JUDGMENT K.M. Joseph, C.J. (Oral) The writ petition is filed seeking the following reliefs: “i) issue a writ, order or direction in the nature of certiorari quashing the judgment and order passed by the Public Services Tribunal dated 10.10.2017 passed in Claim Petition No. 18/NB/DB/2015, Sunil Kumar v. Chief Engineer and others, as well as the judgment and order passed by the Tribunal in a review petition No. 01/NB/DB/2017 decided on 23.11.2017. ii) issue a writ order or direction in the nature of mandamus directing the respondents to determine the seniority of the Junior Engineers strictly as per Rule 23 of the U.P. Jal Nigam Subordinate Engineering Services Rules, 1978." 2. On 29.11.2004, an Advertisement was issued for the purpose of filling-up the vacancies of Junior Engineer. Petitioner was favoured with an appointment order dated 13.05.2005. In all, five appointment orders were issued on different dates pursuant to the Advertisement issued in 2004 and the selection was made in 2005. The party respondents, in this case, are all persons, who have been favoured with appointment orders, which are issued subsequent to the appointment order of the petitioner. About this, there is no dispute. It would appear that a tentative seniority list of Junior Engineers was issued on 06.08.2010. Therein, petitioner was shown above the persons, who were appointed after him. Still later, another tentative seniority list was published on 14.09.2010. Therein, petitioner was placed at Serial No. 226. It appears that the said list was based on the merit list prepared on the basis of total marks obtained by adding the marks obtained in the written test and the interview. The petitioner filed objections on 17.01.2014. The said representation came to be rejected by proceedings dated 03.11.2014. Petitioner again filed another representation on 21.11.2014. Thereafter, a final seniority list was published on 28.11.2014. 3. The petitioner had approached this Court by filing Writ Petition (S/B) No. 301 of 2014. The apprehension of the petitioner was that promotions will be carried out on the basis of erroneous provisional list against which objections had been filed by him. Noting the stand of the respondent that, only after the objections are looked into, the promotions would be carried out, the writ petition came to be disposed of on 04.09.2014. 4. Petitioner filed a claim petition, being Claim Petition No. 18/NB/DB/2015, before the Uttarakhand Public Services Tribunal (hereinafter referred to as the “Tribunal"). Noting the stand of the respondent that, only after the objections are looked into, the promotions would be carried out, the writ petition came to be disposed of on 04.09.2014. 4. Petitioner filed a claim petition, being Claim Petition No. 18/NB/DB/2015, before the Uttarakhand Public Services Tribunal (hereinafter referred to as the “Tribunal"). The Tribunal proceeded to consider the matter and rejected the claim petition vide judgment dated 10.10.2017. Thereupon, petitioner filed a review petition, being Review Petition No. 01/NB/DB/2017. The same was also rejected vide order dated 23.11.2017. Hence, the present writ petition seeking the reliefs as we have already noticed. 5. We have heard Mr. Rakesh Thapliyal, learned counsel for the petitioner; Mr. D.S. Patni, learned counsel appearing on behalf of the Corporation; Mr. B.P. Nautiyal, learned Senior Counsel appearing on behalf of some of the private respondents; Mr. Alok Mahra, learned counsel appearing on behalf of some other private respondents; and Ms. Rangoli Purohit, learned counsel appearing on behalf of respondent No. 84. Findings by the Tribunal: 6. The Tribunal has proceeded to discountenance the case of the petitioner on the following reasoning, inter alia: Though reliance was placed by the petitioner on Regulation 23 of the Uttar Pradesh Jal Nigam Subordinate Engineering Service Regulations, 1978 (hereinafter referred to as the “1978 Regulations"), the Tribunal found that it has suffered an amendment by the inclusion of “ka". The said provision, which was produced by the respondents, in short, proceeds to make seniority dependent upon the position of a person in the merit list. The Tribunal also proceeded on the basis that the matter is to be decided on the basis of Regulation 23-Ka of the 1978 Regulations and which is admitted by all the parties. It is also found to be similar to Rule 5 of the Uttarakhand Government Servants Seniority Rules, 2002 (hereinafter referred to as the “2002 Rules"). The attempt made by the petitioner to draw support from the proviso to Rule 5 of the 2002 Rules also did not appeal to the Tribunal. Arguments advanced by the parties: 7. In this regard, learned counsel for the petitioner would point out that there is an illegality committed by the Tribunal, insofar as the Tribunal has wrongly relied on Regulation 23-Ka of the 1978 Regulations. Arguments advanced by the parties: 7. In this regard, learned counsel for the petitioner would point out that