- (1.) These are two petitions under Art. 226 of the Constitution challenging the appointment of members of the U. P. Civil Service (Executive) to the post of Regional Transport Officers. Since the questions raised in the two petitions are common we consider it necessary to dispose of both the petitions by a common order.
(2.) The petitioners are posted as Assistant R.T.O. in the Transport Department of the U. P. Government. In 1969-70 the petitioners appeared at the combined competitive examination held by the Public Service Commission for the State service and from the list of successful candidates some were appointed as Deputy Collectors (Member of the U. P. Civil Services, Executive Branch), Sales Tax Officers, and Assistant R.T.Os. After their selection they were appointed as Assistant R.T.Os. Promotion from the post of Assistant R.T.Os. continued to be made to the post of R.T.Os. The post of R.T.O. is a promotion post which is filled in by promotion of Assistant R.T.Os. and both the posts belong to the same cadre. In 1972 the State Government took a decision to appoint members of the U. P. Civil Service (Executive Branch) to the post of the R.T.Os. and in pursuance of that policy the impugned orders were issued appointing the two respondents belonging to the cadre of U. P. Civil Service (Executive) to the post of R.T.Os. The petitioners who were seniormost Assistant R.T.Os. were not promoted to the post of R.T.Os, They thereupon filed these two petitions challenging validity of the appointment of members of the Provincial Civil Service (Executive Branch) to the post of R.T.Os. The petitioners have claimed relief for the issue of a writ of certiorari quashing order of the State Government dated December 30, 1972, posting Brij Bhushan Chaturvedi and Suresh Chandra Rastogi, Members of the U. P. Civil Service (Executive Branch) to the post of R.T.Os. The petitioners have further claimed a relief for the issue of a mandamus directing the State Government not to fill up the posts of R.T.Os. by posting members of the Provincial Civil Service (Executive Branch) or any other cadre except that of Assistant Regional Transport Officers.
(3.) Before we consider the submissions made on behalf of the petitioners it is necessary to refer to certain events which are material for the purpose of determination of the controversy raised in the petition. In order to give effect to the provisions of the Motor Vehicles Act and the Rules framed thereunder and to regulate the plying of transport vehicles the State Government created a number of posts such as R.T.Os., Assistant R.T.Os. and these Officers were entrusted the duties of carrying out the functions and discharge their duties in accordance with the provisions of the Act and the Rules. Prior to Dec. 1, 1948, the posts of R.T.Os. and Assistant R.T.Os. were filled by the members of the Civil Service (Executive Branch) and the U. P. Police Service who were posted to those posts on deputation with extra remuneration of Rs. 75 per mensem. It appears that this arrangement did not function well. The then Transport Commissioner made a proposal to the State Government that the posts of Assistant R.T.Os. were specialised which required thorough knowledge of the provisions of the Motor Vehicles Act and the Rules and he suggested a separate cadre for appointment to the posts of R.T.Os. and Assistant R.T.Os. selection for which could be held through the Public Service Commission. The State Government accepted the proposal of the Transport Commissioner. Consequently recruitment for the post of Assistant R.T.Os. was made through the Public Service Commission and eight persons were selected. The State Government by its order dated November 10, 1948, sanctioned creation of eight posts of R.T.Os. in the scale of Rs. 250-850 at starting salary of Rs. 300 and appointed the eight selected candidates to those posts with a direction that after working for a period of 12 months they would finally be promoted as Regional Transport Officers. A copy of the Government Order has been filed as Annexure 'A' to the writ petition. The Government continued with the policy of making direct appointments to the post of Assistant R.T.Os. and then promoting them to the post of R.T.Os. Necessary qualifications and conditions of service of these two posts in the transport department were prescribed by the Government Order dated July 18, 1967 (Annexure B to the writ petition). The Government Order clearly stated that the posts of R.T.Os. are promotion posts to be filled from amongst the Assistant R.T.Os. The State Government continued to follow the policy of filling the posts of R.T.Os. by promotion of Assistant Regional Transport Officers. On September 29, 1969, the Secretary of the Transport Department issued a D.O. letter to the then Transport Commissioner directing that the Government had taken a decision to promote the Assistant R. T. Os. mentioned in the letter to the posts of R.T.Os. in order of seniority mentioned therein (Annexure E to the petition). The name of Devi Prasad Joshi and P. N. Skiha petitioners appeared at Serial Nos. 3 and 4. It appears that in the year 1972, two posts of R.T.Os. fell vacant, the petitioners who were due for promotion to the said posts were not premoted, instead Brij Bhushan Chaturvedi and Suresh Chandra, respondents Nos. 3 and 4 who are members of the U. P. Civil Service (Executive Branch) were appointed to the said posts of Regional Transport Officers. On enquiry the petitioners came to know that a Sub-Committee constituted by the U. P. Cabinet had recommended for the merger of the posts of R.T.Os. and Assistant R.T.Os. with the P.C.S. (Executive) and for appointment of officers of P.C.S. (Executive) to the posts of Assistant R.T.Os. and R.T.Os. It was in pursuance of the report of the sub-committee that respondents Nos. 3 and 4 had been appointed to the post of R.T.Os. although the cadre of R.T.Os. and Assistant Regional Transport Officers had not been merged with the P.C.S. (Executive) and the recommendation of the Cabinet Sub-Committee had not been enforced. The petitioners thereupon filed this petition under Art. 226 of the Constitution challenging the appointments of respondents Nos. 3 and 4 as R.T.Os.;