JUDGMENT : S.N. Pathak, J. The issues involved in both the writ petitions are “Whether the private respondents in W.P.(S) No. 4187 of 2018 are senior to the petitioners and have been granted promotion rightly or illegally and arbitrarily, they have been considered for promotion?” and as such they have been tagged and heard together on various dates physically as well as through video conferencing and are being disposed of by this common order. PRAYER IN W.P.(S) No. 4187 of 2018 2. The petitioners in W.P.(S) No. 4187 of 2018 have knocked door of this Court for quashing and setting aside the Notification bearing no. 1622, dated 01.08.2018, issued vide Memo No. 1623, dated 01.08.2018, whereby respondent no. 6 has been granted promotion to the post of Chief Engineer. Petitioners have further prayed for a direction upon the respondent to consider case of petitioners for promotion to the post of Chief Engineer or any equivalent posts, in view of the fact that petitioners are the senior most Electrical Engineers (General Cadre). Petitioners have further prayed for a direction upon the respondents to treat and/or reckon their date of promotion to the post of Electrical Superintending Engineer with effect from 31.03.2015 i.e. the date on which persons junior to petitioners including respondent nos. 6 to 16 have been granted promotion to the post of Electrical Superintending Engineer and further to declare the petitioners to be senior to respondent nos. 6 to 16. In the alternative to these prayers, petitioners have prayed for quashing Notification as contained in Memo No. 427, dated 31.03.2015 (Annexure-12) by which respondent nos. 6 to 16 have been granted promotion to the post of Electrical Superintending Engineer. PRAYER IN W.P.(S) No. 681 of 2019 2. The writ petitioners in W.P.(S) No. 681 of 2019 have knocked door of this Court for quashing letter no. 198, dated 26.02.2009 (Annexure-5 Series), issued under the signature of Secretary, erstwhile Bihar State Electricity Board, Patna whereby and whereunder a decision was taken for publishing final gradation list determining inter-se-seniority of Assistant Electrical Engineers belonging to General Cadre [in short A.E.E. (GEN)] appointed by the erstwhile Bihar State Electricity Board, Patna including the Assistant Electrical Engineers of General Cadre under the jurisdiction of erstwhile Jharkhand State Electricity Board, so far it relates to petitioners. Petitioners have further prayed for a direction upon the respondents to amend gradation list as per date of appointment and date of joining of petitioners and the private respondents. Petitioners have further prayed to declare letter dated 26.02.2009 and the gradation list published by the Jharkhand State Electricity Board or its successor as unlawful and bad, so far it relates to petitioners. FACTS OF THE CASE IN W.P.(S) NO. 4187 OF 2018 3. According to the petitioners, petitioner no. 1 had been appointed as unskilled Khalasi on 26.12.1995 whereas the petitioner nos. 2 and 3 had been appointed as Controller on 04.11.1997. After their appointment, they obtained higher qualification or Degree in Electrical Engineering or otherwise became entitled for appointment to the post of Electrical Engineer. In view of internal advertisement issued vide Employment Notice No. 1/1999, dated 02.02.1999, petitioners applied and were duly selected and appointed to the post of Assistant Electrical Engineer on 13.06.2000. In addition to internal advertisement, an external advertisement was also issued vide Employment Notice No. 3/1999 in which respondent nos. 6 to 16 were appointed to the post of Assistant Electrical Engineer. However, both the processes of appointment initiated by the then Bihar State Electricity Board were pursuant to a common recruitment process but due to delay in completion of appointment process relating to Internal Advertisement No. 1/1999, the petitioners were issued appointment letters on subsequent dates as against appointment letters issued in favour of respondent nos. 6 to 16 to the post of Assistant Electrical Engineers. However, the petitioners were treated senior to respondent nos. 6 to 16 in the cadre of Assistant Electrical Engineers (General Cadre) of the erstwhile BSEB and a tentative Gradation List were issued vide Memo No. 565, dated 05.05.2008 followed by final Gradation List dated 26.02.2009. 4. After creation of State of Jharkhand, Jharkhand State Electricity Board was created. There were two separate cadres of Electrical Engineers namely the cadre of Electrical Engineers in Generation and Transmission Networks, which is known as Electrical Engineers (GTO Cadre). Under the Distribution Wing, there was a separate cadre of Electrical Engineers which is known as Electrical Engineers (General Cadre). Petitioners as well as the respondent nos. 6 to 16 are from the Electrical Engineers (General Cadre). Under the Distribution Wing, there was a separate cadre of Electrical Engineers which is known as Electrical Engineers (General Cadre). Petitioners as well as the respondent nos. 6 to 16 are from the Electrical Engineers (General Cadre). In view of enactment of Electricity Act, 2003, the Jharkhand State Electricity Board was bifurcated into four Companies (i) Jharkhand Urja Vikas Nigam Ltd. (Holding Company); (ii) Jharkhand Bijli Vitran Nigam Ltd. (Distribution Company); (iii) Jharkhand Urja Sancharan Nigam Ltd. (Transmission Company); and (iv) Jharkhand Urja Utpadan Nigam Ltd. (Generating Company) Petitioners as well as the respondent nos. 6 to 16 were in the Distrubution Cadre of the erstwhile Jharkhand State Electricity Board and their services had been absorbed under the Jharkhand Bijli vitran Nigam Ltd. (Respondent No. 3) for which respondent no. 1 is the Holding Company. Petitioners as well as the respondent nos. 6 to 16 are under General Cadre. 5. It is further case of the petitioners that the minimum qualifying period (Kalawadhi) prescribed for promotion from the post of Assistant Electrical Engineer to the post of Electrical Executive Engineer were earlier prescribed to be eight years and after completion of eight years of service, case of the petitioners along with private respondents were considered for promotion to the post of Electrical Executive Engineers and, accordingly, vide Notifications issued vide Memo No. 3912, dated 02.08.2008, promotion was granted to the petitioners including some of the private respondents to the post of Electrical Executive Engineer. In the said Notifications, names of the petitioners were placed above private respondents. State of Jharkhand implemented the provisions of 6th pay Commission Recommendations and the then Jharkhand State Electricity Board also implemented the same. The State of Jharkhand also issued the Resolutions regarding qualifying Service (Kalawadhi) for promotion from one Grade to another Grade which was notified in terms of office memorandum dated 24.03.2009, issued by the Government of India. Thereafter, the Jharkhand State Electricity Board also issued office order no. 1194, dated 07.07.2012, wherein the minimum qualifying service (Kalawadhi) for promotion of its employees from one Grade Pay to another Grade Pay was mentioned. Thereafter, the Jharkhand State Electricity Board also issued office order no. 1194, dated 07.07.2012, wherein the minimum qualifying service (Kalawadhi) for promotion of its employees from one Grade Pay to another Grade Pay was mentioned. The Grade Pay of electrical Executive Engineer was Rs.6,600 and the next promotional post of Electrical Superintending Engineer was having Grade Pay of Rs.8,700/- and thus, under the office order dated 07.07.2012, for promotion from the post of Electrical Executive Engineer to the post of electrical Superintending Engineer, the minimum qualifying service (Kalawadhi) of ten years was prescribed. The Grade Pay of an Assistant Electrical Engineer was Rs.5,400/- and the Grade Pay of next promotional post of Electrical Executive Engineer was Rs.6,600/- and as such, as per the office order dated 07.07.2012, the minimum qualifying service (Kalawadhi) for promotion from Assistant Electrical Engineer to Electrical Executive Engineer was prescribed to be five years. Earlier the minimum qualifying service for promotion from the post of Assistant Electrical Engineer to the post of Electrical Executive Engineer was eight years and as such, petitioners along with private respondents were granted promotion after completion of minimum qualifying service of eight years. Since as per office order dated 07.07.2012, promotion to the post of Electrical Superintending Engineer was to be granted only on completion of ten years of minimum qualifying service, the petitioners and the private respondents were entitled for promotion only after completion of minimum qualifying service of ten years in the year 2018. However, pursuant to the office order dated 07.07.2012, it was provided that where posts are vacant on promotional posts but the minimum qualifying service is not being fulfilled by any of the employees, under the said circumstances, if an employee has fulfilled the requisite qualifying service of the post on which he is working and has fulfilled the combined qualifying service of the promotional post and the post on which he is working, then