# Shiv Datt Joshi & Ors v. State of U.P.& Ors

- **Citation:** (2025) 2 ILRA 459
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-02-24
- **Case number:** Writ-A No. 9193 of 2023
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-datt-joshi-ors-v-state-of-u-p-ors-53001
- **Pages:** 24

## Headnote

A. Service Law - UP Government Servant
Seniority Rules, 1991 - Rules 8 & 9 -
Seniority - Earlier inter-se seniority has
been
finalized
after
deciding
the
objections - Seniority list was published
and acted upon too - Effect - How far it
create rights - Permissibility of its review
- Held, a vested right is created by
issuance of the seniority list in as much as
a government servant acquires a right to
be considered for promotion in case any
person lower in the seniority list is
promoted, similarly he can claim parity in
pay scale and other service benefits based
on seniority - It has all the trappings of a
quasi-judicial proceeding, and the St.
government was denuded of its powers to
embark to review of the order dated
13/07/2016 and the subsequent seniority
list on merits at the subsequent stage.
(Para 36 and 42)

B. Service Law - UP Government Servant
Seniority Rules, 1991 - Rules 8 & 9 -
Seniority - Long-standing seniority -
Inter-se seniority between the direct
recruits
and
the
promotees
was
determined - Scope of review - Doctrine
of functus officio - Applicability - Held,
once a final seniority list has been issued
after deciding the objections filed by the
concerned parties against the tentative
seniority list, finding authority becomes
functious officio and does not retain any
power to repeatedly exercise the same
power
to
redetermine
the
seniority
between the same group of persons again
and again - The longstanding seniority
which is in existence for 3-4 years may
not be unsettled. (Para 52 and 78)

C. Service Law - Seniority - Process of its
determination - Nature - Held, the
appointing authority is exercising quasijudicial
powers
of
determination
of
seniority and his actions would be subject
to the same limitations as that of a
judicial/quasi judicial authority. (Para 55)

D.
Judicial
review
-
Scope
-
Administrative action - Ministerial action
and administrative decision - Distinction -
In the ministerial action, the reasoning
processes is minimum and almost routine
- On the other hand, the administrative
decision the process in which a decision is
taken
on
objective
standard
of
determination of which opinions may
differ. The reasoning process takes into
account the rival contentions and then
comes a decision. This distinction is
important
because
an
administrative
action is always reviewable while an
administrative decision is the reviewable
in special circumstances. (Para 33)
460 INDIAN LAW REPORTS ALLAHABAD SERIES
E. Principle of res judicata - Distinct
applicability
to
judicial
decision
and
administrative decision - Held, a judicial
decision is res judicata between the
parties and it is for this reason it is not
only the parties who cannot reopen the
said
decision
but
even
the
judicial
authority which made the decision is
prevented from reviewing it on merits. On
the other

## Text

_Characters 0–39,967 of 82,377. This is a partial read: ask again with offset=39967 for what follows._

2 All. Shiv Datt Joshi & Ors. Vs. State of U.P. & Ors.
459

17. Considering that much time has
lapsed since inflicting punishment upon the
petitioner, the respondents are directed to
conclude
the
inquiry
proceedings
expeditiously,
preferably
within
four
months from the date of production of
certified copy of this order, in accordance
with law.

18. The writ petition stands allowed.
----------
(2025) 2 ILRA 459
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.02.2025

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ-A No. 9193 of 2023
With
Writ A No. 5381 of 2024

Shiv Datt Joshi & Ors. ...Petitioners
Versus
State of U.P.& Ors. ...Respondents

Counsel for the Petitioners:
Rani Singh, Gaurav Mehrotra, Ritika Singh

Counsel for the Respondents:
C.S.C., Akhilesh Kumar Kalra, Jyotiresh
Pandey, Pooja Singh, Rajesh Chandra
Mishra, Santosh Kumar Mishra, Varadraj
Shreedutt Ojha

A. Service Law - UP Government Servant
Seniority Rules, 1991 - Rules 8 & 9 -
Seniority - Earlier inter-se seniority has
been
finalized
after
deciding
the
objections - Seniority list was published
and acted upon too - Effect - How far it
create rights - Permissibility of its review
- Held, a vested right is created by
issuance of the seniority list in as much as
a government servant acquires a right to
be considered for promotion in case any
person lower in the seniority list is
promoted, similarly he can claim parity in
pay scale and other service benefits based
on seniority - It has all the trappings of a
quasi-judicial proceeding, and the St.
government was denuded of its powers to
embark to review of the order dated
13/07/2016 and the subsequent seniority
list on merits at the subsequent stage.
(Para 36 and 42)

