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Judgment
S.T. Coleridge''s Marinar on voyage, at the fag end of eighteenth century cried "Water, Witer, everywhere, nor any drop to drink" (Coleridge in the time of Ancient Marinar).
Not only the continent, where Coleridge was born, but several countries of the other continents have succeeded in quenching the thirst of their people by providing them potable water, but although fifty years'' have passed, since the dawn of freedom, in this part of the World, water, which the nature has provided in abundance is scarce. A recent policy pronouncement of the Prime Minister still attaches high priority of the Government to provide drinking water to the millions, whose women folk, on tardy paths are forced to go bare footed, miles away from their villages, to bring a pitcher of water.
No doubt, in many part of the State, rivers have been harnessed. Water gushes into the canals to irrigate the fields, but the major part of the State for purpose of irrigating the agricultural fields still depends on monsoon. The Rohilkhand areas of the State suffer due to scanty rains. During the summer the ground water leval comes down to several hundred feet.
To find out various water resources which could be developed for providing drinking water to the people and irrigating their fields, a ground water cell in the State was established in the year 1970. The Government of India also took initiative in strengthening the ground water resources, by setting up water minor irrigation organisations in various State. As a result of which ground water investigation organisation was established in the State of U.P. in the year 1975, as a separate department under the charge of a Directorate. Later on it was converted into a full fledged ground water department.
The department is headed by a Directorate and consisted of Superintending Engineer (Civil), Superintending Engineer (Mechanical), Executive Engineer (Civil), Executive Engineer/Senior Hydrogeologist, Senior Hydrolpgist/Senior Geophysicist, Geohydrologist, Senior Geophysiscist, Assistant Engineer Civil/Mechanical, Hydrologist Civil/Mechanical, Assistant Geologist, Assistant Geophysicist, Chemist/Assistant Chemist, Assistant Hydrogeologist and Assistant Geophysicist; meaning thereby that the ground water department is a multidisciplinary department, where the Scientist and Engineers both put their intellect and energies and work together to utilise the ground water resources for providing drinking water to the people as well as for irrigating the agricultural fields in the State. Whether this department has made any headway or not, to achieve the object for which it was created, cannot be answered as neither this Court has been called upon to adjudicate that point nor it possesses sufficient date to arrive at a conclusion. But the fact remains, that the Scientists and the Engineers have engaged themselves into a tug of war and made an attempt to turn this Court into an arena, to settle their score. It seems that the petitioners have forgotten the noble goal and the object for which they were inducted into service, wasted their intellect, energy, experience, resources and time in litigating, for promotion and seniority.
Some of the petitioners filed cases before the U.P. Public Services Tribunal and when they failed to get the desired results, they filed the writ petition before the Court. In few of the writ petitions interim orders were passed. In writ petition No. 9850 (SB) of 1993 filed by Sri Majid Ansari an interim order was passed on 18394, wherein in a nut shell, the Court indicated that the Government should take speedy steps to frame Rules, so that officers of the department may not have the feeling of discontentment. The confusion was worst confounded by the Government of Uttar Pradesh, which till now, has not framed any Rules governing the conditions of services of the persons working in the Ground Water Department.
However, the Court did not find any justification to interfere with the arrangement, which has been made by the Government on 31111993 by ordering that on the retirement of Sri Yogesh Kumar Misra, the erstwhile Director, the Secretary, Gram Vikas Vibhag shall take over the charge of the office of the Director, Ground Water Department and thereafter working arran
fement was made that Sri Nabi Hasan the uperintending Engineer, Ground Water Department, DivisionII, Allahabad will also look after the work of Director, Ground Water Department, for which he will not be given any additional salary or allowances.
In the light of the aforesaid circumstances Hon''ble Supreme Court on 30894 in S.L.P. No. 6201 of 1994 passed the following order:
"We have heard Sri R.K. Jain, learned Senior counsel for the petitioner, Sri Pramod Swarup, learned counsel for the State of U.P and Sri D.D. Thakur learned counsel for the respondent No. 2. Respondent No. 3, though duly served has remained unrepresented.
Having regard to all the circumstances the order that commenced itself as appropriate is to request the High Court, to dispose of the writ petitions, as expeditiously as possible, not later than two months, from the date of the receipt of this order by the High Court."