a relaxation shall be given up to 50% of the minimum qualifying service required for the promotional post. The petitioners along with some of the private respondents were promoted to the post of Electrical Executive Engineer on 02.08.2008 and thus, in the year 2015, when cases of promotion of their juniors were considered for promotion, the petitioners had already fulfilled more than half of the qualifying service for promotion to the post of Superintending Engineer and thus, they were entitled to be considered for promotion to the post of Electrical Superintending Engineer along with their juniors. Respondent no. 1, along with respondent no. 3 initiated the process of promotion to the post of Electrical Superintending Engineer and were only intending to give promotion to the private respondents on the alleged ground that they fulfilled the combined minimum qualifying service of 15 years, without considering case of the petitioners for promotion along with their juniors by completely ignoring office memorandum dated 31.12.2010. The representations filed by the petitioners were not considered and in an arbitrary manner, the private respondents were granted promotion to the post of Electrical Superintending Engineer vide Notification issued under Memo No. 427, dated 31.03.2015. It is case of the petitioners that there were vacant posts of Electrical Superintending Engineers at the time when juniors to him were being considered for promotion. Subsequently, petitioner no. 3 was granted promotion to the post of Electrical Superintending Engineer vide Notification dated 28.12.2015. It is case of the petitioners that the petitioners and the private respondents belong to the common cadre and the private respondents cannot be considered to be senior to the petitioners. It is further case of the petitioners that the post of Chief Engineer is in the Grade Pay of Rs.8,900 and the minimum qualifying service (Kalawadhi) for promotion to the said post is two years. The petitioners have completed the requisite minimum qualifying service for promotion to the post of Chief Engineer and they are entitled for consideration of their cases for promotion to the post of Chief Engineer or equivalent post. However, by notification dated 31.07.2018, eight persons have been promoted to the post of Chief Engineer who belonged to the reserved category and petitioners have no grievances against them. Thereafter, vide Memo No. 1623, dated 01;08.2018, two persons have been promoted to the post of Chief Engineer, out of two, one Arvind Kumar (Respondent No. 6) is junior to the petitioners and the same is arbitrary. Thereafter, vide Memo No. 1623, dated 01;08.2018, two persons have been promoted to the post of Chief Engineer, out of two, one Arvind Kumar (Respondent No. 6) is junior to the petitioners and the same is arbitrary. Petitioners apprehend that their case for promotion would not be considered and respondent nos. 7 to 16 would be considered and promoted to the post of Chief Engineer on the alleged pretext that they have been promoted anterior in time than the petitioners to the post of Electrical Superintending Engineer and as such, they have knocked door of this Court. FACTS OF THE CASE IN W.P.(S) NO. 681 OF 2019 6. According to petitioners in W.P.(S) No. 681 of 2019, pursuant to the BSEB’s (Open External) Employment Notice No. 03/1999, they were appointed to the post of Assistant Electrical Engineer, General Cadre on the basic pay of Rs.2,450 in the pay scale of Rs.2,450 – 75 – 2750 – 100 – 4250 vide individual provisional offer of appointment letters dated 24.12.1999. Thereafter, the petitioners joined to the said post on 11.01.2000 which was also duly notified by the then Bihar State Electricity Board. The respondent no. 8 was appointed as unskilled Khalasi in the year 1995 whereas the respondent nos. 9 and 10 were appointed as Controller in the year 1997. Thereafter, pursuant to the BSEB’s Employment Notice No. 01/1999 (internal), the respondent nos. 8 to 10 were appointed to the post of Assistant Electrical Engineer, General Cadre in the basic pay of Rs.2,450/- in the pay scale of Rs.2,450 – 75 – 2750 – 100 – 4250 vide individual provisional offer of appointment letters dated 13.06.2000. Respondent no. 8 gave his joining on 20.06.2000 whereas respondent nos. 9 and 10 gave their joining on 22.06.2000. Pursuant to the letter no. 565, dated 05.05.2008, the Bihar State Electricity Board, Patna circulated a tentative gradation list determining inter-se seniority of the Assistant Electrical Engineers belonging to the general cadre of Bihar State Electricity Board. Thereafter, vide Notification dated 02.08.2008, the Jharkhand State Electricity Board promoted the Assistant Electrical Engineer, General Cadre to the post of Electrical Executive Engineer with immediate effect. 7. 565, dated 05.05.2008, the Bihar State Electricity Board, Patna circulated a tentative gradation list determining inter-se seniority of the Assistant Electrical Engineers belonging to the general cadre of Bihar State Electricity Board. Thereafter, vide Notification dated 02.08.2008, the Jharkhand State Electricity Board promoted the Assistant Electrical Engineer, General Cadre to the post of Electrical Executive Engineer with immediate effect. 7. It is case of the petitioners that after bifurcation of the erstwhile State of Bihar, the Jharkhand State Electricity Board was created and under the said Board, there were two separate cadres of Electrical Engineers namely Assistant Electrical Engineer (General Cadre) and Assistant Executive Engineers in Generation and Transmissions Organisation known as Assistant Executive Engineer (GTO Cadre). Under the Distribution Wing of erstwhile Jharkhand State Electricity Board, there was another cadre of Electrical Engineers known as Assistant Electrical Engineer (General Cadre) and the petitioners and the respondent nos. 8 to 10 belong to Assistant Electrical Engineers (General Cadre). The minimum qualifying period (Kalawadhi) prescribed for promotion from the post of Assistant Electrical Engineer to the post of Electrical Executive Engineer was earlier prescribed as eight years and after completion of eight years of service, case of the petitioners along with private respondents were considered for promotion to the post of Electrical Executive Engineer and accordingly, notifications issued vide Memo No. 3892, dated 02.08.2008, promotion was granted to the petitioners including the private respondents to the post of Electrical Executive Engineer. After objection received against the tentative gradation list, a final gradation list determining inter-se seniority of Assistant Electrical Engineers belonging to General Cadre of erstwhile Bihar State Electricity Board was published on 26.02.2009. The Bihar State Electricity Board, Patna, vide letter no. 198, dated 26.02.2009, circulated the final gradation list determining inter-se seniority of the Assistant Electrical Engineer belonging to the General Cadre of Bihar State Electricity Board. Petitioner filed their objections to the respondent against the tentative gradation list of the Assistant Electrical Engineer belonging to the General Cadre of Bihar State Electricity Board. Pursuant to the notification no. 33, dated 11.03.2010, petitioners and the private respondents were finally allocated Jharkhand Cadre and they continued to work as such. 8. The Jharkhand State Electricity Board (Personnel Department), vide office order no. 1194, dated 07.07.2012, decided tenure (Kalawadhi) of the employees for granting promotion. Pursuant to the notification no. 33, dated 11.03.2010, petitioners and the private respondents were finally allocated Jharkhand Cadre and they continued to work as such. 8. The Jharkhand State Electricity Board (Personnel Department), vide office order no. 1194, dated 07.07.2012, decided tenure (Kalawadhi) of the employees for granting promotion. It was decided that where the posts are available but the tenure is not completed, in that circumstances, the person will be promoted by adding the lower level post and the tenure of total service of upgraded post by granting 50% exemption. Pursuant to the Resolution no. 3286, dated 04.04.2014, the Government of Jharkhand (Personnel Administrative Reforms and Rajbhasa Department) came out with a Resolution regarding promotion for the employees who had completed the tenure. In view of Notification dated 31.03.2015, petitioners were promoted from the post of Electrical Executive Engineer to the post of Electrical Superintending Engineer. The gradation list dated 26.02.2009 prepared by the Bihar State Electricity Board was not in consonance with the General Cadre Rules, 1976 and as such, they filed representations for necessary corrections but no heed was paid. Case of the petitioner nos. 1 and 2 were considered by the Departmental Promotion Committee and vide proceeding dated 27.03.2015, case of petitioner nos. 1 and 2 along with others in their batch were considered and promoted to the post of Electrical Superintending Engineer. Vide Departmental proceeding dated 20.06.2015 and 18.12.2015, case of private respondent nos. 8 to 10 was considered and subsequent thereto they were considered for promotion prior to the other remaining members of the batch of Assistant Electrical Engineer (General Cadre) appointed against the BSEB’s Employment Notice 03/1999, all of whom had joined prior to the date of joining of private respondents. 