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Allahabad High Court · body

2019 DIGILAW 1314 (ALL)

Raieev Nain Upadhyay v. State of U. P.

2019-05-14

ASHWANI KUMAR MISHRA

body2019
JUDGMENT : Ashwani Kumar Mishra, J. 1. This writ petition arises out of a seniority dispute in the cadre of Junior Engineer, Department of Minor Irrigation, State of Uttar Pradesh. An order dated 5th March, 2010, passed by the Chief Engineer (Minor Irrigation), U.P. Lucknow, rejecting petitioner's objection against the tentative seniority list is assailed in addition to the final seniority list drawn for the cadre. A further prayer is made to command the respondents to prepare and publish a revised seniority list in conformity with the U.P. Government Servant Seniority Rules, 1991 (hereinafter referred to as "the Seniority Rules of 1991"), within a period to be specified by the Court. 2. Undisputed facts that emerge on record are that U.P. Public Service Commission initiated recruitment exercise vide Advertisement No. 3 of 1998-99 for appointment to the post of Junior Engineer (Agriculture, Civil & Mechanical) in the Department of Minor Irrigation, PWD & Irrigation. The advertisement contained a stipulation that a screening test would be conducted in accordance with the provisions of U.P. Direct Recruitment through Public Service Commission (Preliminary Examination) Rules, 1986 (hereinafter referred to as "the Rules of 1986"). Selection was to be made on the basis of screening test to be followed by Interview. The preliminary examination consisted of two papers. The first paper was to be of 40 marks towards General Knowledge while the second paper consisted of 60 marks in the respective stream i.e. Agriculture, Civil and Mechanical Engineering. By virtue of Rule 3(3) of the Rules of 1986 the marks obtained in the preliminary examination were not to be counted for determining the final order of merit. The appointment itself was to be made in accordance with Government orders issued from time to time. All posts in the cadre of Junior Engineer were to be filled by direct recruitment. The cadre of Junior Engineer (Minor Irrigation) is a composite cadre inclusive of the three streams i.e. Agriculture, Civil & Mechanical. A Government Order dated 31st March, 1993 had been issued as per which the quota for three streams in the cadre of Junior Engineer were to be in the ratio of 50:30:20 for Agriculture Engineering, Civil Engineering and Mechanical Engineering respectively. 3. The process of recruitment was ultimately concluded by the Commission and three separate select lists were sent to the State Government on different dates. 3. The process of recruitment was ultimately concluded by the Commission and three separate select lists were sent to the State Government on different dates. The first list in that regard was sent by the Commission on 28th September 1999 for Agriculture Stream while the next list was sent on 6.1.2000 for Mechanical Stream and the last list was sent on 7.11.2000 for Junior Engineer (Civil). Based upon the three select lists sent by the Public Service Commission, appointment letters were issued to Junior Engineers in the three streams. Petitioners before this Court are the Junior Engineers belonging to Civil Stream. A composite seniority list was required to be drawn in respect of the cadre of Junior Engineer in the Department of Minor Irrigation. An exercise in that regard commenced sometime in the year 2005. A tentative seniority list was prepared to which objections were invited. Ultimately, the seniority list was finalized on 5th September, 2006. It contained a specific assertion in the last paragraph to the effect that seniority of Junior Engineers in the cadre is based upon merit. The relevant extract contained in seniority list, in that regard, is reproduced hereinafter: ^^mijksDrkuqlkj fy, x;s fu.kZ; ds vuqlkj fnukad 1-1-1989 ls 28-2-2006 rd fu;qDr ,oa foHkkx esa ;ksxnku djus okys voj vfHk;Urkvksa ¼y?kq flapkbZ½ dh layXu lwph ds vuq:i vfUre T;s"Brk lwph mudh Js"Brk Øe esa j[kh xbZ gSA layXud&mijksDrkuqlkjA^^ 4. This seniority list has also been challenged in this petition by way of an amendment which has already been allowed. 5. At the time when the recruitment in question was made their existed no service rule in respect of the cadre of Junior Engineer (Minor Irrigation). Rules under the proviso to Article 309 were framed for the first time on 16th October, 2009 for the cadre of Junior Engineer (Minor Irrigation) known as the Uttar Pradesh Minor Irrigation Department Subordinate Engineering Service Rules 2009 (hereinafter referred to as the 'Service Rules of 2009')- Rule 4 of the Service Rules of 2009 provided that the strength of service would be such as is specified in the Appendix to the rules. The post of Junior Engineer (Mechanical), Junior Engineer (Minor Irrigation) and Junior Engineer (Civil) had already been redesignated as Junior Engineer vide Government Order dated 17th December, 2002. The post of Junior Engineer (Mechanical), Junior Engineer (Minor Irrigation) and Junior Engineer (Civil) had already been redesignated as Junior Engineer vide Government Order dated 17th December, 2002. Rule 5 of the Service Rules of 2009 provided that recruitment to the post of Junior Engineer would be by direct recruitment to the extent of 74% in the ratio of 50:30:20 for Agriculture, Civil and Mechanical, respectively. Rule 