B. Service Law - UP Government Servant
Seniority Rules, 1991 - Rules 8 & 9 -
Seniority - Long-standing seniority -
Inter-se seniority between the direct
recruits
and
the
promotees
was
determined - Scope of review - Doctrine
of functus officio - Applicability - Held,
once a final seniority list has been issued
after deciding the objections filed by the
concerned parties against the tentative
seniority list, finding authority becomes
functious officio and does not retain any
power to repeatedly exercise the same
power
to
redetermine
the
seniority
between the same group of persons again
and again - The longstanding seniority
which is in existence for 3-4 years may
not be unsettled. (Para 52 and 78)

C. Service Law - Seniority - Process of its
determination - Nature - Held, the
appointing authority is exercising quasijudicial
powers
of
determination
of
seniority and his actions would be subject
to the same limitations as that of a
judicial/quasi judicial authority. (Para 55)

D.
Judicial
review
-
Scope
-
Administrative action - Ministerial action
and administrative decision - Distinction -
In the ministerial action, the reasoning
processes is minimum and almost routine
- On the other hand, the administrative
decision the process in which a decision is
taken
on
objective
standard
of
determination of which opinions may
differ. The reasoning process takes into
account the rival contentions and then
comes a decision. This distinction is
important
because
an
administrative
action is always reviewable while an
administrative decision is the reviewable
in special circumstances. (Para 33)
460 INDIAN LAW REPORTS ALLAHABAD SERIES
E. Principle of res judicata - Distinct
applicability
to
judicial
decision
and
administrative decision - Held, a judicial
decision is res judicata between the
parties and it is for this reason it is not
only the parties who cannot reopen the
said
decision
but
even
the
judicial
authority which made the decision is
prevented from reviewing it on merits. On
the other hand an administrative decision
which is not based on a dispute between
two parties and which has not given after
hearing the parties does not operate as
res judicata. (Para 33)

F. Principle of res judicata - Nature and
Applicability - Held, the principle of res
judicata is species of the principle of
estoppel. When a proceeding based on a
particular cause of action has attained
finality, the principle of res judicata shall
fully apply. (Para 44)

G. Estoppel - Cause of action estoppel and
Issue estoppel - Distinction - Cause of
action estoppel arises where the cause of
action in the later proceedings is identical to
that in the earlier proceedings, the latter
having been between the same parties or
their privies and having involved the same
subject-matter. In such a case, the bar is
absolute in relation to all points decided
unless fraud or collusion is alleged - Issue
estoppel may arise where a particular issue
forming a necessary ingredient in a cause of
action has been litigated and decided and in
subsequent proceedings between the same
parties involving a different cause of action
to which the same issue is relevant, one of
the parties seeks to reopen that issue. Here
also bar is complete to re-litigation but its
operation can be thwarted under certain
circumstances. (Para 50)

H. Expression 'functus officio' - Meaning - A
person who has discharged his duties, or whose
office or authority is at an end. (Para 53)

I. Seniority - Determination thereof - Date
of substantive appointment - Relevancy -
Appointment from back date - Competence
of government to make it - Held, proviso to
Rule 8 empowers the Government from
making appointments from a back date
which would be the deemed date of
substantive appointment - The statutory
rules having provided for the same it cannot
be said that the same would be illegal or
without jurisdiction. (Para 67)

J. Interpretation of statute - UP General
Clause Act, 1897 - S. 13 - Word 'Person' - A
singular include plural - Applicability - Held,
the interpretation which is reasonable and is
in
conformity
with
the
Constitutional
scheme, is liable to be accepted and
followed rather than any interpretation
which
would
lead
to
absurdity
and
arbitrariness - In interpreting the proviso to
Rule 8 appointments can be granted from
back date either to a single individual or to
a group of individuals. (Para 73)

K. Doctrine of Precedent - 'Stare decisis et
non quieta movere' - Meaning - To stand
by decided matters and not to disturb
settled points. (Para 75)

L. Practice and procedure - Non-joinder of
party - Challenge to promotion order - All the
affected person were not impleaded - Effect -
Held, impleading a long list of parties will not
only unnecessarily stretch the process of
dispensation of justice but will also involve
extravagant expenses in serving all the
parties. In cases where there is a common
grievance of a large number of employees,
impleading few affected employees would be
sufficient compliance with the principle of
joinder of parties. (Para 81)

Writ petition allowed. (E-1)

List of Cases cited:

1. Civil appeal No. 1712 - 1713 of 2002; P.
Sudhakar Rao & ors.Vs U. Govind Rao &
ors.decided by Supreme Court

2.
Haryana
St.
Industrial
Development
Corporation Ltd. Vs Mawasi & ors.; AIR SCW
2012, 4222

3. Civil Appeal No. 02608 of 2011; U.P Power
Corporation ltd. Vs Rajesh Kumar decided on
27.04.2012
2 All. Shiv Datt Joshi & Ors. Vs. State of U.P. & Ors.
461
4. Swamy Atmananda & ors. Vs Sri Ramakrishna
Tapovanam & ors.; JT (2005) 4 SC 472

