JUDGMENT : Munishwar Nath Bhandari, Saurabh Lavania, J. 1. We have heard Shri J.N.Mathur and Shri Anil Kumar Tiwari, learned Senior Advocate appearing on behalf of the petitioners and Dr. L.P.Mishra and Shri Asit Chaturverdi, learned counsel appearing for respondents. 2. These two writ petitions have been filed to challenge the judgment of the State Public Services Tribunal dated 14.09.2010. The common order of the Tribunal is under challenge in two writ petitions, thus were heard and decided by this order. 3. The case has a checkered history, thus. it would be gainful to narrate brief facts of the case relevant to the issues raised in these writ petitions. 4. The respondent employees and one petitioner were appointed as Assistant Engineer in U.P. Palika (Centralized) Services on adhoc basis by the order dated 22.03.1995. Their services were terminated by the official respondents by an order dated 24.03.1998. A challenge to the order of termination was made by maintaining writ petitions. They were clubbed and decided by this Court vide its order dated 19.12.2001. The order of termination was interfered on the ground that despite existence of the vacancies, the services of adhoc appointees have been terminated. A direction was given to consider the case of those employees for regularization. 5. The State preferred Special Leave Petition to challenge the order dated 19.12.2001 passed by this Court intervening in the order of termination. The Special Leave Petition therein was dismissed. The private respondents and one petitioner were reinstated in service. 6. After the judgment in the first litigation, referred above, the official respondents made amendment in the U.P. Palika (Centralized) Services (Twenty First Amendment) Rules, 2003 (in short 'Rules of 2003'). Rule 21-A was amended by the aforesaid, 7. The other facts relevant to the litigation is about the appointment of the petitioner on regular basis, after an advertisement by the U.P. Public Service Commission. The selection pursuant to the advertisement was conducted by the U.P. Public Service Commission. The petitioners remain successful, thus were appointed on the post of Assistant Engineer on regular basis by the order dated 12.04.1999 apart from other orders issued in the year 1999. The aforesaid is second set of facts relevant to the case and the controversy involved herein. 8. The employees governed by the first set of facts were considered for appointment pursuant to the Amended Rule 21-A of the Rules of 2003. The aforesaid is second set of facts relevant to the case and the controversy involved herein. 8. The employees governed by the first set of facts were considered for appointment pursuant to the Amended Rule 21-A of the Rules of 2003. After applying the procedure given therein, an order for regularization of services was issued on 21.02.2007. The respondents services were regularized from the date of the order. Accordingly, their seniority was fixed based on the date of appointment. 9. The private respondents challenged the order of the regularization before State Public Service Tribunal with a prayer to grant it from 30.06.1998, with consequential seniority. The claim petition preferred by the private respondents was disposed of by the Tribunal with a direction to the respondents to consider and decide the representation made by the private respondents. In pursuance to the direction of the Tribunal, the representation of the private respondents was considered but rejected. They were not found entitled for regularization since 30.06.1998 and accordingly, they were rightly placed in seniority by taking the date of appointment of 21.02.2007. 10. Aggrieved by the order passed on the representation, reference petitions were preferred by the respondents before the Tribunal to seek regularization in service since 30.06.1998 and consequential benefits of seniority. The Tribunal accepted the claim petition. 11. In reference to the brief facts given above, a challenge to the order of the Tribunal has been made by those employees who were appointed on the post of Assistant Engineer after due selection by the Public Service Commission. The orders of appointment were issued from time to time in the year 1999. Out of many candidates selected by the U.P. Public Service Commission, one candidate was initially appointed on ad hoc basis along with the private respondents and continued thereupon but after his selection by the U.P. Public Service Commission, he was given regular appointment. 12. The official respondents considered the case of the private respondents for regularization after the judgment of this Court and the amendment in Rule 21-A of the Rules of 2003. The services were regularized by the order dated 21.02.2007 and consequently, seniority to the private respondents was given corresponding to the date of regularization, i.e. 21.02.2007. 13. The controversy and the dispute arose at the stage when private respondents claimed regularization of their services with effect from 30.06.1998 with consequential benefit of seniority. The services were regularized by the order dated 21.02.2007 and consequently, seniority to the private respondents was given corresponding to the date of regularization, i.e. 21.02.2007. 