JUDGMENT K.M. Joseph, C.J. (Oral) Petitioner has approached this Court seeking the following reliefs: I. Issue a writ, order or direction, summoning the records of proceedings from the office of respondent authorities; and issue a writ, order or direction in the nature of Certiorari, quashing the orders dated 16-09-2011 and 25-02-2013, passed by respondent no. 1, contained in Annexure P-2 & 3 to this petition. *1-A. Issue a writ, order or direction in the nature of mandamus declaring that the final comments/remark given by the Reviewing authority or any other competent authority, in the ACRs of the petitioner for the period 1989-90, 1987-88 and 1983-84 as ‘Fair', ‘Good' and ‘Fair' respectively, and incorrect and the same deserve to be substituted by the final comments / remarks ‘Good', ‘Very Good' and ‘Good' for the period 1989-90, 1987-88 and 1983-84 respectively. *1-B. Issue a writ order or direction in the nature of mandamus commanding the respondents to reconsider the case of the petitioner for promotion to the post of Assistant Resident Engineer, treating the final comments/remarks of the petitioner for the period 1989-90, 1987-88 and 1983-84 as ‘Good', ‘Very Good' and ‘Good' respectively. II. Issue a writ, order or direction in the nature of Mandamus commanding the respondents to grant *notional promotion to the petitioner to the post of Assistant Resident Engineer, with effect from the date, when any person junior to him has been granted promotion to the post of Assistant Resident Engineer, with all consequences benefits of service." 2. This petition is a sequel to an earlier litigation, which culminated in Annexure No. P-1 judgment pronounced by a Bench of this Court on 02.12.2010. The subject matter of controversy in this case is the right of the petitioner to be promoted to the post of Assistant Resident Engineer (Electrical) from the year 1991, in which year, according to the petitioner, his juniors were promoted. The petitioner was appointed as a Sub-Engineer in the year 1979 on ad-hoc basis. Thereafter, according to him, he joined as regular Sub-Engineer after qualifying the departmental written test. There was a DPC constituted for selecting candidates for promotion to the post of Assistant Resident Engineer. By way of the proceedings of the DPC dated 13.12.1990 and 04.01.1991, the petitioner was not promoted. This led to the petitioner filing Claim Petition No. 532 of 1995 before the Public Services Tribunal. There was a DPC constituted for selecting candidates for promotion to the post of Assistant Resident Engineer. By way of the proceedings of the DPC dated 13.12.1990 and 04.01.1991, the petitioner was not promoted. This led to the petitioner filing Claim Petition No. 532 of 1995 before the Public Services Tribunal. The order passed by the Tribunal being short, we would think it is profitable to extract the same in this judgment. The same reads as follows: “The petitioner has prayed for directing the Ops to consider the petitioner for promotion to the post of Assistant Resident Engineer w.e.f. the date when his juniors have been promoted. 2. The brief facts are that the petitioner was appointed in 1978 in the U.P. Rajkiya Nirman Nigam as Apprentice and in 1979 he was appointed as Sub Engineer. The petitioner was appointed as Regular Sub Engineer on 11.2.1986. The said order of regularization is Annexure 2 to the claim petition. The work and conduct of the petitioner has been satisfactory. The persons junior to the petitioner were considered in January, 1991 and February, 1991. the orders of promotion of Juniors are contained in Annexure nos. 6 and 7 to the claim petition. The petitioner again made a representation but no action has been taken. The petitioner has filed seniority list of the department as Annexure 9 to the claim petition in which the name of the petitioner is at serial no.13 while the person junior to the petitioner are at serial numbers 14 and 26. The petitioner's representation has not been considered. So he has filed the present claim petition. 3. It may be mentioned that sufficient opportunity was given to the Ops to file CA/WS but no CA/WS has been filed and the case has been heard exparte. 4. The petitioner has field the seniority list of the department and said seniority list is Annexure 9 to the claim petition. It shows that Dharam Veer Singh is at serial number 14 and KK Sinha at serial number 26. Both these officers are junior to the petitioner and it is evident from Annexures nos. 6 and 7 that they have already been promoted Resident Engineer. The petitioner alleges that his record has been clean and no adverse entry was ever given to him. Both these officers are junior to the petitioner and it is evident from Annexures nos. 6 and 7 that they have already been promoted Resident Engineer. The petitioner alleges that his record has been clean and no adverse entry was ever given to him. I have no reason to discard his version and in view of the above the petition deserves to be allowed. ORDER The petition is allowed. The opposite parties are directed to consider the petitioner for promotion to the post of Assistant Resident Engineer from the date his juniors have been promoted. This order of the Public Services Tribunal is dated 31.05.1996 3. On 17.04.1997, the claim