15(4) of the Service Rules of 2009 contemplates that the U.P. Public Service Commission shall prepare a list of candidates in order of their proficiency as disclosed by aggregate of marks obtained by each candidate at the written examination and interview. Rule 15(5) of the Rules of 2009 provides that if the recruitment is being made in more than one branch of Engineering specified in Clause (1) of Rule 5 then the U.P. Public Service Commission shall prepare a combined select list of Junior Engineers in order of their proficiency as disclosed by the aggregate of marks obtained by each candidate in the written examination and interview and shall forward the same to the appointing authority. Rule 21 of the Service Rules of 2009 is also relevant for the present purposes, inasmuch as it provides that seniority of Junior Engineers substantively appointed in any category of post in the service shall be determined in accordance with the Uttar Pradesh Government Servant Seniority Rules, 1991. Even prior to framing of the service rules of 2009 the manner of preparing seniority list remained the same. 6. After the service rules were framed for the composite cadre of Junior Engineer in the Department of Minor Irrigation, for first time in the year 2009, the process for determination of seniority commenced as per the Service Rules of 2009. Since appointments were made in the cadre of Junior Engineer (Minor Irrigation) right from 1967 onwards, therefore, separate seniority lists were issued in respect of appointments made from time to time. A composite seniority list was prepared by clubbing all previous seniority lists issued in respect of appointments made from time to time. A tentative seniority in respect of all Junior Engineers appointed from 1967 onwards till the year 2009 was accordingly published inviting objections to it. Objections to the seniority list were raised on the ground that seniority of Junior Engineer in three different streams had not been drawn in accordance with their respective merit. A tentative seniority in respect of all Junior Engineers appointed from 1967 onwards till the year 2009 was accordingly published inviting objections to it. Objections to the seniority list were raised on the ground that seniority of Junior Engineer in three different streams had not been drawn in accordance with their respective merit. This objection, however, has been rejected vide the order dated 5th March, 2010, which is impugned in the present writ petition. The order impugned records that seniority list has been drawn on the basis of appointments offered to the Junior Engineer in three different streams, as per the date of appointment issued to them. The order assailed in the present writ petition contains following assertion of fact: ^^vk;ksx ls fnukad 06-01-2000 dks d`f"k] 27-1-2000 dks ;kaf=d rFkk 07-11-2000 dks flfoy dh lwph Hksth x;h gSA vr% tSls&tSls vk;ksx ls p;u lwfp;ka ÁkIr gqbZ gS] mlh Øe esa vH;fFkZ;ksa dks ikjLifjd T;s"Brk dk fu/kkZj.k fd;k x;k gSA^^ 7. It is admitted to the parties that under the Service Rules of 2009 and even earlier also the seniority was required to be drawn as per the Seniority Rules of 1991. Rule 5 of the Rules of 1991 regulates seniority where appointment is made by direct recruitment only and is extracted hereinafter: "5. Seniority where appointments 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 the persons appointed on the result of a subsequent selection shall be junior to the persons appointed on the result of a previous selection. Explanation.-Where in the same year, separate selections for regular and emergency recruitment, are made, the selection for regular recruitment shall be deemed to be the previous selection." 8. Explanation.-Where in the same year, separate selections for regular and emergency recruitment, are made, the selection for regular recruitment shall be deemed to be the previous selection." 8. Argument is that direct recruitment in the three streams to the cadre of Junior Engineer in the present case since is pursuant to a composite advertisement followed with selection proceedings it would be treated as 'any one selection' in terms of Rule 5, notwithstanding the fact that different results (select lists) were forwarded to the State and the criteria to determine their inter se seniority would be the merit prepared by the Commission. 9. On behalf of petitioners it is stated that mere date of issuance of select list cannot be the basis for determination of inter se seniority amongst Junior Engineers, substantively appointed in three streams, and that a composite seniority based on inter se merit of the Junior Engineers in three streams was required to have been drawn in accordance with the appropriate rules which has not been done in the facts of the present case. It is asserted that the seniority list drawn is absolutely de-hors the rules. It is also urged that mere date of dispatch of select list, if is made the basis for determination of seniority, then the determination of seniority would be based upon a fortuitous circumstance, which otherwise cannot constitute a valid basis for determination of seniority itself. 