JUDGMENT Hon'ble Sudhir Agarwal, J.—This intra-Court appeal under Chapter-VIII Rule 5 of Allahabad High Court Rules, 1952 (hereinafter referred to as "Rules, 1952") has arisen from judgment and order dated 12.8.2009 passed by learned Single Judge in Writ Petition No. 54304 of 2005 (Manoj Kumar Kushwaha and another v. State of U.P. and others) whereby writ petition has been allowed and a mandamus has been issued to appellants to post petitioners-respondents (hereinafter referred to as "respondents") on the respective posts for which they were given training. 2. Writ petition was filed by respondents Manoj Kumar Kushwaha and Ramesh Mani Tripathi alleging that they were given training meant for the post of Seench Paryavekshak from 21.3.2003 to 21.9.2003 and they have successfully passed the same. Under Rules, 75% post of Seench Paryavekshak is to be filled in by promotion and 25% by direct recruitment. There were 26 vacancies of Seench Paryavekshak out of which 75% were to be filled in by promotion and remaining 25% by direct recruitment. However, respondents Competent Authority illegally filled in all the vacancies by promotion depriving respondents' appointment as direct recruitment. However, under the control of Superintendent Engineer, Belan Nahar Prakhand, there were 23 sanctioned post out of which 5 were to be filled in by direct recruitment but only 4 were filled in from the source of direct recruitment and one is still vacant in the quota of direct recruitment, but, has not been filled in, and, instead, Executive Engineer, Belan Nahar Prakhand, Allahabad has illegally proceeded to fill in the same by promotion vide order dated 25.7.2005. In Tones Division, there were 11 sanctioned post and only 2 have been filled in by direct recruitment and one is still vacant. Petitioners' claim is that they are entitled to be appointed by direct recruitment against two vacancies in Belan Nahar Prakhand and one vacancy in Tones Prakhand but have been denied since respondents are proceeding to make promotion against said vacancies instead of direct appointment hence they are causing grave injustice in proceeding illegally. It is also stated that one of the petitioners Manoj Kumar Kushwaha earlier filed Writ Petition No. 47726 of 2005, which is pending. 3. The writ petition was contested by appellants by filing counter-affidavit sworn by Sri S.K.Singh, Assistant Engineer, Flood Works Division, Allahabad. It is also stated that one of the petitioners Manoj Kumar Kushwaha earlier filed Writ Petition No. 47726 of 2005, which is pending. 3. The writ petition was contested by appellants by filing counter-affidavit sworn by Sri S.K.Singh, Assistant Engineer, Flood Works Division, Allahabad. It is stated therein that petitioners were engaged as Daily Wager and working as Work Supervisor in Work Charge Establishment. Their claim for appointment/posting/absorption as Seench Paryavekshak is against the rules. 4. Under Rule 5, post of Seench Paryavekshak are to be filled in to the extent of 25% by direct recruitment and 75% by promotion from Seenchpal and Tube-well Operators. 5. We are informed that initial rules namely Irrigation Department Patrols' Service Rules, 1953 (hereinafter referred to as "Rules, 1953") talk of cadre of 'Patrol', which has been subsequently designated as 'Seenchpal'. Similarly, earlier Rules namely "Sinchai Vibhag Kee Amin Seva Ke Niyam, 1954" (hereinafter referred to as "Rules, 1954") applicable to the erstwhile Amin, who are now designated as "Seench Paryavekshak". 6. It is contended that petitioners are not even appointed as Seenchpal, question of their appointment as Seench Paryavekshak does not arise in any manner. It is also stated that petitioner No. 1 Manoj Kumar Kushwaha earlier filed Writ Petition No. 47746 of 2005 for the same relief. Since above writ petition has been dismissed on 28.10.2006, therefore, writ petition for the same relief by the same petitioner is not maintainable. There is no vacancy on the post of Seench Paryavekshak to be filled in by direct recruitment in the zone i.e. Sone Organization. Petitioners are not working in Belan Canal Division, hence, cannot claim any appointment or promotion therein. 