of the petitioner came to be rejected on the basis that his claim for promotion has not been approved. The petitioner approached the Tribunal again by filing Claim Petition No. 1756 of 1997. In the said Claim Petition, apparently, two defences were set up on the part of the respondents/opposite parties. In the first place, it was the case of the respondents/opposite parties that criterion for promotion was seniority. Secondly, it was contended that there were certain adverse entries against the petitioner. Accordingly, by order dated 15.11.2002, the Tribunal did not grant relief to the petitioner, as sought for; instead it was directed that the petitioner may be considered for promotion against the vacancies, which may arise in future. Petitioner filed a Review Petition. The same was unsuccessful. Thereafter, the petitioner filed Writ Petition (S/B) No. 258 of 2004. The same came to be allowed by judgment dated 02.12.2010. The relevant portion is contained in paragraph nos. 3 and 4. We extract the same as follows: “3. We think, Departmental Promotion Committee, while considering the case of the petitioner for promotion in the year 1997, as well as Tribunal, when approached by the petitioner, being aggrieved by non selection of the petitioner by the Departmental Promotion Committee, failed to appreciate the true purport and spirit of the earlier order of the Tribunal. We think, by the earlier order a direction was given by the Tribunal to treat the petitioner, in the matter of consideration of his case, in the same footing as that of his juniors and, accordingly, implied that the status of the petitioner as prevalent on the date of selection of his juniors, be considered to ascertain suitability of the petitioner for promotion. Admittedly, that was not done and, accordingly, Tribunal could and should have interfered with the non-selection of the petitioner by the D.P.C. held in the year 1997 4. We accordingly, allow the writ petition, set aside the judgment and order of the Tribunal impugned in the writ petition and direct consideration of the case of the petitioner for promotion with the status that the petitioner had at the time when petitioner's juniors were promoted i.e. as at 4th January, 1991. Let such consideration be made as quickly as possible, but not later than three months from the date of service of a copy of this order upon the respondent no.2." 4. Pursuant to that, apparently, order dated 16.09.2011 came to be passed rejecting the claim of the petitioner. Petitioner, thereupon, filed a representation. It may, at once, be noted that substantially the case, which was set up in the representation, was that contrary to the norms, the case of the petitioner is to be considered on the basis of the entries in the A.C.R. for the period of 10 years prior to holding of DPC; the DPC for the year 1989-90 was not considered. This representation, however, came to be rejected by order dated 15.02.2013. It is, thereupon, that the petitioner has approached this Court seeking the reliefs, as we have noted. 5. Pleadings have been exchanged. 6. We heard Mr. C.D. Bahuguna, learned senior counsel assisted by Mr. Anup Kumar Verma, learned counsel on behalf of the petitioner and Mr. Anil Kumar Joshi, learned counsel on behalf of the respondents. 7. The first issue, which is projected before us by Mr. C.D. Bahuguna, learned senior counsel is that contrary to the stand, which is taken by the respondents themselves before the Tribunal in the earlier round, a case is sought to be set up that the criterion for application in the matter of promotion is merit. 7. The first issue, which is projected before us by Mr. C.D. Bahuguna, learned senior counsel is that contrary to the stand, which is taken by the respondents themselves before the Tribunal in the earlier round, a case is sought to be set up that the criterion for application in the matter of promotion is merit. According to him, though, it is true, that in the year 1980, when the Rules were originally framed, merit was the criterion, it underwent an amendment and in this regard, he drew our attention to the proceedings of the 79th Meeting of the Board of Directors of the respondent-Corporation (It may be noted that originally in the affidavit, which is filed, there was some discrepancy and this led to an order being passed by us, which resulted in filing of a supplementary counter affidavit dated 15.05.2018). The stand of the respondent in regard to this aspect of the matter is contained from paragraphs no. 4 to 10 of the supplementary counter affidavit dated 15.05.2018 and we deem it appropriate, having regard to the chequered history of this litigation, to advert to the same in the words of the respondents itself. The same reads as follows: “4. That on 28.8.1980 the certain amendment were carried out in the rules (Annexure No.1 to the rules), however by this amendment no change has been made in rule 19 (1) of the Rules. The copy of the minutes dated 28.8.1980 is being filed herewith and marked as Annexure No.SA-2 to this affidavit. 5. That thereafter the amendment was carried out in Rule 19(5) of the Rules on 27.2.1981, however, in the said Board meeting also there is no proposal for amendment of Rule 19(1). The copy of the minutes of meeting dated 27.2.1981 is being filed herewith and marked as Annexure No.SA-3 to this affidavit. 