13. The controversy and the dispute arose at the stage when private respondents claimed regularization of their services with effect from 30.06.1998 with consequential benefit of seniority. It was denied by the official respondents but has been given by the Tribunal by the impugned order. A challenge to the aforesaid order has been made by those who were appointed as Assistant Engineer on regular basis in the year 1999. It was much prior to the regularization of services of the private respondents and even amendment in the Rules. Arguments of the counsel for the petitioners 14. The counsel for the petitioners submits that the Tribunal passed the order in ignorance of Rule 21-A of the Rules of 2003, as amended. It has been construed to be a Rule to provide regularization with effect from 30.06.1998. The aforesaid was the relevant date to become eligible for appointment and not for regularization, if one has completed three years service . 15. The other eligibility for consideration was the qualification of the post. It was then subject to availability of the posts. The Tribunal construed Rule 21-A, in a manner different than provided by the legislature. It even ignored sub Rule 9 of Rule 21-A for the aforesaid. Rule 21-A (9) provides that any employee, so appointed under Rule 21-A would be entitled to seniority below those already appointed and would otherwise from the date of regular appointment. 16. In view of the above, the Tribunal could not have directed for regularisation of service of private respondents w.e.f. 30.6.1998 with consequential benefit of seniority. The Tribunal even ignored that the Rules were amended in the year 2003 to permit consideration of the case of the private respondents for appointment otherwise they would not even entitled for the benefit of regular appointment. Since the Rules were amended in the year 2003, the appointment in service cannot be given from the date prior to notification for amendment in the Rules of 2003. The Tribunal ignored the aforesaid while granting benefit of regularisation to the private respondents since 30.6.1998 and consequential benefits of seniority. 17. Since the Rules were amended in the year 2003, the appointment in service cannot be given from the date prior to notification for amendment in the Rules of 2003. The Tribunal ignored the aforesaid while granting benefit of regularisation to the private respondents since 30.6.1998 and consequential benefits of seniority. 17. Learned counsel has further emphasised that while the private respondent challenged the order of termination, a direction for regularization was not in reference to the amended Rules of 2003, as judgment in those writ petition was given in the year 2001 itself. 18. In view of the above, consideration of the case of private respondents for regularization could not have been from a retrospective date than the order passed by this court in the writ petitions preferred by the respondents. The judgment otherwise shows that the initial appointment of the private respondents was not on regular basis otherwise there was no need to issue direction for consideration of the case for regularization. 19. The learned Tribunal erred in taking interpretation of the order of this court dated 19.12.2001 in a manner different than given on the facts available at the relevant time. In view of the above also, the impugned order deserves to be set aside. 20. Learned counsel for the petitioner further submits that if the impugned order passed by the Tribunal is given effect to, it would be violative of Articles 14 and 16 of the Constitution apart from Rule 21-A of the amended Rules of 2003. 21. By virtue of the order passed by the Tribunal, the unequals would be made equals opposed to Articles 14 and 16 of the Constitution of India. It is for the reason that the petitioners are those who have been selected by the Commission and given for regular appointment. The respondents are those who did not face the regular selection by the Public Service Commission but given adhoc appointment followed by the benefit of amended Rule 21-A of the Rules. 22. The two sets of employees, referred above, could not have been made equal for the grant of any benefit. Ignoring the aforesaid, now the candidates, who did not face the selection conducted by the Public Service Commission but regularized in service pursuant to the Rule 21-A, as amended, march over the regularly selected candidates in seniority. 22. The two sets of employees, referred above, could not have been made equal for the grant of any benefit. Ignoring the aforesaid, now the candidates, who did not face the selection conducted by the Public Service Commission but regularized in service pursuant to the Rule 21-A, as amended, march over the regularly selected candidates in seniority. The aforesaid aspect has also been ignored by the Tribunal and otherwise it is a settled proposition of law that the adhoc period of appointment cannot be counted for the purpose of seniority. It is more so when the appointment of the private respondents was not in accordance to Rules, if it is considered for regular appointment. It may be in consonance to Rules for their appointments on adhoc basis. There is a difference between the appointment in accordance to the Rules on adhoc/temporary basis than the appointment on regular basis. 23. The two appointees cannot be dealt with or equated otherwise it remains nothing but to treat unequals to be equals in violation of Articles 14 and 16 of the Constitution of India. 