M.A. Moqeem vs The State of Mysore and Others

A. Narayana Pai, J.—M.A. Moqeem, the Petitioner in Writ Petitions. Nos. 734 and 767 of 1961, M.C. Bastavala, the Petitioner in Writ Petition No. 1451 of 1961 and Iftikar Ahmed, the Second Respondent in each of Writ Petitions Nos. 734 and 1451 of 1961, were (Engineers in the Public Works Department of the erstwhile State of Hyderabad who, consequent upon the Reorganisation of States under the States Reorganisation Apt 37 of 1956, became allotted to the new State of Mysore set up under that Act. Likewise, Nagdum, the third Respondent in each of Writ petitions Nos. 734 and 1451 of 1961 and L.T. Aminbhavi, the fourth Respondent in Writ Petition. No. 1451 of 1961 were Engineers in the Public Works Department of the State of Bombay as it existed at the time of the reorganisation of States, who became allotted to the new State of Mysore. All these were in the cadre of Executive Engineers, and all except Iftikar Ahmed continued to be in that cadre and held posts in that cadre on 1-11-56, the appointed day for the reorganisation of States. They were allotted as such to the new State of Mysore. Iftikar Ahmed, however, had been promoted by the Government of the erstwhile State of Hyderabad as Superintending Engineer by an order dated 5th October 1956.

We do not have on record any list of persons who stood provisionally allotted to the new State of Mysore. But, there can be no doubt in the case of the persons named above that they did stand provisionally allotted to the new State of Mysore by virtue of the provisions of Sub-section (2) of Section 115 of the States Reorganization Act. We have, however a copy of the order dated 22nd February 1960 notified in the Mysore Gazette dated 22nd April 1960, of the Central Government in its Ministry of Home Affairs under Sub-section (3) of Section 115 setting out a list of officers finally allotted to serve in connection with the affairs of the new State of Mysore. The order is Ex. A and the list Ex. A-l in "Writ Petition No. 734 of 1961. The first eight names in that list are:

T.S. Murthy ... ... Chief Engineer.

Faryhatulluh ... ... Superintending Engineer.

Subhan Khan ... ... do

Rahamatullah ... ... do

S.V.G. Iyengar ... Executive Engineer Class I (Senior Scale)

M.C. Bastawala ... Executive Engineer (Senior Scale)

Abdul Moqeem ... do

Iftekar Ahmed ... do

The Respondent-State Government has also produced a Notification of the Central Government dated 7-10-1961 under the heading "Errata" setting out corrections of certain errors in the schedule or list annexed to their previous order of 22nd February1960. Among the corrections, one that is of relevance to the present case is that by which the name of Iftikar Ahmed was deleted from the place it had occupied in the list of Executive Engineers and was inserted in the list of Superintending Engineers immediately below the name of Rahamutaullah and above the name of S.V.G. Iyengar.

Moqeem had gone on long leave even before the reorganisation of States from 26-7-1956. He returned from leave only in October 1958. On the 6th of that month he made an application to the ''State Government indicating his desire to join duty; (after getting him examined by a Board of Doctors on 7-11-1958, he was treated as having joined duty with effect from 8-11-1958.

A provisional Inter-State Seniority List of Officers of the Public Works Department in Classes I and II Services dated 22nd March 1957 was published by the State Government of Mysore in the Mysore Gazette dated 18th April 1957. That list was prepared in five parts, of which Part I contained the names of Officers included in the cadres of Chief Engineers and Superintending Engineers, and Part II of Officers included in the cadre of Executive Engineers. The name of Iftikar Ahmed was the last name at Serial No. 19 in Part I. Those of Bastavala, Moqeem, Magdum and Aminbhavi appeared at Serial Nos. 3, 7, 8 and 10 respectively in Part II.

Thereafter, Bastavala, Magdum and Aminbhavi were posted to the charge of Superintending Engineers in different Circles. They so took charge on 6-11-1957, 10-12-1957 and 16-12-1957 respectively. On 4-4-1958, the Government of Mysore published a Notification No. P.W.D. 490 E W G 57 stating that Executive Engineers of Public Works Department enumerated in that Notification are promoted to officiate until further orders as Superintending Engineers with effect from the dates from which they have been continuously in charge of the respective circles. Of the nine persons named therein, Magdum, Aminbhavi and Bastavala appeared at Serial Nos. 2, 3 and 4. The Notification proceeded to state:

The promotions are provisional pending finalisation of the Inter-State Seniority List. On promotion, the Officers are continued in the Circles or posts noted against their names. The seniority inter se of the above Superintending Engineers will be provisional according to the order of names mentioned above.

Moqeem was promoted on 7-1-1960 as Superintending Engineer.

On 13-8-1960, the Government prepared what they call a final Inter-State Seniority List and published the same in the Mysore Gazette on 25-8-1960. In the said list, the ranking of the parties in these Writ petitions was altered. Magdum and Aminbhavi were taken up and assigned the third and the fourth ranks respectively. Bastavala stood at No. 5 and Moqeem at No. 9.

On 15-9-1960, one Sachdev filed Writ Petition No. 1127 of 1960 before this Court impugning the said final list. On 14-3-1961, this Court made an order quashing the integration so made by the State on 13-8-1960 following the decision in Writ Petition No. 511 of 1960. The judgment in the said Writ Petition No. 511 of 1960 is reported In Jaleel v. State of Mysore, AIR 1961 Mys 210.

Iftikar Ahmed was later promoted by the Government of Mysore as Chief Engineer on 20-6-1961.

On l1-7-1961, Moqeem filed the first of the Writ petitions now under consideration, viz., Writ Petition No. 734 of 1961, impleading as Respondents thereto the State of Mysore, Iftikar Ahmed and Magdum. In the affidavit in support of the said Writ Petition, lie sets out two principal grievances by reason of the promotion by the Government of the erstwhile State of Hyderabad of Iftikar Ahmed as Superintending Engineer on 5-10-1956 and the promotion of Magdum by the State Government of Mysore as Superintending Engineer on 10-12-1957. Regarding Iftikar Ahmed, his case is that the promotion on 5-10-1956 had been made by the Government of the erstwhile State of Hyderabad a contravention of what are described as directions of the Central Government u/s 117 of the States Reorganisation Act. He also relies upon the fact that Iftikar Ahmed''s name appeared next after his own in the final allotment list prepared by the Central Government in February 1960 already referred to, as indicating that the Central Government had refused to recognise the said promotion of Iftikar Ahmed. Regarding Magdum, the Petitioner Moqeem''s claim is that at the time Magdum who was next after him in rank according to the provisional Inter-State Seniority List was promoted, he the "Petitioner should have been promoted. The fact that he was at that time on long leave should have made no difference to the position according to the Petitioner, because he, should have been given the benefit of a pro forma officiating promotion under the provisions of Rule 60 of the Mysore Civil Services Rules referred to as the -"Next below Rule".

