Judgement

B.C. RAY, J. :- These appeals by special leave are against the common judgment and order dated 14-1-1982 quashing the seniority list in the cadre of Assistant Engineers in the United Provinces (Buildings and Roads Branch) Class II prepared on 29-7-1980 and 18-12-1980 with 19-12-1980. A writ of mandamus was also issued to the State Government for preparation of fresh seniority list in respect of Assistant Engineers in the Civil Engineering Wing and Electrical and Mechanical Wing respectively in accordance with the guidelines mentioned in the said judgment. The facts giving rise to these writ petitions are in brief as follows :-

Previously Public Health Department as well as the Irrigation Department of the Government of Uttar Pradesh were integrated into Public Works Department comprising both these two branches. In 1922 Irrigation branch was separated into a different independent department. Similarly, in 1927 Public Health Department was separated. In 1936 U.P. Service of Engineers Class II Rules (Buildings and Roads Branch) pertaining to P.W.D. were framed in exercise of powers conferred under the Government of India Act. Identical rules also governed the Irrigation Department. Before entering into the controversy that has been raised in the instant appeal it is appropriate to refer to the relevant provisions of the said rules. Rule 3(b) defines Member of the Service as a Government servant appointed in substantive capacity, under the provisions of these rules or of rules in force previous to the introduction in the cadres of the service. Clause (c) defines Direct recruitment or direct appointment as recruitment or appointment in the manner prescribed in R. 5(i), (ii) and (iii) of these rules. In R. 4 which is captioned as Strength of Cadre it is mentioned in Cl. (ii) of the said rule that the Government may increase the cadre by creating permanent or temporary posts from time to time as may be found necessary. Rule 5 lays down five sources of recruitment :

(i) by direct appointment from amongst engineer students who have passed out of Thomson Civil Engineering College, Roorkee, and who have completed a course of training in the Buildings and Roads Branch as engineer students after consulting the Public Service Commission;

(ii) by the appointment after (sic) advertisement and after consulting the Public Service Commission;

(iii) by the appointment of officers in the temporary service of the United Provinces Public Works Department, Buildings and Roads Branch, after consulting the Public Service Commission, Provided that it will not be necessary to consult the Commission in the case of appointment of a temporary officer to a permanent vacancy if he has already been appointed to a temporary post in the cadre of service after consultation with the Commission;

(iv) by promotion of members of the United Provinces Subordinate Engineering Service in the Public Works Department, Buildings and Roads Branch, who have shown exceptional merits;

(v) by promotion of computers in the Public Works Department, Buildings and Roads Branch, who have shown exceptional merit and who are technically qualified.

2. It has been specifically provided in R. 6 that the Government will decide in each case the source from which a vacancy shall be filled up provided that 25 of the vacancies shall be reserved for selected qualified members of the subordinate Engineering Service and computers. It thus provides that barring 25 of the vacancies to be filled by promotion from Engineering subordinate services and computers, the remaining 75 of the vacancies are to be filled up by direct recruitment as provided in sub-cls. (ii) and (iii) of R. 5.

3. Rule 17 which is termed as Probation specifically provides that all persons appointed to the service, who are not already in the permanent employ of the Buildings and Roads Branch of the United Provinces Government, shall be placed on probation for four years, provided that such of them as have undergone training