(1) THE petitioners in thesa two petitions under Ant. 226 were allottees to the State of Karnataka from the former State of Madras. The common question involved herein is whether the service renderd by the petitioners in the equated posts should count for their seniority in the Final inter-State Seniority List of the Gazetted Officers of the Public Works Dept.

(2) THE relevant facts are these: The petitioners originally entered service 35 Junior Engineers in the Highways Dept of the former State of madras. Thereafter they were appointed under Rule 10 (a) (i) of the general Rules for the State and Subordinate Services of the Madras State which provided for appointment of candidates on emergency basis. Nogendra the petitioner in WP. 2072 of 1972 was appointed as Asst engineer on 7-12-1955; Rama Mohan Nayak the petitioner in WP. 2105 of 1972 was appointed as Asst Engineer on 16-8-1954. As a result of the Reorganisation of States they were allotted to the new State of Mysore (now karnataka) with effect from 1-11-1956. The State Government for the purpose of equating the posts of the petitioners took a decision that the posts held by them, as on 1-11-1956 should be equated to the posit of Asst engineer of Mysore and Asst Engineer of Hyderabad and Dy Engineer of bombay. Accordingly Provincial Inter-State Seniority List was prepared. The petitioners were not aggrieved either by the equation or seniority given to them Thereafter the Central Govt with the assistance of the advice tendered by the Advisory Committee constituted under sub-sec (5)of S. 115 of the States Reorganisation Act took a decision similar to one taken by the State Govt. Accordingly a Final Inter-Stata Seniority List of Gazetted Officers of the PWD was prepared and published by Notification d/. 3rd Aug 1968 in the Karnataka Gazette (Exy) d|. 6th Aug 1968. In that List Nagendra occupied 225th rank and Rama Mohan Nayak was ranked at Serial No. 181 in respect of which both of them had no grievance. However, the allottees from the former State of Bombay challenged the validity of their equation made by the Central Govt by preferring writ petitions in this Court. Those! writ petitions were allowed with a direction to the Central Govt to consider the representations of the said officials and re-do the Final Inter-State Seniority List. Pursuant to the direction the Contral Government prepared another Final inter-State Seniority List which was published under Notification d|. 6th Sep 1971 in the Karnataka Gazette d|. 16th Sep 1971. In the said list Nagendra was ranked at SI. No. 222 while Rama Mohan Nayak retained his ranking at SI. No. 181.

(3) INTERRUPTING the narration I have to state one other fact which had a turning point on the service conditions of the petitioners. In 1969 it was brought to the notice of the Central Govt through an affidavit filed before the Kerala High Count by one Mr. P. V. Antony an officer allotted from the former State of Madras to the reorganised Kerala State that nagendara and Rama Mohan Nayak among others were appointed on emergency basis in tha former State of Madras and continued to remain as such till 31st Oct 1956. The averments in other words were to the effect that these petitioners were not regularly appointed to the cadre of Asst engineers and the refore not entitled to the seniority in that cadre. Relying upon that information the Central Govt wanted to include the petitioners in a separate category in the Final Inter-State Seniority List of the Gazetted officers of their cadre. For that purposethe Central Govt directed the state Govt to give an opportunity to the petitioners calling upon them why they should not be included in a separate category. On 5th Dec 1969 the State Govt issued a Notification stating thus :

" GOVERNMENT OF MYSORE no GAD 88 IGS 69 mysore Govt Secretariat Vidhana Soudha bangalore d/5th Dec 1969 notification the Final Inter-State Seniority List of Gazetted Officers of PWD has been published in accordance with the decisions of Govt of India in Notification No. GDA 3 IGS 66 d. Aug 1968. In that list Sriyuths u. A. Gafoor, U. N. Parameshwara Rao M. D. Srinivasa Iyengar, U. Rama Mohan Nayak and V. L. Nagendra has been included at Sl. Nos. 126 166 178 181 and 225 in tha Category V on the basis of their dates of continuous officiation in the equated cadre. It has since been brought to the notice of Govt of India in WP 2211/65 filed of Sri P. V. Anthony in the High Court off Kerala that these officers were appointed on emergency basis in Ex-Madras and continued as such op 31st Oct 1956. In view of this it is proposed to delete their names from Caetgory V of the Final Inter-State Seniority list of Gazetted Officers of PWD and to include them in a separate category under the heading officers holding appointments on emergency basis below Category V of the said List objections to the above proposal may be submitted in six sets addressed to the Secretary to the Govt of India Ministry of Home affairs New Delhi-1 through the Chief Secretary to Govt of Mysore general Administration Dept (Integration) Vidhana Soudha bangalore-1 within one month from the) date of publication of this Notification in the Gazette. If no objections are received in time it will be assumed that there are no objections to the proposal and further action will be taken accordingly. Dy Secy to Govt Genl Admtn Dept (Integration). "