"If, however, the writ petitions remain pending even after two months aforementioned the State Government shall take effective steps to fill up the posts, by appropriate proceedings, which would mean that in the meanwhile the State Government would have finalised the Rules of Recruitment. If Rules of Recruitment was not finalised, the draft rules shall afford the guiding principles. Till the recruitment is made, the present position of the respondent No. 2 (Sri Nabi Hasan) shall not be disturbed."
With these observations and directions the Special Leave Petition is disposed off.
Every effort was made to dispose of the present bunch of writ petitions, as expeditiously as possible and in any event not later than two months from the date of the receipt of the order, but as a fresh controversy pertaining to alleged manipulation in the draft rules approved by the Public Service Commission was raised and often the counsels were not available to argue the case and many other factors, like frequent changes of the Bench and mounting arrears, shortage of Judges, who have to devote much time in dealing with fresh cases, leaving little time to hear and decide the cases, these petitions could not be disposed of earlier as desired by Hon''ble Supreme Court.
As stated above the controversy centres round between two group of the officers working in the Ground Water Department, namely, Scientists and Engineers in the Ground Water Department. One of such officer is Mohd. Majid Ansari who is working as Superintending Engineer (Mechanical) in the said department, who has urged that the post of Superintending Engineer as well as the Director of the Department belongs to the Engineering Discipline and no person who has not obtained a degree of Bachelor of Engineering, can be appointed as Superintending Engineer or allowed to work as Director of the said department. He raised a grievance that as Sri Nabi Hasan and Prakash Singh do not possess the degree of Bachelor of Engineering, they could not have been appointed as Superintending Engineers and hence they are not fit to be posted as Director. According to him the Ground Water Department to a department of Engineering Discipline, similar to that of P.H.D., Irrigation department, Minor Irrigation department and Rural Engineering Services and hence no person other than from the Engineering Discipline can be legally promoted and posted on the post of Director. Sarvashri Nabi Hasan and Prakash Singh have only obtained the Master''s degree in Geology, they are not entitled to the post either of Superintending Engineer or Director.
Mr. Ansari further staked his claim on the post of Director of Ground Water Department, on the ground that he is the seniormost Superintending Engineering (Mechanical) in Ground Water Department, possessing all the requisite qualifications for the post of Director, hence he was entitled to be given the dual charge of the post of Director with effect from 1111993, when the post of Director fell vacant in the department. Mr. Ansari, thus has challenged the appointment/promotion of Sri Nabi Hasan on the post of Superintending Engineer, as well as the order of the State Government by means of which Sri Nabi Hasan, was allowed to work as acting Director of the Ground Water Department, as a working arrangement.
Before dealing with the case of the respondents Sarvshri Nabi Hasan and Prakash Singh in Writ Petition No. 9850 (SB) of 1993 it would be appropriate to look into the Government Order dated 10th May, 1988 which reads as under:
"Till now no Service Rules have been framed regarding Superintending Engineer/Executive Engineer (Civil) and Executive Engineer (Mechanical) etc. equivalent post of Class I am Asstt. Engineer and Assistant Working etc. and equivalent posts of elementary in Ground Water Investigation of Organisation and there is no responsibility of delay in it. Hence for the appointment Promotion on the above posts, following procedure are laid down by the Governor on ad hoc basis till the service (sic) for these posts are not duly notified.
(1) The Governor of Uttar Pradesh will be the appointing authority for the post of Superintending Engineer/Executive Engineer and assistant Engineer and equivalent posts.
(2) Function on the post of Superintending Engineering in the payscale of Rs. 16402400 will be down from the (sic) working on class I post of Executive Engineer (Civil) MechnicaMSenior Hydorologist/Senior Hydrophysist/Senior Hydrogeologist........(sic).
(3).........................
(4) Promotion on the Class II posts of Asstt. Engineer (Civil/Mechanical)/Hydrologist/Asstt. Geophysist/Asst. Geologist and Asstt. Chemist etc. equivalent posts in pay scale of Rs. 8501720 of promotion quota will be made cadrewise from those class III employees working on posts of Junior Engineer/Technical Assistant and qualified computer in pay scale of Rs. 515860, who are confirmed on the above post and have completed seven years regular service. The basis of promotion shall be seniority subject to rejection of unfit.
