Judgment

KULDIP SINGH, J.:- The question for our consideration in these appeals is whether by an executive order the Bihar State Government can merge the cadre of District Engineers which is a part of "Rural Engineering Organisation" with the cadre of Executive Engineers governed by statutory rules called the Bihar Engineering Service Rules, 1939 (hereinafter called the 1939 Rules).

2. Necessary facts to determine the above question are as under:-

The cadre of District Engineers was created by the erstwhile District Boards in the State of Bihar. The recruitment and conditions of service of the said cadre were governed by the Government District Engineers Service Rules, 1957 (hereinafter called the 1957 rules) which were framed under the Mar and Orissa Local Self Government Act, 1885 (hereinafter called the Act). Apart from the District Engineers, a Rural Engineering Cell of the Public Works Department was also functioning in the rural areas. Bihar Government by an order dated February 9, 1965, integrated the two into one organisation called "Rural Engineering Organisation" (hereinafter called REO).

3. The REO was an entirely new department headed by a Chief Engineer with the powers of inspector of local works under the Act. Two posts of Superintendent Engineers, 19 posts of District Engineers and number of other subordinate posts were created under the Chief Engineer. In the new set up the cadre of District Engineers created under the 1957 Rules became almost extinct and assumed a new shape under the REO.

4. On the other hand, the cadre of Executive Engineer in Bihar Public Works Department was governed by the 1939 Rules. Rule 4 thereof is as under:

"4. Sources of recruitment - Recruitment to the service shall be made-

(i) by direct recruitment, and

(ii) by promotion from the Bihar Engineering Service, Class 11 ..........

5. The Bihar Government by a Memorandum dated February 18, 1977, decided to merge the cadre of District Engineers belonging to the REO with the cadre of Executive Engineers of the Public Works Department. The operative part of the order is as under:

"Therefore, in the public interest, the Government has decided that the cadre of the District Engineers be merged with the equivalent/parallel cadre of Executive Engineers of Public Works Department."

6. Vinay Kumar Verma and others, who were working as Assistant Engineers in the Bihar Engineering Service, Class II, challenged the abovementioned merger order before the Patna High Court on the following grounds:

(i) Under the 1939 Rules Assistant Engineers are eligible for promotion to the posts of Executive Engineers. By merging the cadres, the chance of promotion of the Assistant Engineers are likely to be adversely affected and as such merger order is arbitrary and is liable to be quashed.

(ii) That the District Engineers service was constituted under the 1957 Rules framed by the State Government in exercise of the powers under Sections 36(a) to 36(f) of the Act. The Cadre of Executive Engineers in the Public Works Department was created by the 1939 Rules. The two cadres having been created under their respective statutory rules, the same cannot be merged by an executive order. The composition of cadres created by the statutory rules cannot be changed by an executive order.

(iii) Under Rules 4(i) and 4(ii) of the 1939 Rules, recruitment to the cadre of Executive Engineers can only be by direct recruitment and by way of promotion. The merger of the District Engineers cadre with the Executive Engineers is thus contrary to the 1939 Rules and as such cannot be sustained.

7. The High Court found that the chances of promotion of the Assistant Engieers were in no way adversely affected by the merger as the District Engineers came to the cadre of Executive Engineers along with their posts. The High Court further held that under, Assistant Engineers who were in the lower cadre could not challenge the merger specially when the same did not affect their rights in any manner.

8. On the ot