H.R. Sodhi, J. - (1.) THIS writ petition has come up before us on a reference made by a learned Single Judge of this Court who after considering the various contentions raised by the learned Counsel for the parties was of the view that it involved some legal points and should preferably be disposed of by a Division Bench.
(2.) THE Petitioner is Pritpal Singh Sanghera officiating Superintending Engineer, who was appointed as such by an order of the State Government, during the time of the last popular ministry, passed on 17th May, 1968, and filed as annexure 'A' with the writ petition. The appointment was made against a newly created post. The Petitioner originally joined service in October, 1957 after passing his B. Sc. (Civil Engineering) from the Punjab University as Sub -Divisional Officer in Class II of the service of Engineers. He was promoted as officiating Executive Engineer in February, 1958, and appointed to Class I of the service of Engineers in the year 1961. Recruitment to this service and promotions therein are regulated by the Punjab Service of Engineers, Class I, P.W.D. (Buildings and Roads Branch) Rules, 1960, hereinafter called the Rules. The method of recruitment to the service as envisaged in Rule 5 is by direct appointment, by transfer of an officer already in service of a State Government or of the Union, and, by promotion from Class II Service. Qualifications to make a person eligible for appointment to Class I Service are given in Rule 6 read with Appendix 'B' of the Rules. Rule 6 along with the relevant part of the appendix is reproduced below in extenso: 6. Qualifications. - -No person shall be appointed to the Service, unless he - - (a) possesses one of the University Degrees or other qualifications prescribed in Appendix B of these rules: Provided that Government may waive this qualification in the case of a particular officer belonging to Class II Service; (b) in the case of an appointment by promotion from Class II Service has 8 years completed service, in that class and has passed the departmental examination, as provided in Rule 15; (c) being a person to be appointed to the Service by direct recruitment, obtain from the Standing Medical Board a certificate of mental and physical fitness after being examined in accordance with the regulations prescribed in Appendix C and is considered by the Medical Authority to be fit in all respects for active outdoor duties; (d) is a person with a satisfactory character and antecedents, verification in respect of which shall be arranged through appropriate Government Agency, except in cases where such verification may have already been made at the time of his entry into Government Service; (e) has not more than one wife living or, in the case of a woman, is not married to a person already have a wife living: Provided that Government may, if satisfied that there are special grounds for doing so, exempt any person from the operation of this condition. APPENDIX 'B' (See Rule 6) A. Punjab University B . Sc. (Engg.) degree in Civil, Mechanical or Electrical. Agra University B . Sc. in Electrical or Mechanical Engineering from June, 1954. Aligarh University B . Sc. (Engg.) from 1948; also degree prior to 194S after a full three years' course. Andhra University.. B.E., Civil Mechanical or Electrical from 1950. * * * * * * * All -India Council of Technical Education - -National Diploma in Civil, Mechanical or Electrical Engineering. * * * * * * * Parts 'A' and 'B' of the Associate Membership Examination of the Institution of the Engineers (India) Civil, Mechanical or Electrical. (B. Sc. Engineering Degree or its equivalent in Civil, Mechanical or Electrical of any University.) Foreign Universities. B. Must have passed any of the following: (1) The examination for the Diploma or Farady House, London. (2) The examination for such Degree and Diploma as entitle their holders to exemption from sections 'A' and 'B* of the Associate membership examinations of the Institutions of Civil, Mechanical and Electrical Engineers, London. ******* (10) B. Sc. (Internal Degree) in Engineering ordinary or with Honours (not including the B, Sc. in Engineering (Mining) or the B. Sc. in Engineering (Metallurgy) of London University). The external Degree is also accepted to the same extent, provided it is recognized by the Institution of Civil Engineers as exempting from sections 'A' and *B' of the A.M.I.C.E: Examination: * * * * * * C. The examination for such other Diploma or distinction in Engineering as the Government of Punjab in the concerned Department on the advice of the Punjab Public Service Commission may specify in this behalf. * * * * * * * Rajinder Nath, Respondent No. 3, on obtaining the degree of B. Sc, Engineering from Aligarh University in the year 1946, joined Government service as a temporary Assistant Engineer in the year 1948 in Public Works Department (Buildings and Roads Branch) on a selection by the Punjab Public Service Commission. He was confirmed in P.S.E. Class II on 1st January, 1956 and was appointed as officiating Executive Engineer with effect from 4th October, 1956, He was appointed to Class I service in the