(5) The appointment on the Class II post of Asstt. Engineer (Civil/Mechanical)/Hydrologist/Asstt. Geophysist/Asstt. Geologist and Asstt. Chemist etc. in pay scale of Rs. 8501720 will be made by the direct recruitment and by promotion of 75% posts, respectively. The regular appointment/promotion on the class II post, will be made through Uttar Pradesh Public Service Commission.
(6) The constitution of the Selection Committee for the selection on the post of Superintending Engineer in pay scale of Rs. 18002400 and Executive Engineer (Civil/Mechanical)/Senior Hydrologist/Senior Geologist/Senior Hydrologist/Personal Assistant etc. in pay scale of Rs. 12502050 will be as given below:
(1) SecretaryArea Development Deptt. Chairman
(2) Secretary, Personnel Deptt. Member
(3) Director, G.W.T.O., Uttar Pradesh Member
(4) Chief Engineer (M.T.) Uttar Pradesh Member
Reservation (A) Reservation to fill up the vacancies in abovementioned posts for Scheduled Castes and Schedule Tribes Officers will be as per the orders issued by the Government from time to time."
As certain clerical mistakes occurred in the said order, by another Government Order dated 20th May, 1988 it was amended, which reads as under:
"In sub Para (2), (3) and (6) of Office Memorandum No. 2379/5451800(8)/87, dated 10th May, 1988, fixing critaria/procedure for appointment/promotion on the Class I post of Superintending Engineer equivalent posts of Ground Water Investigation Organisation are Executive Engineer (Civil) and Executive Engineer (Mechanical) etc.
The word "geohydrologist" should be read in place of word ''Senior Hydrologist'' and the word "Senior Geophysicist", used in subpara (6) should be read in place of ''Senior Geologist'' and word "Senior Chemist" mentioned in subpara (3) may be considered deleted.
Further, in the above office memorandum under subpara (4) the word "Chemist" should be read after "Asstt. Geologist in second line and the word ''Surveyor'' should be considered an addition in between the word "Technical Asstt." and qualify" in fourth line."
It is wellsettled that in absence of specific Rules governing the conditions of service framed either under Article 309 of the Constitution or under any law for the time being in force, the State Government can regulate the services of its employees on the basis of exeuctive instructions, because under Article 162 of the Constitution the executive power of the State extend to all matters with respect to which the legislature of a State has power to make laws, provided it does not contravene any law relating to that matter or Rules having the force of law. Such administrative orders can only be challenged, if the same are arbitrary or discriminatory, meaning thereby that it is violative of Articles 14 of the Constitution or suffers from colourable exercise of power. In general, the Court would not exercise its power of judicial review to interfere with an executive order underlining the policy made by the State Government, when it involves technical scientific or economic expertise.
The determination of the question as to whether ground water department is an engineering discipline department or a multidisciplined department involves scientific expertise the adjudication of which is a difficult exercise Suffice to say that since its inception, the Geological Survey of India, the Scientific Investigations and constructions of wells and tube wells were undertaken by the Geological Survey of India. The Government of India with a view to explore the policy to undertake such projects in other parts of Country, created a Ground Water Organisation which functioned till 1949. In the year 1954 the Government of India had taken a decision to start it for undertaking constructions of exploratory tubewells in the Country. This organisation was named as Exploratory Tube Well Organisation. The Hydrological Survey and Investigation and part of the exploratory work was handled by Geological Survey of India which established a Ground Water Section. The Exploratory Tube Well Organisation was renamed as Central Ground Water Board in the year 1970. On 1st August, 1972 the Government of India merged the Ground Water Wing of the Geological Survey of India with the Central Ground Water Board to make its National Apex Organisation. The Board was entrusted, with several functions, including drilling etc. but that required the acquisition and employment of latest techniques (including remote, Geophysical and Aeromagnetic Services) for the location of the Country''s ground water resources. It also requires quantitative resource assessment studies by collection and interpretation of data relating to procepetationevapotranspiration consumption by Vegetation Services, run of Percolation Presence are literal movement of Ground Water in Geological formations.