5. P. Sudhakar Rao Vs U.Govind Rao; (2013) 8
SCC 693

6. N.K. Chauhan Vs St. of Guj.; (1977) 1 SCC
308

7. Pawan Pratap Singh Vs Reevan Singh; (2011)
3 SCC 267

8. Tilokchand Motichand Vs H.B. Munshi; (1969)
1 SCC 110

9. Rabindranath Bose Vs U.O.I.; (1970) 1 SCC
84

10. Malcom Lawrence Cecil D'Souza Vs U.O.I.;
(1976) 1 SCC 599

11. B.S. Bajwa Vs St. of Pun.; (1998) 2 SCC 523

12. Shiba Shankar Mohapatra Vs St. of Orissa;
(2010) 12 SCC 471

13. Ajay Kumar Shukla Vs Arvind Rai; (2022) 12
SCC 579

(Delivered by Hon'ble Alok Mathur, J.)

1. Heard Sri Gaurav Mehrotra assisted
by Ms. Ritika Singh, learned counsel for
the petitioners as well as Sri Kuldeep Pati
Tripathi, learned Additional Advocate
General for respondent nos. 1, 2 and 3 as
well as Sri Akhilesh Kumar Kalra, learned
counsel
appearing
for
the
private
respondents.

2. Since common questions of law and
facts are involved in both the writ petitions,
as such, they are being decided by this
common judgment and order.

3. The dispute regarding seniority
between the direct recruits and the
promotees
once
again
falls
for
consideration in the bunch of writ petitions
which have been filed by the promotees
assailing the order dated 06/08/2023 by
which the date of appointment has been
changed from 30/06/2016 to 13/07/2016
and the subsequent seniority list issued on
06/09/2023 whereby they have been pushed
back in the seniority and the further
promotion orders where according to the
petitioners the direct recruits who were
junior
to
them
have
been
granted
promotion.

4. The brief facts of the case are that
the petitioners of writ petition A No.
9193/23 were appointed on the post of
Junior Grade clerk in the Secretariat
Administration Department in 1990 and on
account of their seniority were promoted to
the post of Assistant Review Officer in
2005. After satisfactory performance of the
post of Assistant Review Officer and also
serving for the substantial length of time
they became eligible to be promoted to the
post of Review Officer. The exercise for
the promotion of petitioners commenced by
issuance of letter dated 27/06/2016 written
by the Secretary, Secretariat Administrative
Department, Government of U.P to the
Secretary, Uttar Pradesh Public Service
Commission asking him to convene the
meeting of the selection committee for the
purposes of conducting selections for the
vacant and newly created posts of Review
Officers in the promotion quota for the
selection year 2015-16. It was further
emphasised that the process may be
concluded by 30th June 2016 so that the
promotions can be made within the
selection year.

5. In pursuance of the aforesaid
directions, the Departmental Promotion
Committee conducted its meeting on
30/06/2016 and intimated the results of the
same to the State Government, and the
462 INDIAN LAW REPORTS ALLAHABAD SERIES
matter was thereafter sent to the Uttar
Pradesh Public Service Commission for its
approval 08/07/2016. After receiving the
approval of the U.P Public Service
Commission order to promote of 144
persons were issued on 13/07/2016 with
effect from 30/06/2016. It was further
provided that the persons promoted by the
said order would be kept on probation for a
period of 2 years and the seniority in the
cadre
of
Review
Officer
would
be
considered separately.

6. In order to prepare the seniority list
of the cadre of Review Officers, a tentative
seniority list was issued on 23/07/2016
inviting objections as per the provisions
contained in U.P Government Servant
Seniority Rules, 1991. Several objections
were received from the direct recruit ts of
2013 batch with regard to grant of
promotion of the petitioners with effect
from a back date. To consider the
objections received with regard to the
tentative seniority list a three-member
committee was constituted consisting of the
Special Secretary, Food and Logistic
Department, Special Secretary/Assistant
Legal
Adviser,
Law
and
Legislative
Department and Special Secretary, IRLA
Secretariat. The committee duly considered
the objections received with regard to the
promotion of the petitioners on the post of
Review
Officers
with
effect
from
30/06/2016 and rejected all the objections
and the final seniority list was published on
05/08/2016.