6. That thereafter the certain amendments were carried out on 23.3.1983 in Rule 19 (4) of the rules, however, no amendment was made in the Rule 19 (1). The copy of the agenda and recommendation dated 23.3.1983 is being filed herewith and marked as Annexure No. SA-4 to this affidavit. 7. That thereafter the certain amendments were carried out on 19.6.1987 and Annexure No.1 to the Rules were amended, however no amendment was made in the Rule 19 (1). The copy of the agenda and recommendation dated 23.3.1983 is being filed herewith and marked as Annexure No. SA-4 to this affidavit. 7. That thereafter the certain amendments were carried out on 19.6.1987 and Annexure No.1 to the Rules were amended, however no amendment was made in the Rule 19 (1). In the said Board meeting the 8-1/3% quota for AMI/B was also fixed for promotion. The copy of the agenda and minutes of meeting dated 19.6.1987 is being filed herewith and marked as Annexure No.SA-5 to this affidavit. 8. That thereafter another meeting dated 21.10.1989 was held, in which the 1980 Rules were amended but again no amendment has been carried out in Rule 19 (1). The copy of the minutes of meeting dated 21.10.1989 is being filed herewith and marked as Annexure No. SA-6 to this affidavit. 9. That another amendment was carried out on 5.10.1991 and Rule 19(2) was amended but again no amendment was carried out in Rule 19(1). The copy of the minutes of meeting dated 5.10.1991 is being filed herewith and marked as Annexure No.SA-7 to this affidavit. 10. That on 7.11.1992 the 79th Board Meeting was held, in which at Item No.7 the proposal for amendment in Rule 19(1) of Rules was proposed and the proposal was made that the promotion from the post of Sub Engineer be made on the basis of the eligibility list prepared under the Rules by dropping the candidate not found suitable. The proposed amendment in Rule 19(1) are quoted. ßfu'p; fd;k tkrk gS fd mÙkj izns'k jktdh; fuekZ.k fuxe dh lsok fu;ekoyh&1980 ¼bathfu;lZ ,.M vkfdZVsDV½ ds fu;e 19 ¼1½ esa la'kks/ku djrs gq, fuEu izLrko ikfjr fd;k tkrs gS%& ßmÙkj izns'k jktdh; fuekZ.k fuxe esa mi&vfHkUrk@led{k in ls LFkkud vfHk;Urk ds in rd rFkk vij ifj;kstuk izcU/kd ls ofj"B ifj;kstuk izcU/kd@ led{k in rd izksUufr dk vk/kkj vuqi;qDr dks NksMrs gq, lsok fu;ekoyh ds vuqlkj cukbZ xbZ ik=rk lwph ds vuqlkj gksxkAÞ The copy of the agenda of 79th meeting is being filed herewith and marked as Annexure No.SA-8 to this affidavit." 8. In short, the case of the respondent-Corporation is that Rule 19 of Uttar Pradesh Rajkiya Nirman Nigam Limited (Engineers & Architects) Service Rules, 1980 (hereinafter referred to as the “Rules") provided for merit as the criterion for promotion. Apparently, merit is to be assessed by the Departmental Promotion Committee. In short, the case of the respondent-Corporation is that Rule 19 of Uttar Pradesh Rajkiya Nirman Nigam Limited (Engineers & Architects) Service Rules, 1980 (hereinafter referred to as the “Rules") provided for merit as the criterion for promotion. Apparently, merit is to be assessed by the Departmental Promotion Committee. Though, certain amendments were referred to, which took place after the year 1980, in short, the case of the respondents is that the criterion of merit embodied in Rule 19 of the Rules did not undergo any change till the year 1995. It is only in the year 1995 that the criterion of merit was changed to seniority subject to rejection of unfit. In this regard, Mr. C.D. Bahuguna, learned senior counsel for the petitioner drew our attention to the actual wording of the amendment brought about in the year 1992 in the 79th Meeting of the Board of Directors. He would point out that it clearly declares that the Board of Directors has decided to establish merit as the criterion by the said amendment. Therefore, by necessary implication, it is his case that the respondents have not brought the full chronology of facts, in relation to the Rules, to the notice of this Court. In other words, he would submit that in the year 1980, the Rules contemplated merit as the criterion. Thereafter, in the year 1992, the Board of Directors has brought-back merit as the criterion. This means that before that and during the relevant period in the year 1991, with which we are concerned, the criterion must have been something other than merit. Therefore, it reinforces his contention that criterion was actually seniority subject to rejection of unfit, otherwise there was no need to mention in the 79th Meeting of the Board of Directors that merit is to be the criterion. 9. This is sought to be refuted by Mr. Anil Kumar Joshi, learned counsel for the respondents by reading out the decision taken in the 79th Meeting of the Board of Directors. He would submit that actually what happened was that the Board of Directors did consider an amendment, but it was reiterated that as far as the post of Assistant Resident Engineer is concerned, merit will remain as the criterion. He would submit that actually what happened was that the Board of Directors did consider an amendment, but it was reiterated that as far as the post of Assistant Resident Engineer is concerned, merit will remain as the criterion. In other words, he would submit that merit remained the criterion for the period from the year 1980 to 1995 when it was amended and transformed into seniority subject to rejection of unfit. 