10. The writ petition was entertained and following interim protection has been granted in the matter on 19.10.2012: "Heard learned counsel for the petitioners. It is contended that since the examination conducted by the Public Service Commission was combined, as such, the seniority list ought to have been prepared in order of merit, rather than as per the date of receipt of select list. Prima facie, there appears to be force in the contention and the matter requires scrutiny. Learned Standing Counsel representing the respondent Nos. 1 to 3 may file counter-affidavit within six weeks. Issue notice to respondent Nos. 4 to 10, who may also file counter-affidavit. Petitioners shall take steps for service of notice on the respondents by registered post within three weeks. Office shall issue notices returnable at an early date. List after service of notice on respondent Nos. 4 to 10. Considering the facts, any promotion made during this period, shall abide by the result of the writ petition." 11. Petitioners shall take steps for service of notice on the respondents by registered post within three weeks. Office shall issue notices returnable at an early date. List after service of notice on respondent Nos. 4 to 10. Considering the facts, any promotion made during this period, shall abide by the result of the writ petition." 11. A counter-affidavit has been filed by the Public Service Commission, State of Uttar Pradesh as well as the private respondents. The Commission in its affidavit has explained the process undertaken for recruitment to the composite cadre of Junior Engineer inclusive of the three streams. As per the last affidavit filed in the matter by the Commission, the selection has been undertaken after conduct of preliminary examination followed by interview. No written examination was conducted. Inter se merit of candidates is, therefore, based only upon the marks scored in the interview. The Commission has further apprised the Court that records relating to selection in question are still available with it. It is also disclosed that each of the three select lists sent by the Commission to the State contains name of candidates in order of their inter-se merit. According to the Commission the task of drawing combined seniority of Junior Engineers in the three streams is the concern of the State and not the Commission. The State, on the other hand has filed a counter-affidavit justifying its act of drawing a composite seniority on the ground that date of appointment would be the relevant factor for determination of seniority, as has been done in the facts of the present case. The private respondents also submit that the seniority list has been drawn in accordance with law, which requires no interference. On behalf of the respondents an additional plea has been raised which needs to be mentioned at this stage. According to them (respondents), petitioners were aware of their respective seniority from the initial date of their appointment itself and have not raised any grievance in that regard within a reasonable period. It is also urged that though the appointment process was initiated by one advertisement but the selections were different, in respect of different streams, for which drawing of a composite seniority would not be feasible. It is also urged that though the appointment process was initiated by one advertisement but the selections were different, in respect of different streams, for which drawing of a composite seniority would not be feasible. It is also urged that in the year 2006 itself the seniority list was finalized which was not questioned at that stage and laying a challenge to it, after a subsequent seniority list has been prepared in the year 2010, would not be permissible in law. It is also urged that the important rights have accrued in favour of persons placed higher in seniority and, therefore, seniority already determined earlier cannot be permitted to be challenged after inordinate lapse of time. Various judgments have been relied upon in order to submit that as seniority list has not been challenged within a reasonable time, as such, a belated challenge made at the instance of the petitioners would be impermissible in law. 12. Submission in that regard is countered on behalf of the petitioners by submitting that the first seniority list published in the year 2006 clearly informed the petitioners that the drawing of seniority list was based upon merits and petitioners, therefore, were under a bona fide belief that seniority list had been drawn in accordance with law. The petitioners also urge that the illegality caused in preparing the seniority could not be ascertained then. It is also submitted that neither any service rule existed at that point of time nor any prejudice was caused to them since no promotional exercise could be undertaken at that stage. Reliance is placed upon the provisions of the Uttar Pradesh Service of Engineers (Minor Irrigation Department) Rules, 1991 (hereinafter referred to as the 'Service Rules of 1991'). Rule 5(1)(ii)(a) is highlighted to submit that promotion to the post of Assistant Engineer under the Rules was permissible only after completion of ten years service on the first day of the year of recruitment. 