At any rate, when he was actually promoted in January 1960, the Petitioner claims that his proper ranking and pay should have been restored to him. His proper ranking according to him must be not only above Magdum as originally set out in the provisional Inter-State Seniority List but also above Iftikar Ahmed as indicated in the Central Government''s final allotment list of February 1960. For the same .reason he complains not only that the final Inter-State Seniority List would operate to his prejudice but also that the promotion of Iftikar Ahmed as Chief Engineer on 20th June 1961 was illegal and to his prejudice. He prays therefore (1) that the final Inter-State Seniority List of 113-8-1960 be quashed, (2) that the promotion of Iftikar Ahmed as Chief Engineer on 20-6-1961 be quashed and (3) that his ranking be fixed as Superintending Engineer as from 5-10-1956 on which date Iftikar Ahmed had been promoted by the Government of the erstwhile State of Hyderabad or alternatively, as Superintending Engineer on 10-12-1957 on which date Magdum was so promoted in preference to him.

Before filing the said Writ Petition, the Petitioner appears to have made certain representations to the Government making claims of the same nature as he has made in this Writ Petition. With ''reference to his claim to the benefit of the "Next below Rule", the Government wrote a demi-official letter to the Chief Engineer, Hydro-Electric Construction Projects on 5th July 1961. A copy thereof which was forwarded to the Petitioner Moqeem ''was received by him shortly after tiling the above Writ Petition. The decision of the Government as set out in that letter was to the effect that the "Next below Rule" could not apply to officers on long leave or to officers who have been specifically passed over by their juniors on the ground that they were not suitable for promotion to higher grades. The Government proceeded to state that in the case of Moqeem, his juniors were promoted as Superintending Engineers when he was on long leave on medical grounds and that even after he returned from leave, the question of his promotion was considered by the Government and he was passed over as not suitable for promotion in view of his unsatisfactory record.

Thereupon, Moqeem filed the second of his Writ Petitions, viz., Writ Petn., No. 767 of 1961 impleading the State Government as the sole Respondent therein, and praying that the decision of the Government set out in the letter dated 5th July l961 be quashed, and that the Respondent State Government be directed that he must he deemed to have been promoted as Superintending Engineer from 10th December 1957 when his immediate Junior Magdum had actually been promoted. In the affidavit in support of this writ petition, Moqeem complains that there was no justification whatever to promote his juniors in preference to him and that withholding of promotion was a penalty and could not therefore have been inflicted without his having been afforded an opportunity to show cause against the proposed penalty. Though he admitted that there were confidential records against him that he was slack in work, there were subsequent reports made in 1954 to the effect that he had since shown definite improvement and taken interest in his work. Later, in his reply affidavit, filed in Writ Petition No. 734 of 1961, he made the claim that he could not be condemned by vague allegations that he had a mediocre record of service when he had not been served with any report of adverse comment or given any opportunity of having his say in the matter.

The defence taken up by the State Government in both these Writ Petitions is common or the same and is briefly as follows:

They contend that it is not open to Moqeem to question the promotion of Iftikar Ahmed as Superintending Engineer on 5-10-1956 made by the Government of the erstwhile State of Hyderabad. They; state that the name of Iftikar Ahmed was shown as Executive Engineer next after Moqeem in the Central Government''s allotment list of February 1960 by mistake and that the said mistake had since been corrected by the Central Government in its subsequent'' notification of October 1961. They further claim that in the erstwhile State of Hyderabad, the post of Superintending Engineer was a selection post and that it is therefore not open to Moqeem to claim promotion thereto as of right on the ground of seniority alone. The State Government deny that there was any direction by the Central Government binding on the State Governments prohibiting the latter from making promotions or that the actual promotion of Iftikar Ahmed had been made with a deliberate intention of giving him any unfair advantage over his colleagues in the cadre of Executive Engineers.

Regarding the claim of Moqeem that he should have been promoted as Superintending Engineer on 10-12-1957 when Magdum was actually promoted as Superintending Engineer, the State Government contend that no civil servant can claim promotion as of right. Explaining their omission to promote Moqeem in the. ordinary course the State Government say firstly that when, promotions became necessary during the period Moqeem was on long leave they had to pass him over for the reason that it was not known when he would return from leave or report to duty and secondly that (when the question of his promotion was taken) up for consideration after he joined duty, the Government found that his record of service as received'' from the State of Hyderabad showed that he was of a mediocre character and Unsatisfactory and that therefore the State Government watched his work for some time in his capacity as Executive Engineer before he could be considered for promotion to the rank of Superintending Engineer. According to the State Government, it was only after such consideration that the Government .ultimately promoted him as Superintending Engineer in January 1960. They repudiated the claim of Moqeem to the benefit of the "next below Rule" and contend that the Rule itself does not require that any officer should as a matter of course be promoted to next higher rank irrespective of suitability or fitness for promotion.

Regarding the ranking of the Petitioner, the Government state that when the Provisional Inter-State Seniority List was prepared in 1957, full information was not available, that on an examination of fuller information subsequently gatherer and on a consideration of objections and representations preferred by Aminbhavi and other officers it. Was found necessary to take Aminbhavi to a higher position in the gradation list and that having regard to the fact that Magdum had in Bombay State at all times been regarded as senior to Aminbhavi, the said Magdum had to be placed one place above Aminbhavi. The Government also claim that the revision of ranking as set out in the provisional Inter-State Seniority List had not been made by the Government in a haphazard manner or on a consideration of only a few individual cases but upon a comprehensive consideration of all objections preferred by various persons affected by the provisional list.

According to State Government, although the final list of August 1960 had been quashed by this Court in Writ Petition No., 1127 of 1960 (Mys.), this Court did not go into the merits of the ranking, and the effect of the order of this Court was no more than to quash that list only in so far as it purported to have been made in exercise of the power of making final integration of services which the State Government did not but the Central Government alone possesses. It is therefore contended that although as a final integration the list may not be effective or operative, it was nevertheless available to the State Government as a just and reasonable basis for making interim promotions, postings, etc., in the ordinary exercise of its executive power.