10. The petitioner has not filed any rejoinder affidavit seeking to refute the allegations contained in the supplementary counter affidavit dated 15.05.2018. In fact, the stand of the petitioner appears to be that in view of the chequered history of this case, which we have adverted to, namely, the stand of the respondents-Corporation before the Tribunal that the criterion was seniority at the earlier stage of the litigation, the case of the respondents is unacceptable. In fact, the learned senior counsel for the petitioner would comment adversely on the prevaricating stand of the respondents in this matter. This is, of course, also sought to be supplemented by further adverse reference to the conduct of the respondents, which we will currently refer. He would draw our attention to the proceedings of DPC itself, which took place originally. He would submit that for the year 1988-89, originally, what is shown is that he has been rated as outstanding, which means he would get 10 marks for the said period. Instead, he complains that the said entry is cut and beneath it, it is shown that he is awarded ‘good'. What is more adding salt to the wound is that he is not given any marks, even proceeding on the basis that he is to be treated as good. For the next year, namely, 1989-90, he would further contend, as per the original proceeding, which is produced before us at page no. 123 of the writ petition, that he is shown as being awarded ‘fair' and again he is not awarded any marks for the same, even though under the norms for ‘outstanding', a person is entitled to 10 marks and for ‘fair', a person is entitled to 4 marks. The petitioner was awarded 51.50 marks. His case is that he should have secured on this score alone a total of 65.50 marks. The petitioner was awarded 51.50 marks. His case is that he should have secured on this score alone a total of 65.50 marks. At this juncture, it is relevant to notice the case that is sought to be set up, which is contained in paragraph nos. 22 and 25 of the writ petition. The same reads as follows: “22. That against the rejection order dated 16-09-2011, the petitioner submitted a representation dated 03-11-2012 through proper channel before the concerned authority and re-iterated that the marks secured by the petitioner in the ACR entries for 2 years i.e. for the period 1988-89 and 1989-90, were not included in the total marks. In other words, it was stated that the ACR entries of all the candidates including the petitioner of 10 years were required to be considered by the DPC but in his case alone, only 8 years ACR entries were considered at a subsequent stage by the Committee, and there he was awarded only 51.5 marks. This was done knowingly, with an intent to harm the petitioner and to provide advantage to the Junior persons, namely, Mr. K.K. Sinha and mr. Dharam Veer Singh. It was also stated that the minimum eligibility by way of bench mark for 10 years ACR entries, was fixed as 55, for selection for promotion to the post of Assistant Resident Engineer, whereas the petitioner was already possessing 61.5 marks in the ACR entries of 10 years. A copy of the representation dated 03-11-2012, is enclosed and marked as Annexure P-13 to the writ petition. 25. That it is worth to state it here that the petitioner applied under Right to Information Act, for the minutes of the DPC, by which the petitioner, at subsequent stage, was declared unsuitable for promotion to the post of Assistant Resident Engineer. The concerned authority has not supplied entire record of the minutes to the petitioner but has supplied some documents, on perusal of which, it becomes clear that the DPC did not act fairly in making selection for promotion to the post of Assistant Resident Engineer. The documents supplied clearly demonstrate that a manipulation was done in the ACR entry of the petitioner for the period 1988-89, in that, an awarded entryof ‘Outstanding' was crossed out and on its place another entry ‘Good' was mentioned. The documents supplied clearly demonstrate that a manipulation was done in the ACR entry of the petitioner for the period 1988-89, in that, an awarded entryof ‘Outstanding' was crossed out and on its place another entry ‘Good' was mentioned. It is a fact that 10 marks are awarded for ‘Outstanding' entry whereas 6 marks are awarded for ‘Good' entry. The ACR entry of the petitioner for the year 1989-90, carried with it ‘Fair' entry, for which 4 marks are awarded. The DPC did not award any marks to the petitioner for the ACR entries of the years1988-89 and 1989-90. Copies of documents being the part of minutes of the DPC, are enclosed in Annexure P-14 to this writ petition" 11. Mr. C.D. Bahuguna, learned senior counsel for the petitioner would most emphatically and disapprovingly comment upon the conduct of the respondents in this matter. He complains of manipulation to deny the right to promotion, which was rightfully his. Next, he would also submit that he is, in fact, entitled to 2 more marks. This is on the basis of the following logic, which is at the heart of the argument addressed before us: For the year 1989-90, he drew our attention to the actual record. He would point out that it would manifestly show that the authority itself has given, in as many as 8 columns, entry ‘very good' and as against 9 columns the entry is given as ‘good', yet he has been given the rating as ‘fair'. This, according to him, is unsustainable. If it is treated as ‘good', he would get 6 marks in place of 4 marks, which is given for ‘fair' and if that be so, he would get a total of 67.50 marks i.e. adding 10 marks to 51.50 marks by way of the entry he was entitled for the year 1988-89 on the basis that he was to be treated as ‘outstanding' and 6 marks for the year 1989-90 in place of 4 marks, which has been awarded subsequently. 