- (1.)S. U. Khan, J. Heard learned counsel for the petitioner and learned standing counsel for respondent nos. 1 and 2. In spite of sufficient service no one appeared for respondent no. 3 Sri Ram Shiromani Pandey.
(2.)THE dispute in the instant writ petition relates to comparative seniority of petitioner and respondent no. 3. Both of them were Senior Auditors in Local Fund Audit Department, U. P. , Allahabad. Both of them were promoted from the Feeder Cadre of Auditor. Admittedly, respondent no. 3 was promoted as senior auditor earlier. However, in the feeder cadre i. e. auditor, respondent no. 3 was junior to the petitioner. THE reason of prior promotion of respondent no. 3 is that a particular test was required to be passed for promotion which respondent no. 3 passed earlier. Petitioner was appointed as auditor on ad hoc basis through letter dated 20. 07. 1976 and his services were regularised against substantive vacancy on 13. 12. 1979. THEreafter, he was confirmed w. e. f. 01. 09. 1982 through order dated 18. 10. 1982. Respondent no. 3 was appointed on 26. 07. 1976. In the seniority list published on 25. 10. 1982 for all the auditors, petitioner was at serial no. 149 and respondent no. 3 at 152. Similarly, in the list published on 06. 04. 1985 also petitioner was shown to be senior than respondent no. 3.
For promotion to the post of senior auditor apart from certain length of service, qualifying subordinate audit service examination is also necessary. Petitioner qualified the said examination on 04. 06. 1988 and was promoted through order dated 06. 10. 1988 and thereafter petitioner joined on the promoted post on 31. 10. 1988.

Thereafter respondent no. 3 was further promoted to the post of senior auditor grade-I through order dated 02. 01. 1999. However, the petitioner was promoted to the said post through order dated 01. 08. 2000. The grievance of the petitioner is that in the cadre of senior auditor he should have been treated to be senior to respondent no. 3, hence he should have been promoted to the post of senior auditor grade-I prior to respondent no. 3. It has been stated in para no. 14 that petitioner made representation on 22. 01. 1998 but it was not decided in spite of several reminders. Another representation is stated to have been made on 07. 11. 2002. which was rejected on 29. 03. 2003, copy of order is Annexure 10 to the writ petition. Petitioner again filed objection which was rejected on 20. 01. 2004. (Annexure 12 to the writ petition) on the ground that respondent no. 3 had passed subordinate audit service examination in the year 1983 while petitioner passed the said examination in the year 1987 (or 1988) hence respondent no. 3 was senior to him. In the seniority list dated 22. 12. 1997 also petitioner was shown junior to respondent no. 3 in the cadre of senior auditor. Petitioner again filed representation which was again rejected on 07. 06. 2004, copy of which is Annexure-15. Said orders have been challenged through this writ petition. Annexures 12 and 15 have been passed by Deputy Secretary Government of U. P.

(3.)THE relevant Rules governing the service in question are U. P. (Local Fund) Audit Subordinate Service Rules 1985. Rule 22 (3) of the said Rules dealing with seniority is quoted below:- 22 (3) "the seniority inter se of persons appointed by promotion shall be the same as it was in the cadre from which they were promoted. " THE said Rules have been framed under Article 309 of the Constitution of India General Rules for seniority in Government service have also been framed by Government of Uttar Pradesh known by the name of U. P. Government Servant Seniority Rules, 1991. In the Rules of 1991, Rule 6 deals with seniority which is quoted below: "where according to the service rules, appointments are to be made only by promotion from a single feeding cadre. THE seniority inter see of persons so appointed shall be the same as it was in the feeding cadre. Explanation:- A person senior in the feeder cadre shall, even though promoted after promotion of a person junior to him in the feeding cadre shall in the cadre to which they are promoted, regain the seniority as it was in the feeding cadre. " 7. Rule 3 of Rules of 1991 is also relevant and is quoted below:- "these rules shall have effect notwithstanding anything to the contrary contained in any other service rules made heretobefore. " 8. THE Supreme Court interpreting the Rules of 1991 in Mohan Karan Vs. State of U. P. , 1998 (3) SCC 444 has held that Rules of 1991 will prevail upon the U. P. Development Authorities Centralised Services Rules, 1985. 9. On the interpretation of Rule 6 of Rules of 1991 a recent authority of this Court may also be referred to which is reported in 2008 U. P. L. B. E. C. 1718, Ramesh Chandra Pathak Vs. State of U. P. and Ors. 10. In the instant case firstly the Rules of 1985 i. e. U. P. Local Fund Audit Subordinate Service Rules, 1985 itself contain Rule 22 (3) (supra) directing that seniority on the promotional post shall be the same as was in the feeder cadre. In any case Rules of 1991 which specifically contain the explanation will prevail upon Rules of 1985. 11. Under Rule 5 (2) of the Rules of 1985 it is provided that senior auditor shall be recruited by promotion from amongst such permanent auditors who have passed subordinate audit service examination. THEreafter under Rule 5 (5) it is provided that senior auditor grade-I shall be recruited by promotion from amongst permanent senior auditors. 12. Accordingly, in my opinion petitioner was senior to respondent no. 3 in the cadre of senior auditor. Accordingly, he should have been promoted prior to respondent no. 3 in the cadre of senior auditor grade-I. 13. In view of the above, writ petition is allowed. It is directed that in the cadre of senior auditor grade-I petitioner shall be treated to be senior to respondent no. 3. However, petitioner shall not be entitled to any additional salary. Similarly no salary paid to respondent no. 3 shall be deducted or directed to be refunded by him. 14. Writ petition is accordingly allowed. .