Judgment

CHANDRACHUD, J. - This is a group of five appeals, one from Maharashtra and four from Gujarat. They involve substantially identical questions and since the appeal from the judgment of the Bombay High Court was argued as the main appeal, we will refer to the facts of that appeal and indicate at appropriate places if there is any material difference between those facts and the facts leading to the Gujarat appeals. Civil Appeal No. 1113 of 1974 from Maharashtra is by certificate granted by the High Court of Bombay under Art. 133 (1) (a) & (b) of the Constitution. Civil Appeals Nos. 242 and 285-287 of 1974 from Gujarat are also by certificate granted by the Gujarat High Court under Article 133 (1) of the Constitution.

2. Special Civil Application No. 815 of 1972 which has given rise to Civil Appeal No. 1113 of 1974 was disposed of by a Division Bench of the Bombay High Court by its judgment dated 15th, 16th and 17th January, 1974. The four Gujarat appeals arise out of Special Civil Applications Nos. 1099 of 1969, 422 of 1970 and 1418 of 1971 which were disposed of by a Full Bench of the Gujarat High Court by its judgment dated July 14, 1973.

3. The complexity of the questions involved in these appeals has been expressed by the Bombay High Court by saying that the writ petitions before it involved "ticklish and complicated questions" and by the Gujarat High Court by saying that though it had on many occasions to consider complex problems pertaining to service laws, there was "no case comparable" to the writ petitions filed before it in the instant case. The learned Chief Justice (Bhagwati, J.) who delivered the judgment of the Full Bench observes that these questions of "unrivalled complexity" has caused considerable anxiety to the Court in reaching a satisfactory conclusion. We share this anxiety which is further heightened by the diametrically opposite and entirely inconsistent stands taken by the State governments from time to time. Evidently, the State Governments did not know their own mind and being unable to take up a firm and consistent stand, they defended the various writ petitions filed against them by their employees according to the mood of the passing moment. That must be deprecated.

4. The appeals raise the familiar question of seniority in service, the competing groups being promotees on the one hand and direct recruits on the other to the posts of Deputy Engineers. The writ petitions were filed and defended by the rival groups in a representative capacity so that, our decision will bind not only the parties thereto but all others whom, under the relevant provisions of the Code of Civil Procedure, they were permitted to represent.

5. Taking the facts of the Maharashtra case the two appellants therein were initially recruited as Overseers in 1953 and were promoted temporarily as Deputy Engineers, in January 1959 and October, 1957 respectively. They were confirmed as Deputy Engineers after the coming into force of certain rules framed on February 19, 1970. The 1st respondent to the appeal is the State of Maharashtra. The 2nd and 3rd respondents were appointed directly on probation as Deputy Engineers. They are Engineering Graduates but so are the appellants. Respondents 2 and 3 qualified for direct appointment after passing a competitive examination in 1963 and 1959 respectively. They were confirmed two years later, in 1965 and 1961 respectively.

6. The grievance of the appellants is that notwithstanding the length of their continuous service as Deputy Engineers since 1959 and 1957, respondents 2 and 3 were shown as senior to them in the cadre of Deputy Engineers though they were appointed later in 1963 and 1959 respectively. The appellants claim that their seniority should have been fixed under the rules framed by the then Government of Bombay on November 21, 1941 as clarified by the Chief Secretary to that Government by his letter dated January 11, 1949. According to them the rules framed by the Maharashtra Gover