24. In view of the above even the judgment of the Apex Court in the case of Direct Recruitment Class -II Engineering Officers’ Association Vs. State of Maharashtra and others reported in 1990 (2) SCC 715 would not cover case of the private respondents rather the issue involved in the present matter was dealt with by the Apex Court in the case of State of Haryana and another Vs. Vijay Singh : 2012 (8) SCC 633 . 25. Learned counsel for the petitioner has also referred the judgment of the Apex Court in the case of State of Uttrakhand and another Vs. Archana Shukla and others reported in (2011)15 SCC 194. In those judgments, the Apex Court has considered the same issue, as involved in this case. It was held that the benefit of seniority cannot be given by counting the length of service on adhoc/temporary basis. 26. In view of the above, the prayer is to allow the writ petition. It was earlier allowed by this court after hearing parties but the judgment was subsequently recalled by this court on a review petition and accordingly the matter has came up for afresh hearing and argued accordingly. 27. 26. In view of the above, the prayer is to allow the writ petition. It was earlier allowed by this court after hearing parties but the judgment was subsequently recalled by this court on a review petition and accordingly the matter has came up for afresh hearing and argued accordingly. 27. The prayer is accordingly to set aside the order passed by the Tribunal and allow the writ petition in reference to the arguments made above. Arguments of the private respondents 28. The writ petition has been opposed by the private respondents. The counsel appearing for them has supported the order passed by the Tribunal. The prayer is to maintain the order of the Tribunal and accordingly dismiss the writ petition. 29. This submission of counsel appearing for the private respondents is that the initial appointment on adhoc basis was in consonance to the U.P. Palika (Centralised) Service Rules, 1966 (in short ‘Rules of 1966’). The Rules of 1966 allows appointment on adhoc basis. The official respondents invited applications from eligible candidates and it is only after consideration of their candidature that the order of adhoc appointment was issued in the year 1995. Since the initial appointment of the private respondents was as per the Rules, they become eligible for the seniority from the date of initial appointment. The Tribunal has thus rightly gave direction for grant of seniority to the private respondents and for that to treat their regularization in service from 30.6.1998. 30. It is stated that the regularization of the service of the private respondents was delayed by the official respondents thus they cannot be made to suffer. Taking aforesaid into consideration, the Tribunal has passed just and equitable order to grant benefit of regularlisation from 30.6.1998 with consequential benefit of seniority. 31. Learned counsel for the private respondents submits that it is not case of appointment of the respondents by way of back door entry or even a case where the appointment was made without applying the procedure or any irregularity therein. The adhoc appointment was in consonance to Rule 31 of the Rules of 1966. Accordingly, the case is to be governed by para 47(a) of judgment in the case of Direct Recruitment Class -II Engineering Officers’ Association case (supra). 31. The official respondents have supported the petitions as reference petitions were opposed by them. 32. The adhoc appointment was in consonance to Rule 31 of the Rules of 1966. Accordingly, the case is to be governed by para 47(a) of judgment in the case of Direct Recruitment Class -II Engineering Officers’ Association case (supra). 31. The official respondents have supported the petitions as reference petitions were opposed by them. 32. To appreciate the arguments of both the parties, we have gone through the Rules of 1966. Chapter–V of the said Rules provide procedure for the direct recruitment. For the post in question, selection is to be made through the Public Service Commission. Rule 31 provides for adhoc/temporary appointment. No procedure for the appointments under Rule 31 of the Rules has been given thus two categories are quite distinct ; one appointed on regular basis after selection through the Public Service Commission after applying the procedure given under Chapter–V of the Rules of 1966 and other appointed under Rule 31 of the Rules of 1966 where no procedure has been given. Both the appointments are thus of different nature, may be in consonance to Rules. It cannot have the same tenor for any purpose which includes even for the purposes of seniority by taking it under Para 47(a) of the judgment in the case of Direct Recruitment Class-II Engineering Officers’ Association case (supra). It is for the reason that if both the categories are brought on one pedestal, it would be violative of Articles 14 and 16 of the Constitution of India as unequals would be made equals. 33. The difference has to be made between the employees appointed on regular basis than on adhoc basis even by applying some procedure. It is, however, different than the procedure given for regular appointment. For regular appointment on the post of Assistant Engineer, one needs to face selection through the Public Service Commission. The aforesaid procedure is not applied for adhoc appointment. The distinction between two different categories of the employees was not made by the Tribunal while considering the issue of seniority. Their argument of the private respondents was to grant benefit of seniority by taking it from the date of adhoc appointment as it was in consonance to the Rules of 1966. 