9. From the facts narrated in W.P.(S) No. 681 of 2019, it clearly appears that the petitioners have challenged the Final Gradation List dated 26.02.2009, prepared by the Bihar State Electricity Board. The challenge was thrown to the seniority list subject to the condition that if the respondents succeed in W.P.(S) No. 4187 of 2018, then the writ petition shall become infructuous and shall not be pressed. ARGUMENTS ADVANCED ON BEHALF OF THE PETITIONERS IN W.P.(S) NO. 4187 of 2018 and PRIVATE RESPONDENTS IN W.P.(S) NO. 681 OF 2019 10. Mr. Ajit Kumar, learned Sr. Counsel assisted by Mr. Sumeet Gadodia and Ms. ARGUMENTS ADVANCED ON BEHALF OF THE PETITIONERS IN W.P.(S) NO. 4187 of 2018 and PRIVATE RESPONDENTS IN W.P.(S) NO. 681 OF 2019 10. Mr. Ajit Kumar, learned Sr. Counsel assisted by Mr. Sumeet Gadodia and Ms. Sugandha, learned counsel representing petitioners in W.P.(S) No. 4187 vociferously argued that as per the tentative Gradation List issued vide Memo No. 565, dated 05.05.2008 followed by final Gradation List dated 26.02.2009, petitioners are senior to the respondent nos. 8 to 16 and the same has not been modified and/or amended either by the erstwhile Bihar State Electricity Board or the Jharkhand State Electricity Board and/or the present respondent nos. 1 and 3 and as such the same is continuing and operative in the respondent nos. 1 and 3 till date. Respondent nos. 6 to 16 being junior cannot be given promotion above the petitioners. Learned Sr. Counsel further argues that in view of implementation of recommendations of the 6th Pay Revision Committee, the problem regarding qualifying service (Kalawadhi) was raised but the same was resolved in view of Clause 3.1.2 of the Office Memorandum dated 31.12.2010 which specifically states that in some cases of promotion, the senior officers would not have completed the required service whereas the juniors would have completed the prescribed eligibility condition for promotion, the seniors will be left out from consideration for higher post. To avoid such a situation, note was directed to be inserted in the recruitment rules/ column in the schedule to the Recruitment Rules which reads as under: “Where juniors who have completed their qualifying/ eligibility service are being considered for promotion, their seniors would also be considered provided they are not short of the requisite qualifying/ eligibility service by more than half of such qualifying/ eligibility service or two years, whichever is less, and have successfully completed probation period for promotion to the next higher grade along with their juniors who have already completed such qualifying/ eligibility service.” Learned Sr. Counsel further argued that the State of Jharkhand implemented the provisions of 6th pay Commission Recommendations and the then Jharkhand State Electricity Board also implemented the same. The State of Jharkhand also issued the Resolutions regarding qualifying Service (Kalawadhi) for promotion from one Grade to another Grade which was notified in terms of office memorandum dated 24.03.2009, issued by the Government of India. Thereafter, the Jharkhand State Electricity Board also issued office order no. The State of Jharkhand also issued the Resolutions regarding qualifying Service (Kalawadhi) for promotion from one Grade to another Grade which was notified in terms of office memorandum dated 24.03.2009, issued by the Government of India. Thereafter, the Jharkhand State Electricity Board also issued office order no. 1194, dated 07.07.2012, wherein the minimum qualifying service (Kalawadhi) for promotion of its employees from one Grade Pay to another Grade Pay was mentioned. Learned Sr. Counsel further argued that the office order dated 07.07.2012 provides that where posts are vacant on promotion posts but the minimum qualifying service is not being fulfilled by any of the employees, under the said circumstances, if an employee has fulfilled the requisite qualifying service of the post on which he is working and has fulfilled the combined qualifying service of the promotional post and the post on which he is working, then a relaxation shall be given up to 50% of the minimum qualifying service required for the promotional post. The same was to be read with office memo dated 31.12.2010. 11. Learned Sr. Counsel further argued that petitioners were fulfilling the combined qualifying service of 15 years in June, 2015 and as per office memorandum dated 31.12.2010, petitioners being senior to the private respondents, were also eligible for being considered for promotion along with their juniors by granting them relaxation of minimum qualifying service for the post of Superintending Engineer. Learned Sr. Counsel submitted that as per the said Office Memorandum, if petitioners were not short of more than half of the qualifying/ eligibility service for being promoted to the post of Electrical Superintending Engineer or two years, whichever is less, their cases were bound to be considered for promotion along with their juniors who had completed minimum qualifying service of 15 years. The petitioners along with some of the private respondents were promoted to the post of Electrical Executive Engineer on 02.08.2008 and thus, in the year 2015, when cases of promotion of their juniors were considered for promotion, the petitioners had already fulfilled more than half of the qualifying service for promotion to the post of Superintending Engineer and thus, they were entitled to be considered for promotion to the post of Electrical Superintending Engineer along with their juniors. Respondent no. 1, along with respondent no. Respondent no. 1, along with respondent no. 3 initiated the process of promotion to the post of Electrical Superintending Engineer and were only intending to give promotion to the private respondents on the alleged ground that they fulfilled the combined minimum qualifying service of 15 years, without considering case of the petitioners for promotion along with their juniors by completely ignoring office memorandum dated 31.12.2010. The representations filed by the petitioners were not considered and in an arbitrary manner, the private respondents were granted promotion to the post of Electrical Superintending Engineer vide Notification issued under Memo No. 427, dated 31.03.2015. ARGUMENTS ADVANCED ON BEHALF OF THE PETITIONERS IN W.P.(S) NO. 681 OF 2019 and PRIVATE RESPONDENTS IN W.P.(S) NO. 4187 of 2018 12. Mr. Navniti Prasad Singh, learned Sr. Counsel assisted by Mr. Indrajit Sinha and Mr. Dhananjay Pathak, learned counsel appearing for the petitioners in W.P.(S) No. 681 of 2019 and private respondents in W.P.(S) No. 4187 of 2018, vehemently opposed contention of Mr. Ajit Kumar, learned Sr. Counsel as also Mr. Sumeet Gadodia, learned counsel appearing for respondent nos. 8 to 10 in W.P.(S) No. 681 of 2019 and assiduously argued that petitioners were appointed directly through the external open Employment Notice No. 03 of 1999 and are presently working in the cadre of Assistant Electrical Engineers (General Cadre) under Jharkhand Bijli Vitran Nigam Limited whereas the private respondents were initially appointed to the post of Unskilled Khalasi and Controller and subsequently, pursuant to the internal Employment Notice No. 01/1999 (Internal), were appointed to the post of Assistant Electrical Engineer in the cadre on different dates. Both the recruitment process were initiated by the then Bihar State Electricity Board. There is no dispute to the fact that the date of joining on the cadre post of the petitioners is earlier than that of the private respondents. the date of appointment of the petitioners is much more prior to the date of appointment of the private respondents. 13. Quoting Rule 15 of the General Cadre Rules, 1976, learned Sr. Counsel submitted that the gradation list dated 26.02.2009, prepared by the Bihar State Electricity Board is not in consonance with the General Cadre Rules, 1976. The private respondents are not fulfilling the prerequisites criteria as enumerated under the General Cadre Rules, 1976 for promotion to the post of Electrical Superintending Engineer on the date petitioner nos. Counsel submitted that the gradation list dated 26.02.2009, prepared by the Bihar State Electricity Board is not in consonance with the General Cadre Rules, 1976. The private respondents are not fulfilling the prerequisites criteria as enumerated under the General Cadre Rules, 1976 for promotion to the post of Electrical Superintending Engineer on the date petitioner nos. 1 and 2 along with others have been promoted. Learned counsel further argues that the petitioner nos. 1 and 2 along with others were promoted to the post of Electrical Superintendent Engineer from the post of Electrical Executive Engineer in the month of March, 2015 whereas the private respondents were promoted at a later stage in the months starting from June, 2015 surpassing the batch of recruits of BSEB Employment Notice 03/1999. Learned counsel further argues that in view of General Cadre Rules, 1976, the private respondents can only be considered for promotion after exhausting entire list of candidates for promotion amongst the direct recruits. In the instant case, the private respondent nos. 8, 9 and 10 in W.P.