JUDGMENT

FAZAL ALI, J. :—These two appeals by special leave are directed against a judgment dated January 31, 1977, of the Allahabad High Court by which the High Court accepted the writ petitions filed by the present respondents 1 to 12 and quashed the order dated December 31, 1971, of the Government of U. P. in so far as it related to respondents numbers 2 to 12 and 14 to 39 before the High Court. The High Court further directed the State to redetermine the seniority of the regular PMS II Officers and the temporary PMS I Officers in the light of the observations made and the findings given by the High Court.

2. Against the order of the High Court two appeals have been filed to this Court - one by the State of Uttar Pradesh (which is Civil Appeal No, 2870 of 1977) and the other by the appellants 1 to 8 (Civil Appeal No. 2869 of 1977) who were respondents numbers 3 and 33 to 39 before the High Court. For the purpose of brevity and to avoid confusion we would refer to respondents 1 to 12 before the High Court as the petitioners and respondents numbers 3 and 33 to 39 before the High Court as the appellants.

3. The main controversy between the parties centered round fixation of their seniority in a new service which was created by an order of the Government dated November 2, 1964, Shorn of unnecessary details the broad facts which have given rise to the present appeals may be briefly summarised thus :

In the State of U. P. prior to 1945, there were two Medical Services consisting of Doctors serving in the State. The senior service was called the P. M. S., that is to say, the Provincial Medical Service. This service was gazetted service carrying a higher scale of pay then the other service which was known as P.S.,M. S. (Provincial Subordinate Medical Service) which was a non-gazatted service with a lower scale of pay. It may also be noticed that so far as PMS was concerned, the incumbents of the posts in the Service were appointed by the Governor whereas in the case of the PSMS, the employees were appointed by Director, Health Services. We have mentioned these two facts because the nature of the Services, the scales of pay, the mode and manner of appointment of incumbents to the two Services would be a very relevant factor in order to determine whether or not the decision rendered by the High Court was correct. On June 14, 1945, the Government of U. P. framed rules known as The United Provinces Medical Service (Mens Branch) Rules 1945 which were applicable to PMS only and contained definitions, the relevant parts of whom being covered by clauses (b), (f) and (h) may be extracted thus :-

"3 (b) " Direct recruitment" means recruitment under rule 5 (1).

(f) " member of the Service" means a person appointed in a substantive capacity under the provisions of these rules or of the rules in force previous to the promulgation of these rules, to a post in the cadre of the service.

(h) "Subordinate Medical Service" means the Subordinate Medical Service (Mens Branch) of the U.P."

4. Rule 5 provided that recruitment to the Service covered by the Rules (hereinafter referred to as the Senior Service) was to be made by two modes -

(i) by selection from among the persons who were eligible for appointment to the Service under the provision of the Rules whether or not they were already in the permanent service of the Crown and

(ii) by promotion from the Subordinate Medical Service provided that the number of posts to be filled by promotion was limited to 10 per cent of the total number of posts borne on the permanent cadre of the Service.

Rule 9 provided that a candidate for appointment to the Senior Service must be between 22 and 32 yeas of age on the 1st July of the year in which the recruitment was to be made. By a subsequent amendment it was provided that in the case of scheduled caste candidates the age limit could be extended by another 5 years, and that Governor could in consultation with the Public Service Commission, relax the upper age limit up to 40