A.D.Koshal, J. - (1.) THE circumstances giving rise to this petition under Article 226 of the Constitution of India may be briefly stated. In the year 1960 the Governor of Punjab promulgated the Punjab District Attorneys Service Rules, 1960 (hereinafter referred to as the Rules) which related to the recruitment and conditions of service of District Attorneys and Assistant District Attorneys to be employed by the Government of Punjab (hereinafter called the Government). The relevant part of Rule 3 states: (3) (1) The service shall comprise the posts shown in Appendix 'A' to these rules: (2) Nothing in these rules shall affect the right of Government to make addition to, or reduction in, the cadre of the Service whether permanently or temporarily. In Appendix 'A' are listed 8 posts of District Attorneys Grade I, 9 posts of District Attorneys Grade II and 9 posts of Assistant District Attorneys, all these being gazetted posts. Rule 5 covers the method of recruitment to the Service and states: 5. Posts in the service shall be filled in as under: (a) In the case District Attorneys: (1) * * x * * (2) * * x * * (2) the remaining posts and all future vacancies shall be filled - - (i) by selection from amongst the District Attorneys Grade II or the Assistant District Attorneys; or (ii) * * x * * (iii) * * x * * (b) * * * * (c) In the case of Assistant District Attorneys - - (i) by selection from amongst the legal Assistants and Superintendents of the office of Legal Remembrancer; or (ii) by transfer of an officer working under the Government of a State or of Union of India; or (iii) by direct appointment ; (d) * * * * Rule 12 in so far as it concerns us is also reproduced below: 12. (1) The seniority inter -se of members of the service holding the same class of posts shall be determined by the dates of their continuous appointment to such posts in the Service:
(2.) THE ten Petitioners were appointed to the posts of Assistant District Attorneys by the Government in the years 1970 and 1971 and each one of them is continuing to hold one of those posts till to -day. On the 28th of March, 1974, Respondents Nos. 3 to 49, who were serving as Prosecuting Inspectors, were also appointed Assistant District Attorneys (vide Annexure P. 2 to the petition) with a direction that they would be governed by the Rules. In the first quarter of the year 1975 the Government proceeded to promote some of Respondents Nos. 3 to 49 to the posts of District Attorneys without considering therefor the claims of the Petitioners on the plea that such Respondents had been serving the Government in the Prosecution Branch for long periods and that their claims for promotion at the fag -end of their career was therefore, preferable to that of the Petitioners. This stand of the Government is not acceptable to the Petitioners in view of the language of Rule 12 and they in fact challenge the very appointment of Respondents Nos. 3 to 49 as Assistant District Attorneys on the ground that such appointment was not a "transfer" within the meaning of Sub -clause (ii) of Clause (c) of Sub -rule (2) of Rule 5 but amounted to promotion which was not envisaged by the said Clause (c). The prayer made by the Petitioners, therefore, is that the appointment of Respondents Nos. 3 to 49 as Assistant District Attorneys be quashed; that the Government and its concerned Director (who are Respondents Nos. 1 and 2 before me) be directed by a writ of mandamus to consider the claims of the Petitioners for appointment as District Attorneys before promoting any of Respondents Nos. 3 to 49 as such and that if any promotions are actually made otherwise, the same be quashed. The contention raised by learned Counsel for the Petitioners that the appointment of Respondents Nos. 3 to 49 as Assistant District Attorneys is vitiated by the contravention of Clause (c) above mentioned is without substance. The use of the word "transfer" occurring in Sub -clause (ii) of Clause (c) does not prohibit an appointment which may also operate as a promotion. If a lower category officer is transferred to a higher post in another Department, he would no doubt get a promotion but then it cannot be said that his appointment to the higher post is not by way of transfer. So long as the appointment satisfies the requirement that it amounts to a transfer it would fall within the ambit of Sub -clause (ii) of Clause (c) even though it may also partake of the character of promotion or may have other characteristics.
(3.) IN support of his contention, Mr. Gupta, learned Counsel for the Petitioners, has placed reliance on O.P. Malhotra v. State of Punjab and Ors., 1975 (2) SLWR 310. In that case, which was decided by the Supreme Court, Rule 9 of the relevant rules provided that the Government in special cases and after consulting the Public Service Commission could transfer an officer. already in the service of the Crown to the Punjab Service of Engineers, Buildings and Roads Branch. What the Government in that case did was to promote Assistant Engineers Class II in the Buildings and Roads Branch as Assistant Executive Engineers Class I. In holding that the promotions did not contain an element of transfer their Lordships observed: It is plain that Rule 9 refers to the transfer of an officer employed in some service of the Crown other than the Punjab Service of Engineers in the Buildings and Roads Branch. Obviously an officer employed in the Buildings and Roads Branch of the Punjab Service of Engineers cannot be transferred to the same branch where he is already working. Respondents 2 to 4 before they were appointed as Assistant Executive Engineers, Class I, had been employed as Assistant Engineers Class II in the Buildings and Roads Branch. Clearly, their appointments to higher posts in the Buildings and Roads Branch could not have been by way of transfer as contemplated in Rule 9.;