7. The seniority list of the cadre of
Review Officers was sought to be prepared
afresh
for
which
purposes/provisional
seniority list was issued on 18/08/2018
inviting objections. Again, number of
objections were raised by the direct recruits
of 2013 batch with regard to date of
appointment of the petitioners. To consider
the objections a 4 member committee was
constituted consisting of Special Secretary,
Department
of
Personnel,
Special
Secretary, Secretariat Administration, and
one retired special Secretary was also
included.
The
objections
were
duly
considered and rejected, and a finding was
given in favour of the petitioners upholding
the seniority given to them with effect from
30/06/2016. The final Seniority list was
published on 03/04/2019.

8. It submitted that again for the third
time the exercise for finalising the seniority
list of the post of Review Officers was
undertaken and a tentative seniority list was
issued on 15/07/2022. Again, objections
were invited, and the objections against the
grant of promotion to the petitioners with
effect from 30/06/2016 was considered and
rejected and the final seniority list was
issued on 11/08/2022.

9. After revising the seniority list on 3
occasions and consistently upholding the
grant of promotions of the petitioner with
effect
from
30/06/2016,
the
State
Government sought to reconsider the issue
of grant of promotion of the petitioners on
the post of Review Officer from the back
date. It was realised that the said
promotions effected from a back date was
erroneous and against the rules. It was
noticed that the Departmental Promotion
Committee was conducted on 30/06/2016,
and the approval was given by the U.P.
Public Service Commission on 08/07/2016
and the promotion orders were issued on
13/07/2016 wherein it was stated that the
same would be effective from 30/06/2016.
Accordingly, notice dated 14/07/2023 was
issued, recording the aforesaid facts, and
required the petitioners to respond to the
same within a period of 7 as to why their
2 All. Shiv Datt Joshi & Ors. Vs. State of U.P. & Ors.
463
promotions
be
made
effective
from
13/07/2016 rather than from the back date
of 30/06/2016.

10. The petitioners submitted the reply
stating that the decision was taken by the
government to make the promotions to post
of Review Officers within the selection
year 2015 -16. The petitioners, who were
eligible for promotion, had made repeated
representations requiring the respondents to
constitute the departmental promotion
committee and proceed with promoting the
petitioners who at the relevant time were
working on the post of Assistant Review
Officers.
It
is
on
the
repeated
representations made by the petitioners that
the respondents required that the process of
promotion be concluded before the expiry
of the recruitment year i.e by 30/06/2016,
and this fact was clearly mentioned in the
letter dated 27/06/2016 where the U.P.
Public Service Commission was required to
conduct the exercise and conclude the same
so that the promotions could be made
within the recruitment year itself. It was
further contended that this aspect of the
matter has been considered and decided at
the time of finalisation of the seniority list
by committees constituted to consider the
objections. It was further stated that the
promotions from a back date would not be
illegal, arbitrary or contrary to the rules in
as much as Rule 8 of the Seniority Rules of
1991 clearly provides that promotions can
be made from a back date.

11. The respondents rejected the
objections made by the petitioners and my
means of order dated 09/08/2023 modified
the promotion order of the petitioners dated
30/06/2016
and
provided
that
their
promotion would be effective from the date
of the passing of the order dated
13/07/2016
itself.
While
taking
the
aforesaid decision they relied upon the
judgement of the Supreme Court in the case
of P. Sudhakar Rao and others vs U.
Govind Rao and others in civil appeal No.
1712 - 1713/2002 where it was held "We
are also of the view that no retrospective
promotional or seniority can be granted
from the date when employee is not even
been born in the cadre..."

12. It was further observed that the
U.P Public Service Commission in its
approval had not recommended grant of
promotion
from
the
back
date
i.e
30.06.2016 and no such rule was quoted in
the order granting them the said benefit and
consequently the same was contrary to the
rules and hence the order dated 13/07/2016
was
amended
on
the
substantive
appointment was to be considered from the
date of the order itself.

13. On amending the promotion order
of the petitioners, the respondents again
circulated a tentative seniority list on
10/08/2023 downgrading the seniority of
the petitioners and inviting objections. The
petitioners again submitted their objections
against the tentative security list and
supported the grant of seniority from
30/06/2016 and by order dated 06/09/2023
their objections were rejected on the final
security list was published.

14. It has further been submitted that a
departmental promotion committee was
convened on 08/09/2023 and the direct
recruits who were placed junior to the
petitioner in the previous seniority lists
dated
05/08/2016,
03/04/2019
and
11/08/2022 has been promoted to the post
of Section Officer.