The third and last Writ Petition under consideration, viz., Writ Petition No. 1451 of 1961, was filed by Bastavala on 23rd November 1960. The Respondents thereto are the State Government, Iftikar Ahmed, Magdum and Aminbhavi. His prayers are to quash the appointment of Iftikar Ahmed as Chief Engineer by the State Government of Mysore on 20-6-1961, to restrain the State Government from promoting Magdum and Aminbhavi in any next promotional vacancies and for consequential directions for payment of the difference of salary between that of, the Executive Engineer and of the Superintending Engineer from 5-10-1956 when the Government of the erstwhile Hyderabad State had promoted Iftikar Ahmed as the Superintending Engineer till 6-11-1957 when the Petitioner Bastavala himself was so promoted by the Government of Mysore and difference in salary between that of the Superintending Engineer and of the Chief Engineer from 20-6-1961 when Iftikar Ahmed was promoted as Chief Engineer by the Mysore Government by the application of the ''next below rule." (By some mistake the date on which Iftikar Ahmed was promoted as Chief Engineer has been given as 9-7-1961 in these prayers as well as in the affidavit in support of the petition. It is conceded that it is a typographical error and that the correct date is 20-6-1961).

The principal claim as set out in the affidavit in support of the Writ Petition which is the basis of all prayers is that the promotion of Iftikar Ahmed as Superintending Engineer by the Government of erstwhile State of Hyderabad was invalid. The arguments in support of this claim are the same as those in support of the similar claim made by Moqeem in regard to the promotion of Iftikar Ahmed on 5-10-1956. The claim in support of the prayer for restraining the State Government from making further promotions on the basis of the final Inter-State Seniority List is that the said list must be taken to have been quashed for all purposes by this Court in Writ Petn. No. 1127 of 1960 (Mys.).

The defence of the Government is more or less on the same lines as their defence to the Writ Petitions of Moqeem. Regarding the promotion of Iftikar Ahmed as Chief Engineer, the State Government say that the post of Chief Engineer in Mysore is a post to be filled by selection from among the Superintending Engineers and that it is not obligatory on the part of the Government to promote only the senior-most Superintending Engineer as Chief Engineer.

Though the statement of acts and the language employed in the prayers appear to suggest different modes of approach to the grievances of the Petitioners, it will be noticed that their principal grievances are in some manner or other related to their claims for promotion, which claims they seek to support on the basis that they were entitled to a ranking in the Gradation List superior to the one assigned to them by the State Government in the course of the process of integration of services.

It would be convenient to examine the arguments under certain definite headings to avoid repetition and overlapping of arguments. Those headings would be the following:

Promotion of Iftikar Ahmed on 5-10-1956 as Superintending Engineer by the Government of the erstwhile State of Hyderabad;

Relevance or utility, if any, of the Gradation List prepared by the State of Mysore on 13-8-1960 as the final Inter-State Seniority List;

Grievances of the Petitioner Moqeem with regard to or arising out of the manner in which {promotions were made from the cadre of Executive Engineers to that of Superintending Engineers by the State Government of Mysore;

Moqeem''s complaint that the postponement of his promotion as Superintending Engineer was in the nature of penalty; 5. The availability or otherwise of the benefit of the "next below rule" to Moqeem or Bastavala; and

Promotion of Iftikar Ahmed as Chief Engineer on 20-6-1961 by the State Government of Mysore.

On the first point, we think, the learned Government Pleader is right in his contention that neither Bastavala nor Moqeem can call in question the promotion of Iftikar Ahmed as Superintending Engineer by the Government of the erstwhile State of Hyderabad before the date of integration either as a matter of law or upon, the circumstances placed on record by them.

That he was so in fact promoted by the Government of the erstwhile State of Hyderabad admits of no doubt. The Petitioners themselves have produced a copy of the order of appointment or promotion which appeared in the Hyderabad Government Gazette dated 18th October 1956. in view of this undoubted fact, references to the final allotment list prepared by the Central Government in February 1960 or to the "Errata" published by them in October 1961 appear to us to be irrelevant and immaterial. Neither the allotment list nor the subsequent correction thereto could wipe out the actual fact of promotion.

The Petitioners, however, question the legality of that order of promotion and contend that Iftikar Ahmed could not take advantage of it for the reason that the Government of India had by an Official Memorandum No. CHS 20223-333/Miscellaneous 97-57-6 dated 9th February 1956 prohibited such promotions being made. In the said Memorandum, the Government of India took note of certain complaints that some of the State Governments had been making certain postings and promotions in such a way as to give an unfair advantage to the persons so posted or promoted by them, as against the Civil Servants of other States in the context of proposed reorganisation of States. The Government of India stated that though each case had to be considered on its merits with due regard to the legitimate expectations of Government Servants no action was exacted to be taken which, might subsequently create difficulties for the new Governments to be set. up under the States Reorganisation Act. The Petitioners claim that this Memorandum has the same status as that of a direction which the Central Government is empowered to issue to the State Governments u/s 117 of the States Reorganisation Act. It is difficult to accept this argument. In the first place, the directions which the Central Government could/ give tinder Section 117 of the States Reorganisation Act must be ones for the purpose of giving effect to the previous provisions of Part X of that Act, viz., Sections 114, 115 and 116. As Section 114 relates only to All India Services, that section would be irrelevant for our present purpose because the topic dealt with in the Central Government''s Memorandum in question does not relate to All India Services. It could be supported as a -direction under Section, 117 only if it relates to the topic of integration of services dealt with in Section 115 or the guarantee given u/s 116 to Civil Servants as to their continuance in the posts held by them on the appointed date. The Memorandum does not purport to give effect to the purposes of either of these sections.

Further, in a letter addressed by the Government of India in its Ministry of Home Affairs to the State Government of Mysore on 20th December 1960 dealing with the question of integration, the Government of India distinctly states that although they had tendered some advice to the State Governments before 1st November 1956 With a view to maintain the status quo in regard to services as far as possible, they had since been advised that the said prior instructions had no legal sanction behind them and that any attempt or claim by the successor-State Governments to review the decisions taken by the predecessor-Governments competent to take such decisions would make the process of integration more difficult than it would otherwise be and that therefore the proper thing to do in those circumstances would be to accept the decisions of competent Governments as having been properly taken. The position, therefore, is that the "Government of India themselves did not purport to act in exercise of any statutory power of giving direction and that they themselves discovered subsequently that the administrative advice tendered by them was difficult of enforcement and likely to lead to unnecessary complications. In addition, it may be noted that persons so promoted to particular posts by the State Governments before the date of integration could surely claim the benefit of Section 116 of the States Reorganisation Act to be treated as having been duly appointed to such posts by the corresponding successor-State Governments.