The Central Ground Water Board is headed by a Chairman and its two main wings, namely, Hydrological and Engineering headed by Chief Hydrologist and Chief Engineer respectively. The Board is also assisted by a Member (Administration), who is also the Deputy Secretary in the Ministry of Minor Irrigation and the Member (Development) who is the Chief Engineer Minor Irrigation in the Ministry of Irrigation. The Government of India has also included a number of experts as members of the Board, who are drawn from NABARD, Rural Electrification Corporation, National Institute of Hydrology, Central Health Engineering Organisation, National Geophysical Research Institute and Finance Wing of the Ministry.
The role of Hydrological Wing in the department of Ground Water cannot be minimised as it is responsible for all works pertaining to service, investigation, assessment, development and planning of the resource potential, whereas the Engineering Wing is responsible for drilling and construction of Bore Holes with the assistance of Hydrological Wing.
In view of the aforesaid situation, it cannot be said that the Ground Water Department is like any other Engineering Department like Public Works Department, Irrigation Department, Rural Engineering Services Department etc. Until and unless both the wings, namely, Hydrological/Geological and Engineering put their intellect, experience and energies together, the task assigned to them cannot be performed. Hence the contention of the Engineers that the Hydrologist/Geologist/Geophysist etc., who have not obtained a degree in Engineering cannot hold the post of Superintending Engineer or Director of the Ground Water Department cannot hold good.
As the word ''engineer'', ''executive engineer" or ''superintending engineer'' was creating confusion and the Engineers thought that the posts were meant only for those who hold Engineering Degrees, the State Government appointed a Committee known as Acharya Committee to look into that aspect of the matter. The Acharya Committee recommended that the post of Superintending Engineer be renamed as Joint Director, the post of Executive Engineer and other equivalent post be renamed as Deputy Director. The post of Assistant Engineer and other equivalent posts be renamed as Assistant Director.
But before the recommendation of Acharya Committee could be implemented, an Engineer Sri S.P. Saxena filed a claim petition before the U.P. Public Service Tribunal, praying that the nomenlature of the post of Superintending Engineer cannot be changed to Joint Director. On 28484 the U.P. Public Services Tribunal passed aninterim order to the effect that the nomenclature of the post of Superintending Engineer would not be changed till further orders. As Sri S.P. Saxena was repatriated to his parent department i.e. Irrigation Department, the claim petition became infructuous. Thereafter one Sri Shailendra Bhushan, who is also petitioner of Writ Petition No. 5209 of 1988 filed a claim petition before the U.P. Public Services Tribunal and the Tribunal passed a similar order.
In view of the interim order, the State Government was constrained to issue an executive instruction on 10588, so as to provide equal opportunity to all class I officers may be promoted on the post of Superintending Engineer which is next higher class one post after Executive Engineer, meaning thereby that all the Class I officers, whether they belong to Engineering Discipline or Hydrogeologist/Geologist or Geophysist disciplines were treated equally in the matter of promotion to the post of Superintending Engineer. As the Ground Water Department consists of 60% scientists, hence in the matter of promotion on the post of Superintending Engineer they enjoyed major share.
The Government Order dated 10588 has treated all the officers working in the department of Ground Water, whether they are scientists or engineers equally as Class I and II officers, equally and they could be promoted on higher posts on the basis of seniority, subject to rejection of unfit. In view of the aforesaid position, it cannot be said that the Government Order dated 10588 is discriminatory or arbitrary in any manner.
The argument of Mr. S.K. Kalia, learned counsel appearing on behalf of Sri Shailendra Bhushan, that in absence of Service Rules the State Government ought to have noted in accordance with Service Rules enforced in the Irrigation Department is totally misconceived. As we have already observed that the Ground Water Department is a multidisciplined department, Service Rules of other le. Irrigation department etc. cannot be made applicable in the department of Ground Water. Since the executive power of the State Executive is coextensive with that of State Legislature, it follows that the State Executive may pass Government Order regulating any matter within the legislative competence of the State Legislature, without prior legislative authority, provided such an order does not effect the fundamental right, violate any provision of the Constitution or any law for the time being in force etc. The State Government till the Rules are framed can certainly regulate the services of employees of the Ground Water by executive orders, issued under Article 162 of the Constitution of India.