7. It appears that learned Single Judge examined select list brought before it by way of supplementary-affidavit and find that name of petitioners were included in the select list and one Keshav Lal Srivastava, below the petitioners-respondents in select list have been given appointment hence finding action of appellants arbitrary, writ petition has been allowed giving direction to appellants to appoint petitioners-respondents. 8. We have heard this matter on 2.1.2018 and filing some discrepancy in respect of the vacancies passed following order : "1. From record it appears that petitioners-respondents were given training and they successfully completed for the post of Seench Paryavekshak but appointments were not made. 8. We have heard this matter on 2.1.2018 and filing some discrepancy in respect of the vacancies passed following order : "1. From record it appears that petitioners-respondents were given training and they successfully completed for the post of Seench Paryavekshak but appointments were not made. The case set up by appellants is that vacancy at the relevant time was not available but what do they mean by relevant time or whether any vacancy did not occur during the period select list continued to remain operative, nothing could be placed by learned Standing Counsel. 2. Let appellants No. 2 and 3 appear before this Court to explain as to what was the real reason for not giving appointment to petitioners-respondents though they completed training successfully. 3. List this matter on 18.1.2018, on which date both officers, i.e., appellants No. 2 and 3, shall remain present." 9. Pursuant to above order, an affidavit has been filed by Sri Ajay Kumar, Chief Engineer (Personnel), Irrigation and Water Resource Department, U.P. Lucknow. It is said that Manoj Kumar Kushwaha, respondent No. 1, was appointed as Work Supervisor (Daily Wager) on 1.5.1990 and thereafter as Work Supervisor in Work Charge Establishment on 11.12.2001. Respondent No. 2, Ramesh Mani Tripathi, was appointed as Supervisor (Daily Wager) on 1.6.1989 and thereafter as Work Supervisor in Work Charge Establishment on 11.12.2001. They were given training of Seench Paryavekshak, which they successfully cleared on 3.2.2004. Since there was no vacancy of Seench Paryavekshak to be filled in by direct recruitment in the Division, therefore, petitioners-respondents were offered appointment as Seenchpal, but, they declined. Work Supervisor is a Class IV post and different from the cadre of Seenchpal and is not governed by Rules, 1953 or Rules, 1954. Mere fact that respondents have undergone training of Seench Paryavekshak does not create any indefeasible right to claim appointment as Seench Paryavekshak since petitioners-respondents are not in feeder cadre as Seenchpal. They cannot claim appointment as Seench Paryavekshak as there is no vacancy of Seench Paryavekshak for direct recruitment, therefore, they cannot be given appointment as direct recruitee as Seench Paryavekshak. In Work Charge Establishment, seniority position of petitioners-respondents is at serial No. 402 and 398 respectively. Since 2004 till 2017, no vacancy has occurred in regular establishment, therefore, respondents cannot claim any appointment as Seench Paryavekshak. In Work Charge Establishment, seniority position of petitioners-respondents is at serial No. 402 and 398 respectively. Since 2004 till 2017, no vacancy has occurred in regular establishment, therefore, respondents cannot claim any appointment as Seench Paryavekshak. Training was allowed to them in view of Chief Engineer's letter dated 9.5.1996 so as to keep ready list of candidates to be given appointment as and when vacancy(ies) occurred but mere fact that training has been given does not entitle any person to claim appointment even if there is no vacancy. In Flood Works Division, Allahabad only two posts of Seench Paryavekshak were sanctioned. One post is held by Sri Lal Bahadur Tripathi and another by Sri Naveen Kumar Srivastava and both persons are liable to attain age of superannuation on 31.5.2019 and 1.8.1932, hence, there is no vacancy on the post of Seench Paryavekshak in Flood Works Division, Allahabad. Manoj Kumar Kushwaha, respondent No. 1, had earlier filed writ petition No. 51241 of 2004, which was disposed of vide judgment dated 13.12.2004 directing Competent Authority to decide his representation by a reasoned order. The representation was decided by order dated 5.5.2005 stating that regularization of Work Charge