Hon’ble Rajan Roy, J.—Heard Sri M.K. Upadhyay alongwith Sri A.M. Pandey, learned counsel for the petitioner and Sri Sameer Sharma for the respondent and Sri A.K. Srivastava for the Respondent No. 5.

2. This matter was heard earlier and judgment was reserved on 5.12.2014, however, while going through the record and perusing the judgment of this Court in the case of Sayed Muttaqui Raza v. District Judge, Banda, 1999 Law Suit (All) 947, it was revealed that there are Rules known as U.P. Government Service Criteria for Recruitment or Promotion Rules, 1994 (hereinafter referred as ‘Rules, 1994’), according to which, the criteria for promotion to the post in question would be ‘seniority subject to rejection of unfit’ and not ‘merit with due regard to seniority’ as is provided in Sub Rule 3 of Rule 20 of the Subordinate Civil Court Ministerial Establishment Rules, 1947 (hereinafter referred as ‘Rules, 1947’). Rules of 1947, accordingly, the matter was posted for rehearing today vide order dated 8.12.2014 which reads as under :

“The judgment was reserved in this case on 5.12.2014. After going through the records, I find that the parties have not addressed the Court on the issue as to whether U.P. Government Servants Criterion for Recruitment by Promotion Rules, 1994 or Rule 20 (3) of the U.P. Subordinate Civil Courts Ministerial Establishment Rules, 1947 will apply in the instant case. This Court in Syyed Muttaqui Raza v. District Judge, Banda, 1999 Law Suit (All), 947 took note of this issue but did not give any categorical finding in this regard.

List this case for rehearing on 11.12.2014 at 10 a.m. “

3. Today the matter has been heard.

4. The dispute in this writ petition relates to promotion of Respondent No. 5 to the post of Sadar Munsarim in the judgeship of Allahabad. There are two posts of Sadar Munsarim. The dispute revolves round promotion on one of the post.

5. Sri Sameer Sharma, learned counsel for the respondent submits firstly that the petitioners have not taken any plea regarding applicability of the ‘Rules 1994’ in the pleadings, therefore, it is not open for this Court to consider the same in the absence of any pleading. In fact in paragraph 40 the petitioner has himself pleaded violation of Rule 20 sub Rule 3 of the Rule 1947, therefore, even according to him Rules 1947 apply. In the alternative, Sri Sameer Sharma submitted that assuming though not conceding that the Rules 1994 were applicable, the petitioner was not found fit, therefore, the promotion in question is not liable to be interfered with and no relief can be granted to him. Moreover, there was one person senior to the petitioner, therefore, for this reason also he is not entitled for any relief. He also submitted that once the petitioner has appeared in the selection for promotion then it was not open to him to challenge the process/procedure, including the criteria, adopted therein.

6. Sri A.K. Srivastava, learned counsel for the Respondent No. 5 supported the stand of Sri Sameer Sharma and took the same plea.

7. On the other hand, learned counsel for the petitioner submitted that even if, the plea regarding applicability of Rule 20(3) of Rules, 1947 had not been taken, the respondents were under an obligation to determine as to which rule was applicable and to act accordingly.

8. The terms and condition of service relating to the post of Sadar Munsarim are governed by the ‘Rules, 1947’, which were notified on 1.8.1947 in pursuance to the provisions of Clause (b) of Sub Section (1) and Clause (b) of Sub Section (2) of Section 241 of the Government of India Act, 1935, in suppression of all existing Rules and Orders on the subject, by the Governor of United Provinces, for regulating appointment to the Ministerial establishment of the Civil Court in the United Provinces subordinate to the High Court of Judicature at Allahabad and the Chief Court of Oudh at Lucknow.

9. Even after framing of the Constitution of India the said Rules have continued to g