12. Mr. C.D. Bahuguna, learned senior counsel for the petitioner would, in fact, submit that Mr. K.K. Sinha, who is shown as promoted was given 77.56 marks. There was an adverse entry against him, which means that he was not entitled to be considered. 12. Mr. C.D. Bahuguna, learned senior counsel for the petitioner would, in fact, submit that Mr. K.K. Sinha, who is shown as promoted was given 77.56 marks. There was an adverse entry against him, which means that he was not entitled to be considered. He would submit, with reference to the earlier round, that the adverse entries, though relating to the year 1991, came to be communicated, admittedly, only in the year 1995/96 and they were not liable to be considered. 13. Mr. Anil Kumar Joshi, learned counsel for the respondents would refute the case of the petitioner regarding the adverse entry disentitling Mr. K.K. Sinha from being considered or being promoted on the basis that under the norms for the adverse entry, there is a provision of negative marks or reducing the marks by 2 marks. In this regard, Mr. C.D. Bahuguna, learned senior counsel for the petitioner would respond and point out that apart from an affidavit, wherever such a claim is made, it is not supported by any document. 14. Mr. C.D. Bahuguna, learned senior counsel for the petitioner would, in fact, point out that the Court must bear in mind the cardinal principle that it is not open to a party to prevaricate and to adopt different stands and depart from the pleadings and this is precisely being attempted to be done by the respondents. He complains of grave injustice, which has been occasioned to his party, who has been fighting before the Tribunal and also before this Court and he prays that he should not be denied the fruits of the judgment rendered by the Tribunal and also by this Court in the earlier round. 15. Per contra, Mr. Anil Kumar Joshi, learned counsel for the respondents would submit that the petitioner was actually at Serial No. 22 in the list, which was prepared and sent to the DPC for consideration. There were total of six vacancies and out of these six, one was reserved to be filled by promotion from amongst the persons, who were having qualification of A.M.I. Therefore, 5 posts remained to be filled up in the year 1991. There were total of six vacancies and out of these six, one was reserved to be filled by promotion from amongst the persons, who were having qualification of A.M.I. Therefore, 5 posts remained to be filled up in the year 1991. In this regard, it is submitted that when the vacancies are between 1 to 5, then 15 persons have to be considered and, therefore, persons up to 1 to 15 in the merit list were considered and the petitioner was at Serial No. 22. In this regard, he would submit that the list was prepared on the basis that ad-hoc service rendered by a person is also to be reckoned for the purpose of considering the seniority. 16. In this regard, it is the case, which is set up by Mr. C.D. Bahuguna, learned senior counsel for the petitioner, no doubt, that a perusal of the final list would reveal that this submission is unfounded as the case of the next person, namely, at Serial No. 23 has been considered and marks have been awarded for the year 1988-89 and 1989-90. He would also point out that as far as the vacancies are concerned, going by the entries in the A.C.R., the following is the position, which, in fact, has been setup in the pleadings, inter alia, also: “7. That the contents of paragraph no. 6 of the writ petition are not admitted as stated, in reply thereof it is also submitted here that in the year 1991 the Departmental Promotion Committee was constituted for making promotions from Sub Engineer to Assistant Resident Engineer, at that point of time 6 posts of Assistant Resident Engineer were lying vacant which were to be filled by way of promotion in the department and against these 6 posts, name of 29 person were sent before DPC for considering the promotion and out of these 29 Engineers the Departmental Committee has considered the name of persons upto Sl. No.16 of the said list, according to decision of the departmental promotion committee the marks for determining merit was to be allotted in following manner :- 1 Outstanding 10 2 V. Good 08 3 Good 06 4 Satisfactory 05 5 Fair 04 6 Adverse (-) 02 The D.P.C. found following Sub Engineer eligible to be promoted on the post of Assistant Resident Engineer and accordingly their names were recommended for promotion:- 1. Sh. Sh. Muntasir Abbas (81.25 Point) 2. Ashok Kumar Sharma (76.15 Point) 3. Sh. Ali Mohammad (72.48 Point) 4. Sh. Naveen Chandra (71.4) 5. Sh. K.K. Sinha (77.56 Point) 6. Sh. A.P. Varshane – AMIE/Degree Quota Waiting List :- 1. Sh. Dorilal Gangwar (70 Point) 2. Sh. D.D.L. Srivastava (69.16 Point) 3. Sh. Dharamveer Singh (67.16 Point) Since DPC has only considered the name of the engineers upto serial no. 16 out of list of 29 Sub engineer and the name of the petitioner find place at serial no. 22 therefore DPC did not consider the name of petitioner for promotion." 