(S) No. 681 of 2019 have been promoted to the post of Electrical Superintending Engineer from the post of Electrical Executive Engineer before exhausting the list of direct recruits. Learned counsel further submitted that case of the petitioner nos. 1 and 2 were considered by the Departmental Promotion Committee and they were promoted to the post of Electrical Superintending Engineer. Thereafter, case of private respondent nos. 8 to 10 was taken up and subsequent thereto they were considered for promotion prior to the other remaining members of the batch of Assistant Electrical Engineer (General Cadre) appointed against the BSEB’s Employment Notice 03/1999, all of whom had joined prior to the date of joining of private respondents, which is unjustified and the same needs interference of this Hon’ble Court. According to date of joining, petitioners are senior to the respondent nos. 8 to 10 and the same cannot be ignored. The tentative gradation list was wrongly prepared by the erstwhile Bihar State Electricity Board, objections were raised by the petitioners and representations were duly served but no heed was paid, neither to the objections nor to the representations. According to date of joining, petitioners are senior to the respondent nos. 8 to 10 and the same cannot be ignored. The tentative gradation list was wrongly prepared by the erstwhile Bihar State Electricity Board, objections were raised by the petitioners and representations were duly served but no heed was paid, neither to the objections nor to the representations. Learned counsel submitted that after issuance of tentative gradation list vide letter dated 05.05.2008, petitioners had objected the same but no heed was paid to the said objections and without considering the said objection, final gradation list was prepared which is not sustainable in the eyes of law. The letter no. 138, dated 15.01.2019, issued by the Additional Secretary, Bihar State Power (Holding Company) Limited informing that the gradation list circulated vide letter no. 198, dated 26.02.2009 is the last gradation list, is not at all sustainable in the eyes of law and the same is fit to be interfered. Petitioners were not at all having any knowledge that the list prepared by the then Bihar State Electricity Board, Patna was the final gradation list. Objections raised by the petitioners were never taken care of and no communication was made to them. Only after filing of W.P.(S) No. 4187 of 2018, petitioners have come to know that the list prepared by the respondents was the final gradation list. Learned Sr. Counsel has taken specific stand that Rule 15 is not applicable as the petitioners in W.P.(S) No. 681 of 2019, were appointed in the year 1999 whereas the respondents were appointed in the year 2000. The logic that the advertisement of the respondents were published earlier, so the seniority is not accepted, finds support from paragraph-2 of the Judgment passed in the case of “Bhey Ram Sharma v. Haryana SEB, reported in 1994 Supp (1) SCC 276, which reads as under: “2. An advertisement dated June 30, 1967 was published by the Board inviting applications for the posts of Assistant Engineers Class II (Electrical) and Apprentice Engineers (Electrical). Pursuant to the said advertisement, the appellants made applications for Apprentice Engineers (Electrical). The advertisement prescribed three conditions. The first condition was in respect of the academic qualifications. An advertisement dated June 30, 1967 was published by the Board inviting applications for the posts of Assistant Engineers Class II (Electrical) and Apprentice Engineers (Electrical). Pursuant to the said advertisement, the appellants made applications for Apprentice Engineers (Electrical). The advertisement prescribed three conditions. The first condition was in respect of the academic qualifications. The second condition relating to the period of apprenticeship was as follows: “He will have to undergo apprenticeship for a period of six months or such period as may be decided by the Board which can be extended up to a maximum of three years. After completion of the said training, they will be considered for appointment to the post of Assistant Engineer Class II in the scale of Rs 350-25-450/30-600/EB-40-800 with starting salary of Rs 350 p.m. on the basis of their work and conduct.” The third condition was in respect of giving an undertaking in writing that the candidate shall serve the Board for a period of two years after completion of his training. In the offer of appointment issued to the appellants, it was said: “APPRENTICESHIP: You will have to undergo apprenticeship for a period of one year or such period as may be decided by the Board. After completion of the above said training, you will be considered for appointment to the post of Asstt. Engineer Class II in the scale of Rs 350-25-450/30- 600/EB-40-800 at the basic pay of Rs 350 p.m. on the basis of your work and conduct.” Para-5 of the said Judgment reads as under: “5. This Court has examined the question of fixation of seniority inter-se between officers appointed from different sources i.e. by promotion and by process of direct recruitment. It is almost settled that while determining the inter-se seniority amongst officers recruited from different sources or between officers appointed by the same process at different times, the date of entering in the service is relevant. A person who enters in the service first shall rank senior unless there is some rule providing otherwise which can be held to be consistent with Articles 14 and 16 of the Constitution. A person who enters in the service first shall rank senior unless there is some rule providing otherwise which can be held to be consistent with Articles 14 and 16 of the Constitution. Reference in this connection may be made to the cases of N.K. Chauhan v. State of Gujarat [ (1977) 1 SCC 308 : 1977 SCC (L&S) 127 : AIR 1977 SC 251 ] , Paramjit Singh Sandhu v. Ram Rakha Mal [ (1982) 3 SCC 191 : 1982 SCC (L&S) 266 : AIR 1983 SC 314 ] , A. Janardhana v. Union of India [ (1983) 3 SCC 601 : 1983 SCC (L&S) 467 : AIR 1983 SC 769 ] , A.N. Pathak v. Secy. to the Govt., Ministry of Defence [1987 Supp SCC 763 : 1988 SCC (L&S) 370 : (1988) 6 ATC 626 : AIR 1987 SC 716 ] . The same view was approved by a Constitution Bench of this Court in the case of Direct Recruit Class II Engineering Officers' Assn. v. State of Maharashtra [ (1990) 2 SCC 715 : 1990 SCC (L&S) 339 : (1990) 13 ATC 348]”. 14. It has further been argued that in view of Rule-9(3), the respondents cannot be said to be promotees and very comfortably it can be inferred that they are fresh appointees. It has further been argued that consideration was never under Rules 9 and 12, therefore, Rule Rule 15(1) does not apply. Petitioners were promoted on 31.03.2015 and respondents were promoted on 03.07.2015 to the post of Superintending Engineers but they did not thrown any challenge to that. It was only on 01.08.2018 when one of the petitioners was promoted to the post of Chief Engineer, the writ petition was filed challenging the promotion granted in the year 2015 and as such, the respondents have already missed the bus. 15. Learned Sr. Counsel further argued that the delay, if any, in filing writ petition, does not come in considering case of the petitioners as the same has been fully explained. The JUVNL, after bifurcation, never came out with any final gradation list and the plea of JUVNL carries weight that the Gradation List prepared by the Bihar State Electricity Board was not binding on JUVNL. The writ petition is fit to be allowed on the ground of legal propositions, which are also supported by the various Judgments. The JUVNL, after bifurcation, never came out with any final gradation list and the plea of JUVNL carries weight that the Gradation List prepared by the Bihar State Electricity Board was not binding on JUVNL. The writ petition is fit to be allowed on the ground of legal propositions, which are also supported by the various Judgments. To buttress his arguments, learned counsel has framed the legal proposition which reads as follows: a. Seniority cannot be claimed from a date when the incumbent was not borne in service. Relying the Judgment passed in the case of K. Meghachandra Singh and others Vs. Ningam Siro and others reported in (2020) 5 SCC 689 learned counsel submitted that the person cannot be said to have been recruited to the service only on the basis of initiation of process of recruitment but he is borne in the post only when formal appointment order is issued. Learned counsel further argued that the seniority is to be reckoned not from the date when the vacancy arose but from the date on which the appointment is made to the post. Learned counsel argued that the Court has held that the retrospective seniority should not be granted from a day when an employee is not even borne in the cadre so as to adversely impact those who were validly appointed in the meantime. The inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one ground of officers and the other recruited from different sources. Learned counsel has further relied in the Judgment passed in the case of Jagdish Ch. Patnaik Vs. State of Orissa reported in (1998) 4 SCC 456 ; State of U.P. Vs. Ashok Kumar Srivastava reported in (2014) 14 SCC 720 ; Pawan Pratap Singh Vs. Reevan Singh reported in (2011) 3 SCC 267 . b. Delay and laches cannot be raised in a case of a continuing cause of action: Relying upon the judgment passed by Hon’ble Supreme Court in the case of Vidya Devi Vs. Ashok Kumar Srivastava reported in (2014) 14 SCC 720 ; Pawan Pratap Singh Vs. Reevan Singh reported in (2011) 3 SCC 267 . b. Delay and laches cannot be raised in a case of a continuing cause of action: Relying upon the judgment passed by Hon’ble Supreme Court in the case of Vidya Devi Vs. State of H.P. reported in (2020) 2 SCC 569 , learned counsel submitted that in the case in hand, the cause of action is continuing as on the basis of the final gradation list dated 29.02.2009, still the parties are being promoted. 