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The petitioners' case is that under the rules in force the respondents who were in the substantive rank of overseers were only officiating Deputy Engineers and that as they did not belong to the cadre of Deputy Engineers they were not entitled to promotion inasmuch as they had to put in after confirmation as Deputy Engineers 7 years of actual service before being eligible for promotion, as officiating Executive Engineers. On the other hand, the petitioners were direct recruits and were entitled to promotion after 7 years of service from the date of appointment, as their subsequent confirmation related back to that date. It is contended that the first respondent, contrary to these rules. appointed respondents 2 to 34 as officiating Executive Engineers before they had completed 7 years of actual service after the date of confirmation and particularly in the case of employees from the erstwhile State of Hyderabad it had, contrary to the rules relating to promotion, by a resolution dated the 23rd February 1967 directed respondents 3, 4, 6 to 14 to be treated Is having been appointed in the reorganised Bombay State as temporary Deputy Engineers with effect from 31st March 1937 only for the purpose of fixation of their seniority in the grade of Deputy Engineers and for promotion to higher posts. By so directing. respondent No. 1 conferred, in an arbitrary manner, an advantage on the said respondents to the detriment of the petitioners while, as a matter of fact, those respondents had not completed either 7 years of actual service after confirmation as required by the rules nor did they have even 7 years' service as officiating Deputy Engineers on the date of promotion as officiating Executive Engineers.

In so far as promotion from lower to higher grade of post is concerned, the principle of seniority-cum-merit was always followed by the Government which subsequently also formed the bases of the Government resolution dated 18th December 1950 which inter alia prescribed that no officer who had positive qualification should be passed over by an officer junior to him unless the latter had in addition really exceptional ability or qualification. This resolution was passed after consultation of the Bombay Public Service Commission and in supersession of the orders of the previous resolutions dated 22nd May 1944, 23rd March 1945 and the 18th March 1947. Thereafter by another resolution dated 4th March 1957 the principle for the preparation and maintenance of a select list of Deputy Engineers who were considered fit for promotion as Executive Engineers was formulated. According to this resolution, a committee consisting of 3 Chief Engineers under the chairmanship of the senior Chief Engineer L3SUP.CI/70 -9 was to review in December each year the claim of officers in the Bombay Service of Engineers class II for promotion to the post of Executive Engineer. This committee had to prepare a select list with due regard to the provisions of the government resolution dated the 18th December 1950. Likewise, the Government by a resolution dated 20th August 1965, revising its previous resolution dated 24th August 1954 and 14th December 1959, formulated the principles for preparation, maintenance and revision of a list of overseers fit for promotion as Deputy Engineers. Under this resolution statewise list as on 1st April of every year of each of the categories of overseers bad to be made comprising of (1) graduate overseers, (2) diploma holder overseers (DCE-Poona) or equivalent, (3) subordinate overseers holding the Diploma of the Osmania University, and (4) non qualified overseers. The length of service required for eligibility to promotion to the post of officiating Deputy Engineer in respect of the first category was 3 years, second category 8 years, third category 10 years including past service as sub-overseers of those allocated from the ex-Hyderabad State, and fourth category 13 years. We may now briefly state the different grades of service and the channels of promotion in the Engineering service of the Maharashtra State created as a consequence of the various rules. At the apex of the service are the Chief Engineers, Superintending Engineers and the Executive Engineers who constitute class I service. The channels of promotion to the cadre of Executive Engineers is from two sources, (a) direct recruit to class Assistant Engineers, and (2) Deputy Engineers class II. , The cadre of Deputy Engineers class II is constituted by direct recruits 75 per cent and promotees 25 per cent. The channels of promotion to the promotees class II were from temporary engineers and from the subordinate service, namely, graduate engineers, now known as junior engineers, diploma holder overseers and junior or non-technical overseers promoted from still lower ranks. The case of the first respondent and the other respondents is that the 7 years' qualifying service required for promotion as Officiating Executive Engineers is continuous officiating service as Deputy Engineer and not as contended by the petitioners to be reckoned from the date of confirmation as Deputy Engineers. It is contended first, that the interpretation of rr. 6, 7 and 8 of the 1960 Resolution does not ex facie lend itself to the interpretation suggested by the petitioners; secondly, that it ignores the subsequent amendment effected by the 1963 Resolution; thirdly, that for the purpose of promotion the seniority which is relevant is not the seniority in the department but the seniority in the Select List to be prepared in accordance