17. The learned counsel for the respondents would, therefore, submit that persons have been considered in terms of the principle of merit, which was the governing rule. He would, in fact, very fairly submit that at the time of passing of the judgment by this Court in the earlier round, the aspect relating to merit could not be projected (we may notice, in fact, that there was none to represent the respondents in the said litigation, going by what is stated in the judgment). He would further submit that, in fact, the petitioner is entitled to 61.50 marks in place of 51.50 marks. This is on the following calculation: After taking 51.50 marks, the respondents have, apparently, added 6 marks for the year 1988-89, which are the marks to be awarded if a person has secured ‘good' entry and respondents have given further 4 marks for the year 1989-90 on the basis that he has secured ‘fair' entry, making it a grand total of 61.50 marks. 18. Mr. Anil Kumar Joshi, learned counsel for the respondents would point out that in fact even the person shown as below the petitioner in the list relied on by the petitioner, has secured more marks than the petitioner but he was not considered having regard to the number of vacancies and also number of persons to be considered. 19. Having heard the learned Senior Counsel, we must now proceed to consider the issues, which have been raised. The first question, which we have to consider, is whether it is the principle of merit, which will govern promotion in the year 1991 or whether it is the principle of seniority. 19. Having heard the learned Senior Counsel, we must now proceed to consider the issues, which have been raised. The first question, which we have to consider, is whether it is the principle of merit, which will govern promotion in the year 1991 or whether it is the principle of seniority. It is true that before the Tribunal, the stand of the respondents was based on the seniority, going by what is stated in the judgment. It would also appear to be that this was the premise, on which the Division Bench has rendered judgment in the earlier round, but now we are called upon to decide the issues in the light of the actual position. Even though it is true that there was a stand taken by the respondents that the matter is to be governed by seniority, but in a matter, which relates to a point of law, we are of the view that the petitioner may not succeed only on the basis of an admission, which may have been made or a position, which may have been taken, which is actually contrary to the true legal position. This principle can apply only when it relates to a fact or mixed questions of fact in law. Here what is involved is as to what is the Rule governing promotion to the post of Assistant Resident Engineer. It is, no doubt, true that the actual provision is contained in Rule 19 of the Rules, which were made initially in the year 1980. We have set out the paragraphs of the supplementary counter affidavit dated 15.05.2018 (to which supplementary counter affidavit, we may notice, there is no rejoinder filed by the petitioner), wherein the respondents have set out the amendment, which has been engrafted in the Rules. We can come to the conclusion from the same that Rule 19(1), which incorporated the principle of merit for the purpose of promotion, did not undergo any change till it was amended in the year 1995. Though in the 79th Meeting of the Board of Directors in the year 1992, it is stated that merit will be the criterion, it is only by way of reiterating the legal position in regard to the criterion, which continued from the year 1980 onwards. Though in the 79th Meeting of the Board of Directors in the year 1992, it is stated that merit will be the criterion, it is only by way of reiterating the legal position in regard to the criterion, which continued from the year 1980 onwards. In the year 1992, in other words, all that happened, according to us, is that the principle of merit came to be continued. We also reject the case of the petitioner that after the year 1980 and prior to the year 1992, the criterion had been changed from merit to seniority. This change took place only in the year 1995. Therefore, in the relevant period, with which we are concerned, the criterion continued to be merit. Having thus determined the criterion for effecting promotion to be merit, we must proceed to deal with the other contentions of the petitioner. 