Bastavala in his reply affidavit has made a further attempt to get the promotion of Iftikar Ahmed on 5th October 1956 totally ignored by stating that the promotion was what he calls a notional one. The line of argument pursued in! this regard is that at the time Iftikar Ahmed was: promoted he was actually on deputation to the Central Water and Power Commission of the Government of India and that the promotion order itself stated that until he came back from the service of Government of India, Subhan Khan should be in additional charge of Raichur Circle to which Iftikar Ahmed had been posted. It is stated that the promotion was in respect of a Vacancy created by the premature retirement of Faryhatullah who was then on leave preparatory to retirement. The said Faryhatullah was subsequently recalled from leave and posted as Superintending Engineer of Raichur Circle on 31st October 1956, which was the Circle to which Iftikar Ahmed had been posted or promoted on 5-10-1956, The Petitioner ignores the fact that such posting on recall of Faryhatullah on 31st. October 1956 was "Vice Rahamatullah retired." It is stated that Rahamatullah''s name actually appeared in the list of allottees prepared by the Central Government and he actually retired on 1st November 1956 as officer serving in connection with the affairs of the new State of Mysore.

This entire argument, in our. opinion, is misconceived because when the original order of promotion dated 5th October 1956 actually promoted Iftikar Ahmed to the rank of Superintending Engineer to hold the same till further orders, we do not think it is open to the Petitioner to ask us to ignore the promotion in the absence of any further order revoking the previous order for reason only of the fact that certain arrangements consequential'' upon the recall of Faryhatullah were made by the Government of the erstwhile State of Hyderabad.

It is impossible, therefore, in our opinion, to proceed on the basis that the order of promotion dated 5th October 1956 was either non-existent or ineffective.

Iftikar Ahmed is entitled to rely upon that order and claim the benefit of Section 116 of the States Reorganisation Act. It is not open, to either Bastavala or Moqeem to claim any rights in the matter of seniority on the footing that no such promotion of Iftikar Ahmed took place or that it is for any reason invalid or ineffective.

Coming now to the next topic, viz., the one relating to the final Inter. State Seniority List of 13th August 1960, we must observe that though, much time was taken up in arguments relating thereto in the earlier (sic) that any reference to that list or any reliance being placed thereon is quite unnecessary for the purpose of these ceases.

It will be noticed that all promotions from the cadre of Executive Engineers to that of Superintending Engineers which are the subject-matter of discussion in these cases took place before the final Inter-State Seniority List was prepared by the Government.

So far as Bastavala is concerned, he was promoted as Superintending Engineer on 6-11-1957 before Magdum and Aminbhavi who were below him in rank were so promoted. The learned Government Pleader has, however, pointed out that what happened on 6-11-1957 in regard to Bastavala land on 10th and 16th December 1957 in regard to Magdum and Aminbhavi was not a regular promotion but only what is described as an incharge arrangement within the meaning of Rule 32 of the Mysore Civil Services Rules. He further states that the promotions were actually made under the order published in the Notification dated 4th April 1958 in which, the seniority of these three persons in the cadre to which they were so promoted was re-arranged in a manner different from the one appearing in the provisional Inter-State Seniority List of March 1957 and fully in accordance with this ranking subsequently given in the final Inter-State Seniority List of August 1960. On this basis he wants to contend for the position that though the final Inter-State Seniority List was quashed by this Court in Writ Petn. No. 1127 of 1560 (Mys.), the Government could still rely upon it as a basis for making interim postings and promotions which they are held entitled to do in the case of AIR 1961 Mys 210.

On the contrary the learned Counsel for the Petitioners relying upon a subsequent decision of this Court in Laxmanan v. State of Mysore, Writ Petn. No. 1221 of 61, contends that so long, at any Tate; as the Government have not on a comprehensive examination of all objections to the provisional Inter-State Seniority List substituted a fresh Gradation List in its place promotions on the basis of seniority different from the one appearing in the provisional Inter-State Seniority List would be violative of Article of the Constitution. The learned Government Pleader argues that the present case is distinguishable from, the case of Laxmanan firstly because as a matter of fact the revision of seniority was effected after a comprehensive examination of all objections to the provisional Inter-State Seniority List and secondly because the Petitioners having omitted to question the impugned promotions immediately or shortly after they had been made and waited a long time till after the preparation of the final Inter-State Seniority List on the basis of which the Government could support the promotions even on footing of seniority, there is no such injustice, done to any one as to require interference by this Court under Article 226 of the Constitution.

It seems to us that none of these contentions or controversies arises in these cases. It is doubtful whether the learned Government Pleader is right in contending that the original postings were merely in-charge arrangements, within the meaning of Rule 32. That Rule, according to our understanding of it, which is fully borne out by the language of that Rule as well as the reference made therein to Rule 68, relates to cases where a person already holding a certain post is without .being required to vacate that post called upon to perform additional duties appertaining to Anr. post. That was not the position in the cases now before us. Every one affected by the orders o posting admittedly left, his original post, as Executive Engineer and took charge of the new post as Superintending Engineer. Further, every element necessary for a regular promotion was present in every one of these cases. All the persons affected by the orders of posting were in the cadre of Executive Engineers from whom selections are made for promotion as Superintending Engineers. Each one of them left the lower post as Executive Engineer and took change of the next higher promotional post of Superintending Engineer. Every one of them was admittedly paid the salary appropriate to the post of Superintending Engineer from the date on which actually took charge of that higher post. In addition, the notification of 4th April 1958 expressly states that the promotions thereby made were to take effect from the date on which the promoters named therein took charge of their respective Circles. There is no difficulty, therefore, in holding that in substance and in fact, Bastavala was promoted as Superintending Engineer on 6-11-1957, Magdum on 10-12-1957 and Aminbhavi on 16-12-1957. This is in accordance with the order of seniority set out in the provisional. Inter-State Seniority List Bastavala could therefore make no grievance of it, nor does he make-specially any such grievance, in his petition or in his affidavit in support thereof.

It is no doubt true that the notification of 4th April 1958 purported to determine the seniority of the promotees in the higher cadre to which they had, been promoted in a manner different from the one suggested by the respective dates of promotion. But then, this rearrangement can well be ignored as unnecessary for the decision of these cases for two reasons Firstly, the notification itself states that the order of seniority set but therein is provisional and subject to later finalisation; secondly, from the ranks, of Superintending Engineers the next promotional post is that of Chief Engineer which admittedly is a selection post in respect of which, it is common ground, no person can rely on his seniority alone for his being considered for promotion.