34. The issue in reference to what has been argued by the private respondents was considered and decided by the Apex Court in the case of Vijay Singh case (supra). 34. The issue in reference to what has been argued by the private respondents was considered and decided by the Apex Court in the case of Vijay Singh case (supra). Therein the Apex Court took notice of the rule for regular appointment. It was held that if the procedure for regular appointment was not applied, one cannot be brought at par with the regularly selected employees. 35. Therein the Apex Court has noticed one more fact and relevant to the present matter. It is regarding the Rule for determination of seniority. It has been held that determination of the seniority should be in consonance of the statutory provisions not by general proposition laid down by the judgment. The judgment cannot be applied de-hors to the statutory provisions. The judgment aforesaid applies to this case. A proper interpretation of the Rules for determination of seniority has to be made. Relevant portion of the judgement in the case of Vijay Singh (supra) are quoted for ready reference :- "23. Before concluding, we consider it proper to notice the judgments on which reliance has been placed by learned counsel for the respondents. This consideration needs to be prefaced with an observation that the cases in which recruitment and conditions of service including seniority are regulated by the law enacted by Parliament or the State Legislature or the rules framed under Article 309 of the Constitution, the general proposition laid down in any judgment cannot be applied de hors the relevant statutory provisions and dispute relating to seniority has to be resolved keeping in view such provisions." 36. In view of the paras quoted above, it becomes clear that the issue of seniority has to be determined after taking into consideration the relevant provisions under Service Rules and thereby before discussing other judgments of the Apex Court, we want to refer the relevant Rules applicable to the present case for determination of the seniority. Rule 21-A of the Rules, as amended in the year 2003, is quoted hereinbelow :- "21. A. Regularisation of ad-hoc appointments 21. Rule 21-A of the Rules, as amended in the year 2003, is quoted hereinbelow :- "21. A. Regularisation of ad-hoc appointments 21. A (1) Any e4 who--(i) was directly appointed on ad-hoc basis before June 30, 1998 and is continuing in service as such on date of commencement of these Rules; (ii) possessed requisite qualifications prescribed under rule-12 for regular appointment at the time of such ad-hoc appointment; and (iii) has completed or as the case may be, after he has completed three years continuous service, shall be considered for appointment in permanent or temporary vacancy as may be available on the basis of his service record and suitability before any regular appointment is made in such vacancy in accordance with the provisions contained in these Rules." (2) In making regular appointment under these rules reservation for the candidates belonging to the Scheduled Castes, Scheduled Tribes, Backward classes and other categories shall be made in accordance with the orders of the Government in force at the time of recruitment. (3) For the purpose of sub-rule (1) Government shall constitute a Selection Committee and consultation with the Commission shall not be necessary. (4) The Director of local bodies shall prepare an eligibility list of the candidates, arranged in order of seniority as determined from the date of order of their ad-hoc appointment and if two or more persons are appointed together, from the order in which their names are arranged in the said appointment order. The list shall be placed before the Selection Committee along with their character rolls and such other service records pertaining to them as may be considered necessary to judge their suitability. (5) The Selection Committee shall consider the case of the candidates on the basis of their records referred to in sub rule (4). (6) The Selection Committee shall prepare a list of selected candidates, the names in the list being arranged in order of seniority and forward it to the Government and the Director of Local Bodies. (7) The Government or the Director of Local Bodies shall, subject to the provisions of sub rule (2) of this rule and sub-rule (1) of rule 6, make appointments from the list prepared under sub rule (6) of these rules in order in which their names stand in the list. (7) The Government or the Director of Local Bodies shall, subject to the provisions of sub rule (2) of this rule and sub-rule (1) of rule 6, make appointments from the list prepared under sub rule (6) of these rules in order in which their names stand in the list. (8) Appointments made under sub-rule (7) shall be deemed to be made under relevant provision contained in rule 21. (9) A person appointed under this rule shall be entitled to seniority only from the date of order of appointment after selection in accordance with this rule and shall, in all cases, be placed below the persons appointed in accordance with the procedure