16. Assailing contention raised by the petitioners in W.P.(S) No. 4187 of 2018, learned Sr. Counsel submitted that the Advertisement No. 1 of 1999 (internal) was issued for appointment to the post of Assistant Electrical Engineer for the employees working in the Board in posts other than the Junior electrical Engineer. The persons working on the post of Junior Electrical Engineer can be appointed by promotion to the post of Assistant Electrical Engineer. As per the service Rules including the Cadre Rules, no other person working on any other post is eligible for being promoted to the post of Assistant Electrical Engineer. Claim of the petitioners of W.P.(S) No. 4187 of 2018 that they had been promoted, is unfounded and writ merits dismissal. The petitioners therein had been appointed in the view of Advertisement no. 1 of 1999 (internal) whereas petitioners in W.P.(S) No. 681 of 2019 (respondent nos. 6, 8, 14 and 15 herein) were appointed in view of Advertisement no. 3 of 1999 (External) and were born into the cadre of Assistant Electrical Engineer (General) cadre much prior to the petitioners in W.P.(S) No. 4187 of 2018). The appointment letter also makes it clear that the petitioners of W.P.(S) No. 4187 of 2018 were appointed in the calendar year 2000 whereas the respondent nos. 6, 8, 14 and 15 therein had been appointed in the calender year 1999. Learned counsel argues that the seniority in a cadre is determined on the basis of date of entry into the cadre and the candidates appointed through a selection concluded earlier stand senior to those appointed through a selection concluded subsequently. ARGUMENTS ADVANCED ON BEHALF OF RESPONDENT NOS. 8 TO 10 IN W.P.(S) NO. 681 OF 2019 17. Mr. Sumeet Gadodia, learned counsel appearing on behalf of the respondent nos. ARGUMENTS ADVANCED ON BEHALF OF RESPONDENT NOS. 8 TO 10 IN W.P.(S) NO. 681 OF 2019 17. Mr. Sumeet Gadodia, learned counsel appearing on behalf of the respondent nos. 8 to 10 in W.P.(S) No. 681 of 2019 has raised preliminary objections regarding maintainability of the writ petition and further submitted that the gradation list has been challenged after ten long years and as such the writ itself is fit to be dismissed on the ground of delay. Learned counsel has placed reliance on the Judgment rendered by the Hon’ble Apex Court in the case of Shiba Shankar Mohapatra v. State of Orissa reported in (2010) 12 SCC 471 , and submits that on the ground of delay, writ petition is fit to be dismissed. Para-29 of the said Judgment reads as under: “29. It is settled law that fence-sitters cannot be allowed to raise the dispute or challenge the validity of the order after its conclusion. No party can claim the relief as a matter of right as one of the grounds for refusing relief is that the person approaching the court is guilty of delay and the laches. The court exercising public law jurisdiction does not encourage agitation of stale claims where the right of third parties crystallises in the interregnum. (Vide Aflatoon v. Lt. Governor of Delhi [ (1975) 4 SCC 285 : AIR 1974 SC 2077 ] ; State of Mysore v. V.K. Kangan [ (1976) 2 SCC 895 : AIR 1975 SC 2190 ] ; Municipal Council, Ahmednagar v. Shah Hyder Beig [ (2000) 2 SCC 48 ] ; Inder Jit Gupta v. Union of India [ (2001) 6 SCC 637 : 2001 SCC (L&S) 1083] ; Shiv Dass v. Union of India [ (2007) 9 SCC 274 : (2007) 2 SCC (L&S) 395] ; A.P. SRTC v. N. Satyanarayana [ (2008) 1 SCC 210 : (2008) 1 SCC (L&S) 161] and City and Industrial Development Corpn. v. Dosu Aardeshir Bhiwandiwala [ (2009) 1 SCC 168 ] ).” 18. Learned Counsel further draws attention of the Court towards seniority list and submitted that from the same seniority list, the respondents in the instant case were promoted to the post of Superintending Engineers and having availed the benefits of seniority, now they cannot throw challenge to the same. v. Dosu Aardeshir Bhiwandiwala [ (2009) 1 SCC 168 ] ).” 18. Learned Counsel further draws attention of the Court towards seniority list and submitted that from the same seniority list, the respondents in the instant case were promoted to the post of Superintending Engineers and having availed the benefits of seniority, now they cannot throw challenge to the same. Learned counsel has placed reliance on the Judgment in the case of A.K. Mitra (Dr), DG, C.S.I.R. v. D. Appa Rao reported in (1998) 9 SCC 492 . Para-9 of the said Judgment reads as under: “9. We do not find any difficulty in holding that the Tribunal went wrong in appreciating the facts placed before it while coming to the above conclusion. First of all, the Tribunal failed to appreciate the fact that the first respondent's representation about his non-selection to the post of Assistant (General) in April 1972 was rejected by the appellants and the same question was again reopened by the first respondent when the subject of further promotion was considered and again the representation of the first respondent was turned down by the appellants. The Tribunal by the impugned order has allowed the first respondent to reopen the issue that was settled in the year 1972 in an indirect manner holding that the first respondent must be deemed to have been appointed to the post of Assistant (General) w.e.f. 11-4-1972. For coming to that conclusion, no provision of law or any other material was shown to support the same by the Tribunal. The Tribunal was not justified in entertaining the claim of the first respondent to reopen an issue relating to the year 1972 in the year 1988. It must be noted that after the appointment of third respondent as Office Assistant (General) in the year 1972, the first respondent was regularly promoted to the post of Office Assistant only on 6-4-1983 and that being the position and he having accepted the promotion without challenge, it was not open to him to contend that he must be deemed to have been promoted as Assistant (General) w.e.f. 11-4-1972 when the third respondent was appointed by direct recruitment to that post. Furthermore, the first respondent in response to the advertisement for the ex cadre post for direct recruitment, applied and appeared for the examination and took a chance and thereafter made representation that he should be promoted to the post of Assistant (General) as a departmental candidate which was rejected immediately by the appellants.” 19. Learned counsel further argued that the petitioners as also the respondents were appointed on in the year 2000. In the final gradation list, the date of appointment of the petitioners has been shown as 11.01.2000 whereas the date of appointment of the respondents has been shown as 20/22.06.2000. The petitioners have not thrown any challenge to the date of appointment rather they have accepted it. Learned counsel further argued that reliance of Judgment passed in the case of K. Meghachandra Singh and others Vs. Ningam Siro and others reported in (2020) 5 SCC 689 , is misconceived and not applicable in the facts and circumstances of the instant case. It has further been argued by learned counsel that the respondents are promottees and the petitioners are the direct recruits and as such, the writ petition is fit to be dismissed in limine. 20. Mr. Sumeet Gadodia, learned counsel further argued that Rule 12 has already been amended and Kalawadhi is of five years for promotion of Assistant Electrical Engineer to Electrical Executive Engineer and ten years for promotion of Electrical Executive Engineer to Electrical Superintending Engineer. Learned counsel submitted that both were given promotion on the same date and since respondents – Electricity Board has relaxed the Rule of ten years and as such, the respondents fulfils the criteria as per Clause 3.12 of the Office Memorandum and as such, the respondents – JUVNL may be directed to consider case of promotion of the petitioners in W.P.(S) No. 4187 of 2018 and respondents in W.P.(S) No. 681 of 2019. The Grade Pay of Chief Engineer is Rs.8900 and minimum qualifying service is two years. The petitioners in W.P.(S) No. 4187 of 2018 have completed the requisite period of two years and as such are entitled to the said promotion. There were several vacancies under the respondent no. 3 to be filled up for the post of Chief engineer from the Electrical Superintending Engineer and as such, the petitioners in W.P.