Hence, for the disposal of Bastavala of claims any reference to the final Inter-State List of August 1960 is entirely irrelevant.

So far as Moqeem is concerned, the case of the State Government is that they did not promote him in the ordinary course or in accordance-with the relative seniority appearing in the provisional Inter-State Seniority List because of his previous unsatisfactory record of service. Hence, the promotions of his juniors in preference to him (which juniors include not merely Magdum and Aninbhavi but also certain Ors. ) were not made on a decision by which those juniors were treated as his seniors on the basis of length of service. Therefore, in examining Moqeem''s complaint regarding the postponement of his promotion, no considerations relating exclusively to relative seniority arise.

We therefore decline to go into the controversies raised before us regarding the final Inter-State Seniority List and refrain from expressing any opinion on the question whether it is open to the (Government to prepare more than one provisional Inter-State Seniority List pending final integration by the Central Government and to rely on the latter among them in order of time as a just and fair basis for making interim postings, promotions, etc.

Consequently, Moqeem''s prayer for quashing the said Inter-State Seniority List of 13-8-1960 as well as Bastavala''s claim that the quashing of the said list by this Court, in Writ Petn. No. 1127 of 1960 (Mys.) made it unavailable to Government for1 all purposes, do not arise and arc hereby rejected as unnecessary.

Before taking up for consideration the rest of the points formulated above, it will be convenient to examine one general contention raised by the learned Counsel for the Petitioners relating to what he describes as considerations necessarily applicable to all promotions in the light of Articles 14 and 15 - particularly the latter - of the Constitution.

In Rudraradhya v. State of Mysore (1960) 38 Mys LJ 212: (AIR 1961 Mys 247), a Bench of this Court held that among the well known attributes of public service, one that is least subject to exception is that no employee can claim as of right a promotion from one position to Anr. unless he could do so under a statutory provision or an enforceable condition of service, and proceeded to state:

It is, we think clear that a variety of considerations govern the promotion of an employee, none of which alone could render an employee suitable for promotion. Ordinarily, it would be for the State or the promoting authority to determine such suitability after an assessment of all relevant considerations, such as seniority, competence, rectitude, and antecedent official records, none of which is less (important than the other, for the preservation of purity and efficiency in public service.

It is now contended before us that a proposition in such absolute or unqualified terms can no longer be relied upon by the State or that, at any fate, it is subject to certain Constitutional limitations in .view of the ruling of the Supreme Court in The General Manager, Southern Railway Vs. Rangachari, .

The general proposition laid down in the majority judgment in that case, on which reliance is placed by the learned Counsel for the Petitioners is that the fundamental right of equality of opportunity guaranteed by Article 16 is not to he limited to initial employment or appointment alone, but should be applied and is available in respect of all matters relating to employment or appointment such as, salary, periodical increments therein, terms as to leave, gratuity, pension, etc., and also promotions.

It should, however, be noticed that the decision of this Court in Rudraradhya''s case (1960) 38 Mys LJ 212: (AIR 1961 Mys 247) did not proceed upon the basis that equality of opportunity (guaranteed by Article 16 did not apply to promotions at all, but actually discussed the position on the assumption that such equality of opportunity could be claimed in respect of promotions also. This Court pointed out that opportunity guaranteed by the Article, properly understood, is one which makes it possible for each individual to aspire, whether by appointment or promotion, for highest position in public service, if he is capable and worthy and according to his capacity, without any distinction other than what his own attainment or talent demands. In other words, equality of opportunity can never be taken to exclude the idea of selection. It only requires that while making the selection, the State should apply same standards to all persons similarly situated with respect to the question on hand, whether of initial appointment or of promotion.

Their Lordships of the Supreme Court in the case cited also distinctly point out that equality of opportunity should not be confused with absolute equality and that Article 16 does not prohibit the prescription of reasonable rules for selection.

At one stage of the arguments, the learned Counsel went so far as to state that the decision of the Supreme Court makes it possible to say that promotion must be considered a matter of right with each employee. That extreme position was, however, soon given up and, in our opinion, rightly. If, as their Lordships point out, equality of opportunity applies to promotions in the same way as it applies to initial employment and if, as the learned Counsel contends, equality of opportunity regarding promotions makes promotion itself a matter of right with an employee, then, it should follow that initial employment must also be a matter of right with every applicant for employment. Such a proposition has never been contended for, nor can Article 16 be so read as to confer a right of employment upon every person who may choose to apply for employment.

At a later stage of the arguments, the learned Counsel modified his contention and stated Mat although in regard to selection posts, that is to say, posts to which appointment or promotion is by way of selection, the Government may be free to make the selection irrespective of considerations based on seniority by length of service, in regard to other promotional posts, the senior most in the cadre next below the promotional cadre is entitled to be promoted, air relevant considerations as to his suitability and capacity having already been taken into account at the time of his initial employment.

Even in such a situation, it appears to us that the idea of selection is not and cannot be ruled out.

The very suggestion that the senior most parson has a right to be promoted to the exclusion of Ors. itself constitutes a rule of selection because otherwise equality of opportunity in the manner contended for by the learned Counsel will have to be extended to every one of the persons in the cadre next below the cadre to which the promotional post belongs.

In answer to the foregoing, the learned Counsel later suggested that equality of opportunity in such cases is ensured by the fact that if the senior most is found unfit or unsuitable for the promotional post, the next in rank to him in seniority, if found fit, becomes entitled to be promoted. It so, considerations of merit and suitability inevitably come into the picture. To the extent the argument concedes the right of the Government to desist from promoting the senior most man, the proposition that promotion is a matter of right ceases to be an unqualified one. It follows, therefore, that seniority by itself can never confer an absolute right to promotion irrespective of other considerations.

Thus, the very manner of developing the argument contains in itself material which is destructive of the ultimate result sought to be achieved by the argument. All selection, it must be remembered, is intended for the purpose of determining the suitability of the person selected to be appointed or promoted to the post fn respect oil which the selection is made. It is without doubt that suitability for a superior post is quite different from suitability for an inferior post, and it is pot always correct to say that mere length of service in an inferior post necessarily confers upon person suitability for a superior post. That is why it is said that, in the absence of a statutory provision or an enforceable condition of service either of which may lay down objective tests of suitability on the fulfilment of which promotion may be claimed, all other types of promotions are based on a multitude of considerations. Once the argument concedes the right of the Government to take into account considerations other than mere seniority and once it is clear that mere length of; service in an inferior post cannot confer suitability in respect of a superior post, it is impossible to assert that one consideration is of greater importance than Anr. consideration. If so, there is no basis for the contention that seniority is the prime or most important consideration which must necessarily lead to promotion and that other considerations are negative ones in the nature of disqualification. The proper view to take is that all considerations are really in the nature of positive considerations determining the suitability of a period for being promoted to a superior post.

