1. Heard learned counsel for the petitioner, State, private Respondents and the B.P.S.C.

2. The present writ application has been filed for quashing the joint gradation list as contained in Annexure-2 and consequential orders thereto.

3. Contention on behalf of the petitioner is that the Probation Officers and the Assistant Probation Officers were two different cadres. The mode of appointment was also different. Probation Officers were gazetted officers of the State Government with effect from 1981 as would be clear from notification as contained in Annexure-A.

4. According to learned counsel for the petitioner, in view of merger of cadre of the Probation Officer and the Assistant Probation Officer, the petitioner who was appointed directly on the recommendation of the B.P.S.C in the year 1990 is going to suffer as Assistant Probation Officers who were appointed earlier and promoted as Probation Officer from an earlier date now in the cadre have been placed above the petitioner. According to learned counsel, both the cadres could not have been merged as the petitioner and the cadre of Assistant Probation Officer are not equally situated and as such, two unequal cannot be made equal even the selection process is said to be different. According to learned counsel, their appointment is also made by the State whereas the Assistant Probation Officers are appointed departmentally.

5. Learned counsel for the State and the private Respondents, on the other hand, contend that the State has not acted arbitrarily rather the same has been done on the recommendation of the 4th Pay Revision Committee and the Fitment Committee, finding that the salary of the Probation Officer and the Assistant Probation Officer was one and the same. The State Government accepting the report of the Fitment Committee had ordered for the same and once the cadre has been merged as the petitioner and the private Respondents were discharging one and the same duty and drawing the same salary there was no prejudice to be caused to the petitioner as he had not even entered into service on the date of initial appointment of the Respondents rather they had not even entered service on the date when the Respondents were promoted as Probation Officer. Not being born in the cadre is not giving them any cause of action to challenge the action regarding a person who has entered the cadre much earlier. In this regard, section 13 of the Probation of Offenders Act, 1958 where Probation Officers are defined goes to show that who shall be the Probation Officer under the Act.

6. The aforesaid section is quoted hereinbelow:

"13. Probation Officers. (1) A probation officer under this Act shall be (a) a person appointed to be a probation officer by the State Government or recognised as such by the State Government; or

(b) A person provided for this purpose by a society recognised in this behalf by the State Government; or

(c) in any exceptional case, any other person who, in the opinion of this court, is fit to act as a probation officer in the special circumstances of the case.

(2) A court which passes an order under section 4 or the District Magistrate of the district in which the offender for the time being resides may, at any time, appoint any probation officer in the place of the person named in the supervision order.

Explanation.For the purposes of this section, a Presidency town shall be deemed to be a district and Chief Presidency Magistrate shall be deemed to be the District Magistrate of that district.

(3) A probation officer, in the exercise of his duties under this Act, shall be subject to the control of the District Magistrate of the district in which the offender for the time being resides."

7. Relying on the bare definition of the Probation Officer itself it has also been argued by the respondents that contention of the petitioner that he and persons similarly situated are only probation officer and no one else can be declared as probation officer should not be