Sri Nabi Hasan by means of his writ petition No. 4624(SB) of 1993 has prayed for issuance of a writ in the nature of mandamus commanding the State of U.P. to fill up the post of Director by considering the cases of Superintending Engineers working in the Ground Water Department and for this purpose the Departmental Promotion Committee be directed to hold its meeting. He also prayed that the State of U.P. be restrained from inducting deputationists on the posts in Ground Water Department and not to allow the outsider to hold the duel charge of Director, in Ground Water Department and till the Departmental Promotion Committee holds its meeting the vacancy in Class I post and the post of Director be filled by the departmental candidates on ad hoc basis. On 12693 this Court passed an order that meanwhile it is provided that the opposite parties would be free to fill the post of Director in Ground Water Department by holding Departmental Promotion Committee, but in no case the opposite parties will fill up the post by an outsider on deputation or the person of another department or give duel charge to any other person of the department.
According to Sri Nabi Hasan he on 15121965 was appointed as Assistant Hydrogeologist in the Central Ground Water Board under the Ministry of Irrigation and Power after he being selected by the Union Public Service Commission. On 15121968 he was declared quasipermanent on the said post. On 16121971 he was promoted to the post of Junior Hydrogeologist in the Central Ground Water Board under the Government of India. While working as Junior Hydrogeologist in the Central Ground Water Board, he was selected for appointment by the U.P. Government to the Gazetted (Class I) post of Geohydrologist in Ground Water Investigation Organisation under the charge of the Department of Rural Development. As a result of the appointment his services were placed on deputation at the disposal of U.P Government by means of the order dated 3081973. The petitioner thereafter joined the Ground Water Investigation Organisation under the department of Rural Development, Government of U.P on the post of Hydrogeologist with effect from 25111973. His deputation was extended twice and thereafter he was absorbed on 4121977 in the Ground Water Investigation Organisation by means of the Gazette notification dated 21781. Thus his lien in the Central Ground Water Board came to an end.
On 26th February, 1983 the Government of Uttar Pradesh granted seniority in Class I to Sri Nabi Hasan Geohydrologist with effect from 4121977 consequent to his absorption in the Ground Water Investigation Organisation. The order dated 26th February, 1983 provides that the Officers appointed substantively in Class I in the Organisation on 4121977 shall be senior to Sri Nabi Hasan, but those officers appointed substantively in Class I and are in position after that date shall be considered junior to him. On 21st April, 1984 the Governor was pleased to promote Sri Nabi Hasan, Geohydrologist, Ground Water Investigation Organisation on the post of Superintending Engineer on ad hoc basis. On 16th July, 1988 the State Government promoted on regular basis Sarvashri Nabi Hasan and Prakash Singh, Senior Hydrogeologist on the post of Superintending Engineer on the basis of the recommendation of the Selection Committee, which was constituted under an Executive Order dated 10588, but his order of promotion was treated as provisional in the context of the order dated 1271988 passed by the Hon''ble High Court in Writ Petition No. 5209 of 1988 filed by Sri Shailendra Bhushan and it was further provided in the order that the promotion of Sri Nabi Hasan shall be subject to the orders of Hon''ble High Court.
It is pertinent to mention here that during the year 1983 one Sri Kaplan Singh was working on promotion as Superintending Engineer on ad hoc basis and Sri Nabi Hasan was working on promotion on the post of Superintending Engineer on ad hoc basis. Sri Kaptan Singh was a mechanical engineer who was later on repatriated to his parent irrigation department.
In the year 1983, U.P Sinchai Vibhag Yantrik Abhiyanta Sangh representing the cause of officers of the mechanical side filed writ petition bearing No. 1943 of 1983. On 1241983 an interim order was passed that civil engineers be not posted on the post of mechanical cadre. Thereafter the department filed an application for vacation of the interim order alongwith a counter affidavit. The main thrust of the petitioners of that writ petition was that consequent upon the repatriation of Sri Kaptan Singh to his parent department i.e. the Irrigation department, the post should not be filled up by persons belonging to the disciplines of Civil, Geology, Geophysics or Chemistry or by deputation from Irrigation Department. Sri M.M. Ansari also filed a writ petition staking his claim for promotion on the post of Superintending Engineer. By means of an order passed by this Court, it was provided that the post of Superintending Engineer CircleII shall be filled up from the engineers of mechanical engineering. In view of the aforesaid order the State Government accorded sanction for the upgradation of the sanctioned post of executive engineer (mechanical) to the post of Superintending Engineer (Mechanical) from the date the holder of the post takes over charge. The upgraded post shall be filled up from the seniormost Executive Engineer (Mechanical) of the Ground Water Department and shall not be filled up by the officers belonging to foreign service of any other department and in future one of the available post of Superintending Engineer on falling vacant, the post of Superintending Engineer (Scientific cadre) shall be converted into the one post of Executive Engineer and shall be kept in abeyance, which will not revive, without the prior permission from the department.