Employees can be considered only against available vacancy and since no vacancy was available, no benefit could be given to respondent-1. vide letter dated 16.4.2005, issued by Superintending Engineer, Irrigation Work Circle, Allahabad, options were invited from respondents whether they are agreeable to work on the post of Seenchpal, since no vacancy of direct recruitment on the post of Seench Paryavekshak is available, but respondents did not convey their consent. The order dated 5.5.2005 passed on representation of respondent No. 1 was challenged in Writ Petition No. 47726 of 2005, which was dismissed vide judgment dated 28.10.2006 and the said judgment reads as under : "At the point of time when the matter has been taken up, it has been conceded by Sri K.M.Mishra, learned counsel for the petitioner that the order dated 4.5.2005 which has been passed, does not suffer from any infirmity, in as much as therein interest of petitioner has been protected by mentioning that whenever vacancies will be available under direct quota, the claim of petitioners will be considered for regularisation strictly in consonance with the seniority maintained. Consequently, writ petition is dismissed." (emphasis added) 10. Consequently, writ petition is dismissed." (emphasis added) 10. When the writ petition in question was filed, respondent-1's Writ Petition No. 47726 of 2005 was pending and, therefore, he could not have file second writ petition and this is liable to be dismissed for this reason alone. 11. A chart has been filed showing vacancy/quota position of direct recruits on the post of "Seench Paryavekshak" in Sone Organization and it shows that from 2004 to 2010, number of actual persons working against direct recruitment is more than prescribed quota. It is said that therefore there is no vacancy at all and learned Single Judge has erred in law in giving direction for appointment of respondents. 12. We have heard learned Standing Counsel for State and Sri K.M.Mishra, learned counsel for respondents. 13. When confronted, it could not be disputed by learned counsel for respondents that Writ Petition No. 47726 of 2005 filed by respondent-1, Manoj Kumar Kushwaha, was pending when present writ petition was filed. He also could not dispute that respondent-1's claim is for appointment on the post of Seench Paryavekshak, which was rejected by order dated 5.5.2005, has also failed before this Court since his Writ Petition No. 47726 of 2005 has been dismissed by this Court vide judgment dated 28.10.2006. The aforesaid judgment has not been considered by learned Single Judge while passing the judgment in question. So far as respondent-2 is concerned, his claim is also at par with respondent-1, therefore, for the same reason he also has no claim for appointment on the post of Seench Paryavekshak. 14. Seenchpal is a feeder cadre for appointment to the post of Seench Paryavekshak. Even, on merits, we find that Seenchpal is a post/cadre from which promotion can be made to the post of Seench Paryavekshak. There can be direct recruitment on the post of Seench Paryavekshak to the extent of 25% of total posts. The mere fact that training has been permitted to respondents meant for the post of Seench Paryavekshak will not entitle them to claim appointment on the said post unless there existed vacancy(ies), when training was given and completed by respondents or even thereafter. 15. In the chart placed on record by appellants, as is noted above, we find no vacancy on the post of Seench Paryavekshak either in individual offices of respondents or in Sone Organization, as claimed by respondents in the writ petition. 15. In the chart placed on record by appellants, as is noted above, we find no vacancy on the post of Seench Paryavekshak either in individual offices of respondents or in Sone Organization, as claimed by respondents in the writ petition. No discrepancy in the chart, which has been placed before us by concerned Chief Engineer by way of his personal affidavit, could be shown by respondents,. 16. In these facts and circumstances, we find it difficult to sustain judgment passed by learned Single Judge and the same is liable to be set aside. 17. Appeal is, accordingly, allowed. The judgment dated 12.8.2009 passed by learned Single Judge is hereby set aside and writ petition of respondents herein is dismissed.