads of Departments & Heads of Offices Uttar Pradesh Karmik Anubhag-2. Lucknow: Dated 31st August, 1982 Subject: Reservation in the posts of lowest category of clerical posts of Class III (now Group C) for the employees of Class IV (now Group D). Sir, With reference to the even numbered Government Orders dated 1st January, 1970; 21st August, 1976; and 19th May, 1979 on the above mentioned subject, I am directed to say that keeping in view the recommendation made on this issue in the report of 2nd Pay Commission, it has been decided after due consideration that reservation, in the posts of the lowest category of clerical posts of Class III, for the Class IV employees be increased from 10 percent to 15 percent. Hence, with the provisions of the said Government Orders being incorporated, the updated status in the matter shall be as under: As against permanent vacancies, and temporary vacancies likely to continue beyond one year, occurring every year in the lowest category of clerical posts of Class III, 15 percent reservation shall be admissible to the Class IV permanent/ temporary employees having passed High School examination or any other examination recognised to be equivalent thereto who have rendered five years’ continuous service. For such promotions, the cases of the Class IV employees of the same office where the recruitment to Class III posts is going to be held, shall be considered; but if any new office is opened in any district, the cases of local Class IV employees shall, subject to the specified conditions, be considered for recruitment to 15 percent posts of the lowest category of clerical posts in that office. Selections to the reserved vacancies shall be made on the basis of merit followed by a general examination and interview. There shall be only one question paper, which shall contain two questions; the first one being an essay in Hindi on any simple topic and the second one, general knowledge. The break-up of marks for selection are as under: S.No. Subject Maximum Marks A. Written Examination (15 marks for each question) 30 B. Interview 10 C. Character-book 10 Total Marks 50 Where the recruitment is to be held for the post of typist, the type test shall also be held. 2. Compliance of the aforesaid orders may please be ensured; amendments, if required in the existing rules, be considered to be accordingly effected and necessary action be ensured. Yours truly Karnel Singh Secretary” 8. 2. Compliance of the aforesaid orders may please be ensured; amendments, if required in the existing rules, be considered to be accordingly effected and necessary action be ensured. Yours truly Karnel Singh Secretary” 8. A bare reading of Government Order dated 31.8.1982 makes it clear that all Class IV employees working in the office of the concerned district shall be entitled to appear in selection test held for Class III post provided they are confirmed and have completed five years of service and also possess the requisite educational qualification. The criteria for promotion is merit based on written test as well as interview, details whereof are also given in the said Government Order. Apparently, selection is to be made on the basis of written test and interview. It is nowhere provided that an incumbent can be promoted and appointed on Class III post without appearing in the test and interview as envisaged by the aforesaid Government Order. Since in the instant case, legal procedure for promotion was not followed and there was no vacancy in Class III cadre, appointment of petitioner on the post of Class III was void ab inito and confers no right whatsoever on the him. Even otherwise, while exercising jurisdiction under Article 226 of the Constitution of India, this Court does not exercise its discretionary jurisdiction. I do not find any manifest error in the impugned order warranting interference. 9. Learned counsel for the petitioner placing reliance on Basudeo Tiwary v. Sido Kanhu University and others, JT 1998(6) SC 464, submitted that since no notice or opportunity of hearing was given to petitioner before passing the impugned order, hence it is liable to be quashed. 10. It may be observed that that in a given case, having set legal position straight, still this Court may decline to interfere where the equity justifies the same or where the fact and circumstances warrant that discretionary relief should be declined. Where interference with an illegal order may result in revival of another illegal order, the Court would be justified in refusing to interfere. 11. Where interference with an illegal order may result in revival of another illegal order, the Court would be justified in refusing to interfere. 11. In Employees’ State Insurance Corporation and others v. Jardine Henderson Staff Association and others, AIR 2006 SC 2767 , the Apex Court held that relief in a writ of certiorari can be denied inter alia when it would be opposed to public policy or in a case where quashing of an illegal order would revive another illegal order. In para 62 of the judgment the Court clearly held that the High Court under Article 226 and the Apex Court under Article 136 read with 142 of the Constitution has the power to mould the relief in the facts of the case. 12. In Ramnik Lal N. Bhutta and another v. State of Maharashtra, AIR 1997 SC 1236 , the Apex Court observed: “The power under Article 226 is discretionary. It will be exercised only in furtherance of interest of justice and not merely on the making out of a legal point.” 13. In State of H.P. v. Raja Mahendra Pal and others, (1999) 4 SCC 43 , in para 6 of the judgment the Apex Court held: “...It is true that the powers conferred upon the High Court under Article 226 of the Constitution are necessary in nature which can be invoked for the enforcement of any fundamental right or legal right but not for mere contractual right arising out of an agreement particularly in view of the existence of an efficacious alternative remedy. The constitutional Court should insist upon the party to avail of the same instead of invoking of extraordinary writ jurisdiction of this Court. This does not however debar the Court from granting the appropriate relief to a citizen under peculiar and special facts notwithstanding the existence of an alternative efficacious remedy. The existence of special circumstances are required to be noticed before issuance of the direction by the High Court while invoking the jurisdiction under the said Article....” 14. Similarly, in Director of Settlement v. M.R. Apparao, (2002) SCC 638, in para 17 the Apex Court held that the power vested in High Court under Article 226 of the Constitution is discretionary. 15. Similarly, in Director of Settlement v. M.R. Apparao, (2002) SCC 638, in para 17 the Apex Court held that the power vested in High Court under Article 226 of the Constitution is discretionary. 15. Following the principle laid down in the aforesaid decisions, this Court has reiterated the same view in a number of cases, including R.K. Shukla v. Chairman Town Area Committee and another (Writ A No. 19889 of 1991 decided on 17.1.2013). Suffice it to say that this Court is not bound to interfere even if technically or otherwise the order impugned is found to be illegal or erroneous. 16. In Amrendra Singh v. State of U.P. and others, 2008(1) ADJ 397 (DB), this Court has declined to interfere in intra Court appeal with an order of Hon’ble Single Judge even though legally it was not sustainable since substantial justice has been done therein and setting aside of order may have resulted in revival of another pernicious order. Likewise another Division Bench of this Court in Smt. Pushpa v. State of U.P. and others, decided on 19.6.2015 also took the same view. 17. In Amrendra Singh v. State of U.P. and others, 2008(1) ADJ 397 (DB), this Court has declined to interfere in intra Court appeal with an order of Hon’ble Single Judge even though legally it was not sustainable since substantial justice has been done therein and setting aside of order may have resulted in revival of another pernicious order. Similarly, another Division Bench of this Court (wherein I was also a Member) in Smt. Pushpa v. State of U.P. and others, decided on 19.6.2015 also took the same view. 18. In that view of the matter, the case law cited by learned counsel for petitioner, i.e. Basudeo Tiwari (supra) does not help the petitioner. 19. Writ petition lacks merit and is accordingly dismissed. 20. Interim order if any, shall stand vacated.