with the Resolution of 1957 in which the petitioners could not and did not find a place during the relevant period fourthly, the basis of promotion being seniority-cum-merit the petitioners who had at no time complained that their names were not considered cannot complain of a violation of Art. 14 or Art. 16, nor could a writ of mandamus lie in such circumstances; and fifthly, that the, Resolutions to which references have been made and which are relied upon by the petitioners are not made either under Art. 309 or any other provision of law but are merely executive instructions which the Government would be entitled to issue in the absence of rules which have statutory binding force. In so far as respondents who are allotted from Hyderabad service are concerned, it is contended that they were all selected by the Hyderabad Public Service Commission in June 1956 and would have been appointed as Assistant Engineers in that State 'in a few months had not States reorganisation taken place. In view of the fact that they had been selected by the predecessor State and also the successor state it was open to the Government to make the appointment of the respondents having regard to the various provisions of the States Reorganisation Act, and accordingly the Government directed that their appointments be treated as temporary Deputy Engineers effective from 31-3-1957 for the purpose of seniority and promotion. What in fact the Government has done is to recognise the just claims of those who had already been selected for class I posts in the Hyderabad State which posts have been equated with the post of Deputy Engineers in the Bombay State while arriving at the equation envisaged under the States Reorganisation Act and under the allotted Government Service Rules of 1957. In fact the claim of the respondents was that the Assistant Engineers of class I of the Hyderabad State should be equated with the posts of Assistant Engineers Class I of the Bombay State. Shri Gupte learned counsel for the petitioners however contends that all the respondents from the erstwhile Hyderabad State were allotted to the Bombay State as overseers which posts they were holding substantively on and after 1st November 1956. They were thereafter promoted as officiating Deputy Engineers between 1958 and 1963 and were not confirmed in their respective posts on the date when they were appointed officiating Executive Engineers. The learned Advocate further contends that these persons were in fact not appointed as Assistant Engineers in the erstwhile Hyderabad State though they might have been selected by the Hyderabad Public Service Commission and that in any case as the Bombay Public Service Commission did not select them they could not be classified in the category of temporary Deputy Engineers selected by the Bombay Public Service Commission. Apart from this category, there are respondents who were appointed as officiating Deputy Engineers before the reorganisation on 1st November 1956 and were confirmed only after the petitioners were directly appointed. The first petitioner was appointed on 9th June 1959, the second petitioner on 11th June 1959 and the third petitioner on 12th June 1959. Though the petitioners were confirmed 2 years thereafter, namely, on 9th June 1961, 24th June 1961 and the 18th June 1961 respectively, none the less for the purpose of seniority the dates on which they were first appointed in June 1959 would be relevant dates because confirmation under the rules relates back to that date and therefore they would be senior to those respondents who were confirmed thereafter. There are yet a few respondents who were promoted as officiating Deputy Engineers after the 1st November 1956, namely, those persons who were non gazetted sub divisional officers of the former State of Madhya Pradesh and the former State of Hyderabad who were treated as Deputy Engineers from 1st November 1956 and there were others who were not so deemed but were not confirmed as Deputy Engineers on the date when they were promoted as officiating Executive Engineers. The contention of Shri Gupte in the main is that officiating Deputy Engineers could only be considered as promoted to the grade of Deputy Engineers on confirmation and therefore the 7 years qualifying service necessary for their being promoted as officiating executive engineers is to be reckoned from the date of their confirmation as Deputy Engineers and since good many of them were confirmed after the appointment of the petitioners and most of them were not so confirmed even on the date of their promotion as Executive Engineers under the rules they would not be entitled to those promotions. Shri Chagla and Shri Kumaramangalam, on the other hand, contend that the rules nowhere prohibit the promotion to Executive Engineers from officiating Deputy Engineers, nor is there anything to indicate either expressly or otherwise that the 7 years' qualifying service should be from the date of confirmation. All that is required is that a person in order to become eligible for promotion as officiating Deputy Engineer should be promoted as Deputy Engineer that in either case he should have 7 years in that capacity whether as permanent Deputy Engineer or continuously as an officiating Deputy Engineer and that he should be selected and put on a Select List. The respondents, it is contended, have fulfilled all these requirements. The second respondent who appeared in person has adopted these arguments of the learned Advocate for the respondents. We may here read the relevant rules as set out in the respective resolutions.