there is an illegality committed by the Tribunal, insofar as the Tribunal has wrongly relied on Regulation 23-Ka of the 1978 Regulations. He expatiates and submits that there were two sets of Regulations; apart from the 1978 Regulations, which we have referred to, there are other Regulations, which are called as the Uttar Pradesh Jal Nigam Engineers (Public Health Branch) Service Regulations, 1978 and the same relate, in fact, to appointment and other conditions of service of Assistant Engineers and other authorities above Assistant Engineers. He would submit that the amendment “ka", which is relied on by the Tribunal, was engrafted in the last mentioned Regulations, namely, the Regulations relating to Assistant Engineers and others and it has no application whatsoever to the 1978 Regulations (Uttar Pradesh Jal Nigam Subordinate Engineering Service Regulations, 1978) and, therefore, the order passed by the Tribunal is flawed. 8. Regarding this point, Mr. D.S. Patni, Mr. B.P. Nautiyal and Mr. Alok Mahra do not join issue with the petitioner. They all admit that amendment “ka", which is introduced, has no application to the Regulations relating to Junior Engineers, with which we are concerned in this case. Therefore, the very basis of the judgment passed by the Tribunal is found to be wrong. 9. Mr. D.S. Patni, learned counsel for the Corporation, would submit that a perusal of Regulation 23 of the 1978 Regulations, which is relied on by the petitioner, does not support his case. Regulation 23 of the 1978 Regulations, which are admittedly applicable in this case, reads as follows (English translation): “SENIORITY 23(1). In this Regulation and apart from other provisions in this regard, seniority of a person appointed in any branch of service in any category of post, shall be made as per the date of regular appointment and where two or more persons are appointed on the same date, their seniority will be determined by such order in which their names are arranged in the approved list. Provided that the persons who were working regularly on the post of Junior Engineer on ad hoc basis or on transfer prior to formation of the Jal Nigam and recommendation of whose proposal has been done by Selection Committee, they will be senior to those Junior Engineers, whose appointment has been made after the formation of the Jal Nigam." 10. Mr. D.S. Patni would point out that a perusal of the said Regulation would mean that, in a case, where two or more persons are appointed, the seniority is to be determined on the basis of the approved list. In this case, more than two persons have been appointed in all the appointment orders and even if they are appointed on a later date, only the position in this seniority list will be relevant and the matter has to be determined on that basis. 11. Secondly, Mr. D.S. Patni would contend that this is a case, where the 2002 Rules would apply. In this regard, he drew our attention to the following terms and conditions in the Advertisement (English translation of the relevant portion): “The right to decrease the number of vacancies lies with the Uttarakhand Pey Jal Sansadhan Vikas Evam Nirman Nigam. The GPF, pension and services relating Rules applicable to the appointed candidates would be as issued / passed by the Board of Uttarakhand Pey Jal Sansadhan Vikas Evam Nirman Nigam. At the inception of the service, the candidate would be kept on probation for a period of two years in various stages. The candidates are requested to keep in mind that their appointment would be made at any place in the State of Uttarakhand. Any kind of canvassing by the candidate would render the appointment of the candidate as cancelled." 12. He would, therefore, submit that, in terms of the said Advertisement, the 2002 Rules would apply and the 2002 Rules had come into play in the year 2007. Therefore, the candidates were already told that the Rules, which will be made applicable, are the Rules which apply in service matters. Reference is made in this regard to Rule 5 of the 2002 Rules. It reads as follows: “5. Seniority where appointment by direct recruitment only. Therefore, the candidates were already told that the Rules, which will be made applicable, are the Rules which apply in service matters. Reference is made in this regard to Rule 5 of the 2002 Rules. It reads as follows: “5. Seniority where appointment by direct recruitment only. – Where according to the service rules appointments are to be made only by the direct recruitment the seniority inter se of the persons appointed on the result of any one selection, shall be the same as it is shown in the merit list prepared by the commission or the committee, as the case may be: Provided that a candidate recruited directly may lose his seniority, if he fails to join without valid reasons when vacancy is offered to him, the decision of the appointing authority as to the validity of reasons, shall be final. Provided further that persons appointed on the result of a subsequent