JUDGMENT

R.M. LODHA, J.

In this group of three appeals, by special leave, the question presented for consideration before this Court relates to determination of seniority between two groups of direct recruits to the posts of Deputy Jailor (Group `C' post), one appointed in 1991 through the selection made by Uttar Pradesh Subordinate Services Selection Commission (for short, `Selection Commission') and the other in 1994 by Uttar Pradesh Public Service Commission (for short, `UPPSC').

2. The Uttar Pradesh Jail Executive Subordinate (Non- Gazetted) Service Rules, 1980 (for short, `1980 Rules') were framed by the Governor of the State in exercise of the powers conferred by the proviso to Article 309 of the Constitution which were published in U.P. Gazette, Extraordinary on June 9, 1980. Rule 5 of the 1980 Rules deals with the recruitment to the posts of Deputy Jailor and Assistant Jailor in the service. The recruitment to the posts of Deputy Jailor is by two sources: (i) by direct recruitment and (ii) by promotion from amongst the permanent Assistant Jailors.

3. Rule 15 provides for procedure for direct recruitment to the posts of Deputy Jailor and Assistant Jailor. It reads thus :

"15. Procedure for direct recruitment to the posts of Deputy Jailor, Assistant Jailor.—

(1) Applications for permission to appear in the competitive examination shall be called by the Commission in the prescribed form, which may be obtained from the Secretary to the Commission on payment.

(2) No candidate shall be admitted to the examination unless he holds a certificate of admission issued by the Commission.

(3) After the results of the written examination have been received and tabulated, the Commission shall having regard to the need for securing due representation of the candidates belonging to the Scheduled Castes, Scheduled Tribes and others under Rule 6, summon for interview such number of candidates as, on the result of the written examination, have come up to the standard fixed by the Commission in this respect. The marks awarded to each candidate at the interview shall be added to the marks obtained by him in the written examination.

(4) The Commission shall prepare a list of candidates in order of their proficiency as disclosed by the aggregate of marks obtained by each candidate at the written examination and interview and recommend such number of candidates as they consider fit for appointment. If two or more candidates obtain equal marks in the aggregate, the name of the candidate obtaining higher mark in the written examination shall be placed higher in the list. The number of names in the list shall be larger, but not larger by more than 25 per cent of the number of vacancies. The Commission shall forward the list to the appointing authority."

4. Part-VI of the 1980 Rules deals with appointment, probation, confirmation and seniority. For the purposes of these appeals, rule 22 of the 1980 Rules needs to be referred which is as follows:

"22. Seniority.--Seniority in any category of posts in the service shall be determined from the date of substantive appointment and if two or more persons are appointed together, from the order in which their names are arranged in the appointment order : Provided that--

(1) the inter se seniority of persons directly appointed to the service shall be the same as determined at the time of selection.

(2) the inter se seniority of persons appointed to the posts of Deputy Jailor by probation shall be the same as it was in the substantive post held by them at the time of promotion; and ........."

5. On December 26, 1987, the UPPSC published an advertisement (No. A-5/E-4/87-88) for holding the Combined Lower Subordinate Services Examination, 1987. It was mentioned in the advertisement that the number of vacancies to be filled on the result of the examination is expected to be approximately 600 which included the vacancies in the cadre of Deputy Jailor. There is dispute of fact about actual number of vacancies in the