year 1960. By Government notification No. 11993 -B&RII (2) -60/15481, dated 23rd May, 1961, the Petitioner and the Respondent No. 3 were appointed as Executive Engineers in the senior scale of P.S.E. Class I Public Works Department (Buildings and Roads Branch). In the order of seniority, Respondent No. 3 was shown at number 12 whereas the Petitioner at number 18. There was then another notification issued on 16th November, 1963. copy whereof is appended as annexure R.3/A, in which dates of appointment of the various officers were specified in order to fix their seniority. By this notification, appointment of some officers had been made in relaxation of rules 6(a) and 6(b) but no mention was made therein of Respondent No. 3 implying thereby that the Government did not think that any relaxation was necessary to be made in his case under proviso to Rule 6. In other words, he was deemed to be possessed of necessary qualifications as required by the Rules. There is no dispute that the Respondent is senior to the Petitioner and it has been conceded by the learned Counsel for the parties that the service record of both the contesting officers is without any blemish so as to make it difficult for either of them to contend as to which officer possess more merit. It appears that somewhere in the end of the year 1967, there was some sort of proposal to appoint a Superintending Engineer, by selection. The Petitioner and one N. S. Sodhi, both Executive Engineers, seemed to believe that Respondent No. 3 might be selected because of his seniority -cum -merit. They put in a representation in advance to guard against the possible selection of this Respondent as Superintending Engineer, and alleged that the Respondent and one D. V. Sahney did not possess the requisite qualifications as provided in Rule 6(a) of the Rules. It was stated by them that the Respondent who was a graduate from Aligarh University had not completed full three years course as referred to in Appendix 'B' to Rule 6, prior to obtaining his B. Sc. Degree and was not, therefore, eligible for appointment to the service and consequently fox appointment as Superintending Engineer. It was also mentioned in their representation that the appointment of Shri Sahney and the Respondent as members of P.S.E. Class I was irregular inasmuch as no relaxation had been made by the Government in their cases under proviso to Rule 8 though it had been done in some other cases where the officers did not possess the requisite qualifications. We have looked into the original file produced by the Department and find that this representation was processessed in the office. Advice obtained but the Minister concerned did not accept the same and took the view that the Respondent was not eligible for selection as Superintending Engineer since he was not possessed of the requisite academic qualifications is terms of the Appendix 'B' and no relaxation had been made by the Government in his case at the time of his initial appointment to the Service, The Chief Minister approved of the action taken by the Minister, The Petitioner was, then selected as an officiating Superintending Engineer by an order made on 17th May, 1968 on the ground that the Respondent was not eligible to hold the post of Superintending Engineer because the latter had obtained the degree from Aligarh University prior to the year 1948 without undergoing full three years course. As a matter of fact, the Respondent was senior to the Petitioner. On coming to know of his supersession on the basis of his ineligibility because of the alleged want of necessary academic qualifications, Respondent No. 3 submitted a representation on 4th June, 1968 to the Government. It remained pending with the Ministry till ultimately the Chief Minister returned the file on 24th August, 1968 because of his having resigned from the office. This representation was ultimately considered by the Governor with the aid of his advisors. It may, however, be stated that before the representation of Respondent No. 3 could finally be disposed of, the Petitioner had also sent his representation pointing out that the Respondent was not possessed of necessary academic qualifications and had been rightly passed over for selection to the post of Superintending Engineer. The Governor decided both the representations, upholding the contention of Respondent No. 3 and rejecting that of the Petitioner.
(3.) IT was decided by the Government that on the acceptance of the representation of Respondent No. 3, the Petitioner was to revert to his original substantive post of Executive Engineer. No formal final order had actually been issued when on coming to know the acceptance of the representation and the decision of the Government to revert him to his substantive post, the Petitioner filed this writ petition on 16th September, 1968. A notice of motion was issued for 30th September, 1968 and after hearing the Advocate -General who appeared for Respondent Nos. 1 and 2, rule nisi was issued, returnable on 22nd October, 1968. The temporary reversion of the Petitioner was, however, ordered to be stayed till the decision of the "writ -petition.;