Judgment

DESAI, J. :- Chagrined by the failure of the attempt to pressurise junior engineers to boycott the examination and further irritated by the holding of the examination the appellants have knocked at the doors of this Court, putting forth utterly unsustainable contentions.

2. Appellants are junior engineers in the Telegraph Wing of the Post & Telegraph Department. The next avenue of promotion for a Junior Engineer is the post of Assistant Engineer. Promotions were governed by Telegraphic Engineering Service (Class II) Recruitment Rules, 1966 (1966 Rules for short). By these rules Telegraphic Engineering Service (Class II) was formed. The Rules were to apply to posts as specified in Clause (1) of the Schedule which specified the. post of Assistant Engineer and other equivalent posts having allied designations. Clause (1) in Appendix I to the 1966 Rules provides that recruitment to the service shall be entirely by promotion on the basis of selection of Junior Engineers through a qualifying departmental examination. An approved list shall be prepared by a duly constituted Departmental Promotion Committee, by selection from amongst the officials who qualify in the departmental examination. Sub-clause (4) provided that the departmental qualifying examination shall be open to Junior Engineers who fulfill amongst others, the condition specified therein, It reads as under :

"Those recruited and absorbed in that grade against the vacancies of a year, ordinarily, not less than five years prior to the year of announcement of the said examination."

These Rules were in force till superseded by Telegraphic Engineering Service (Group B Posts) Recruitment Rules, 1981 (1981 Rules for short ) enacted in exercise of the power conferred by the proviso to Article 309 of the Constitution with effect from May 7, 1981. The controversy centers round-the Note appended to sub-clause (4) of Appendix I of 1981 Rules which reads as under :

"4. There shall be normally one examination, consisting of two parts called Qualifying-cum-Competitive Examination for promotion to the Service and shall be held at least once in a calendar year in the manner and in accordance .with the syllabus prescribed in Appendix III to these rules.

Note : After the commencement of these rules, the first two examinations shall only be competitive for which the eligibility shall be restricted to only those officers who have already qualified in the Departmental Qualifying Examination held before the commencement of these rules."

3. Appellants were recruited as Junior Engineers in the year 1973. In other words,, they belong to 1973 batch. Their grievance is that they have completed five years of service which conferred on them eligibility to appear at an examination which was to be held under 1966 Rules. 1966 Rules contemplated only one examination styled as Qualifying Departmental Examination. 1981 Rules which superseded 1966 Rules provide for one examination to be held in two parts namely Qualifying Examination and Competitive Examination. Before one is permitted to take a Competitive Examination he had to clear Qualifying Examination. In short, if one has not qualified at the Qualifying Examination he cannot take the Competitive Examination. The appellants grievance is that from 1973 to 1982 or to be specific after 1978 when they became eligible to take qualifying examination no qualifying examination was held till May 7, 1981 when 1966 Rules were superseded by 1981 Rules which introduced the concept of competitive examination which could alone be taken after qualifying the qualifying examination and for a period of two years as per the Note appended to clause(4) qualifying examination was not to be held. The contention is that this is an invidious manner of denying them the opportunity to take the examination and thereby deny them equality of opportunity in the matter of promotion.

4. Appellants accordingly filed O.P. No. 5714/81 under Art. 226 of the Constitution in the High Court