13. It is submitted that only after the statutory service rules have been framed in 2009 that the petitioners could come to know of the inherent flaw in drawing of the seniority list, by the respondents, and immediately thereafter the writ petition has been filed. It is also submitted that the seniority list of 2006 has also been assailed after the facts in its entirety stood revealed to the petitioners with its implication clearly known to them. It is also submitted that the seniority list of 2006 has also been assailed after the facts in its entirety stood revealed to the petitioners with its implication clearly known to them. It is submitted that a period three-four years is otherwise a reasonable period within which the seniority could be challenged, particularly when equities had not passed on to the respondents as no promotion etc. was made on its basis. 14. I have heard Sri Gajendra Pratap, learned Senior Counsel assisted by Sri Vikas Budhwar, learned counsel for the petitioners, Sri Kartikay Saran, learned counsel for the U.P. Public Service Commission, Dr. Amar Nath Singh, learned Standing Counsel for the State, Sri R.K. Ojha, learned Senior Counsel assisted by Sri B.D. Pandey for some of the private respondents while Sri V.K. Singh has appeared for other private respondents. Sri A.K. Srivastava has appeared for respondent Nos. 11 & 12. 15. Department of Minor Irrigation is a part of the Department of Irrigation and is looking after various minor irrigation projects in the State. For smooth running of its projects the department requires technical staff consisting of engineers at different levels with distinct expertise. At the primary level the engineering staff consists of Junior Engineers (Agriculture, Civil & Mechanical). Their ratio stood determined as 50% for Agriculture, 30% for Civil and 20% for Mechanical. The ratio has been maintained even under the Service Rules of 2009. 16. At the next higher level the cadre consists of Assistant Engineers and their services are governed by the Uttar Pradesh, Service of Engineers (Minor Irrigation Department) Rules, 1991 (hereinafter referred to as 'the Service Rules of 1991. The cadre at this level is specified under Rule 4(2) read with Appendix to the Service Rules of 1991. Rule 5 of the Service Rules of 1991 specifies the source of recruitment to the various categories of posts in the service. 67% of the posts are to be filled by direct recruitment through Commission in the ratio of 50:30:20 for Agriculture, Civil & Mechanical Engineering. 25% of posts are to be filled by promotion. Rule 5 of the Service Rules of 1991 are extracted hereinafter: "5. Source of Recruitment.-Recruitment to the various categories of post in the service shall be made from the following sources. 25% of posts are to be filled by promotion. Rule 5 of the Service Rules of 1991 are extracted hereinafter: "5. Source of Recruitment.-Recruitment to the various categories of post in the service shall be made from the following sources. (1) Assistant Engineer - (i) Sixty seven per cent of posts by direct recruitment through the Commission in the manner that the proportion of direct recruits holding Bachelor's degree in Engineering or a degree recognised as equivalent thereto in the Agriculture, Civil and Mechanical Engineering shall be 50 percent, 30 percent and 20 percent respectively. (ii)(a) Twenty - five percent or the posts by promotion out of which one third shall be from amongst substantively appointed junior engineers (Mechanical) and two third from amongst substantively appointed junior engineers (Minor Irrigation) who have completed ten years service on the first day of the year of the recruitment. (b) Eight percent of the posts by promotion from amongst substantively appointed junior engineers who possesses degree in Civil, Mechanical or Agricultural Engineering or a degree recognized equivalent thereto: Provided that if suitable candidates are not available in any year of promotion such posts shall be filled by promotion under clause (a). (2) Executive Engineer - By promotion from amongst substantively appointed Assistant Engineers who have completed seven years service as Assistant Engineers on first day of the year of recruitment. (3) Superintending Engineer. - By promotion from amongst the substantively appointed Executive Engineers who have completed at least fifteen years total service (including at least six years as Executive Engineer) on the first day of year of recruitment. (4) Chief Engineer. - By promotion from amongst substantively appointed Superintending Engineers who have completed twenty five years of total service including at least six years service as Superintending Engineer." 17. It would thus be clear that a substantively appointed Junior Engineer gets a right to be considered for promotion to the post of Assistant Engineer, in the ratio specified. Further avenues of promotion to the post of Executive Engineer, Superintending Engineer and Chief Engineer are all by way of promotion from substantively appointed Assistant Engineers who have completed specified years of service. The eligibility for promotion to the post of Assistant Engineer has been specified as ten years completed service as Junior Engineer on the first date of the year of recruitment. 18. The eligibility for promotion to the post of Assistant Engineer has been specified as ten years completed service as Junior Engineer on the first date of the year of recruitment. 