On 25th April, 1990 an executive order was again issued by the State Government providing that promotion on the post of Superintending Engineer shall be made on merits amongst such officers of class I, who have completed fourteen years of service including continuous temporary and officiating service with atleast seven years as class I on the date of selection on the posts of Executive Engineer (Civil), Geohydrologist, Senior Geophysicist, Senior Hydrogologist and Personal Assistant (Technical). The order further provided that the promotion on the post of Superintending Engineer (Mechanical) upgraded by means of the G.O. dated 9th August, 1989 shall be made on the basis of merits amongst Executive Engineer (Mechanical) and such Officers of Group ''A of Mechanical Cadre who were regularly appointed and who fulfil other conditions of eligibility.
On llth August, 1992 on a writ petition filed by Sri C.S. Agarwal. This Court passed an interim order that the post of Director will not be filled up on deputation till further orders of this Court, but the opposite parties would be free to fill up the post by promotion as per Rules. Sri Nabi Hasan also filed another writ petition bearing No. 4624(SB) of 1993 wherein an interim order was passed that the opposite parties shall be free to fill up the post of Director through Departmental Promotion Committee, but in no case, will fill up the post from outsider or by holding dual charge of any other departmental candidate. The State Government filed applications alongwith the Counter Affidavit for the vacation of the interim orders which still remain to be pending. As no Service Rules were framed, for Group''A and Group ''B'' post of Ground Water Department, hence the regular promotion on the post of Director was not possible through a Selection Committee. But an anamolous situation was created after the retirement of Sri Yogesh Kumar the erstwhile Director of Ground Water. By means of an executive order Sri Yogesh Kumar was directed to hand over charge to Secretary, Rural Development Department. On 26th November, 1993 the State Government was constrained to give the additional charge of the post of Director to Sri Nabi Hasan, Superintending Engineer at Allahabad in the same capacity, purely on stop gap arrangement till regular arrangement on the post of Director or further orders for which no additional pay or dual charge allowance should be admissible to him. The order dated 26th November, 1993 passed by the State Government further clarified that on the basis of above arrangement no claim of Sri Nabi Hassan regarding temporary/officiating arrangement on the post of Director shall be acceptable and that order shall remain under the orders or decisions of the Hon''ble High Court/Supreme Court in the writ petition in question alongwith such petitions/appeals. The said order was challenged by Sri M.M. Ansari in writ petition No. 9850 (SB) of 1993 and thereafter the matter went upto the Supreme Court and on 30th August, 1994 in S.L.P. No. 6201 of 1994 Hon''ble Supreme Court passed the order which has been quoted in para 8 of this judgment.
As far as Sri M.M. Ansari petitioner of writ petition No. 9850(SB) of 1993 is concerned he was initially appointed as Assistant Engineer in Rural Engineering Survey Scheme in the State Planning Institute on 5773. He continued to work on the said post till 25th January, 1975 when he joined the Minor Irrigation Department in the capacity of Assistant Engineer upto 14th July, 1976. On 15th July, 1976 he was appointed as an Assistant Engineer in the Ground Water Department and since then he has been working in the Ground Water Department. His services were regularised under the Regularisation of Ad hoc Services Government Order dated 8280. He was promoted to Class I post on ad hoc basis with effect from 19381 and his regular promotion on Class I post was made on 29689.
As far as the case of Sri C.S. Agarwal, petitioner of writ petition No. 4344(SB) of 1992 and petitioner of Writ Petition No. 70(SB) of 1996, is concerned, he was appointed as Assistant Geologist on ad hoc basis on 3011973. His services were regularised on 821980 by a Government Order. He was promoted on ad hoc basis on class I post on 1931981 and order for regular promotion was made on 16788. He has claimed that his position in the seniority is at serial No. 8, while the position of Sri M.M. Ansari is at serial No. 11. He has staked the claim for his promotion on the post of Superintending Engineer. In his writ petition he has prayed for a direction to the opposite parties to remove the anamolies that have been made in the Draft Service Rules by providing for promotion of Superintending Engineer (Mechanical) to that of the post of Director, Ground Water Department, the Executive Engineer (Mechanical) to Superintending Engineer (Mechanical) and to produce the authenticated Draft Service Rules before this Court and commanding the opposite parties to decide his representation dated 24111995 before proceeding with the selection for the post of Director, Ground Water Department.