(S) No. 4187 of 2018 are entitled to the same. There were several vacancies under the respondent no. 3 to be filled up for the post of Chief engineer from the Electrical Superintending Engineer and as such, the petitioners in W.P.(S) No. 4187 of 2018 are entitled to the same. ARGUMENTS ADVANCED ON BEHALF OF THE RESPONDENTS – JUVNL 21. Counter Affidavit has been filed by the respondents – JUVNL. Drawing attention of this Court towards several paragraphs of the counter affidavit in W.P.(S) No. 4187 of 2018, Mr. Rajiv Ranjan, learned Sr. Counsel assisted by Mr. Mukesh Kumar, learned counsel appearing on behalf of respondents – JUVNL submitted that the final gradation list of AEE was circulated vide letter no. 198, dated 26.02.2009. The case of the petitioners in said writ petition i.e. W.P.(S) No. 4187 of 2018 alongwith private respondent nos. 6 to 16, were considered for promotion to the next higher post of Electrical Executive Engineer as per rules and regulations and all the petitioners and private respondent nos. 6 to 1`6 were promoted to the post of Electrical Executive Engineer on 02.08.2008. In terms of Rule 12 of the Bihar State Electricity Board Electrical Engineer (General) Cadre Rule – 1976, promotion to the rank of Superintending Engineer from the rank of Executive Engineer is on the basis of merit-cum-seniority and suitability. Thereafter, the case of promotion from the post of Executive Engineer to Superintending Engineer was considered and placed before the Departmental Promotion Committee on 20.05.2013 which, while taking into account the requisite Kalawadhi, had recommended for giving look after charge on the post of Electrical Superintending Engineer with financial powers to the petitioner nos. 1, 2 and 3 in W.P.(S) No. 4187 of 2018 w.e.f. 20.06.2013. The matter of promotion of the petitioners along with the private respondent nos. 6 to 16 were considered again on 30.03.2015 by the Departmental Promotion Committee and said Committee, after due consideration on the facts and records, observed that the petitioners had not completed the required Kalawadhi for promotion to the post of Electrical Superintending Engineer while the case of private respondent nos. 6 to 16, who had completed the requisite Kalawadhi, were recommended for promotion. The private respondent nos. 6 to 16 were found eligible in terms of qualification and Kalawadhi and were recommended for promotion and petitioners, who had not completed the required Kalawadhi, were not recommended. It has further been argued by learned Sr. 6 to 16, who had completed the requisite Kalawadhi, were recommended for promotion. The private respondent nos. 6 to 16 were found eligible in terms of qualification and Kalawadhi and were recommended for promotion and petitioners, who had not completed the required Kalawadhi, were not recommended. It has further been argued by learned Sr. Counsel that in view of recommendation of Departmental Promotion Committee, promotion of the private respondent nos. 6 to 16 along with other Electrical Executive Engineers to the post of Electrical Superintending Engineer, was granted vide notification no. 408 to 426, dated 31.03.2015. It has further been argued by learned Sr. Counsel that the petitioners who had been appointed on 20.06.2000, had completed the requisite Kalawadhi for promotion on 20.06.2015 and, accordingly, the matter of promotion of the petitioners was again placed before the Departmental Promotion Committee on 20.06.2015. The said Committee, after due consideration of fact and records, recommended case of the petitioner nos. 1 and 2 fit for promotion and as such, they have been promoted vide Notification nos. 912 and 913, dated 03.07.2015. The case of petitioner no. 3 was considered on 18.12.2015 by the Departmental Promotion Committee and, accordingly, he was granted promotion to the post of Electrical Superintending Engineer vide Notification No. 1802, dated 28.12.2015. Petitioners have completed the required period of Kalawadhi for promotion to the post of Electrical Superintending Engineer on 20.06.2015 and as such they had been promoted to the post with an anterior date to that of the promotion of private respondent nos. 6 to 16 who had been appointed on an earlier date and even promoted to the post of Electrical Superintending Engineer from an earlier date. Learned Sr. Counsel further argued that case of promotion of the petitioners alongwith private respondent nos. 6 to 16 in W.P.(S) No. 4187 of 2018 to the post of Electrical Superintending Engineer, were placed before the Departmental Promotion Committee on 03.03.2015. However, in view of the fact that petitioners had not completed required Kalawadhi whereas the private respondents had completed the same, the Departmental Promotion Committee found the private respondents to be fit for promotion. The petitioners have completed requisite Kalawadhi only on 20.06.2015 and as such they rank junior to the private respondents to the post of Electrical Superintending Engineer. Therefore, case of the private respondent nos. The petitioners have completed requisite Kalawadhi only on 20.06.2015 and as such they rank junior to the private respondents to the post of Electrical Superintending Engineer. Therefore, case of the private respondent nos. 6 to 16 were considered for promotion to the post of Chief Engineer by the Departmental Promotion Committee on 30.07.2018. Learned Sr. Counsel further argued that there is no merits in the case of the petitioners in W.P.(S) No. 4187 of 2018 and the same merits dismissal. The petitioners therein rank junior to the private respondent nos. 6 to 16 and as such, the petitioners have no case. The private respondent nos. 6 to 16 were promoted earlier on account of attaining the requisite Kalawadhi on the post of Electrical Superintending Engineer and hence, they had a claim for promotion on the next higher post of Chief Engineer from an earlier date to that of the petitioners. The respondents are bound to follow the Cadre Rules and the requisite Kalawadhi. The JUVNL has its own Cadre Rules which clearly stipulates that private respondents are senior to the petitioners. W.P.(S) No. 4187 of 2018 has no merits and the same is fit to be dismissed. To buttress his arguments, learned Sr. Counsel has placed reliance in paragraphs-28, 29 and 30 of the Judgment passed by the Hon’ble Apex Court in the Case of K. Meghachandra Singh v. Ningam Siro reported in (2020) 5 SCC 689 which reads as under: “28. Before proceeding to deal with the contention of the appellants' counsel vis-à-vis the judgment in N.R. Parmar [Union of India v. N.R. Parmar, (2012) 13 SCC 340 : (2013) 3 SCC (L&S) 711], it is necessary to observe that the law is fairly well settled in a series of cases, that a person is disentitled to claim seniority from a date he was not borne in service. For example, in Jagdish Ch. Patnaik [Jagdish Ch. Patnaik v. State of Orissa, (1998) 4 SCC 456 : 1998 SCC (L&S) 1156] the Court considered the question whether the year in which the vacancy accrues can have any bearing for the purpose of determining the seniority irrespective of the fact when the person is actually recruited. The Court observed that there could be time-lag between the year when the vacancy accrues and the year when the final recruitment is made. The Court observed that there could be time-lag between the year when the vacancy accrues and the year when the final recruitment is made. Referring to the word “recruited” occurring in the Orissa Service of Engineers Rules, 1941 the Supreme Court held in Jagdish Ch. Patnaik [Jagdish Ch. Patnaik v. State of Orissa, (1998) 4 SCC 456 : 1998 SCC (L&S) 1156] that person cannot be said to have been recruited to the service only on the basis of initiation of process of recruitment but he is borne in the post only when, formal appointment order is issued. 29. The above ratio in Jagdish Ch. Patnaik [Jagdish Ch. Patnaik v. State of Orissa, (1998) 4 SCC 456 : 1998 SCC (L&S) 1156] is followed by this Court in several subsequent cases. It would however be appropriate to make specific reference considering the seniority dispute in reference to the Arunachal Pradesh Rules which are in pari materia to the MPS Rules, 1965 [vide Nani Sha v. State of Arunachal Pradesh [Nani Sha v. State of Arunachal Pradesh, (2007) 15 SCC 406 : (2010) 1 SCC (L&S) 719]]. Having regard to the similar provisions, the Court approved the view that seniority is to be reckoned not from the date when vacancy arose but from the date on which the appointment is made to the post. The Court particularly held that retrospective seniority should not be granted from a day when an employee is not even borne in the cadre so as to adversely impact those who were validly appointed in the meantime. 