18. The statutory scheme would clearly reveal that while all posts of Junior Engineers are to be filled only by direct recruitment, the recruitment at the stage of Assistant Engineer is by direct recruitment and also by promotion in the ratio specified, whereas all engineering posts at higher levels i.e. Executive Engineer, Superintending Engineer and Chief Engineer are to be filled by way of promotion. Correct determination of seniority at the level of Junior Engineer assumes significance, inasmuch as all further avenues of promotion for substantively appointed Junior Engineer would be dependent upon it. 19. Moreover, the nature of projects which are to be handled by the department would require engineers in all three streams, in the specified ratio, at all levels. These ratios have been fixed under the applicable service rules or the Government orders. This aspect assumes significance since at the stage of promotion to the post of Assistant Engineer from the post of Junior Engineer also the requirement of engineers would be in all the three streams i.e. Agriculture, Civil & Mechanical. Even for direct recruitment at the level of Assistant Engineer, the proportion of three streams are maintained. The underlying object appears to be to ensure that engineers required in three streams are available to the department in the proportion fixed as per department's requirement. 20. At this juncture it would be worth noticing certain factual aspects that arise in this case. On account of the fact that seniority in the cadre of Junior Engineer (Minor Irrigation) has been drawn on the basis of receipt of select list from the Commission, the Junior Engineers in Agricultural Stream have been placed at the top of the seniority list (their select list was sent on 6.1.2000); followed by Junior Engineers in Mechanical Stream (their select list was sent on 27.1.2000) and the Junior Engineers in the Civil Stream are placed at the bottom of the seniority since their select list was sent by the Commission on 7.11.2000. Since promotion to the next higher post of Assistant Engineer would be based on seniority subject to rejection of unfit therefore all promotional posts in the cadre of Assistant Engineer would be filled firstly by the Junior Engineers belonging to Agricultural Stream and only after claim of all Junior Engineers (Agriculture) is exhausted that an occasion would arise for the Junior Engineers in Mechanical Stream to be considered for promotion to the post of Assistant Engineer. There would hardly be any scope left for promotion for the Junior Engineers in Civil Stream to the post of Assistant Engineer. This would adversely affect the department as representation of engineers from mechanical and civil engineering stream at the Assistant Engineer level would drastically go down and there would be excess of Assistant Engineers in Agricultural Stream. This anomaly would be carried further at the time of promotion to the post of Executive Engineer and Superintending Engineer, etc. The Junior Engineer in Civil Stream would hardly get a chance to become Assistant Engineer. 21. The scenario noticed above would not only be prejudicial to the interests of Junior Engineers belonging to Civil and Mechanical Engineering Stream as it would affect their chances of promotion and generate heart-burning but would adversely affect the requirement of work to be managed by the department also. 22. It is in the aforesaid context that the issue of delay and latches in filing of the writ petition is required to be examined. According to the respondents the seniority list finalized in the year 2006 was not assailed and it is not open for the petitioners to challenge the determination of seniority now. 23. The objection raised in that regard is countered by submitting that petitioners were misled on facts by the authorities and as soon as the factum of drawing of seniority list contrary to rules came to their knowledge they have objected to it and have also approached this Court. 24. Delay and latches have been recognised as valid grounds to deny entertainment of challenge to seniority. The rationale for the principle has been noticed by the Apex Court in a series of judgments. It would be relevant to refer to the judgment of the Apex Court in Shiba Shankar Mohapatra and others v. State of Orissa and others, (2010) 12 SCC 471 . The rationale for the principle has been noticed by the Apex Court in a series of judgments. It would be relevant to refer to the judgment of the Apex Court in Shiba Shankar Mohapatra and others v. State of Orissa and others, (2010) 12 SCC 471 . The law on the subject has been noticed in paragraphs 18 to 30 of the report. Paragraph 18 and 30 since are relevant for present purposes they are reproduced hereinafter: "18. The question of entertaining the petition disputing the long standing seniority filed at a belated stage is no more res integra. A Constitution Bench of this Court, in Ramchandra Shanker Deodhar and others v. State of Maharashtra and others, AIR 1974 SC 259 , considered the effect of delay in challenging the promotion and seniority list and held that any claim for seniority at a belated stage should be rejected inasmuch as it seeks to disturb the vested rights of other persons regarding seniority, rank and promotion which have accrued to them during the intervening period. A party should approach the Court just after accrual of the cause of complaint. While deciding the said case, this Court placed reliance upon its earlier judgments, particularly in Tilokchand Motichand v. K.B. Munshi, AIR 1970 SC 898 , wherein it has been observed that the principle, on which the Court proceeds in refusing relief to the petitioner on the ground of laches or delay, is that the rights, which have accrued to others by reason of delay in filing the writ petition should not be allowed to be disturbed unless there is a reasonable explanation for delay. The Court further observed as under: "A party claiming fundamental rights must move the Court before others' rights come out into existence. The action of the Courts cannot harm innocent parties if their rights emerge by reason of delay on the part of person moving the Court." 