selection shall be junior to the persons appointed on the result of a previous selection" 13. A perusal of the same would show that, in matters of seniority, it is to be determined on the basis of the position of the parties concerned in the approved list. He would, therefore, submit that, should the 2002 Rules prevail, the petitioner has no case. 14. Mr. Alok Mahra would take a different line of argument. He does not dispute that amendment “ka", which is noted by the Tribunal, is not applicable. He would point out that the scheme of the 1978 Regulations, which are relied on by the petitioner, may be noticed. Regulation 14 contemplates that the appointing authority is to determine the number of vacancies to be filled and invite applications through advertisement in the newspapers. Regulation 16(2) may be noticed, which reads as follows: “(2) Appointing authority shall prepare a list of candidates in order of merit, as is evident from the written examination and invite for interview those candidates who attain qualification as per standard fixed by the Nigam. Marks obtained by each candidate in the interview shall be added to the marks obtained in the written examination. Final position of a candidate shall be determined by the total marks obtained by him, and thereafter list will be prepared. If two or more candidates obtain equal marks, then the candidate obtaining more marks in written examination will be placed higher in the merit list. Final position of a candidate shall be determined by the total marks obtained by him, and thereafter list will be prepared. If two or more candidates obtain equal marks, then the candidate obtaining more marks in written examination will be placed higher in the merit list. If two or more candidates obtain equal marks in both written examination and interview, then a candidate having more marks in diploma examination will be placed higher in the merit list." 15. He would, further, draw our attention to Regulation 20. It reads as follows: “20. On vacancies being created, Appointing Authority shall make appointment by taking the names of candidates in the order in which they stand in the list prepared under Regulation 16(2) and 17 or 18. Provided that first of all appointments shall be made from the list prepared under Regulation 18(1) and after that under 18(2) and thereafter the appointment shall be made from the list prepared under Regulations 16(2) and 17." 16. He would, therefore, on a conspectus of the aforesaid Regulations, point out that the law-giver has contemplated that a merit list must be prepared, apparently, on the basis of the total marks obtained in the written test and the interview. Out of the merit list, appointments are to be made and the appointments cannot be made as the appointing authority wishes. Appointing authority is bound to make appointments in terms of the merit list. This means that, in descending order, persons from the merit list must be appointed. This has been given a go-by insofar as the petitioner is concerned, as, admittedly, persons, who are far higher than the petitioner in the merit list, have been given appointment orders later than the petitioner. The case of the party respondents is illustrative of the same. He would, therefore, point out that the case of the petitioner is conceived in an illegality being committed, namely, violation of Regulation 20 and, therefore, the case of the petitioner should not be allowed to pass muster. 17. Mr. Alok Mahra, next, drew our attention to clause (9) of the appointment order. It reads as follows: ß9- vH;FkhZ dh twfu;j bathfu;j ¼flfoy½@¼fo|qr@;kWaf=d½ ds in ij T;s"Brk ckn esa fu/kkZfjr dh tk;sxhAÞ 18. 17. Mr. Alok Mahra, next, drew our attention to clause (9) of the appointment order. It reads as follows: ß9- vH;FkhZ dh twfu;j bathfu;j ¼flfoy½@¼fo|qr@;kWaf=d½ ds in ij T;s"Brk ckn esa fu/kkZfjr dh tk;sxhAÞ 18. Therefore, at the time of appointment itself, the appointing authority had made it clear that the issue relating to seniority is not being determined by virtue of mere issuance of the appointment order. Therefore, the cumulative effect of all this is that the case of the petitioner based on his being favoured with order of appointment earlier than his seniors, who were given appointment orders afterwards for no fault of theirs, cannot be countenanced. 