30. We may also benefit by referring to the judgment in State of U.P. v. Ashok Kumar Srivastava [State of U.P. v. Ashok Kumar Srivastava, (2014) 14 SCC 720 : (2015) 3 SCC (L&S) 536] . This judgment is significant since this is rendered after the N.R. Parmar [Union of India v. N.R. Parmar, (2012) 13 SCC 340 : (2013) 3 SCC (L&S) 711] decision. Here the Court approved the ratio in Pawan Pratap Singh v. Reevan Singh [Pawan Pratap Singh v. Reevan Singh, (2011) 3 SCC 267 : (2011) 1 SCC (L&S) 481], and concurred with the view that seniority should not be reckoned retrospectively unless it is so expressly provided by the relevant Service Rules. Here the Court approved the ratio in Pawan Pratap Singh v. Reevan Singh [Pawan Pratap Singh v. Reevan Singh, (2011) 3 SCC 267 : (2011) 1 SCC (L&S) 481], and concurred with the view that seniority should not be reckoned retrospectively unless it is so expressly provided by the relevant Service Rules. The Supreme Court held that seniority cannot be given to an employee who is yet to be borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime. The law so declared in Ashok Kumar Srivastava [State of U.P. v. Ashok Kumar Srivastava, (2014) 14 SCC 720 : (2015) 3 SCC (L&S) 536] being the one appealing to us, is profitably extracted as follows : (SCC p. 730, para 24) “24. The learned Senior Counsel for the appellants has drawn inspiration from the recent authority in Pawan Pratap Singh v. Reevan Singh [Pawan Pratap Singh v. Reevan Singh, (2011) 3 SCC 267 : (2011) 1 SCC (L&S) 481] where the Court after referring to earlier authorities in the field has culled out certain principles out of which the following being the relevant are produced below : (SCC pp. 281-82, para 45) 45. (ii) Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution. * * * (iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime.’” Learned Sr. Counsel has further placed reliance on paragraph-12 of the Judgment passed in the case of State of Bihar v. Akhouri Sachindra Nath reported in 1991 Supp (1) SCC 334, which reads as under: “12. Counsel has further placed reliance on paragraph-12 of the Judgment passed in the case of State of Bihar v. Akhouri Sachindra Nath reported in 1991 Supp (1) SCC 334, which reads as under: “12. In the instant case, the promotee respondents 6 to 23 were not born in the cadre of Assistant Engineer in the Bihar Engineering Service, Class II at the time when respondents 1 to 5 were directly recruited to the post of Assistant Engineer and as such they cannot be given seniority in the service of Assistant Engineers over respondents 1 to 5. It is well settled that no person can be promoted with retrospective effect from a date when he was not born in the cadre so as to adversely affect others. It is well settled by several decisions of this Court that amongst members of the same grade seniority is reckoned from the date of their initial entry into the service. In other words, seniority inter se amongst the Assistant Engineers in Bihar Engineering Service, Class II will be considered from the date of the length of service rendered as Assistant Engineers. This being the position in law respondents 6 to 23 cannot be made senior to respondents 1 to 5 by the impugned government orders as they entered into the said service by promotion after respondents 1 to 5 were directly recruited in the quota of direct recruits. The judgment of the High Court quashing the impugned government orders made in Annexures 8, 9 and 10 is unexceptionable.” Learned Sr. Counsel further emphatically argued that it is not a case of Promotees Vs. Direct recruits rather it is a case as to whoever fulfills the Kalawadhi, is entitled for promotion. ARGUMENTS ADVANCED ON BEHALF OF BIHAR STATE POWER HOLDING CORPORATION LIMITED [Respondent Nos. 6 and 7 in W.P.(S) No. 681 of 2019)] 22. Mr. Manoj Tandon, learned counsel representing Bihar State Power Holding Corporation Limited, justifying stand of the petitioners in W.P.(S) No. 4187 of 2018 argued that the gradation list prepared by the Bihar State Electricity Board is the final gradation list which does not require any interference. It has been further argued that since JUVNL has come into existence and as such the matter of promotion is within the domain of JUVNL and the State of Bihar or the Bihar State Power Holding Corporation Limited have no role to play. It has been further argued that since JUVNL has come into existence and as such the matter of promotion is within the domain of JUVNL and the State of Bihar or the Bihar State Power Holding Corporation Limited have no role to play. Learned counsel assiduously argued that W.P.(S) No. 681 of 2019 is fit to be dismissed on the sole ground that affected persons have not been made parties and the Rule has also not been challenged. The Seniority List was published on 26.02.2009 and challenge has been thrown after ten years and seniority list which has already been settled, should not be disturbed. FINDINGS OF THE COURT 23. The entire case of the parties revolves around the issue: “Whether the seniority can be claimed from a date when the incumbent was not borne in service?” 24. The issue has been dealt with elaborately by the Hon’ble Apex Court in a plethora of Judgments. Before referring the Judgments, the factual aspects of the case has to be examined. The petitioners in W.P.(S) No. 4187 of 2018 were not the promotees rather they were appointed in view of Advertisement No. 1/1999, which is clear from the provisional appointment letter dated 13.06.2000. The respondents were appointed in view of Advertisement No. 3/1999, which is evident from the appointment letter dated 24.12.1999. It is crystal clear from the appointment letters that the respondent nos. 6 to 16 in W.P.(S) No. 4187 of 2018, were borne into the cadre of Assistant Electrical Engineer (General Cadre) much prior to the petitioners i.e. in the year 1999 and the petitioners were born into cadre of Assistant Electrical Engineers subsequently in the calendar year 2000. Law is well settled that there cannot be any dispute of seniority between the two groups who entered in the cadre in two different calendar years. Very comfortably it can be inferred that the respondent nos. 6 to 16 were appointed and gave their joining in the cadre of Assistant Electrical Engineers (General Cadre) at a time when the petitioners were not even born in that cadre and as such, it can be presumed and admitted that the respondent nos. 6 to 16 shall always remain above the petitioners in the seniority list. 6 to 16 were appointed and gave their joining in the cadre of Assistant Electrical Engineers (General Cadre) at a time when the petitioners were not even born in that cadre and as such, it can be presumed and admitted that the respondent nos. 6 to 16 shall always remain above the petitioners in the seniority list. The petitioners have not joined the post of Assistant Electrical Engineer by way of regular promotion in the same year rather they have been given fresh appointment to the post of Electrical Assistant Engineer with a probation of three years like the respondent nos. 6 to 16 and as such, the petitioners cannot take help of Sub Rule (1) of Rule 15 of the Cadre Rule 1976. From perusal of the records, it is evident that the appointment process of the respondent nos. 6 to 16 were completed in the year 1999 when the result was announced and they were issued appointment letter for the post of Assistant Electrical Engineers. Contrary to that appointment of the petitioners were completed much later in June, 2000 and were issued appointment letters on 13.06.2000. Further, it appears that against the tentative gradation list, serious objections were raised upon placement of the petitioners above the persons who were appointed prior to them, but the same was not rectified. Further, it is also apparent from the records that successor employer under whom petitioners as well as the respondents are working i.e. JUVNL, has not published any gradation list for the entry level. However, the Bihar State Electricity Board, long after the coming into existence of the Jharkhand State Electricity Board, prepared and published the gradation list which includes name of the petitioners and the answering respondents, without consultation with the Jharkhand State Electricity Board and also without legitimately inviting objections from the Engineers posted under the Jharkhand State Electricity Board. The Law is well settled that any gradation list prepared by the erstwhile State of Bihar after bifurcation, is not sustainable in the eyes of law since respondents in W.P.(S) No. 4187 of 2018 and petitioners in W.P.(S) No. 681 of 2019 are working in JUVNL. It is the JUVNL who is empowered to come out with gradation list/ seniority list and not the erstwhile State of Bihar or the Bihar State Electricity Board. It is the JUVNL who is empowered to come out with gradation list/ seniority list and not the erstwhile State of Bihar or the Bihar State Electricity Board. The respondents in W.P.(S) No. 4187 of 2018 fulfill the combined minimum service of 15 years. They have rightly been considered and given promotion to the post of Electrical Superintending Engineers vide Notification dated 31.03.2015. In view of aforesaid facts, it can be inferred that the petitioners in W.P.(S) No. 4187 of 2018 are not senior to the respondents in view of the fact that they were not born to the Cadre of Assistant Electrical Engineers when the respondents were appointed and had joined the cadre. 