We might add that Sub-rule (3) of Rule 4 of the Mysore State Civil Services General Recruitment Rules, 1957, indicates the procedure for appointment in the case of recruitment by promotion to be the following:

(a) If it is to a post to be filled by promotion by selection-by selection of a person on the basis of merit and suitability in all respects to discharge the duties of the post with due regard to seniority from among persons eligible for promotion;

(b) to a post other than that referred to above, by selection of a person on the basis of seniority cum merit, i.e., seniority subject to the fitness of the candidate to discharge the duties of the post, from among persons eligible for promotion.

All this discussion leads to one clear conclusion. The basic or governing consideration in all promotions is what may be shortly described as merit or suitability. Seniority is in substance one of the elements in the assessment of merit. It may be that, having regard to the fact that seniority normally engenders some expectations of preferment or promotion in the minds of Government Servants, the State, which is interested in having contented service for good and efficient administration, hardly if ever totally disregards all considerations of seniority. That does not mean, how ever, that political expediency which may govern the actions of the State necessarily confers a right on the Civil Servant.

We see, therefore, no reason to think that there is any inaccuracy in the propositions laid d6wn in the judgment of this Court in Rudraradhya''s case (1960) 38 Mys LJ 212: (AIR 1961 Mys 247) or that the ruling of the Supreme Court in The General Manager, Southern Railway Vs. Rangachari, has cast any doubt on their accuracy.

Grievances of Moqeem as formulated in points 3 and 4 above may now be taken up together for consideration.

According to the provisional Inter-State Seniority List of March 1957, Moqeem''s name stood at serial No. 7 above Magdum and Aminbhavi whose names stood at serial Nos. 8 and 10 respectively. When occasion arose for making promotions in December 1957, Moqeem was on long leave. The Government state that as there was no immediate prospect of his joining duty and that it was necessary to post persons to vacancies in the post of Superintending Engineers, they had to pass him over and promote his juniors. When he returned from leave in November 1958, the Government did'' consider his case for promotion, but having regard to, his unsatisfactory record of service did not feel justified in promoting him until they have had an opportunity of watching his work as Executive Engineer .for some time.

There is no reason to doubt these statements made on behalf of the Government Moqeem himself does not deny that there were, while he was in the service of the erstwhile State of Hyderabad, reports against him to the effect that he was slack in work. His claim in the original affidavit in support of Writ Petition No: 767 of 1961 was that there had been subsequent reports to the effect that he had shown;, improvement , Later in his reply affidavit in Writ Petition No. 734 of 1961, he made the further statement that the adverse remarks had not been communicated to him.

The latter complaint of Moqeem cannot, in our opinion, be entertained. His earlier statement clearly makes out that he was aware of not only an adverse remark made against him but also a subsequent report which appeared to be in his favour If so, his later complaint of non-communication appears improbable and is difficult of acceptance. Assuming in his favour that there was some report tending to show that he had shown improvement in his work, he cannot find fault with the State Government of Mysore for taking the view that they should form their own opinion about him after watching his work as. Executive Engineer for some time, especially in view of the fact that the previous reports had been those made to and considered by the Government of the erstwhile State of Hyderabad. In his original affidavit in support of Writ Petition No. 767 of 1961 filed after he had notice of the opinion of the State Government of Mysore about his inefficiency, beyond stating that the State Government had permitted him to cross the Efficiency Bar with effect from 10-1-1960, he made no particular attempt to deny the existence of the material on which that opinion was based.

It should be remembered that it accords with the opinion of the Government which resulted in his being promoted at or about the same time (actually his promotion took effect on 7-1-1960). He did not allege that the Government were actuated by any mala fides. At the highest, he may be said to have questioned the correctness of the opinion entertained by the Government about his efficiency or inefficiency. In his reply affidavit in Writ Petition No. 767 of 1961 he claimed that, the post of Superintending Engineer in Mysore is not a selection post and that except in cases where some enquiries are pending against officers, promotions are made in the usual turn according to seniority. He wanted this Court to call for the confidential records and peruse them, apparently on the footing that this Court should sit in appeal on the opinion bona fide entertained by the Government. Even in his reply affidavit, there is no allegation of any mala fides. In his reply affidavit in Writ Petition No. 734 of 1961, the only averment relevant to the present topic in his complaint that adverse remarks were not communicated to him which we have already rejected.

The position, therefore, is that the Government have in the usual course taken into account antecedent record of service of Moqeem in deciding not to promote him in the usual turn according to seniority, and there is no suggestion whatever of the Government having been actuated by any mala fides. The consideration taken into account by the Government was undoubtedly a relevant consideration, and mere seniority, as already pointed out by us, does not confer upon a person any right to be promoted to the next higher post. We do not think that the Petitioner Moqeem can ask us to examine his confidential record as an appellate authority would do and come to a conclusion different from the one entertained by the Government.

Some point is sought to be made on his behalf from the circumstance that when in December 1957 Magdum and Aminbhavi were promoted passing him over, the Government admittedly did not consider his case at all an3 according to him, the first time they considered his case for promotion was only after he returned from leave. In the circumstances, of this case, however consideration of his case even in December 1957 could not have made any difference to the result because the material on which ,the Government actually took a decision after he returned from leave in 1958 was not different from the material which was available to them even in December 11957 and the Government may, with justification, contend that even if they had examined the position in 1957, their opinion would have been the same as the one they subsequently came to entertain in 1958.

So far as the contention that the postponement of his promotion was in the nature of penalty is concerned, it is not the case of the Petitioner Moqeem that there was any charge of or enquiry into any alleged misconduct on his part or that the postponement of promotion was actually imposed on him as a penalty in consequence of his having been found guilty of misconduct. What is contended for is that the conclusion that the postponement was really in the nature of penalty ''flows directly from the provisions of the Mysore Civil Services (Classification, Control and Appeal) Rules, 1957.

