S.C. Mital, J. - (1.) Facts giving rise to this letters patent appeal arc that Shri M. L. Sckhri (for short 'Sekhri') joined as Temporary Engineer in the Irrigation Department of the erstwhile State of Punjab on 15th Nov., 1956. Upon successful completion of the training period, he was appointed as Temporary Engineer (Assistant Engineer Temporary Class II) in May, 1957. At the time, the Punjab Service of Engineers Class I, Public Works Department (Irrigation Branch) Rules, 1956, (hereinafter called the '1956 Rules') were in force. One of the modes for appointment of Executive Engineers provided was by promotion from Class II Service. The record of service of Sekhri being good, in April 1963 he was promoted to officiate as Executive Engineer. Before that in Feb. 1963, eleven posts in the Punjab Service of Engineers Class I, P.W.D. (Irrigation Branch) were advertised. In order to better his prospects, Sekhri appeared in the competitive examination. On being declared successful, the Public Service Commission recommended him for appointment as Assistant Executive Engineer P.S.E. Class I (Junior Sale) some time in October-November, 1983. But in Sept., 1963, an unsuccess-full candidate, namely, Desh Bandhu Gupta had filed C.W.P. No. 2402 of 1963. When the stage was ripe for the appointment of Sekhri, Dehs Bandhu Gupta obtained a stay order on 17th March, 1964. Later, his writ petition was dismissed on 4th May, 1964. The case is now reported as Desh Bandhu Gupta Vs. The State of Punjab and others, 1964 Current Law Journal (Pb.) 339 . Desh Bandhu Gupta then preferred letters patent appeal and during summer vacation on J 8th June, 1964, he again obtained a stay order. The letters patent appeal was dismissed on 15th July, 1964. Meanwhile, on 10th July, 1964, Punjab Service of Engineers Class 1 P.W.D. (Irrigation Branch) Rules, 1964 (hereinafter referred to as the '1964 Rules') repealed the 1956 Rules. Thereafter, appointment order in favour of Sekhri was passed on 26th Dec., 1964, and he was appointed as Assistant Executive Engineer Class 1 on the following 29th. His appointment was against a substantive post but on two years probation. Having completed his probationary period successfully, Sekhri was confirmed on 26th Aug., 1968, with effect from 29th Dec., 1966, and his seniority was tentatively determined accordingly. He made representations claiming that his confirmation should have been with effect from 29th Dec., 1964, and that date should have been the basis of his seniority. Failing to get any favourable order from the department, he instituted the present writ petition (No. 3767 of 1973) which has been allowed by the learned Single Judge. Aggrieved against the judgment, Jagdish Chander and 44 other members of the Service have filed this appeal This judgment will also dispose of the connected L.P. A. No. 105 of 1977 referred by the State of Punjab.
(2.) Since Sekhri largely based his claim on Appendix 'F' of the 1964 Rules, the relevant part thereof is reproduced for facility of reference:- 1. On the date of commencement of these rules the service shall comprise of,: (a) Officers who are holding the posts of Assistant Executive Engineers or Executive Engineers or of a higher rank in a substantive capacity in the Class 1 Service as it existed immediately before the enforcement of these rules (hereinafter referred to as 'existing Class 1 Service'). (b) Officers who are not holding the posts of Executive Engineers or of a higher rank in a substantive capacity but who were selected with the approval of the Commission as fit for the existing Class I Service. Explanation:- Officers who are officiating as Executive Engineers on the date of commencement of these rules but have not been declared with the approval of the Commission as fit for the existing Class I Service will not be deemed to be members of the Service constituted under these rules, even though they may have been appointed as officiating Executive Engineers with the approval of the Commission. On being declared by the Commission as suitable for appointment to the Service in accordance with these rules they shall become members of the Service as provided in paragraph 3 below. The finding of the learned Single Judge that Sekhri has failed to bring his case within the ambit of clause (a) of para 1 of Appendix 'F' has not been assailed before us. Thus, the question for consideration is, whether Sekhri's case is covered by clause (b) or not.
(3.) Confining the matter to an Executive Engineer, the Explanation to clause (b) of para 1 of Appendix 'F' leaves no room for doubt that the case of an officiating Executive Engineer would be covered by it, provided he was selected with the approval of the Commission as fit for Class I Service as it existed immediately before the enforcement of 1964 Rules. The Explanation further lays down that in the absence of the said approval of the Commission, his prior appointment as officiating Executive Engineer with the approval of the Commission will not be of any avail to him. Doubtless, Sekhri was officiating as Executive Engineer on 10th July, 1964 when the 1964 Rules were enforced. All the same, what is required to be shown by him is that at that time the Commission had approved him as fit for Class 1 Service. Before proceeding further, it may be clarified that the above-quoted Explanation clearly leaves out of consideration any approval by the commission by which he was appointed as officiating Executive Engineer.;