25. The issue fell for consideration before the Hon’ble Apex Court in the case of K. Meghachandra Singh (Supra) and it has been held that the law for determination of seniority makes it abundantly clear that under service jurisprudence, seniority cannot be claimed from a date when the incumbent is yet to be borne in the cadre. In the case of State of U.P. Vs. Ashok Kumar Srivastava reported in (2014) 14 SCC 720 the Hon’ble Court has concurred with a view that the seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime. Similar is the view taken in the case of Pawan Pratap Singh v. Reevan Singh reported in (2011) 3 SCC 267 , the Court after referring to earlier authorities in the field has culled out certain principles out of which the following being the relevant are reproduced below: (SCC pp. 281-82, para 45) “45. (ii) Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. (ii) Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution. *** (iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime.” 26. Similar is the view taken in the case of State of Uttaranchal v. Dinesh Kumar Sharma reported in (2007) 1 SCC 683 and in para-29 thereof, it has been held as under: “29. … seniority has to be decided on the basis of rules in force on the date of appointment [and] no retrospective promotion or seniority can be granted from a date when an employee has not even been borne in the cadre.” 27. In this context, para-11 of the Judgment passed in the case of State of Bihar v. Arbind Jee reported in 2021 SCC OnLine SC 821, is relevant to be quoted, which reads as under; “11. To challenge the conferment of retrospective seniority, the learned counsel for the appellant has cited Shitla Prasad Shukla v. State of UP1 where this court speaking through Justice M.P. Thakkar rightly held that: “10. …… The late comers to the regular stream cannot steal a march over the early arrivals in the regular queue. On principle the appellant cannot therefore succeed. What is more in matters of seniority the Court does not exercise jurisdiction akin to appellate jurisdiction against the determination by the competent authority, so long as the competent authority has acted bona fide and acted on principles of fairness and fair play. On principle the appellant cannot therefore succeed. What is more in matters of seniority the Court does not exercise jurisdiction akin to appellate jurisdiction against the determination by the competent authority, so long as the competent authority has acted bona fide and acted on principles of fairness and fair play. In a matter where there is no rule or regulation governing the situation or where there is one, but is not violated, the Court will not overturn the determination unless it would be unfair not to do so…” 28. The principles enunciated in the case of State of Bihar V. Arbind Jee (supra) are applicable to the case at hand. Precedence is being claimed over others who were born in service earlier than the petitioners. In this situation, the seniority balance cannot be tilted against those who entered service much before. Seniority benefit can accrue only after a person joins service and to say that benefits can be earned retrospectively would be erroneous. Such view was expressed in many cases and most recently in Ganga Vishan Gujrati v. State of Rajasthan reported in (2019) 16 SCC 28 . Justice Dr. D.Y. Chandrachud speaking for the Court opined as under:- “41. A consistent line of precedent of this Court follows the principle that retrospective seniority cannot be granted to an employee from a date when the employee was not borne on a cadre. Seniority amongst members of the same grade has to be counted from the date of initial entry into the grade. This principle emerges from the decision of the Constitution Bench of this Court in Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra3 . The principle was reiterated by this Court in State of Bihar v. Akhouri Sachindra Nath4 and State of Uttaranchal v. Dinesh Kumar Sharma.” 29. From the arguments advanced by counsel for the parties and after perusing records of the case, it is necessary to go through the General Cadre Rules, 1976. The Rule 15 of the General Cadre Rules enumerates as under: “Inter se seniority of officers of the cadre shall be fixed in the following manner:- (i) Direct recruits shall rank junior to the promotes of the same year. (ii) Convertees shall rank junior to direct recruits as well as temporary but directly recruited Assistant Engineers of the same year. The Rule 15 of the General Cadre Rules enumerates as under: “Inter se seniority of officers of the cadre shall be fixed in the following manner:- (i) Direct recruits shall rank junior to the promotes of the same year. (ii) Convertees shall rank junior to direct recruits as well as temporary but directly recruited Assistant Engineers of the same year. (iii) Seniority of officers transferred to the Cadre shall be determined in manner prescribed in rule 16. (iv) Inter se seniority in a particular grade shall not be disturbed on account of later or earlier confirmation. Provided however, that on promotion to a higher grade on a later date than a junior in the lower grade shall not entitle a Cadre Officer to the restoration of his inter se seniority in the lower grade.” Chapter IX Rule 85 of the Bihar State Electricity Board Service Regulation 1976 deals with Promotion which reads as under: ‘Promotion – No employee of the Board or any of its establishments including Area Board and the Generation - cum – Transmission Organisation shall have right of promotion to a post which does not fall in line of his promotion for which he does not possesses minimum qualification; Which is outside the cadre to which he belongs; If he has not completed the minimum years of services as laid down by any specific rules pertaining to his cadre or by any general order fixing minimum years of service in lower post as eligibility criteria for higher post; If he has failed to clear a departmental proficiency examination which is one of the eligibility criteria for promotion. Chapter XIV under heading miscellaneous in Rule 112 dealing with Savings and interpretation under sub clause 9(iv) reads as under: “if there is any conflict between these Regulations and any other rules or Regulations framed by the Board or Generation – cum – Transmission Organisation, provisions of these Regulations shall prevail.” 30. The arguments advanced by Mr. Ajit Kumar, learned Sr. Counsel and Mr. Sumeet Gadodia, learned counsel appearing for the private respondent nos. 8 to 10 in W.P.(S) No. 681 of 2019, are not well founded and as such the same are not acceptable to this Court. The arguments advanced by Mr. Ajit Kumar, learned Sr. Counsel and Mr. Sumeet Gadodia, learned counsel appearing for the private respondent nos. 8 to 10 in W.P.(S) No. 681 of 2019, are not well founded and as such the same are not acceptable to this Court. Learned counsels have tried to impress upon the court that they are senior to the respondents in W.P.(S) No. 4187 of 2018 as they were considered by the Bihar State Electricity Board as senior in context of the earlier promotions to the post of Superintending Engineers and as such they rank senior to the respondents. 31. In this backdrop, having regard to the well settled proposition of law, the arguments advanced by learned counsel for the petitioners in W.P.(S) No. 4187 of 2018 and respondents in W.P.(S) No. 681 of 2019, is not accepted to this Court and are fit to be turned down. When the petitioners in W.P.(S) No. 4187 of 2018 were not borne in cadre, how can they claim seniority as their appointments were fresh and not on any promotion. On the above premise, it can very comfortably be inferred that the respondents in W.P.(S) No. 4187 of 2018 and the petitioners in W.P.(S) no. 681 of 2020 are seniors and their promotion does not warrant any interference. 32. The private respondents in W.P.(S) No. 4187 of 2018 and petitioners in W.P.(S) No. 681 of 2019 were born in the cadre prior to the petitioners in W.P.(S) No. 4187 of 2018 and as such, rightly they were considered for promotion to the post of Chief Engineer as they were senior to the petitioners of W.P.(S) No. 4187 of 2018. Resultantly, the W.P.(S) No. 4187 of 2018 merits dismissal. The status quo granted vide order dated 29.08.2018 is hereby vacated. No interference is warranted in W.P.(S) No. 4187 of 2018 as there is no illegality or any infirmity in considering promotion of the private respondents. 33. As a fallout and consequence of aforesaid discussions, I do not find any illegality or arbitrariness in case of the petitioners in W.P.(S) No. 4187 of 2018. No interference is warranted in W.P.(S) No. 4187 of 2018 and as such, W.P.(S) No. 4187 of 2018 stands dismissed. So far W.P.(S) No. 681 of 2019 is concerned, in view of facts and circumstances narrated hereinabove, the same stands disposed of. No interference is warranted in W.P.(S) No. 4187 of 2018 and as such, W.P.(S) No. 4187 of 2018 stands dismissed. So far W.P.(S) No. 681 of 2019 is concerned, in view of facts and circumstances narrated hereinabove, the same stands disposed of. However, the respondents – JUVNL is directed to proceed accordingly for promotion to the post of Chief Engineer in accordance with law and as per settled proposition of law taking into consideration that the private respondents in W.P.(S) No. 4187 of 2018 were borne into service prior to the petitioners therein and they rank senior to them considering the merits – cum – seniority, they are entitled for promotion. 34. As a sequel thereof, all the Interlocutory Applications also stand disposed of.