19. Mr. B.P. Nautiyal, learned Senior Counsel appearing for certain party respondents, also contended that the 2002 Rules would prevail. In this regard, he also added that the conduct of the petitioner disentitles him from getting the relief in this writ petition. He would point out that, before the Tribunal, petitioner had laid store by the 2002 Rules and he did not dispute their applicability. He would further point out that Annexure No. 4 to the present writ petition, which is the objection filed by the petitioner, would show that the petitioner is prevaricating before the Court, insofar as, he had set-up a different case before the appointing authority and he sets-up another case before the Tribunal and, before this Court, a new case is set-up. Law of pleadings is pressed into service and he would submit that a party cannot resile from the state of pleadings that he has presented before the competent body. He would submit that, in Annexure No. 4, the objection of the petitioner was based on his appointment being in one recruitment year and that of the party respondents being in the later recruitment year. Therefore, he would submit that the case, which is now sought to be raised based on Regulation 23 of the 1978 Regulations, was not the case, which was projected before the appointing authority. He would further point out to the significance of Regulation 17 of the 1978 Regulations. Regulation 17 reads as follows: “17(1) The Appointing Authority shall recommend the list of candidates prepared by the Selection Committee for appointment. Vacancies, at present or likely to arise in future, will be filled by the candidates of this list. He would further point out to the significance of Regulation 17 of the 1978 Regulations. Regulation 17 reads as follows: “17(1) The Appointing Authority shall recommend the list of candidates prepared by the Selection Committee for appointment. Vacancies, at present or likely to arise in future, will be filled by the candidates of this list. (2) If the Appointing Authority is not in agreement with the recommendation of Selection Committee, then this matter shall be presented before the Nigam. The decision of the Nigam shall be final in this regard and the Appointing Authority will take action as directed by the Nigam." 20. The learned Senior Counsel would, therefore, submit that the said Regulation contemplates making of a list for making appointments in present and in the future. It is from the said list, which is to be prepared on the basis of merit, that appointments are to be made. He would, further, contend that even the reading of Regulation 23 would show that, as and when more persons than one are appointed, the matter will be governed by the position in the approved list. In other words, the seniority, which one acquires in the approved list, will continue to haunt the employee all throughout and he cannot extricate himself from the same on the basis that his appointment order is issued earlier than the persons, who are senior to him. 21. The learned Senior Counsel next points out another development, which took place and which, according to him, disentitles the petitioner from asserting his rights. In the year 2011, in terms of the Rules, petitioner secured promotion as Additional Assistant Engineer. This promotion was obtained by him on the basis of the list, which was prepared on the basis of the approved list. Therefore, having secured an advantage in terms of the approved list, the petitioner cannot turn around and question the seniority list, runs the argument. 22. As far as the applicability of the 2002 Rules is concerned, learned Senior Counsel would submit that a perusal of the resolution, which was passed by the Board in the year 2007, would show that the Board has passed a resolution and that suffices to put in place the 2002 Rules and to make them applicable to the employees. Findings: 23. Findings: 23. As we have noticed, the reasoning of the Tribunal was primarily premised on the applicability of the amendment to Regulation 23, which would have resulted in the case of the petitioner being rejected. We can proceed on the basis that the said premise is erroneous. Then, we are left with the arguments, which we have noticed earlier. 24. The first thing, which we must consider, is whether the 2002 Rules have come to apply and, if so, at what stage. The petitioner was appointed by order dated 13.05.2005 on the basis of Advertisement dated 29.11.2004. The 2002 Rules have been framed by the Government of Uttarakhand. The respondent is a Corporation. On its own, the Rules do not apply. They apply only if they are adopted by the Board. We have perused the terms of the Advertisement, which are relied upon by Mr. D.S. Patni. It is not very clear as to what is meant by the same. Is it to put the candidate on alert that his appointment would be subject to the Rules applicable or is it to put him on notice that he will be bound by any Rules, which will be brought in future? Along with this, we must consider as to what, actually, transpired in the Board's meeting held in the year 2007. The Board's meeting took place on 24.09.2007. The relevant issue, as far as this Court is concerned, is Agenda No. 10. It reads as follows: “10. Regarding making applicable Uttarakhand Govt. Servant Seniority Rules, 2002 in respect of employees of Peyjal Nigam." 25. The decision of the Board is as follows: “Board of Directors directed that provision shall be made in the proposed services Regulations." 