Judgment

SARKARIA, J. :- This appeal by special leave by the State is directed against the judgment and order, dated November 24, 1970, of the High Court of Gujarat allowing a writ petition of (1) C. G. Desai, (2) B. L. Joshi, and (3) H. N. Shah filed under Article 226 of the Constitution. The material facts are not in dispute and may not be stated:

Respondent No. 1 herein (original petitioner No. 1) was officiating as Deputy Engineer since May 16, 1955, in the P.W.D. Department of the then State of Bombay and he continued in service as such until on December 3, 1959, he was selected and appointed as a result of the competitive examination held by the Public Service Commission, to a post in B.S.E. Class II Service. Under the Engineering Service Rules, 1960 (hereinafter called 1960 Rules), a direct recruit is required to undergo training for a period not exceeding one year and thereafter to work on probation as in-charge of a Sub-Division for a further period of one year. Since Respondent No. 1 had already worked as officiating Deputy Engineer, the initial period of one year s training in his case was dispensed with and he was directly placed in-charge of a Sub-Division. On completion of his two years probation he was confirmed as Deputy Engineer in Class II with effect from December 3, 1961. Sometime in June, 1961, a Committee appointed by the State Government prepared a select list of Deputy Engineers for promotion as officiating Executive Engineers; but the case of Respondent No. 1 was not considered for the reason that he had not put in 7 years (reduced to 6 years in 1961) service requisite under Rule 7 (ii) for such promotion (hereinafter, for short, called eligibility service ). The Government s stand was that in the case of Deputy Engineers directly recruited through a competitive examination held by the Public Service Commission, service, if any, rendered by then as officiating Deputy Engineers prior to their appointment to Class II (hereinafter called pre-selection service ) could not be taken into account, in computing their eligibility service. The case of Respondent No. 1 herein was that this stand of the Government was wrong and, under the relevant Rules his pre-selection service (from 16-5-1955 to 2-12-1959) as officiating Deputy Engineer had to be tacked on to his post-election service for calculating the requisite period of his eligibility service. When the next select list was prepared in the year 1963, Respondent No. 1 was included in that list and, in consequence, promoted as officiating Executive Engineer. Since then he has been working as such in the promoted rank.

2. Respondents Nos 2 and 3 herein (original petitioners Nos. 2 and 3) were promoted as Deputy Engineers on July 8, 1957, and September 28, 1957, respectively. They continued to work in that capacity till December 3, 1959, when they, too like Respondent No. 1, were directly recruited as Deputy Engineers in Class II Service as a result of the competitive examination held by the Public Service Commission. On Completion of their probationary period of two years, they were confirmed as Deputy Engineers on December 3, 1961. In their case, also, the Government did not count their pre-selection service from July 8, 1957 to December 3, 1959 for computing their eligibility service, for further promotion; and, in consequence, they were also not considered eligible for selection at the time of the preparation of the select-lists of 1961, 1963 and for the subsequent years upto 1966. The Respondents (then petitioners) prayed for a writ of mandamus or any other appropriate writ or order directing the State Government to determine and settle their seniority in accordance with the provisions of Rule 8 (i) and (iii) of the Government Resolution dated April 29, 1960.

3. The main ground taken in the petition before the High Court, was, that the action of the Government in excluding from computation the service rendered by the Respondents as officiating Deputy Engineer