Gopi Nath, J. - (1.) This is a petition under Article 226 of the Constitution. It challenges an order of the State Government dated 19-6-1973 reverting the petitioner from the officiating post of Superintending Engineer to his substantive post of Executive Engineer. The order has been challenged on the ground of mala fides, as also of violation of Articles 14, 16 and 311 of the Constitution.
(2.) The petitioner took his Honours Degree in Bachelor of Engineering (Civil) from the University of Roorkee in the year 1948. He was appointed as an officiating Assistant Engineer in the Irrigation Department in the State of U.P. in June, 1949. He was confirmed as an Assistant Engineer in April, 1957. In January, 1960 he was promoted as an officiating Executive Engineer. The Petitioner crossed the Efficiency Bar on 7-7-1968 and was confirmed as an Executive Engineer with effect from 1-8-1964. A selection thereafter was held for the post of Superintending Engineer and the petitioner was selected as an officiating Superintending Engineer in the year 1971. The selection was made by a Board consisting of (I) Nominee of Chief Secretary; (2) Irrigation Secretary, (3) Secretary to the Public Works Department; and (4) Engineer-in-Chief. It will be seen that the selection Committee was a high powered body consisting of very responsible officers of the Government. The selection was made out of confirmed Executive Engineers on the basis of their service records. This fact is admitted in the counter affidavits. No interview was held nor was any other test applied. 17 persons were selected in the selection held in the year 1971 and the petitioner ranked a serial No. 15, according to the counter affidavit filed on behalf of respondent No. 1. According to the petitioner he ranked at serial No. 14. Thus according to the petitioner he was senior to three persons while according to the State he was senior to only two in chat section in the year 1972 selection was again held for that post and 16 or 17 persons were again selected. This batch included some of those Executive Engineers who had been rejected in the selection held in the year 1971. The second selection was again made on the basis of service record and the petitioner's case is that his service record was superior to those who were rejected in 1971 and thereafter selected in 1972, A third selection was made for the same post, in the year 1973 and 11 persons were selected this time. In all these selections the candidates selected were arranged in order of seniority. The petitioner's case is that the petitioner was senior to those who ranked lower to him in the 1971 selection and senior to all those who were selected in the years 1972 and 1973. See annexure 2 to the first rejoinder affidavit of the petitioner, which is a Government order dated August 3, 1971 By means of an amendment to the petition the petitioner claims to be superior in merit to those who were selected in the years 1972 and 1973 and to the two candidates selected in the year 1971 shown lower in ranking than the petitioner. In paragraph 2 of the amendment application he has enumerated 29 Executive. Engineers who according to the petitioner are junior to him in the grade of Superintending Engineer. Two out of them belong to 1971 selection, 16 to 1972 selection and 11 to 1973 selection. He has further asserted that, his service record was better than the 29 persons mentioned in paragraph 2 of the amendment application. No counter affidavit was filed to the assertions made in the amendment application until the case was heard finally and at some length. Time had been granted for filing counter affidavit to the amended writ petition but no counter affidavit was filed challenging the allegations made by amendment. Learned Standing Counsel, however, prayed for time for filing a supplementary counter affidavit during the course of arguments, which was granted. By the supplementary counter-affidavit, the State has taken a stand that the service record of the 29 officiating Superintending Engineers mentioned earlier who Were selected in 1971, 1972 and 1973 respectively was, better than the petitioner's. It will, however, be noticed that in paragraph 12 of the second rejoinder-affidavit of the petitioner, filed on 11-1-1974, it has been specifically stated that in the first selection, held in the year 1971, the service record of 50 eligible Executive Engineers was examined and 33 out of them were rejected; the petitioner was,one of the 17 candidates selected. Some of the candidates, rejected in the year 1971 and were after-Wards selected in the years 1972 and 1973 and promoted to the post of officiating dating Superintending Engineer. This allegation has not been denied so far, even by the last supplementary Counter-affidavit, filed on the 5th of August, 1974 There is thus no denial of the assertion made in the rejoinder-affidavit, referred to above. The fans stated in paragraph 12 of the second rejoinder-affidavit will have to be accepted arid it will have to be held that the 1972 and 1973 selections included candidates who had been rejected in the year 1971. In view of the further admission by the State that selection to the post of Superintending Engineer is made only on the-basis of service record and the suitability is judged on the basis of merit, it is apparent that those Executive Engineer; who had been rejected in 1971 and were selected in the subsequent selections of 1972 and 19-73 did not possess a better service record the in that of the petitioner and the petitioner was found better suited to the post, in view of his service record, as compared to those who were rejected in the selection of 1971. The State has filed a chart as an annexure to the supplementary counter-affidavit, filed on 5th August, 1974, shoving tho good, satisfactory and adverse entries in respect of the Superintending Engineers, selected in the years 1971, 1972 and 1973. This will be adverted to at its proper place. It is, however, pointed out that the position as it obtains in the chart was very well available to the Government when it made the selections in the years 1971, 1972 and 1973 and, if on the basis of the character roll entries, as they existed at the time of 1971 selection, the Government found the petitioner better as, compared to those who were rejected in that selection, It does not appear coherent now to label him, as inferior to them in so far as the selection to the post of officiating Superintending Engineer is concerned.
(3.) After his selection the petitioner was telegraphically directed on 12-4-1972 to take over as Superintending Engineer, Yamuna Civil Construction Circle, Dehradun. On 25-8-1972 the petitioner was transferred from Yamuna Civil Construction Circle Dehradun to Drainage Circle, Ballia. On 10-9-1972 the petitioner took over as Superintending Engineer, Drainage Circle, Ballia.;