26. The argument of Mr. B.P. Nautiyal is that we must understand this as meaning that the resolution has the effect of making the 2002 Rules applicable. We are afraid, this contention is totally misplaced. Though it is true that the matter was raised before the Board in the year 2007, the resolution passed by the Board is clear that it decided that the provisions of the Rules shall be made in the proposed service regulations. It does not say that the Rules are instantaneously made applicable in praesenti. Clearly, without even the slightest shadow of ambiguity, the Board has only resolved that it will be included in the regulations to be made. It does not say that the Rules are instantaneously made applicable in praesenti. Clearly, without even the slightest shadow of ambiguity, the Board has only resolved that it will be included in the regulations to be made. The Regulations, there is no dispute, came about only in the year 2011. If that is so, we have no hesitation in rejecting the argument of the respondents that the 2002 Rules were made applicable in the year 2007. The 2002 Rules, in our view, came to be applied to the employees of the Corporation only in the year 2011 and not in the year 2007. 27. In this context, we must, therefore, examine whether it could be said that the petitioner is bound by the 2002 Rules, or whether he is to be governed by the 1978 Regulations, or is there to be a total vacuum. Even as per the Advertisement, the candidates, who were appointed, would be governed by the Rules, which are applicable. Could it be said that there is a vacuum from the time when the petitioner was appointed, namely, 13.05.2005 till 2011 when the 2002 Rules were made applicable? We are of the clear view that, when a person is appointed, he would have the right to have his seniority determined in terms of the extant Rules. Acceptance of the argument of the respondents would mean that the petitioner would not be governed by any Rules. Therefore, we are constrained to come to the conclusion that, when the petitioner was appointed on 13.05.2005 (we are told by the learned counsel for the petitioner that the period of probation was two years), in the year 2007, when the period of probation was undergone by the petitioner, the Rules, which were applicable, were the 1978 Regulations. Therefore, we would think that the petitioner is entitled to assert that his case for seniority is to be considered under the 1978 Regulations. The Regulation, which deals with seniority, is, as we have noticed, Regulation 23. 28. The Rules, which are referred to in the Advertisement as would be applicable to the employees, must be the Rules, which are actually, in law, embodied so that they become legally applicable to the employees governing their service conditions. 29. Now, we have to deal with the argument advanced by Mr. B.P. Nautiyal and Mr. 28. The Rules, which are referred to in the Advertisement as would be applicable to the employees, must be the Rules, which are actually, in law, embodied so that they become legally applicable to the employees governing their service conditions. 29. Now, we have to deal with the argument advanced by Mr. B.P. Nautiyal and Mr. D.S. Patni on behalf of the respondents as to what is the exact impact of Regulation 23 of the 1978 Regulations. Regulation 23, when it is broken down, in our view, has the following inevitable result: (i) The first part of the Regulation provides “in this Regulation" and apart from other provisions in this regard. Mr. D.S. Patni, at the Bar, submitted that we need not be detained in a search for any such provision, as there is none. So, we need not be detained by the same. (ii) The second part of the Regulation is that seniority of a person appointed is to be made as per the date of regular appointment. We would think that, in itself, the Regulation is very clear that seniority, like in many other Rules, is to be determined on the basis of the date of substantive appointment. In fact, this is akin to Rule 8 of the 2002 Rules. It is, thereafter, followed-up by the words “and where two or more persons are appointed on the same date". It is here that the controversy is sought to be introduced by the respondents. We would think that there is no scope for introducing any controversy. In our view, it only means that, on a person being appointed, which will be on the basis of a written document which will bear a date, it is the date of his appointment, which will clinchingly establish his seniority. It may happen, however, that, on the same date, more than one person may be appointed. It may be done by a common order or it may be done on the basis of more than one order. In both the said situations, the law-giver intended that the inter-se seniority of such persons would be such as is stated in the approved list or, rather, the list, which is contemplated under Regulation 16 and 17, read with Regulation 20. In both the said situations, the law-giver intended that the inter-se seniority of such persons would be such as is stated in the approved list or, rather, the list, which is contemplated under Regulation 16 and 17, read with Regulation 20. There