Rule 8 of those Rules enumerates the withholding of promotion as one of the penalties which could be imposed on Government Servants for proved misconduct. There is an explanation to that Rule according to which non-promotion of a Government Servant, after consideration of his tease, to a service, grade or post for promotion to which he is eligible, shall not amount to a penalty within the meaning of that Rule. It is stated that the Government admittedly did not consider his case for promotion in December 1957 when, in the ordinary course, he became eligible for promotion and that therefore the non-promotion cannot be brought within the explanation. Once it is outside the explanation, it is further contended, withholding of promotion must necessarily be held to be a penalty. Such penalty having been imposed without any charge or enquiry into any alleged misconduct should be quashed as opposed to the Rules as well as general considerations based on principles of natural justice.

It will be noticed that the argument proceeds exclusively on the footing that withholding of promotion must in all circumstances be held to bet a penalty unless it comes within the purview of the explanation to the Rule. We think this manner of interpretation is misconceived. Rule 8 of the Mysore Civil Services (Classification, Control and Appeal) Rules must be read in the context of those Rules and not as laying down general principles applicable to all circumstances and all cases relating to services. While discussing the argument that the authority of the decision of this Court in Rudraradhya''s case (1960) 38 Mys. LJ 212: (AIR 1961 Mys 247) must be taken to have been considerably shaken or affected by the ruling of Supreme Court in The General Manager, Southern Railway Vs. Rangachari, we have pointed out that promotion cannot be claimed as a matter of right but that it is based on a multitude of considerations which the Government are entitled to take into account before deciding whether or not to promote a person to a particular post. If no claim of right can be postulated, the complaint that a right had been denied cannot equally be entertained.

Before deciding whether or not withholding of promotion is in the nature of penalty, it is necessary to examine the facts of the case and the circumstances in which the promotion came to be withheld or postponed. There is a clear distinction between imposing the penalty of withholding promotion for proved misconduct and withholding or postponement of promotion for other administrative reasons. In the former case, withholding of promotion may be ordered even before a person becomes eligible for promotion or promotion may be said to have become due to him, and irrespective of whether or not he is otherwise eligible for promotion. In the latter case, considerations arising out of any misconduct are completely out of the way and the only considerations leading to the decision not to promote or to postpone promotion are those relevant to the question of the particular Government Servant''s suitability for promotion to the post in question. In the absence of considerations relating to misconduct, a Government Servant aggrieved by non-promotion at the time when, according to his seniority, he expects to be promoted, cannot rely upon the Mysore Civil Services (Classification, Control and Appeal) Rules for the redressal of his grievance. Because he cannot claim promotion as of right, he may, if he chooses, request the Government to reconsider his case and revise their opinion but cannot complain in a Court of law on the footing that any right of his has been infringed or that he has been denied equality of opportunity guaranteed under Article 16 of the Constitution which, as we have already pointed out, does not rule out the right of the Government to make a proper selection on consideration of suitability. In this case, it appears that Moqeem did make certain representations to the Government for reconsideration. The Government expressed the definite view that in view of his previous record of service, they could not hold that he was suitable for promotion without watching his work as Executive Engineer for some time.

What is called the "Next Below Rule" is Rule 60 of the Mysore Civil Services Rules, 1958, according to which when a person in a post is for any reason prevented from officiating in his turn in a post of higher scale or grade borne on the cadre of the service to which he belongs, ho may be authorised by a special pro forma order of officiating promotion made by the appropriate authority to draw the higher scale or grade of pay Appropriate to the promotional post, if that be more advantageous to him. The Rule clearly envisages a position where a person eligible for promotion in the usual turn or in the usual course is actually prevented by some reason from taking up the promotional post and the appropriate authority actually makes a pro forma order of promotion. This involves, in our opinion, the appropriate authority taking the view that the particular Government Servant is suitable for promotion and that, but for the circumstances preventing him from taking up the promotional post, he would have been actually promoted thereto. The Rule cannot be held to confer, upon any Government Servant the right to insist that the appropriate authority do make a pro forma order of promotion in his favour, any more than he can as of right insist upon being promoted irrespective "of considerations as to suitability.

Part of the case in support of the claim of the Petitioners to the benefit of this Rule was rested on the other argument in support of the view that except in the case of selection posts, promotion must be held as a matter of right. That other argument having been'' rejected, this claim also should necessarily fail. Even on principle, the Rule, it appears to us, is one intended to enable the Government to minimise, as far as possible, the loss of material benefit or advantage which a Government Servant would have acquired by promotion but for the fact that he is for some reason actually prevented from taking up the promotional post. It cannot be said to- confer any specific or enforceable right on the Government Servants.

There is thus no basis for Moqeem''s claim that he should have been or should be deemed to have been promoted as Superintending Engineer on 10-12-1957 when Magdum was so promoted or that he should have been given the benefit of the "Next Below Rule".

Coming now to the complaint made by both Moqeem and Bastavala against the promotion of Iftikar Ahmed as Chief Engineer in June 1961, it should first be noticed that the foundation for this complaint as originally stated in the affidavits in support of their respective Writ Petitions is no other than the claim that his promotion as Superintending Engineer by the Government of the erstwhile State of Hyderabad on 5-10-1956 was invalid and intended to give him an unfair advantage over them. That part of the case of the Petitioners we have already considered and rejected.

It is not denied that in Mysore the Chief Engineer''s post is selection post according to the Mysore Public Works Engineering Department Services (Recruitment) Rules, 1960, which came into force on 3rd December 1960. The method of recruitment to the post of Chief Engineer according to these Rules as by promotion by selection from the cadre of Superintending Engineers. Because this is a selection post, it is also conceded, no person in the cadre of Superintending Engineers can on the strength of his seniority alone claim to be promoted as Chief Engineer. In the course of the arguments, however, it has been contended that equality of opportunity guaranteed by Article 16 requires the Government to consider the suitability of all persons in the cadre of Superintending Engineers by applying the same standards before selecting a person whom they consider most suitable for promotion. No exception need be taken to this principle. But, there is no material placed on record to show that the Government did not so consider the cases or that the Government acted in, such a way as to constitute an infringement of that right. We also find force in the argument of the learned Government Pleader that: even prima facie Iftikar Ahmed may be held to have had a better or superior case for selection as Chief Engineer than either Moqeem or Bastavala, because, as early as October 1956 the Government of the erstwhile State pf Hyderabad promoted him to the post of Superintending Engineer which was a selection post in that State in preference to both of them.

Another ground of attack, very briefly indicated in the course of the reply affidavit of Bastavala in Writ petition No. 145.1 of 1961 and elaborated in the course of the arguments, is that the impugned promotion could not have been made without previous consultation with the Public Service Commission. In the reply affidavit it is stated:

The post of the Chief Engineer in Mysore is no doubt a selection post, but before any person is appointed to, a selection post the provisions of the Cadre and Recruitment Rule and Public Service Commission (Consultation) Rules have got to be complied with.