30. Thus, in view of the above, the settled legal proposition that emerges is that once the seniority had been fixed and it remains in existence for a reasonable period, any challenge to the same should not be entertained. In K.R. Mudgal (supra), this Court has laid down, in crystal clear words that a seniority list which remains in existence for 3 to 4 years unchallenged, should not be disturbed. In K.R. Mudgal (supra), this Court has laid down, in crystal clear words that a seniority list which remains in existence for 3 to 4 years unchallenged, should not be disturbed. Thus, 3-4 years is a reasonable period for challenging the seniority and in case someone agitates the issue of seniority beyond this period, he has to explain the delay and laches in approaching the adjudicatory forum, by furnishing satisfactory explanation." 25. On the other hand, learned counsel for the petitioners apart from referring to the facts of the present case relies upon paragraph 3 & 4 of the Apex Court judgment in Kuldip Chand v. Union of India and others, (1996) 1 SLJ, which is reproduced hereinafter: "Mr. B.B. Singh, learned counsel for the State, contended that since the respondents had resigned and were re-employed by the University, by operation of the instructions issued in letter dated 11.5.1990, they must be deemed to have been re-employed. Therefore, they are not entitled to pension higher than what they would have got, had they remained as Government servants by operation of Rule 161(b) of the Rules. Though he contended that the Government does not bear the proportionate pension, we do not on December 23, 1982 but no vacancy had arisen thereafter and, therefore, the mere rejection of the claim for seniority does not disentitle him to claim his seniority over the appellant for consideration by the respondent-Union. When the aforesaid facts are taken into consideration, it would be obvious that the preparation of seniority list per se was illegal. Therefore, the mere fact that he did not challenge the seniority list, which was illegally prepared, till he was aggrieved for non-consideration of the claim to the post of accountant, his legitimate right to be considered cannot be denied. Under these circumstances, the delay is of no consequence for considering the claims of Ashok Kumar for the post of accountant." 26. Reliance is also placed upon a judgment of Apex Court in Dwarka Nath Sharma v. Union of India and others, JT 1989(3) SC 373, to submit that cause of action for challenging the seniority arose only after petitioner's representation against determination of seniority got rejected. 27. Reliance is also placed upon a judgment of Apex Court in Dwarka Nath Sharma v. Union of India and others, JT 1989(3) SC 373, to submit that cause of action for challenging the seniority arose only after petitioner's representation against determination of seniority got rejected. 27. Sri Gajendra Pratap, learned Senior Counsel further submits that the seniority list in the year 2006 never attained finality, inasmuch as a fresh exercise to determine seniority commenced after cancelling the previous seniority in the year 2009 and, therefore, there is no delay in challenging the seniority. He has placed reliance upon para 31 of the Apex Court judgment in M. Ramakotaiah and others v. Union of India and others, 2007(14) SCC 405, which is extracted hereinafter: 31. Coming to the second issue, the question raised before this Court is whether even after the preparation of a new seniority list by the authority in 2001, which was held to be correct, the list prepared in the year 2000 was still open to challenge. We are of the opinion that once the new seniority list comes into existence, it overrides the previous list. Considering this, it only appeases common sense that once the new list has come into existence and had been held to be valid, the old list would be assumed to have been superseded, thus, making it redundant..." 28. It is in the light of the aforesaid judgments of the Apex Court that the issue of latches is required to be examined in the facts of the present case. It is admitted that although appointments were made on the post of Junior Engineer (Minor Irrigation) in the year 2000-2001 but no seniority list was prepared prior to the year 2006. The seniority list finalized on 5th September, 2006 clearly records that seniority of Junior Engineers (Minor Irrigation) who have been appointed between 1.1.1989 and 28.2.2006 has been prepared in accordance with their merit. This statement of fact is clearly inconsistent with the admitted position on record as per which the seniority list has been prepared on the basis of the date of receipt of select list from the Commission and the consequential issuance of appointment and not on the basis of merit. The petitioners contention that they were misled, on facts, with regard to the basis adopted for preparation of seniority list