is no scope for any other interpretation and the applicability of seniority based on the position in the approved list hinges upon appointment of more than one person on the same day. In this case, there is no dispute that the date of the appointment order of the petitioner is much before the date of appointment orders of the party respondents. There is no scope at all for accepting the case of the respondents that, even under Regulation 23, as projected by the petitioner, petitioner is liable to be treated as junior to the respondents. It is noteworthy that a person becomes member of service with reference to the date of appointment and the same also reinforces us in our view that the interpretation, which is sought to be placed by the respondents, is not correct. 30. There remains the conduct of the petitioner in accepting the promotion as Additional Assistant Engineer in the year 2011. As we have noticed before, a tentative seniority list was prepared. Petitioner, no doubt, after considerable delay, gave objections in the year 2014. Apparently, it is before giving the objections that the petitioner has also been given promotion as Additional Assistant Engineer. This is in terms of the Rules. We also proceed on the basis that the tentative seniority list, which was prepared, was prepared not on the basis of date of the appointment order, but on the basis of the seniority as per the approved list. The question, however, arises as to whether this would, by itself, disentitle the petitioner from asserting his rights in terms of Regulation 23, which is the Regulation which exclusively deals with seniority. We are not here to sit in judgment over the conduct of the petitioner. If the conduct of the petitioner is to be described as trying to get an advantage, which was offered to him during the life of the tentative seniority list, which involved negating his claim for seniority under Regulation 23, short of it being a waiver, we do not think that we should deduce that the petitioner has given-up his rights or that the petitioner's rights will be extinguished. 31. 31. Learned counsel for the petitioner, in fact, would point out that, at that time when the petitioner secured the promotion, the list was only tentative and it may have been a different matter if he had acquiesced after the matter had been finalized. The petitioner, apart from securing the promotion, though belatedly, did file objection. It is this objection, which has been rejected by order dated 03.11.2014. Thereafter, petitioner has filed another representation. It is still further that the list came to be finalized. He has challenged, both, the rejection order passed on his representation as well as the final seniority list before the Tribunal. Therefore, in the set of facts before us, we would be slow to attribute waiver of his rights as such. We also find it difficult to arrive at the finding that the petitioner is estopped as such from claiming his legal rights having regard to his conduct that he also raised objection, though belatedly. Therefore, we reject this contention also. 32. There remains the argument of Mr. Alok Mahra, learned counsel appearing for some of the private respondents. We find considerable merit in the contention of Mr. Alok Mahra that, under the scheme of the 1978 Regulations, under Regulation 14, vacancies are to be determined. Under Regulation 16, merit list is to be prepared. The merit list is to remain alive for present and future vacancies, as correctly pointed out by Mr. B.P. Nautiyal, learned Senior Counsel. Appointments are to be made from the merit list under Regulation 20. The order of making appointments under Regulation 20 is also clear in that the same is to be based on the position one occupies in the merit list. In short, it means that appointments will be given top down or, rather, in the descending order from the person, who occupies the first position, onwards. It is quite clear that this has not been done. On the other hand, petitioner, who is admittedly junior in the merit list prepared under Regulation 17, has been favoured with appointment order earlier than his seniors in the merit list, who have been favoured with appointment orders later. But the question arises as to whether this would be sufficient for the Court, with the fait accompli, as it is in regard to the dates of the appointment orders, to not give effect to the mandate of Regulation 23. But the question arises as to whether this would be sufficient for the Court, with the fait accompli, as it is in regard to the dates of the appointment orders, to not give effect to the mandate of Regulation 23. Regulation 23, no doubt, speaking on the conspectus of the scheme of the 1978 Regulations, contemplates, as a culminating point when appointment orders are issued after following the foregoing Regulations in keeping with the merit list, that there would be no room for complaint. That may have been a breach of the Regulations, we do agree with Mr. Alok Mahra.