15.
Aggrieved
by
the
aforesaid
exercise conducted by the respondents, two
464 INDIAN LAW REPORTS ALLAHABAD SERIES
writ petitions have been filed. Writ petition
A No. 9193 of 2023 (Shiv Dutt Joshi and
others vs State of U.P and others) has been
filed by those persons who were granted
seniority with effect from 30/06/2016
which order was modified on 09/08/2023
and they were downgraded in the fresh date
of the promotions was 13/07/2016 which
means there was a change in their selection
year, and consequently they became junior
to the persons were been appointed in the
selection year 2015-16 and have been kept
below them. They have prayed for the
following prayers:-

(i) issue writ, order or direction
in nature of certiorari quashing the
impugned
promotion
order
dated
25/10/2023 copy whereof is annexed as
Annexture-3 to this writ petition.

(ii) To issue writ, order or
direction in nature of certiorari quashing
the
impugned
office
memo
dated
06/09/2023 issued by respondent No. 2,
copy thereof is annexed as Annexture 1 to
this writ petition.

(iii) To issue writ, order or
direction in nature of certiorari quashing
the impugned order dated 09/08/2023
issued by respondent No. 3 copy whereof is
annexed as Annexture 2 to this writ
petition.

(iv) To issue writ, in nature of
mandamus commanding the respondent
authorities not to give effect to the
impugned
promotion
order
dated
25/10/2023 against the petitioners

(v) to issue a writ order or
direction
in
nature
of
mandamus
commanding the respondent authorities not
to give effect to the impugned office memo
dated 06/09/2023 against the petitioners.

(vi) To issue writ order or
direction
in
nature
of
mandamus
commanding the respondent authorities not
to give effect to the impugned order dated
09/08/2023 against the petitioners.

(vii) Such other writ, order so as
to protect the rights and interests of the
petitioner."

16. The 2nd writ petition which is
numbered as writ petition A No. 5381 of
2024 (Sanjeev Kumar Sinha and 2 others vs
state of U.P and others) has been filed by
persons who were appointed on the post of
Typist in 1999 through direct recruitment
and promoted to the post of Assistant
Review Officer in 2013, and further
promoted to the post of Review Officer on
22/02/2017. They were confirmed on the
said post on 22/02/2019 / 23/02/2019 and
duly placed in the seniority list which was
published on 11/08/2022. They are also
aggrieved by the seniority list published on
06/09/2023 whereby they have been placed
below the direct recruits of 2013. They
have prayed for the following reliefs :-

(I) to issue a writ order or
direction in the nature of certiorari
quashing the impugned office memo dated
06/09/2023 (containing the impugned final
seniority list and the impugned rejection
orders) issued by respondent No. 2 copy
where of his next as Annexture-I to this writ
petition.

(ii) To issue a writ, Order or
direction in the nature of mandamus
commanding the respondent authorities not
to give effect to the impugned office memo
dated 06/09/2023 against the petitioners.

(iii) To pass such other writ,
order or direction as the Hon'ble court
may deem fit and proper research to
protect the rights and interests of the
petitioner."

17. The genesis of the controversy in
the present case has its roots in the decision
2 All. Shiv Datt Joshi & Ors. Vs. State of U.P. & Ors.
465
of the State government dated 09/08/2023
whereby they have altered and substantially
modified the order dated 13/07/2016 by
which 144 persons who were promoted to
the post of Review Officer and provided
that the said promotion shall be effective
from 13/07/2016 itself rather than from a
back date i.e 30/06/2016. Accordingly, the
date of promotion of 144 such persons
including the petitioners would now be
13/07/2016 rather than 30/06/2016.

18. This order adversely affects the
seniority of 144 persons including the
petitioner. The U.P Secretarial Ministerial
Service Rules, 1999 provides that "year of
recruitment means a period of 12 months
commencing from 1st of July of the
calendar year, and therefore persons
recruited in a particular recruitment year,
would be senior to the persons appointed in
the subsequent recruitment year. Therefore,
by passing of the impugned order dated
09/08/2023 the recruitment year of the
petitioners on the post of Review Officer
becomes 2016-17 rather than 2015-16.

19. The petitioners were working on
the post of Assistant Review Officer had
made various representations for their
promotion to the post of Review Officer. It
was contended that they were fully eligible
to be promoted but for certain reasons the
departmental promotion committee could
not be constituted due to which their case
for promotion could not be taken up and
prayed for constitution of the DPC so that
they could be promoted in the recruitment
year 2015-16 itself. The State duly
considered a request and wrote to the U.P
Public Service Commission on 27/06/2016
for
constitution
of
a
departmental
promotion committee and completion of
the exercise for promotion within the
recruitment year itself i.e by 30/06/2016. It
is stated that the intention of the State
Government was very clear from the very
beginning
which
was
to
make
the
promotions in the recruitment year 2015-16
itself for which purpose the DPC was
constituted and convened its meeting on
30/06/2016, and its recommendations were
forwarded to the U.P Public Service
Commission for its approval. The approval
was granted on 08/07/2016, and the
promotion
orders
were
issued
on
13/07/2016. The promotion orders dated
13/07/2016 provided that the promotion of
the petitioner would be from with effect
from 30/06/2016. The date 30/06/2016, is
relevant and important considering the fact
that it was the last day of the recruitment
year, and all recruitment/promotions made
from 01/07/2015 to 30/06/2016 would be
senior to any recruitment or promotion
made after 30/06/2016.