for direct recruitment contained in Part V of these rules prior to the appointment of such persons under this rule. (10) If two or more persons are appointed together under this rule, their seniority inter-se shall be determined in the order mentioned in the order of appointment. (11) The services of a person, appointed on ad-hoc basis who is not found suitable or whose case is not covered by sub-rule (1) of this rule, shall be terminated forthwith and on such termination, he shall be entitled to receive one month's pay." 37. The aforesaid rule is applicable to the present case for determination of seniority. It would not be governed by Rule 46, as amended in the year 2006. Rule 46, as amended by the Notification of the year 2006, is for general application. It is not applicable for those who are initially appointed on adhoc basis and subsequently appointed under Rule 21-A of the Rules of 1966. Those cases would be governed by Rule 21-A (9) of the Rules of 1966, as amended. 38. Accordingly, we are unable to accept the argument of the private respondents for application of Rule 46 for determination of seniority. 39. Since we have recorded our finding in regard to application of Rule 21-A for determination of seniority for those regularized in service pursuant to Rule 21-A, as amended, the reference of other provision would not be relevant. 38. Accordingly, we are unable to accept the argument of the private respondents for application of Rule 46 for determination of seniority. 39. Since we have recorded our finding in regard to application of Rule 21-A for determination of seniority for those regularized in service pursuant to Rule 21-A, as amended, the reference of other provision would not be relevant. Perusal of Rule 21-A, as quoted above, shows that a person appointed under the aforesaid rule shall be entitled to the seniority from the date of appointment after selection in accordance with this Rule and would be placed below the persons appointed in accordance with the procedure for direct recruitments contained in part (V) prior to appointment such person under this Rule. 40. Sub Rule 9 of Rule 21 makes things very clear. The aforesaid has been ignored by the Tribunal while granting relief to the private respondents. 41. The order of the Tribunal is also an ignorance of the Rule 21–A (1) (iii). The aforesaid rule provides about the eligibility for consideration of the case for appointment. The rule aforesaid has been considered to provide regularization w.e.f. 30.8.1998 though it is not so provided. If the order of the Tribunal is allowed to stand, it would be nothing but to re-write the amended provision of Rule 21-A. Rule 21-A (1) (iii) provide that for consideration of the case for appointment, and for that, one need to have completed three years continuous service by 30.6.1998. The consideration for the appointment is subject to availability of permanent or temporary vacancy. The appointment would be subject to service record and suitability apart from qualification. 42. Since Rule 21-A was amended in the year 2003. The right of consideration for appointment accrued in the said year and not prior to it. The amended provision of Rule 21-A does not provide automatic appointment, if one has completed three years as on 30.6.1998. 43. The learned Tribunal however took it to be a provision for grant of automatic regularization in service w.e.f. 30.6.1998 going against the provision. The Tribunal has, in fact, ignored not only Rule 21-A, as amended, but the object behind the amendment. 43. The learned Tribunal however took it to be a provision for grant of automatic regularization in service w.e.f. 30.6.1998 going against the provision. The Tribunal has, in fact, ignored not only Rule 21-A, as amended, but the object behind the amendment. It was amended for consideration of the candidates who were appointed on adhoc basis prior to 30.6.998 and have completed three years of service because as per the unamended provision of Rule 21-A, the date to become eligible for consideration of the case for appointment was of the year 1995. 44. The Tribunal has failed to consider that requirement of three years service as on 30.6.1998 was towards eligibility and not for appointment from the aforesaid date because it was subject to application of the procedure given under the said Rule. Sub Rule 3 of Rule. Rule 21-A provides for constitution of a selection committee to consider the case of each candidate eligible for appointment and for that purpose, even eligibility list is required to be prepared by the Director of Local Bodies, to be arranged in order of seniority. Such eligibility list is to be placed before the selection committee and thereupon selection committee to consider the case of each candidate based on their service record. The Selection Committee then to prepare a list of selected candidates to forward it to the Government and the Director of Local Bodies. The Director of Local Bodies or the Government would then proceed as per Sub Rule 7 to make appointments. If Rule 21-A is minutely examined, it does not use word ‘regularisation’ but uses the word ‘appointment’ other than on the heading. The counsel for the private respondents however, argued the case taking it to be for regularization of service of adhoc appointees and therefore to seek benefit of para 47(a) of the judgment of the Apex Court in the case of Direct Recruitment Class -II Engineering Officers’ Association case (supra). The sub-rule does not use word 'regularization' anywhere. It is all through use word "appointment". 