JUDGMENT

A.K. Sikri, J.

1. Leave granted.

2. Dispute in these appeals pertains to the validity of appointment to the post of Director, Medical Health. Ms. Premlata Joshi, appellant in one of these appeals was appointed to the post of Director, Medical Health, which was in general category and available to all eligible candidates, irrespective of their category, along with one Dr. C.P. Arya, who was promoted to the post of Director, reserved for Scheduled Caste candidate. Promotion of C.P. Arya is not in question. However, Dr. Y.S. Bisht, who is private respondent in these appeals, and was also considered for the said post but was not appointed, challenged the appointment of Ms. Premlata Joshi (hereinafter referred to as the appellant). The Public Service Tribunal, Uttarakhand, where the Original Application was filed, dismissed the said application of Dr. Bisht (hereinafter referred to as the private respondent) vide orders dated 18th August 2009. This order was challenged by the private respondent before the High Court of Uttarakhand in the form of a Writ Petition. The High Court has allowed the said Writ Petition holding that the selection to the post was on the basis of merit and since private respondent was more meritorious than the appellant, he should have been promoted to the post of Director, Medical Health instead of the appellant. On the date of the judgment, both the appellant as well as private respondent had retired. Therefore, the direction is given by the High Court to treat the private respondent as having been promoted to the post of Director, Medical Health on and from 14.7.2008 till the date of his retirement and he be paid the arrears of salary, accordingly, after fixing his salary on the post of Director. Director is also given to work out his pension and other retirement dues on the same post.

3. This judgment of the High Court is challenged by the appellant as well as the State of Uttarakhand (hereinafter referred to as the official respondent). This is how we have the instant two appeals against the same judgment filed by two parties.

4. Two posts of Director, Medical Health had fallen vacant in the year 2007. One was reserved for Scheduled Caste Candidate. Against the other post eligible candidates were entitled to be considered for promotion. The Rules, which govern the promotion to the post of Director, are contained in U.P. Medical Health (Group A) Service Rules, 1990, as amended in 1998. Rule 8 thereof states that merit is the sole consideration for promotion to the post of Director. There is yet another set of Rules known as Uttarakhand Government Servant (Criteria for Recruitment by Promotion) Rules, 2004. Rule 8 thereof which deals with the procedure for promotion to the post reads as under :

8. Procedure of appointment on the basis of promotion

1. The appointment of Director General, Director and Additional Director on the basis of superiority and Joint Director and senior class officers, discarding the unsuitable, on the basis of seniority will be done by Selection Committee according to Uttar Pradesh Departmental Promotion Committee Constitution (leaving the posts outside Public Service Commission) Rule, 1992.

Note: In selection committee the names of officers belonging to Scheduled Caste. Schedule tribe and Other Backward Caste will be considered according to orders given under section 3 Uttar Pradesh Public Service Commission (reservation for schedule caste, schedule tribe and other backward caste) Act, 1994.

Explanation: For this rule the citizen of other backward caste would mean the same which has been mentioned in the sub-rule under the aforesaid Act.

2. Appointment Officer (for the post outside of Public Service Commission) will prepare the merit list of the eligible candidates according to Uttar Pradesh Selection Merit List Rule-1986: Where two separate categories are there, then-

(a) In case of different pay-scale, the candidates of upper pay scale will be kept above in the merit list.

(b) In c