20. The private respondents who are
direct recruits on the post of Review
Officer of 2013 batch were appointed in
2015-16 and are entitled to be granted
seniority in the said recruitment year have
vehemently urged that the petitioners have
been
illegally
and
arbitrarily
given
promotions to the post of Review Officer
with effect from 30/06/2016 despite the
fact that the orders were promotion were
passed on 13/07/2016 and could not have
been made effective from the date when the
petitioners were not even born in the cadre.
It was further stated that the date of
promotion cannot be antedated and the
same is contrary to the settled legal
proposition as observed by the Supreme
Court in number of cases. As the
petitioners were deemed to have been
promoted on the post of Review Officers
with effect from 30/06/2016 and hence they
were entitled to be considered for grant of
seniority in the recruitment year 2015-16
466 INDIAN LAW REPORTS ALLAHABAD SERIES
and were placed senior to them according
to the provisions of U.P Government
Servant Seniority Rules of 1991. The direct
recruits have been raising their grievance
repeatedly since the appointment of the
petitioners, and on 3 occasions objections
were invited on the tentative seniority list,
where they have raised their objections but
the same was rejected till passing of the
impugned order dated 09/08/2023 and
preparation of a fresh notice list pushing
down the petitioners and placed under the
private respondents were direct recruits of
2013 batch.

21. The petitioners while assailing the
order dated 09/08/2023 have submitted that
the change of date in their promotion order
and downgrading them in the seniority list
and placing them below the direct could not
be unsettled after a long period of 7 years,
especially considering the fact that on 3
occasions the State government had duly
considered and approved the grant of
promotion to the petitioner on the post of
Review
Officer
with
effect
from
30/06/2016.

22. It was further submitted that once
the State Government had repeatedly
ratified its decision with regard to the date
of promotion of the petitioners by rejecting
the objections made by the private
respondents, then the decision could not
have been reversed stating that the initial
decision was contrary to the rules. It was
stated that the decision taken by the State
government had attained finality and could
only be reversed by a judicial order and
principles of res judicata would be
applicable.

23. Assailing the impugned orders, it
was urged on behalf of the petitioners that
some of the private respondents had
approached this court challenging the
decision taken favour of the petitioner is
with regard to the seniority by filing writ
petition. Petitioner No. 3717 of 2017
(Naveen Kumar and others vs state of up
and
others)
which
was
pending
consideration, and during pendency of the
petition the State Government arrogated to
itself
the
adjudicatory
function
and
reversed their previous decision which is
clearly
illegal
arbitrary
and
without
jurisdiction.

24. On merits of the decision, it was
submitted that promotion of the petitioners
on the post of Review Officer was made
with effect from 30/06/2016 after due
consideration and deliberation by the State
which is discernible and evident from the
letter dated 27/06/2016 addressed to the
U.P Public Services Commission requested
them to conclude the promotion exercise
within
the
recruitment
year
i.e
by
30/06/2016 . The departmental promotion
committee duly met and considered the
candidature
of
the
petitioners
on
30/06/2016, and the ministerial task of
approvals was conducted subsequently. It
was
therefore
submitted
that
the
promotions have a direct correlation with
the date of promotion from a prior date
which is not illegal arbitrary. It was further
submitted that providing promotion from a
back date is not contrary or alien to the
provisions of U.P Government Servant
Seniority Rules, 1999 in as much as the
proviso to rule 8 clearly provides for the
same. It was further submitted that the
reliance of the judgement of the Supreme
Court considered in the impugned order is
distinguishable and the injunction of the
Supreme Court was only with regard to
promotions being made from the date of
occurrence of vacancies which was not the
case of the petitioners and accordingly the
2 All. Shiv Datt Joshi & Ors. Vs. State of U.P. & Ors.
467
respondents have misdirected themselves
by relying on the dictum of the Supreme
Court which does not apply to the facts of
the present case, and accordingly the entire
exercise is illegal and arbitrary and
deserves to be set aside.

25. On behalf of the petitioners it was
also submitted that objections were filed by
the petitioners against the notice given by
the State for a change in the date of
promotion, and in the said objections
various points were raised none of which
were considered by the respondents while
rejecting
the
representation,
and
the
respondents acted in the predetermined
manner which is evident from the show
cause notice itself, and accordingly on this
ground have assailed the validity of the
impugned orders.