45. The order passed in February, 2007, however, used word regularization going contrary to amended Rule 21(A) of the Rules. The respondents should be treated to have appointed in service by the aforesaid order. 46. Accordingly, on the aforesaid ground itself, the argument of the private respondents falls flat to seek benefit of seniority by treating regularization of service w.e.f. 30.6.1998. The order passed in February, 2007, however, used word regularization going contrary to amended Rule 21(A) of the Rules. The respondents should be treated to have appointed in service by the aforesaid order. 46. Accordingly, on the aforesaid ground itself, the argument of the private respondents falls flat to seek benefit of seniority by treating regularization of service w.e.f. 30.6.1998. In fact the argument is in ignorance of sub-rule (1)((iii), (2), (4), (8), (9) and (10) of Rule 21-A which does not provide for regularization but appointment in service after applying the procedure given therein and also the seniority. 47. It is also a fact that Rule 21-A, as amended, does not provide that after applying the procedure given therein, the appointment is to be made with retrospective effect i.e. making it from 30.6.1998. The Tribunal has yet gave a direction to treat it to w.e.f. 30.6.1998. Sub-rule of Rule 21-A does not talk about regularization but appointment and the aforesaid has been ignored by the Tribunal so as the private respondents while seeking regularization of their services w.e.f. 30.6.1998. Thus, Tribunal is erred in giving direction to treat regularization of service of the private respondents after going contrary to Rule 21-A of the Rules, as amended. It seems to have guided it by the heading of Rule 21(A) ignoring the sub-rules. 48. Accordingly, the order dated 21.12.2007 has to be brought under Rule 21-A and it can be only when we treat it to be an appointment of the respondents on the post of Assistant Engineers after undergoing the procedure given in the said Rule and accordingly seniority is to be determined. The application of the Rule has to be made in view of the finding of the Apex Court in the case of Vijay Singh (supra) where it has been held that statutory provision should prevail. In view of the above, controversy of seniority should be guided by the Rules and not by general application of the judgments. 49. The finding aforesaid has been recorded by the Apex Court to give sanctity to the statutory provisions. The High Court and for that the Apex Courts are clothed with the powers to declare any provision to be ultra vires but till it is not done, presumption remains about its constitutional validity and therefore we cannot tinker with Rule 21-A, as amended. 50. The High Court and for that the Apex Courts are clothed with the powers to declare any provision to be ultra vires but till it is not done, presumption remains about its constitutional validity and therefore we cannot tinker with Rule 21-A, as amended. 50. Sub Rule 9 has been specifically referred to show as to how seniority is to be determined. It provides that those appointed under the said Rules would be placed below those appointed earlier on regular basis. If the Rule aforesaid is applied to the facts of this case, the claim made by the private respondents cannot be accepted. The petitioners were appointed in the year 1999 on regular basis where as private respondents were regularized (appointed) in the year 2007. 51. We are touching the facts of this case as well. It is not in dispute that all the private respondents apart from one petitioner, were initially appointed on adhoc basis in the year 1995. Their services were terminated in the year 1998. The order of adhoc appointment shows it to be till regularly selected candidates are become available, Their appointment was not on regular basis and therefore only this court, while entertaining the writ petition of the private respondents and one petitioner to challenge the order of termination, finally directed to consider their case for regularization. The interference in the order of termination was made as the selected candidates were not available against the vacant post and not for any other reason. The service of respondents were not considered to be regular in nature from the initial date of appointment otherwise there was no reason for this court to direct the official respondents to consider their cases for regularization while delivering the judgment dated 19.12.2001. 52. Learned counsel for the private respondents, however, made a reference of the part of the judgments to show that number of vacant posts were available even in the year 1998. We find that the judgment dated 19.12.2001 does not specify vacant post in the year 1998 rather it must be making reference of the vacant posts till the year 2001. At this stage, it would be relevant to record that the official respondents sent the requisition to the Public Service Commission for holding regular selection, which was then conducted in the year 1999 followed by the regular appointment. At this stage, it would be relevant to record that the official respondents sent the requisition to the Public Service Commission for holding regular selection, which was then conducted in the year 1999 followed by the regular appointment. The presumption remains that till the date of requisition and selection by the Public Service Commission in the year 1999, all the substantive posts were filled by regular appointment. 