But, in the course of the arguments reliance is placed, not on the Cadre and Recruitment Rules, but on the Mysore Public Service Commission Functions) Rules, 1957, particularly Rules 4 and 5. Rule 4 indicates the procedure to be followed "when recruitment to a service or post is to be made toy selection and consultation with the Commission is required" and Rule) 5 indicates the procedure to toe followed "when recruitment is to be made by promotion to any post and consultation, with the Commission is required." It is clear therefore that whether Rule 4 or Rule 5 is the relevant rule, one or other of those rules can be invoked only when the consultation with the Public Service Commission is required. If no such consultation is required, the procedure indicated by those rules need not be followed. For this purpose, we have to look into the Mysore Public Service Commission (Consultation) Regulations, 1958, made by the Governor of Mysore under Clause (3) of Article 320 of the Constitution of India, Regulation 3 thereof states that it shall not be necessary for the Commission to be consulted, among other matters, in regard to the suitability of candidates for promotion within the same class of service. Now, according to the Rules made by the Governor and notified in No. GAD 8 GRR 57 dated 3rd December 1960 sanctioning the State Service Cadres in respect of Mysore Public Works Engineering Department Service, the posts of Chief Engineers, Superintending Engineers, Executive Engineers in the senior scale, and the posts of Chief Accounts Officer, Assistant Accounts Officers and General Assistant in the junior scale are all classified as Class I posts. Hence the promotion from the cadre of Superintending Engineers to that of Chief Engineers is a promotion in the same class of service. Therefore, no consultation with the Public Service Commission is necessary for such promotion.

The classification of posts as aforesaid is obviously based on Sub-rule (3) of Rule 5 of the Mysore Civil Services (Classification, Control and Appeal) Rules, 1957, according to which State Civil Services Class I are to consist of gazetted posts whose minimum pay is not less than Rs. 300/- per mensem. The lowest scale applicable to Class I posts in the Public. Works Department is Rs. 300-25-5 50-30-700-. It has, however, been argued that for purposes of the Mysore Public Service Commission (Consultation) Regulations, class must be read as equivalent to grade on the strength of Sub-rule (2) of Rule 5 of the Mysore Civil Services (Classification, Control and Appeal) Rules, according to which "if a service consists of more than one grade, different grades may be included in different classes". "Grade'''' is said to have the same meaning as the "Scale of Pay". It is argued therefore that when there are several grades of pay included in the same class, each grade must be treated as a separate class. It is impossible to accept this argument for two reasons: Firstly, it is a contradiction in terms to treat what is admittedly a portion of a class as equivalent to a class. That where is a clear distinction between ''class'' and ''grade'', the former being a group in which posts! of a particular description are included by the order of Government and the latter having reference exclusively to scales of pay, is clear from Clause (10) of Rule 8 of the Mysore Civil Services Rules, which reads as follows:

Class and Grade: Appointments are said to be in the same "Class" when they are in the same department, and bear the same designation, or have been declared by Government to be in the same class. Appointments in the same class are sometimes divided into "Grades" according to ''pay.

Secondly, if a single grade alone is said to constitute a separate class, there can be no scope for a promotion within the same class as is obviously held possible and normal in Regulation 3 of the Mysore Public Service Commission (Consultation) Regulations.

The Petitioners therefore must be held to have failed to substantiate their attack against the promotion of Iftikar Ahmed as Chief Engineer.

For the reasons already stated in the case of Magdum, Bastavala also cannot claim, as of right, the benefit of the "Next Below Rule".

This disposes of all the prayers in all the three Writ Petitions.

After the filing of these Writ Petitions, it appears that Magdum was deputed to work as a Director of Technical Education retaining the rank of Superintending Engineer and was later promoted as Chief Engineer under order of the Government No. GAD 2 SHD 62 dated 19-1-1962 which reads as follows:

Shri I. M. Magdum is promoted to officiate as Chief Engineer with immediate effect and until further orders and continued as Director of Technical Education in Mysore, Bangalore.

Two interlocutory applications were made, one being .1. A. No. Ill in Writ Petition No. 734 and the other being I. A. No. I in Writ Petition No. 1451 of 1961, to add Anr. prayer to quash the above order promoting Magdum to officiate as Chief Engineer. In Writ Petition No. 734 of 1961, Moqeem had formerly taken out I. A. No. II for an order restraining the Government from promoting Magdum to any next promotional vacancy. But the prayer was not granted by this Court. Bastavala, it would be remembered, had in his Writ Petition itself prayed for an order restraining the Government from promoting either Magdum or Aminbhavi in any next promotional vacancy to his detriment which for the reasons discussed, by us, cannot be granted.

(SIC''s) the present interlocutory applications, no new facts are stated. The affidavits proceed on the footing that the amendment applications are filed only to obviate the objection that in the absence of a specific prayer, the order promoting Magdum cannot be quashed in these proceedings, although it has been argued on behalf of the Petitioners that there is nothing to prevent the Court from taking note of subsequent events and passing such order as justice of the situation may demand.

According to the affidavit of Bastavala in support of his interlocutory application in his Writ Petition, the averments in paragraph 20 of his reply affidavit are sufficient to show that the promotion of Magdum cannot be upheld. The said paragraph in the reply affidavit is the one in which it was claimed that, previous consultation with the Public Service Commission is necessary before a Superintending Engineer can be promoted as Chief Engineer. We have rejected this contention. Other averments in that paragraph are that according to the information of the deponent Bastavala, even the Public Works Minister had not been consulted and that even the Accountant General had taken exception to the promotion of Magdum. The consultation with a Minister is not a matter which we can investigate into. What the Accountant General told the Chief Secretary to Government in his letter dated 27th March 1962 in regard to the promotion of Magdum has, in our opinion, nothing to, do with either the power of the Government to make the promotion or the propriety of their having promoted him. At that the Accountant General stated was that because Magdum was then working as a Director of Technical Education outside the regular line of service in the Public Works Department, a regularisation by an order under the "Next Below Rule" may please he issued. The Accountant General is interested obviously in having an authorisation for payment of salary. Because Magdum was then holding a post outside the regular service and may therefore be said to be prevented from taking up the post of Chief Engineer to which he is promoted the Accountant General appears to have taken the view that specific action under the "Next Below Rule" was necessary. He did not and, in our opinion, could not question the propriety of the promotion itself.

The prayer for quashing the promotion of Magdum should also be rejected.

In the result, we dismiss all the three Writ Petitions. No costs.