26. The State government has opposed
the writ petition. Sri Kuldeep Pati Tripathi,
Learned Additional Advocate General has
submitted that several representations were
received from a direct recruits of 2013-14
batch where it was stated that retrospective
promotion could not have been granted to
the petitioners and the issue was examined
by the State government and it is found that
The Departmental Promotion Committee
duly considered the case of the petitioners
on 30/06/2016 after which the approval of
the U.P Public Services Commission
08/07/2016 and have accordingly submitted
that the promotions could not have been
made prior to the approval sought from the
U.P Public Service Commission, and even
the public service commission had not
recommended the promotions of the
petitioner from 30/06/2016.

27. It was further submitted that
inadvertently
the
promotions
of
the
petitioners under the promotion quota have
been made effective since 30/06/2016.
Further
submitted
that
the
State
Government realised that there has been a
mistake in the date of promotion of the
petitioners which was sought to be rectified
by giving an opportunity of hearing to the
petitioners and only thereafter the order
dated
13/07/2016
was
modified
on
09/08/2016. It was vehemently urged that
the State has sufficient power to modify
and correct any order in case it comes to its
notice that any order passed by them is
illegal or contrary to rules. In the present
case it was stated that after giving due
opportunity of hearing the illegal order
dated 13/07/2016 has been appropriately
modified.

28. An application for impleadment
was filed by respondents No. 12-22 stating
that they had preferred a special appeal
against the interim order dated 14/12/2023
passed by this court in writ petition No.
9193 of 23 which was disposed of by order
dated 09/01/2024 after recording the
statement of the Counsel of the appellant
that they shall file an application for
impleadment before the writ Court and
further give liberty to the writ Court to
consider the same and passed necessary
orders as if there is no objection raised by
the petitioners against the same. The
application for impleadment was allowed
on 02/07/2024, and a detailed counter
affidavit was filed opposing the claim made
by the petitioners.

29. Considering the rival contentions
with regard to the 1st issue raised by the
petitioners that the State government did
not have any power to unsettle the settled
seniority list, and specially the fact that on
3 occasions they had proceeded to consider
and reject the objections filed by the private
respondents, they could not have reviewed
468 INDIAN LAW REPORTS ALLAHABAD SERIES
or taken a different stand subsequently the
absence of any specific provision in this
regard.

30. The State respondents on the other
hand is submitted that there is no limitation
prescribed in the rules of 1999, and at the
stage of deciding the objections to the
tentative seniority list the State was within
its competence to decide the objections
raised and pass appropriate orders. It was
also submitted that in case any error is
discovered
in
the
exercise
of
their
administrative power, then they have full
opportunity to rectify the same and there is
no restriction in exercise of such power and
accordingly sought to justify the impugned
orders.

31. In the present proceedings this
Court has been called upon to adjudicate on
the validity of the seniority list dated
06/09/2023 specially light of the fact that
the inter-se seniority of the petitioners and
the
private
respondents
has
been
determined in light of provisions of rule 8
of seniority rules of 1999 on 3 different
occasions on 05/08/2016, 03/04/2019 and
11/08/2022 where the contentions of the
petitioner was accepted, and the grounds
assailing the seniority of the petitioners was
rejected
after
duly
considering
the
submissions of the parties and affording
them an opportunity of hearing.

32. To decide this controversy we will
have to look into the nature of the power
exercised by the State at the stage of
preparation of the seniority list as to whether
it is in the exercise of administrative power
which can be used repeatedly and stands
from a different footing from the power of
administrative decision-making which may
be subjected to restrictions akin to quasijudicial making power or judicial power.

33. Administrative action can be divided
into two broad classes. On the one hand is the
ministerial action where the reasoning
processes is minimum and almost routine.
Along with this may also be grouped exercise
of
discretionary
power
where
the
administrative authorities are able to choose
alternative course of action. On the other
hand, the administrative decision the process
in which a decision is taken on objective
standard of determination of which opinions
may differ. The reasoning process takes into
account the rival contentions and then comes
a decision. This distinction is important
because an administrative action is always
reviewable while an administrative decision
is the reviewable in special circumstances.
Another distinction is between the essential
revocability of an administrative act and the
finality or conclusiveness of judicial or quasi
a judicial decision. A judicial decision is res
judicata between the parties and it is for this
reason it is not only the parties who cannot
reopen the said decision but even the judicial
authority which made the decision is
prevented from reviewing it on merits. On the
other hand an administrative decision which
is not based on a dispute between 2 parties
and which has not given after hearing the
parties does not operate as res judicata.(de
Smith's, judicial review of administrative
action 4th Edition PP 106-108)