53. In view of the above, vacant posts taken into consideration for appointment of the private respondents under Rule 21-A of the Rules were of the subsequent period and if that is so then also neither appointments can be taken w.e.f. 30.6.1998 nor the benefit of the seniority. The aforesaid aspect has also been ignored by the Tribunal as well as the private respondents while claiming seniority over and above the regularly selected candidates. 54. The matter has another aspect inasmuch as out of the adhoc appointees, one is petitioner and appeared in the regular selection conducted by the Public Service Commission. He was selected and appointed on regular basis in the year 1999. He would be affected despite his regular appointment in the year 1999 because adhoc appointees would march over him as their services have been taken from 30.6.1998. It is a year prior to the appointment of the petitioner on regular basis. He would suffer only for the reason that he appeared in regular selection and declared successful while the private respondents may or may not have appeared in the regular selection. It may be that the private respondents also appeared in regular selection held in the year 1999 and remained unsuccessful yet would march over the selected candidate only for the reason that they remained unsuccessful in the selection. The aforesaid aspect has also been ignored by the Tribunal. 55. It is a settled law that unequals cannot be treated equals or the equals cannot be treated unequals and if it happens, violates Articles 14 and 16 of the Constitution of India. The facts available on record shows that unequals has been benefited by the Tribunal by showing misplaced sympathy while directing regularization of their services since 30.6.1998 with consequential benefits of seniority. The Tribunal has ignored not only the facts of the case but the statutory provision for the aforesaid. The Rule 21 A does not provide for regularization from 30.06.1998. The facts available on record shows that unequals has been benefited by the Tribunal by showing misplaced sympathy while directing regularization of their services since 30.6.1998 with consequential benefits of seniority. The Tribunal has ignored not only the facts of the case but the statutory provision for the aforesaid. The Rule 21 A does not provide for regularization from 30.06.1998. It is a cut of date to complete three years service to became eligible for appointment subject to other conditions. Sub clause does not provide for regularization but appointment. 56. The judgment can be sum up with the conclusions drawn above but we would be referring to the judgment cited by both the parties. It is by treating it to be a case of regularization of the respondents though not provided in any of the Sub Rule to the Rule 21-A of the Rules, as amended. It is mainly in reference to the judgment in the case of Direct Recruitment Class -II Engineering Officers’ Association case (supra) as such much emphasis has been laid by the learned counsel for the private respondents and that too by referring para 47-A of the said judgment. Thus, the said para is quoted hereunder for ready reference (Para 47-A) : "47. (A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority." 57. Before dealing with the issue raised by the private respondents in reference to the judgment in the case of Direct Recruitment Class -II Engineering Officers’ Association case (supra), it would be gainful to refer to the facts and controversy involved in the said case. 58. The facts in the case of Direct Recruitment Class -II Engineering Officers’ Association case (supra) shows a controversy of seniority between promotes and the direct recruitees and not of the nature involved herein. It was even in reference to the quota rule because therein separate quota wes provided for direct recruitment and promotees and accordingly the issue was dealt with. The facts in the case of Direct Recruitment Class -II Engineering Officers’ Association case (supra) shows a controversy of seniority between promotes and the direct recruitees and not of the nature involved herein. It was even in reference to the quota rule because therein separate quota wes provided for direct recruitment and promotees and accordingly the issue was dealt with. It was not the controversy of the nature involved herein and therefore only if we read para 47-A carefully, as quoted above, it does not talk about 'regularization' but uses word ‘confirmation’. The word ‘confirmation’ cannot be used by substituting it by the word ‘regularisation’. The confirmation in service is made if an official has been appointed by the mode provided for regular appointment but his initial appointment was on probation. It is then to proceed with confirmation. In many service rules, there is a provision for confirmation after expiry of certain period on probation. An exercise of confirmation is required or there can be a rule for automatic confirmation in service. The confirmation is not required in the case of regularization of service. The Apex Court was thus cautious about use of word ‘confirmation’ in para 47-A as matter was arising out of the controversy between the Direct recruitees and promotes. It is not only in reference to the quota rules but even in reference to those promottees who were continued on the promotional post for a considerable period. 