appears to have substance. The petitioners contention that they were misled, on facts, with regard to the basis adopted for preparation of seniority list appears to have substance. No service rules otherwise existed in respect of the service concerned. No rights otherwise were created on the basis of the select list of the year 2006 inasmuch as none of the Junior Engineers had acquired eligibility for promotion to the next higher post of Assistant Engineer which was ten years under the service rules of 1991. Mere fact that certain promotions have been made after entertainment of this writ petition would also not be a relevant circumstance since appropriate interim protection has already been granted by making such promotions to be subject to this petition. The service rules also got framed under the proviso to Article 309 only in the year 2009. The objection to the tentative seniority list published in the year 2009 were submitted by the petitioners and after its rejection a timely challenge is made by filing this writ petition. 29. Even in Shiba Shankar Mohapatra (supra) their Lordships of the Apex Court have clearly observed that a period of three to four years would be a reasonable period to challenge the seniority. Viewed in the context of the facts occurring in the present case as well as the judgments of the Apex Court, referred to above, this Court is of the considered view that petitioners challenge to the determination of seniority cannot be thrown out on the ground of delay or latches. Serious challenge is otherwise laid to the determination of seniority on the ground that the seniority list has been prepared de-hors the rules. The writ petition, therefore, is liable to be entertained and the arguments urged, on merits, are required to be examined. 30. The selection in question commenced with issuance of Advertisement No. 3 of 1998-99. Junior Engineer in the department of Minor Irrigation were to be selected and appointed in the specified three streams i.e. Agriculture, Civil & Mechanical. The cadre of Junior Engineer, however, was one for the entire department of Minor Irrigation. The selection was to be undertaken by conducting a screening test in accordance with the recruitment rules of 1986. The candidates were to be screened on the basis of preliminary test and the marks obtained at-that level was not to be counted for determining the respective merit of a candidate. The selection was to be undertaken by conducting a screening test in accordance with the recruitment rules of 1986. The candidates were to be screened on the basis of preliminary test and the marks obtained at-that level was not to be counted for determining the respective merit of a candidate. Determination of merit, therefore, was to be based entirely upon the marks secured by a candidate in Interview. On a specific direction of the Court the Public Service Commission has filed an affidavit disclosing the manner of selection as also the dates of dispatch of select list in respect of three streams. Paragraphs 3 to 7 of the affidavit filed by the Commission on 14.5.2019 are relevant and are reproduced hereinafter: "3. That it may be submitted before this Hon'ble Court that on the basis of requisition for recruitment of junior engineers for three branches i.e. Agriculture, Civil and Mechanical in ratio of 50:30:20, made by the minor irrigation department, the answering respondent issued advertisement No. 3/1998-99 whereby applications were invited from those candidates having requisite qualification in the relevant trade. 4. That it is categorically mentioned that the process of selection for all the tree trades i.e. Civil, Mechanical and Agricultural was the same. There was a screening test conducted on 18.10.1998 and thereafter the qualified candidates were called for interview as per the rules and regulations. 5. That for the candidates who were called for interview in respect of Agriculture, Civil and Mechanical branch, the recruitment process was proceeded with, and interview was conducted respectively and out of said three branches, candidates were selected against the vacancies which were available in Agriculture and Mechanical Branch and select lists were sent to the department on 28.9.1999 and 6.1.2000 respectively. 6. That it is noteworthy that during the selection process against the vacancies available in the Civil Branch, stay order dated 1.3.2000 was passed by the Lucknow Bench of this Hon'ble Court in Writ Petition No. 1066 of 2000, Siyaram and others v. State of U.P. and others and therefore in compliance of order dated 1.3.2000, recommendation was sent to the department at a belated stage i.e. on 7.11.2000. 7. That further, the Commission has been able to trace the records of the selection process for all three branches i.e. Original Mark Sheet, Merit list etc. 7. That further, the Commission has been able to trace the records of the selection process for all three branches i.e. Original Mark Sheet, Merit list etc. and the Commission is in a position to produce the same before the Hon'ble Court, as and when directed." 