D. Falshaw, C.J. - (1.) THIS is an appeal filed under Clause (to) of the Letters Patent by K.L. Nanda against the order of Shamsher Bahadur, J. dismissing a petition filed by him under Article 226 of the Constitution....
(2.) THE Petitioner, is serving as a Sub -Divisional Officer in the P.W.D. (Buildings and Roads Branch) i.e., as an officer in Class II of the Punjab Service of Engineers. His case in a nutshell is that under the rules he is entitled to promotion to Class I of the Service. A set of; rules governing the Buildings and Roads and Public Health Branches of the P.W.D. dated the 8th of March, 1960 appeared in the Punjab Government Gazette of the 18th of March, 1960. These rules were expressly framed by the Governor in exercise of the powers conferred by the proviso to Article 309 of the Constitution. The relevant words of this proviso read - Provided that it shall be competent...for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State to make rules regulating the recruitment and the conditions of service of persons appointed to such services and posts until provision in that be shall is made by or under an Act of the appropriate Legislature under this Article, and any rules so made shall have effect subject to the provisions of any such Act. Rules 5 deals with the recruitment to service as follows: (I) Recruitment to the service shall be made by Government by any one or more of the following methods: (a) by direct appointment; (b) by transfer of an officer already in the service of a State Government, or of the Union; (c) by promotion, from Class II service. .... Clause (c) relating to appointment by promotion is dealt with by Rule 8 as follows: (1) A committee consisting of the Chairman of the Public Service Commission or where the Chairman is unable to attend, any other member of the Commission representing it, the Secretary, P. W. D. (Buildings and Roads Branch), and the Chief Engineers, Punjab P. W. D., Buildings and Roads Branch, shall be constituted. (2) The Chairman or the member of the Commission, as the case may be, shall preside over the meetings of the Committee. (3) The Committee shall meet at intervals, ordinarily not exceeding one year, and consider the cases of all eligible officers for promotion to the senior scale of the Service, as on the first day of January of that year. (4) The Committee shall prepare a list of officers suitable for promotion to the senior scale of the Service.... The selection for inclusion in such list shall be based on merits and suitability in all respects with due regards to seniority. (5) The names of the officers included in this list shall be arranged in order of seniority in Class II Service: Provided that any junior officer who in the opinion of the Committee is of exceptional merit and suitability may be assigned a place in the list higher than that of officers senior to him. (6) The list so prepared shall be revised every year. (7) If in the process of preparing the list or its revision it is proposed to supersede any eligible candidate, the Committee shall draw up a list of such officers and may record its reasons for the proposed super session. (8) The list prepared or revised in accordance with Sub -rules (4), (5) and (6) shall then be forwarded to the Commission by Government along with: (i) the records of all officers included in the list; (ii) the records of all officers proposed to be superseded :as a result of the co -recommendations made by the Committee; (iii) the reasons, if any, recorded by the Committee for the proposed super session of any officer; (iv) the observations, if any, of the State Government on the recommendations of the Committee. (9) The Commission shall consider the list prepared the Committee along: with other documents received from the State Government and, unless it considers any change necessary, approve the list. (10) If the Commission considers it necessary; to make any changes in the list received from Government, the Commission shall make the changes, it proposes and forward the list it considers suitable to the State Government. (11) Appointments to the Service shall be -made by Government from this list in the order in which names have been placed by the Commission. (12) Appointment by promotion may be made -to an ex cadre post, or to any post in the cadre -in an officiating capacity from the list prepared under this rule.
(3.) IT is not in dispute that after the publication' of these rules a Committee constituted under Rule 8(1) prepared a list' of Class II Candidates considered fit for promotion, and that the name of the Petitioner, who by seniority was eligible, was not included in the list. The documents have not been produced in this Court, but it is to be presumed that the procedure laid down in the rules -was followed, and that in accordance with Sub -rule (7) the proposal of the Committee to supersede him was intimated and its reasons for this also recorded. It is also not disputed that when the Public Service Commission considered the case it made changes in the recommendations of the Committee and included the Petitioner 's name at a cerium place in the list of persons suitable for promotion prepared under Sub -rule (10) and forwarded to the Government, but the Government nevertheless did not select him for promotion at his turn in accordance with the provisions of Sub -rule (11).;