"consideration
of
fairness
to
individuals whose interest will otherwise be
directly and prejudicially affected may lead
the Courts to attribute binding effect to
administrative acts and decisions which the
competent authority wishes to repudiate or
rescind. Indeed, it would seem that the legal
competence of administrative bodies to
rescind the decisions depends (in the absence
of statutory provision for this matter) at least
as much on considerations of equity in public
policy as on-conceptual classification."
2 All. Shiv Datt Joshi & Ors. Vs. State of U.P. & Ors.
469

34. The seniority is determined in
exercise of powers conferred under rule 9
of the U.P Government Servant to Seniority
Rules, 1991. Rule 9 of the seniority rules is
quoted here under:-

Part
III:
Determination
of
Seniority

Seniority List

Preparation of seniority list.- (1)
As soon as may be after appointments are
made to a service, the appointing authority
shall prepare a tentative seniority list of the
persons appointed substantively to the
service in accordance with the provisions
of these rules.

(2) The tentative seniority list
shall be circulated amongst the persons
concerned inviting objections by a notice of
reasonable period, which shall not be less
than seven days from the date of circulation
of the tentative seniority

(3) No objections against the
vires or validity of these rules shall be
entertainable.

(4) The appointing authority shall
after disposing off the objection, by a
reasoned order, issue a final seniority list.

(5) It shall not be necessary to
prepare a seniority list of the cadre to
which appointments are made only by
promotion from a single feedings cadre.

35. At the stage of preparation of
centre to list a tentative seniority list have
to be prepared and circulated inviting
objections from the affected parties. The
tentative seniority list serves as a purpose
of notice all the parties may be adversely
affected who have a right to canvass their
objections, and the appointing/competant
authority is mandated to decide the
objections
by
a
reasoned
order.
Undoubtedly, the seniority list has to be
prepared
in
accordance
with
other
provisions of the rules of 1991 where part
II deals with determination of seniority
depending upon whether seniority list
consists only of direct recruits or promotees
where provisions of rule 5-7 have to be
followed, while in case the seniority list
consist both of promotees and direct
recruits the provisions of rule 8 have to be
followed. The perusal of the aforesaid
provisions it is clearly borne out that the
determination of seniority has to be made
after due application of mind to the
objections filed by the affected persons,
and after considering the relevant rules the
appointing authority has to pass a reasoned
and speaking order for deciding the
objections. Accordingly, we have no
hesitation to hold that the procedure
prescribed in the rules amounts to an
administrative decision by the appointing
authority and law, rules and prescription
would apply to such a decision-making
process.

36. Therefore, once the objections are
decided and the final seniority list have
been published, it is acted upon by the
authorities to give promotion or any other
service benefit linked to the seniority of
such Government servants. A vested right
is created by issuance of the seniority list in
as much as a government servant acquires a
right to be considered for promotion in case
any person lower in the seniority list is
promoted, similarly he can claim parity in
pay scale and other service benefits based
on seniority. The rules does not empower
the appointing authority to review his
decision, nor is there any provision of filing
an appeal against the final seniority list.
Accordingly, finality is attached to the final
seniority list considering the fact that the
same has been passed after giving due
opportunity of hearing to the concerned
parties deciding the objections by reasoned
470 INDIAN LAW REPORTS ALLAHABAD SERIES
and speaking order and therefore has
partaking of a quasi-judicial order. Any
person who is aggrieved by the final
seniority list has to approach either the U.P
Public Services Tribunal or prefer a writ
petition before the High Court assailing the
same.

37. After publishing of the final
seniority list whether the State Government
on its own can review the seniority list
specially where no statutory provision or
rule has been made in this regard deserves
to be considered.

38. In the case of Haryana State
Industrial
Development
Corporation
Ltd. v. Mawasi and others reported as
AIR SCW 2012, 4222 it was held:-

9. At this stage it will be apposite
to observe that the power of review is a
creature of the statute and no Court or
quasi-judicial
body
or
administrative
authority can review its judgment or order
or decision unless it is legally empowered
to do so. Article 137 empowers this Court
to review its judgments subject to the
provisions of any law made by Parliament
or any rules made under Article 145 of the
Constitution.

39. In the present case soon after the
promotions of the petitioner to the post of
Review Officer were made objections were
invited to the tentative seniority list where
the petitioners were placed in the seniority
list higher than the direct recruits of 2013
batch. The objections were duly placed
before the committee which submitted its
recommendations
in
favour
of
the
petitioner, which were accepted by the
Government and the final seniority list was
published on 05/08/2016. Considering the
objections raised against the seniority
granted to the petitioners it was held that
the petitioners have not been granted
seniority from the date of the vacancy. It
was further stated that the selection of the
petitioners also pertains to recruitment year
2015-16 and there is no infirmity in giving
them seniority considering them to have
been promoted in the selection in the
recruitment year 2015-16.

40.