- (1.) The three petitioners by these petitions under Article 32 of the Constitution have challenged the promotion by the first respondent, who) ignoring the claims of the petitioners, have promoted Respondents 2 to 5 and other persons similarly situated to the post of officiating Executive Engineers contrary to the principles of natural justice and in violation of Articles 14 and 16 of the Constitution. All the three petitioners were directly recruited by the public service commission as Deputy Engineers in the Bombay Service of Engineers Glass II, now known as Maharashtra Service of Engineers Class II. The first respondent is the State of Maharashtra. Respondent No. 2 belonged to the erstwhile State of Bombay; Respondents 3 and 4 belonged to the former State of Hyderabad, while respondent No. 5 to the former State of Madhya Pradesh, and were allocated to the State of Bombay under the States reorganisation. Likewise the other respondents who were formerly in the service of different States referred to above, now belong to the Maharashtra Service of Engineers.
(2.) 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 bad 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 23/02/1967, directed Respondents 3, 4, 6 to 14 to be treated as having been appointed in the re-organised Bombay State as temporary Deputy Engineers with effect from 31st March, t937, only for the purpose of fixation of their seniority in the grad 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 bad not completed either 7 year of actual service after conformation as required by the rules nor did they have even 7 years service as effecting Deputy Engineers on the date of promotion as officiating Executive Engineers.
(3.) In order to understand the contentions urged on behalf of the petitioners it will be necessary to state briefly the history of the service and he several resolutions which are applicable to them in respect of recruitment atas well as seniority. The Bombay and subsequently the Maharashtra service of engineers consists of Class I and Glass II (Deputy Engineers). They were initially governed by rules framed under the resolutions of the government in the Public Works Department, dated the 22/03/1937. The recruitment to these services both in Class I and Class II was partly by direct recruitment and partly by promotion from amongst the members of the lower cadres. In 1939 further rules were made to regulate the method of recruitment to the State services. Under these rules recruitment to the Bombay Service of Engineers Class I was to be from two sources : (1) by nomination under Rule 3 by virtue of the guarantee given to the Engineering College of Poona and (2) by promotion from the existing Bombay Service of Engineers (since discontinued) or from the Bombay Service of Engineers Class II. The recruitment to the Bombay Service of Engineers Class II under the rules of 1939 was also to be similarly from two sources : (1) by nomination under Rule 11 in accordance with the guarantee to the Royal College of Poona (which was withdrawn in 1947) and (2) by promotion from : (a) Bombay Subordinate Engineer Service, (b) permanent and temporary supervisors and (c) temporary engineers appointed on annual sanction. These rules however did not specify the principles upon which the seniority of the direct recruits and the promotes officers was to be determined. The (Government of Bombay accordingly by a resolution, dated 21/11/1941, laid down the following principles to be applicable to direct recruits and promoted officers in the Provincial service except the Bombay Service of Engineers Class I : "(1) In the case of direct recruits appointed directly on probation, the seniority should be determined with reference to the date of their appointment on probation; (2) In the case of officers promoted to substantive vacancies the seniority should be determined with reference to the date of their promotion to the substantive vacancies provided there has been no break in service prior to their confirmation in those vacancies. "it may here be stated that the Bombay government had appointed a committee known as Gurjar Committee to examine whether Glass I and Class II cadres in the said services should be continued or whether they should be combined into one class and what should be the ratio between the direct recruits and the departmental promotees to the said service. The Committee made its recommendations in 1951. The government after due considerations of the recommendations and the earlier rules regulating the condition of service in the Bombay Service of Engineers passed a resolution, dated 29/04/1960, setting down the principles for recruitment to the Bombay Service of Engineers Class I and Class II. Before this resolution, as we have noticed earlier, the Deputy Engineers Class II service cadre consisted of : (a) direct recruits to the Bombay Service of Engineers Glass II, (b) Deputy Engineers confirmed from the subordinate services of Engineers, (c) temporary Deputy Engineers recruited by the Bombay public service commission and (d) officiating Deputy Engineers and similar other categories. These four categories were being compiled into 2 lists only, namely, (1) Bombay Service of Engineers Class II cadre of permanent Deputy Engineers and (2) the list of officiating Deputy Engineers. It also further continued the existing constitution of Glass I and Class II engineering service. The appointments to be made were to be both by direct recruitment through the competitive examinations held by the public service commission and by promotion, provided however that the ratio of appointments by nomination and by promotion shall as far as practicable by 75 : 25. The candidatesappointed to either of the two services by nomination had to be on probation for 24 years before being confirmed provided further that an Assistant Engineer would be confirmed as Executive Engineer after nine years' service unless the period is extended by the government. The Deputy Engineers permanent in Glass II cadre had to put in at least 15 years of service in Class II in temporary and permanent capacities and must be officiating Executive Engineers at the time of their absorption.;