JUDGMENT

Kuldip Singh, J.

1. Junior Engineers and Assistant Engineers working in the Electrical and Mechanical wings of the Public Works Department in the State of Uttar Pradesh, are involved in this litigation. The State Government held selection for promotions to the cadre of Assistant Engineers from amongst the Junior Engineers. The selection was challenged by way of several writ petitions before the Lucknow Bench of the Allahabad High Court. A Division Bench of the High Court allowed the bunch-petitions by its judgment dated August 3, 1984 and quashed the select list notified by the office memorandum dated November 5, 1983. These appeals and the connected matters are directed against the judgment of the High Court.

2. We may briefly notice the facts necessary to resolve the controversy. Building and Roads, Electrical, and Mechanical are the three branches of the Public Works Department to which the Junior Engineers and the Assistant Engineers are appointed. There are no statutory service rules regulating the recruitment and conditions of service of persons appointed to the Electrical and Mechanical branches. However, the Building and Roads branch governed by the rules called The United Provinces Service of Engineers (building and roads branch) Class II Rules, 1936 (the

1936 Rules) framed under the Government of India Act, 1935. It is not disputed that the 1936 Rules, though not applicable in terms to Electrical and Mechanical branches, have always been applied mutatis mutandis to these branches as well. The 1936 Rules lay down three eligibility conditions for a Junior Engineer to be considered for promotion to the post of Assistant Engineer. These are: the candidate should (1) be confirmed Junior Engineer; (2) be A.M.I.E.IB.E. or have passed the qualifying examination prescribed by the Government and (3) have 10 years experience of service on the post of Junior Engineer.

3. The Government Order dated December 3, 1964 further prescribes rules for the qualifying examination in respect of Electrical/Mechanical subordinates for promotion to the post of Assistant Engineer (Electrical/Mechanical). These rules, as amended from time to time, provide that the examination shall be held every alternate year to enable the members of the subordinate electrical engineering (Electrical overseers) service and the subordinate mechanical engineering (Mechanical overseers) service to qualify for promotion to the post of Assistant Engineer (Electrical and Mechanical). The rules also provide the list of subjects in which the candidates are to be examined and the marks to be obtained for qualifying the examination. The rules further provide that all permanent members of the respective subordinate services, who have completed a total of not less than 10 years, including temporary or officiating service, are eligible to appear in the examination. Although the Government Order dated December 3, 1964 states "that the Governor is pleased to make the enclosed rules for the qualifying examination of the members

... " but since these rules have not been framed under Article 309 of the Constitution of India they are only executive instructions laying down the procedure and eligibility for the qualifying examination in respect ofthe two subordinate services in the Electrical and Mechanical branches of the Public Works Department. These executive instructions, however, clearly show that the Government was uniformly applying the eligibility criteria of 10 years service as Junior Engineer, for promotion to the post of Assistant Engineer, in respect of all the three branches of the Public Work Department.

4. The State Government issued office memorandum dated January 7,1980, (the memorandum) which is the bone of contention between the parties. The said memorandum as reproduced in the impugned judgment of the High Court reads as under:

"The following conditions of eligibility have hither to been required for promotion from the post of Junior Engineer to the p