(ii) of r. 6 it is provided that 15 year-, of service in class II for absorption as Executive Engineer can be in temporary or permanent capacities. There is nothing in r.

(ii) to militate against the interpretation that the service specified there can be the total service of any description whether provisional, temporary or permanent. If promotion from class IT a, officiating Executive Engineer can only he made after 7 years of permanent service, then there would be no meaning in including the temporary service in class IT for the purpose of absorption as Executive Engineer. Even r.8 upon which Shri Gupte has laid great emphasis in support of hi, contention. does not, in our view, justify an interpretation that the 7 years' service required to entitle persons in class II for promotion as an officiating Executive Engineer should be permanent service in class II. Shri Gupte however relied on the requirement in cl. (ii) of r. 8 that the recruitment to Bombay Service of Engineers, Class II cadre shall in so far as promotees are concerned be by promotion from the list of officiating Deputy Engineers. Relying on this rule the learned Advocate contends that for promotion as Deputy Engineer Class II he must be on the list of officiating Deputy Engineers before he is entitled to promotion as Deputy Engineer Class II and be confirmed in that post after satisfying the requirements of 3 years' service as officiating Deputy Engineer. Until he is so confirmed, he will not be considered to have been promoted as Deputy Engineer or to belong to class II service for promotion as officiating Executive Engineer as required under cl. (ii) of r. 7. As we have seen earlier, cl. (ii) of r. 7 does not use the word 'belong' but requires only that the person under consideration for promotion should be from class II service. To be in class II service the Deputy Engineer promoted from subordinate service has to put in at least 3 years of service as officiating Deputy Engineer before being confirmed and thereafter he can when he is promoted to the next higher rank be confirmed as Executive Engineer if he has put in 15 years in class II service in temporary or permanent capacities and is holding an officiating divisional rank, namely of an Executive Engineer. If temporary service can be taken into account for confirmation as an Executive Engineer, so can officiating service, and if officiating service can be taken into consideration, there is no impediment to a Deputy Engineer with 7 years' service whether officiating, temporary or permanent to entitle him for promotion as an Executive Engineer.

It is however stated that no list was made for 1966 which is the crucial year in so far as the petitioners are concerned because their 7 years would have been completed in June 1965 and they would have been entitled to be considered for promotion in 1966. In answer to this contention the affidavit on behalf of the respondents shows that the select list of the Deputy Engineers fit for promotion to the post of Executive Engineers in class I was prepared for the year 1964 and 1965 according to the principles and rules laid down in the resolutions of 14th December 1957 and 29th April 1960. None of the petitioners, it is averred, was included in the Select List for 1964 or 1965 because not only did any of them not [1] [1958] 3 S. C. R. 363.* have the requisite seven years' service as Deputy Engineer at the relevant time but they were also not entitled to be included because of the classes of recommendation earned by them during the relevant period. The petitioners however denied in their rejoinder that the lists were prepared keeping in view the criteria laid down by the rules, 'but, in our view, it is significant that they did not possess the required length of service in class II for them to be entitled to promotion when the respondents were included in the list and promoted as such they cannot challenge the appointments made as being in violation of Art. 14 or Art.