58. The counsel for the respondents ignored the aforesaid aspect while pressing their argument in reference to para 47-A of the judgment in the case of Direct Recruitment Class -II Engineering Officers’ Association case (supra). The present matter is rather covered by the judgment of the Apex Court in the case of Vijay Singh (supra). The relevant paras of it have already been quoted. 60. The other judgment relevant to the present controversy is in the case of State of Uttrakhand and another Vs. Archana Shukla (supra). The judgment aforesaid is quoted hereunder to show that not only similar provision was considered by the Apex Court but it is with a finding that an candidate similarly placed like the private respondents are not entitled to seniority, as given in this case by the learned Tribunal. The relevant portion of the judgment in the case of Archana Shukla(supra) is quoted as under :- "1. Heard learned counsel for the parties. The relevant portion of the judgment in the case of Archana Shukla(supra) is quoted as under :- "1. Heard learned counsel for the parties. This Appeal has been filed against the impugned judgment and order dated 06th March, 2006 passed by the High Court of Uttarakhand at Nainital in Writ Petition No. 140/2005. The facts have been set out in the impugned judgment and hence we are not repeating the same here except wherever necessary. 2. The respondents herein were appointed on adhoc officiating post in the year 1988 for a fixed term which was continued. They were regularised in the year 2004 under the Uttaranchal Regularization of Ad Hoc Appointments (Posts under the purview of Public Service Commission) Rules, 2002 (for short 'the Rules'). The respondents claimed benefit of their service from 1988 to 2004 for the purpose of seniority and this has been granted by the High Court. Hence, this appeal. 3. We are afraid, we cannot agree with the view taken by the High Court. 4. Rule 7(1) of the Rules states as under: “A person appointed under these rules shall be entitled to seniority only from the date of order of appointment after selection in accordance with these rules and shall, in all cases, be placed below the persons appointed in accordance with the relevant service rules or as the case may be, the regular prescribed procedure, prior in the appointment of such person under these rules.” 5. Admittedly, the respondents were appointed after a selection under the Regularization Rules in the year 2004. Hence, in our view, they can get seniority only from the year 2004 and not from 1988. The rule is clear and hence we cannot debar from the clear meaning of the rule. 6. It has been held in Raghunath Rai Bareja & Another vs. Punjab National Bank that: " 29....... when there is a conflict between law and equity, it is the law which has to prevail in accordance with the latin maxim 'dura lex sed lex' which means 'the law is hard but it is the law'. Equity can only supplement the law, "but it cannot supplant or override it. This view was followed in B.Premanand & Others vs. Mohan Koikal. 7. Equity can only supplement the law, "but it cannot supplant or override it. This view was followed in B.Premanand & Others vs. Mohan Koikal. 7. In the present case, Rule 7 is very clear and hence the respondents are not entitled to the benefit of their service from 1988 to 2004 for the purpose of their seniority. 8. Accordingly, this appeal is allowed and the impugned judgment of the High Court is set aside. No costs." Rule 7(1) of the Rules quoted therein is similar to sub rule 9 of the Rule 21-A, as amended. 61. We cannot take a view different than taken by the Apex Court in the case of State of Uttrakhand and another Vs. Archana Shukla (supra) wherein similar Rule was taken into consideration and accordingly the controversy about the seniority can be governed by the judgment supra. 62. The Tribunal has failed to take note of the another judgment of the Apex Court in the case of Surendra Kumar and another Vs. Greater Noida Industrial Development Authority and others : 2015(11) SCC 382. 63. In the instant case, the regularization of service of the private respondents were made by the order dated 21.2.2007. Thus, it cannot be treated to be an appointment on 30.6.1998. We are cautious about the fact that the word ‘regularisation’ has been used in the order dated 21.2.2007 but provision undr Rule 21 A is for appointment and not of regularization though heading is of Rule 21 A is for regularization and appointment but then sub rule does not talk about regularization. Para 14 of the judgment in the case of Surendra Kumar and others (supra) covers the issue even if it is taken to be a case of regularization of the service of the private respondents. It cannot be ante dated so as to take it w.e.f. 30.6.1998. Amended Rule cannot operate retrospective in absence of a provision therein. 64. In view of the aforesaid, we are unable to accept the view expressed by the Tribunal for acceptance of the claim petition preferred by the private respondents and accordingly we set aside the judgment passed by the Tribunal with all consequences and actions pursuant to it, if any, are nullified. The writ petitions are allowed with the aforesaid.