31. The Commission had earlier filed a counter-affidavit alongwith which the letter dated 7th November, 2000 is enclosed whereby select list in respect of Junior Engineer (Civil) was forwarded to State Government for issuance of appointment letters to the selected candidates. This letter goes to show that select list in respect of the each of the three distinct streams were drawn on the basis of inter-se merit of candidates of a particular stream only. This communication clearly mentions that selection process was initiated pursuant to a composite advertisement and the candidates were called for Interview held on different dates and the select list thereafter has been prepared on the basis of inter-se merit of the candidates of each stream, separately. 32. It is admitted to the parties that the provisions of Seniority Rules of 1991 were applicable for determining the seniority in the cadre of Junior Engineer even before the Service Rules of 2009 were specifically framed for the Junior Engineers of the Department of Minor Irrigation. Rule 5 clearly provides that where appointments are to be made only by direct recruitment the seniority inter-se of 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. The cadre of Junior Engineer at the time of recruitment was admittedly one and has continued to remain the same, throughout. The seniority of junior engineers appointed in different streams in the Department of Minor Irrigation is also to be maintained for the entire cadre of junior engineer. The criteria for determination of seniority inter-se of the persons appointed on the result of any one selection has to be the same as is shown in the merit list prepared by the Commission. The relevant expression occurring in Rule 5 would be the seniority inter -se of persons appointed on the result of any one selection. In Rule 5 the words 'any one" occurs before the word 'selection' and not before the word 'result'. The relevant expression occurring in Rule 5 would be the seniority inter -se of persons appointed on the result of any one selection. In Rule 5 the words 'any one" occurs before the word 'selection' and not before the word 'result'. This clearly conveys that determination of seniority for the persons appointed in one selection would be the inter-se merit of candidates even though different results may have been declared. 33. The argument of Sri R.K. Ojha, learned Senior Counsel that as separate select lists have been sent by the Commission on the basis of which appointment letters have been issued would connote that selection was more than one cannot be accepted. Rule 5 does not limit determination of seniority inter-se of the persons appointed on the basis of one result. What is relevant is that the selection must be one while result could be many. Rule intends to include all persons who are selected on the basis of a composite selection to be placed in seniority in accordance with their respective merit. 34. Selection in normal parlance would construe the act of selecting candidates from amongst the eligible candidates on the basis of merit determined as per the criteria fixed for recruitment. The task of selection in the present case is assigned to the Public Service Commission. The process of selection commences with issuance of advertisement and is generally followed by various steps to be taken for determination of merit and concludes with drawing of select list/result. Where the process is substantially one then all those who are selected in the process would have to be placed in the respective order of their merit. This alone would ensure adoption of a sound basis/principle for determination of seniority. 35. Date of dispatch of different select lists pursuant to one selection or the consequential date of appointment would not be a relevant criteria to determine the inter-se merit of those who are selected in the same selection. 'Neither in law nor on facts the task of determining seniority can be left to such a fortuitous circumstance. 36. It is only a matter of chance that the select list in respect of Junior Engineers pertaining to Agricultural Stream was forwarded first to be followed "by Mechanical and Civil Engineering Stream. The order of dispatch of select list could well have been different, depending on circumstances. 36. It is only a matter of chance that the select list in respect of Junior Engineers pertaining to Agricultural Stream was forwarded first to be followed "by Mechanical and Civil Engineering Stream. The order of dispatch of select list could well have been different, depending on circumstances. It would be rather unjust and arbitrary to allow the date of dispatch of select list to determine the service prospect of a candidate. The respondents, therefore, have acted contrary to the specific provisions of the Seniority Rules of 1991 and have clearly gone against the constitutional spirit of offering equality of opportunity in matters of public employment. The grievance of the petitioners, raised against the determination of seniority is well founded in law and in fact and therefore must be sustained. 37. Writ petition consequently succeeds and is allowed. Impugned seniority lists dated 5.9.2006 and 5.3.2010 stands quashed. A writ of mandamus is issued directing the respondents to draw a fresh seniority list in accordance with Rule 5 of the Seniority Rules of 1991, particularly as relevant records relating to selection are available with the U.R Public Service Commission. Any promotion made during the pendency of present writ petition would not be interfered with but would remain subject to the fresh seniority list to be prepared in terms of the Seniority Rules of 1991. No order is passed as to costs.