20. It is true that originally for the year 1988-89, the authorities have shown the petitioner as ‘outstanding' entitling him to 10 marks. The said entry was cut and beneath it, it was shown that it was to be treated as ‘good'. For ‘good', he would be entitled to 6 marks. However, no marks were given. There are two aspects to it. One is the aspect relating to deletion of the entry ‘outstanding' and insertion of the entry ‘good' and finally to add insult to injury, petitioner is given no marks. In the next year, the petitioner is treated as ‘fair' and still he has not been given any marks. We certainly are disturbed by what has happened in the matter. The D.P.C. is not before us as a party and hence, we say no more; but we are certainly obliged to consider what transpired thereafter. We stand overtaken by the litigation, which culminated in the judgment of this Court dated 02.12.2010. Therein, after disapproving the view taken by the Tribunal in Claim Petition No. 1756 of 1997, this Court had directed to consider the case of the petitioner for promotion with reference to the date his juniors were promoted and also with reference to his entitlement as on the said date. It is not made very clear whether the Court has directed notional promotion or actual promotion. It is not made very clear whether the Court has directed notional promotion or actual promotion. In this case, we must also bear in mind the fact that this is not a case of promotion to be effected on the basis of seniority, as we have found, but on the contrary, it is to be effected on the basis of merit and merit alone. In other words, it is a pure selection post. In such circumstances, we must take into consideration what happened subsequently. The stand taken by the respondents is that it is true that the petitioner is entitled to 6 marks for the year 1988-89 and 4 marks for the year 1989-90 on the basis that he is to be treated as ‘good' for the year 1988-89 and ‘fair' for the year 1989-90. This would increase the total marks obtained by the petitioner from 51.50 to 61.50. Since the criterion is one of merit, we must necessarily compare the marks, which the petitioner has obtained (61.50 with the marks obtained by the candidates, who were in the select list prepared by the D.P.C.). It is clear as daylight that going by the principle of merit, the petitioner cannot be considered for the 5 posts, having regard to the marks obtained by the persons up to Mr. K.K. Sinha in the list, which we have already referred to and extracted. 21. There was some controversy sought to be introduced by Mr. A.K. Joshi, learned counsel for the respondents by seeking to contend that Mr. K.K. Sinha was actually senior to the petitioner. In this regard, it appears that the respondent-Corporation has proceeded to add ad-hoc services and, accordingly, treated Mr. K.K. Sinha as senior to the petitioner. Subsequently, it appears that there has been a final seniority list, which has been produced by the petitioner, which tends to indicate otherwise. We notice the direction given by the Division Bench by order dated 02.12.2010. Prior to that, it would appear that the final seniority list was brought about in the year 1994 wherein in the cadre of Sub-Engineers, Mr. K.K. Sinha is shown as junior to the petitioner. Mr. Dharam Veer Singh, who is also shown at Serial No. 3 in the waitlist prepared by the DPC is also shown as junior to the petitioner in the said list. K.K. Sinha is shown as junior to the petitioner. Mr. Dharam Veer Singh, who is also shown at Serial No. 3 in the waitlist prepared by the DPC is also shown as junior to the petitioner in the said list. But, we would think that this may not finally determine the case in favour of the petitioner. We have referred to the marks, as calculated by the respondents and it comes to only 61.50. We will proceed to take matters further in favour of the petitioner by completely accepting the case of the petitioner that in regard to the year 1988-89, where he was shown as ‘outstanding', which was subsequently cut and he was shown as ‘good', he should be given the full 10 marks. Even then, the petitioner would have secured only 65.50 marks. Mr. Dharam Veer Singh, who is stated to be junior to the petitioner, has secured 67.16 marks. When faced with this prospect, learned senior counsel for the petitioner sought to surmount this difficulty by pointing out that for the year 1989-90, where he has got 8 ‘very good' entries and 9 ‘good' entries, the final assessment is shown as ‘fair'. This cannot be accepted and, therefore, he was entitled, at least, to be rated as ‘good', in which case there would be a further increase from 4 marks to 6 marks for the year 1989-90. This would catapult his marks from 65.50 to 67.50 (which is even admitted by the respondents), which would lead to a situation where he scores more marks than Mr. Dharam Veer Singh, who is his junior. Therefore, in terms of the judgment of this Court in the earlier round, he is entitled to succeed. 