It is evident from the Government Order dated 2621983, by means of which the seniority of Sri Nabi Hasan was determined that when he was permanently absorbed in the department as Class I officer with effect from 4121977 Sri M.M. Ansari did not even attain the statute of Class I Officer, because on 15th July, 1976 he was appointed as Assistant Engineer in the Ground Water Department on ad hoc basis. His services as Assistant Engineer were regularised on 8280. On 19381 he was promoted to class I post on adhoc basis and his regular promotion on class I post was made on 29689. By means of the Government Order No. 835/3841800(105) 82 dated 16483 he was placed at serial No. 11, while Sri C.S. Agarwal who has filed the writ petition bearing No. 70(SB) of 1996 was placed at serial No. 8 of the seniority list. In view of the aforesaid position he cannot steal a march over Sri Nabi Hasan. Sri Nabi Hasan being the senior most Superintending Engineer in the Ground Water Department was given the additional charge of the Director of the Ground Water Department. Sri M.M. Ansari who is such junior to him, cannot assail the appointment of Sri Nabi Hasan on the post of Superintending Engineering as well as the dual charge as Director which was given to him by means of executive orders. As we have already indicated that the department of Ground Water is a multidisciplined department, hence the thrust of Sri M.M. Ansari and other petitioners raising the same question, that he could not have been promoted as Superintending Engineer is devoid of merit.
Mr. Umesh Chandra learned counsel for the petitioner Sri Nabi Hasan submitted that after the Draft Rules governing the conditions of the services of the staff of the multidisciplined department of Ground Water, after obtaining the approval of the Public Service Commission, came back to the Government, certain interpolations were made in the Draft Rules, by certain persons in the Geologist to cause prejudice to the case of the petitioner, for being selected by the Department Promotional Committee as a Director. The said Rules were produced before this Court. We
have perused and scrutinised very minutely the Draft Rules and we do not find that any interpolation was made. However, it is for Sri Nabi Hasan to approach the State Government raising a grievance of such nature and the Rule making authority can look into that grievances. On such a contentious question we cannot give a definite opinion, whether any interpolation was made or not.
We are not aware as to why the State of U.P. has not notified the Rules governing the conditions of the services of the staff of Ground Water Department, inspite of the fact that the Rules have been approved by the Public Service Commission. The entire controversy which has been raised in these writ petitions would have come to an end if the Rules would have been framed. Although by means of the order dated 30894 passed in S.L.P. No. 6201 of 1994 Hon''ble Supreme Court has given a free hand to the Government to take effective steps (sic) to fill up the posts by appropriate proceedings, which would mean that in the meanwhile the State Government would have finalised the Rules of Recruitment and even if the Rules could not be finalised the Draft Rules shall afford the guiding principles. The State Government for the reasons best known to it, has neither finalised the Rules nor did take any steps to hold the meeting of the Departmental Promotion Committee to make the selection.
In view of the aforesaid situation, we direct the State Government to finalise the Draft Rules expeditiously, say within six months and thereafter hold the selection for the post of Director, Superintending Engineer and Executive Engineers etc. in accordance with Rules, but it will be open for the State Government, if it wants to expedite the process, to hold the selection even earlier, on the basis of the Draft Rules, in accordance with the observations of Hon''ble Supreme Court and till the selection will be made finally the position of Sri Nabi Hasan shall not be disturbed. The respondents are also directed to determine the seniority of all the officers in accordance with either the Service Rules, or in their absence of the Draft Rules in accordance with law.
With the aforesaid observations all the writ petitions are dismissed except writ petitions Nos. 5390 of 1983 and Writ Petition No. 4624 (SB) of 1993 filed by Sri Nabi Hasan. Writ Petitions Nos. 5390 of 1983 and 4624 (SB) of 1993 are disposed of in view of the observations made above.