22. Though, we have in no uncertain terms expressed our displeasure at the manner in which the entry ‘outstanding' for the year 1988-89 was cut and he was given ‘good' and even then he was not given any marks; and equally for the year 1989-90 though he was given ‘fair', he was given no marks, we would think that the petitioner may not succeed ultimately. We have noticed that by adding 10 marks for the year 1988-89 by accepting the petitioner's case that there is manipulation and what was shown as ‘good' is not correct and he is entitled to full marks for being awarded entry as ‘outstanding', we find it difficult to accept the case of the petitioner based on his claim for 2 more marks in the year 1989-90. It is true that for the year 1989-90, there is reference to 8 ‘very good' and 9 ‘good' entries and this is relatively more than the entries shown as ‘fair' in respect of other columns. The fact of the matter is that in the overall rating, the Reviewing Officer and the Accepting Officer have rated him as ‘fair'. It is this, which has been looked into by the D.P.C. We have to take the entries, as they are and as they would have been considered by the D.P.C. It is the overall rating, which is, apparently, considered and he was given ‘fair'. Therefore, we would proceed on the basis that petitioner would, even accepting in full his case for the year 1988-89, be left with 65.50 marks. That is far below the marks, which have been obtained by Mr. K.K. Sinha and also below the marks obtained by Mr. Dharam Veer Singh. Therefore, if the direction of this Court in the earlier round was to consider him and since it is to be considered, as per law, the law is the principle of merit. We have also taken into consideration the number of vacancies, which were available. It is clear to us that the petitioner may not succeed in getting the right declared to be promoted on the basis that his juniors were promoted. We make it clear that we are proceeding in regard to this on the basis of the Rule that it contemplates merit as the criterion. 23. We must deal with the argument of the learned senior counsel for the petitioner that Mr. K.K. Sinha was not entitled to be considered as there was an adverse entry against him. In this regard, the stand taken by the respondents in the affidavit is that the norms contemplate deduction of marks for an adverse entry and that is what has happened. We have noted that the marks, which is obtained by Mr. K.K. Sinha is 77.56. In this regard, the stand taken by the respondents in the affidavit is that the norms contemplate deduction of marks for an adverse entry and that is what has happened. We have noted that the marks, which is obtained by Mr. K.K. Sinha is 77.56. Therefore, apparently, it is after doing the necessary adjustments in this regard that Mr. K.K. Sinha has been awarded the marks, which he has been awarded. We notice that the case of the petitioner is that there is no document to support this provision for deduction of marks for an adverse entry. Having regard to the fact that nothing contrary to what is stated in the affidavit is brought to our notice, we would place reliance on what is stated in the affidavit by the respondents that when there is an adverse entry, what is contemplated is reduction of marks and not completely ousting an employee from being considered. In regard to paragraph no. 22 of the writ petition, wherein the petitioner has referred 55 as the cutoff marks to be obtained and that he has obtained more marks than the cutoff marks, even going by the respondents, we are of the view that this is on the basis that criterion for promotion is seniority; whereas it is found that the post is to be filled up on the basis of pure merit irrespective of the fact whether a person is junior or senior. It is the more meritorious one, who will succeed and this is what has happened in this case. 24. We will now proceed hypothetically on the basis that even if the petitioner is to be given 6 marks for the year 1989-90, for which he has been given 4 marks on the basis that he has been rated as ‘fair', we would think that he would be securing 67.50 marks, which is, apparently, more than the marks awarded to Mr. Dharam Veer Singh. Be it noted that there were only 6 vacancies. Even proceeding on the basis that Mr. Dharam Veer Singh. Be it noted that there were only 6 vacancies. Even proceeding on the basis that Mr. Dharam Veer Singh was his junior may have secured position on the basis of his position in the waitlist, but here we must bear in mind that having accepted the criterion for promotion based on merit and not a case of promotion based on seniority, we may not be in a position to accept the argument, which is advanced on behalf of the learned senior counsel for the petitioner that having retired, the petitioner must be given notional promotion and financial benefits. We would think that we may not be in a position to accede to the said request at this matured stage as we would be tinkering with the actual entries in the A.C.R. giving rating as ‘fair' for the year 1989-90 and even proceeding on the basis that the case of the petitioner is that for the year 1989-90, he is entitled to entry ‘good', we would still think that having regard to the fact that the principle of promotion is merit, we may not be justified in giving relief to the petitioner. 25. As regards the submission made by the learned senior counsel that it is not open to a party to shift its stand at different levels of the litigation, the case may go through, we have noticed that what is involved is a legal issue and that too relating to the statutory Rules governing the promotion. In regard to the same, we would think that having made the aforesaid findings, we may not be justified in accepting the case of the petitioner based on the principle of inconsistent or different stands being impermissible. 26. Accordingly, the writ petition fails and is dismissed. No order as to costs.