Sd. R. A. Deshpande by Order and in the name of the Governor of Mysore] in response to the Notification the petitioners filed their abjections contending inter alai that the Central Govt have no jurisdiction to change the Final Inter-State Seniority List when it has once beep finalised under the provisoi to Art. 309 of the Constn read with S. 115 (5) of the States reorganisation Act; that Mr. P. V. Antopy was not borne in the Highways dept of the former State of Madras and his knowledge cannot be imported and applied to the petitioners; that the petitioners were permanent Junior engineers in the Madras Highways Subordinate Service at the time of their promotion as Asst Engineers and the normal practice in their parent state was to regularise their services from the data or dates on which they were temporarily appointed earlier. They have also pointed out that their juniors in the parent State who were appointed along with them under rule 10 (a) (i) of the General Rules for the State and Subordinate Services of the Madras State have been given the benefit of regular promotion as asst Engineers from the dates of their initial appointment and thereafter they have also been promoted to higher post on that basis. In support of their contention they have produced along with their representations a copy of the letter of the Chief Engineer (Highways). Madras d|. 19-2-1958 addressed to the Secretary tc Govt PWD Madras. The said cqpy has been produced in these petitions as Ext. j to the reply statement filed by the petitioners. I will advert to its consents a little later as it is a very important document. The replies submitted by the petitioners did not satisfy either the State Govt or the Central Govt. The decision of the Central govt contained in their letter d/. 12th Jan 1972 addressed to the Chief secretary to the State Govt is as follows :"sir with reference to the correspondence resting with your letter no. GAD 80 IGS 69 d|. 13th Dec 1971 I am directed to say that the Gqvt of India have in consultation with the Central Advisory Committee considered the representation submitted by the officers of the PWD of Mysore and have decided as follqws : (1) Sriyuths M. D. Srinivasa lyengar (2) U. Rama Mohan Nayak and (3) V. L. Nagendra.- - - - -On 31-10-1956 Sriyuths Srinivasa lyengar Rama Mohon Nayak and nagendra were holding the posts of Asst Engineers in Madras on an emergency basis. As the Inter-State Seniority List as on 1st Nov 1956 has to show the position as it obtainad on 31st Oet 1956 it will be in order far the State Govt to delete the names of these officers as well as officers similarly placd in Category V of the ISS List and include them in a separate list showing the officers holding appointment on an emergency basis. The State Govt may however consider the desirability of taking suit-bale necessary action in regard to regularisation of services of the officers in the light of the action taken by the Govt of Madras (Tamil Nadu)in respect of the officers similarly placed but allotted to that State on reorganisation of Spates. Action which may be taken in this connection may please be intimated to this Dept urgently. "

As per the above decision the State Govt issued a Notification dated 8th Feb 1972 and published in the Karnataka Gazette d|. Feb 24. 1972 deleting the names of the petitioners in Category V of the Final Inter-State Seniority List of the Gazetted Officers of the PWD and including them immediately below Category V under a separate heading temporary localiemergency Candidates. Challenging the legalitity of this action the petitioners have moved this Court with applications under Art. 226 of the Constn praying for the following main relief : quash by the issue of appropriate writ or order as the case may be the Notification d/. 8-2-1972 published in the Mysore Gazette d|. 24-2-1972 (Ext. d) with a further direction directing the respondents 1 and 2 to give effect to the said list.

(4) IN resisting the petitions the State Govt have filed statement of objections in which it was stated as follows :

" The petitioners were appointed along with others as Temporary- Asst Engineers in Category IV of the Madras Highways Engineering service with effct from the date of taking charge under Rule 10 (a) (1) of the General Rules for the Madras State and Suborinate services. At the time of publication of the final ISS List of Gazetted Officers of pwd in 1968 the State Govt and the Govt of India were not aware of the nature of their appointment and consequently they were included in the regular list in Category V of the said list. In 1969 it was brought to the notice of Govt of India through an affidavit filed by Shri P. V. Antony an officer allotted from Ex. Madras to the reorganised State of Kerala that Sriyuths U. A. Gaffor U. N. Parameshwara Rao M. D. Srinivasa lyengar U. Rama Mohan Nayak and V. L. Nagendra were appointed on emergency basis in Ex-Madras and continued as such till 31-10-1956. According to the general principles of the Govt of India officers holding appointment as local candidates or on emergency basis as on 31-10-1956 are not eligible for inclusion in the regular list and they are to be shown in a separate category of Temporary/local emergency Candidates. As the inclusion of the petitioners names in the regular list would be contrary to the above decision of the Govt of india a proposal was notified in Notification No. GAD 88 IGS 69 d|. 5-12-69 to delete the names of aforesaid 5 officers holding appointments on emergency basis below Category V of the ISS List. "

It was further stated :" According to the decision of the Govt of India the services rendered purely on stop gap arrangemennt or fortuitous arrangement will have to be excluded. A person promoted under Rule 39 of the Madras subordinate Service Rules cannot be regarded as a probationer in the higher category. Accqrding to Rule 35 of the Rules the period which does not count for promotion under Rule 10 (a) (iv) 10 (d) to. 39 (d) or 44 does not count towards seniority and seniority shall be determined only from the date of commencement of service which counts towards probation. In view of I his position and as it was brought to the notice of the Central Govt through an affidavit of Sri P V. Anthony an officer allowed from Ex-Madras to the Kerala State that the writ petitioners and other officers of Madras were appointed on emergency basis in ex-Madras and continued as such the position assigned to the petitioners in the final TSS Lists has been altered by removing their lianas from the regular list and including them in a separate list of candidates. "

(5) THE Central Govt have not filed any statement of objections. But mr. Narayana Rao Counsel for the Central Govt has supported the stand taken by the Slate Govt by producing the relevant original records.

(6) THE substance of the stand taken in the statement of objection is that according to the general principle accepted by the Govt of India officers holding appointments as local candidates or on emergency basis as on 31-10-1956 are not eligible for inclusion in the regular list and they arts to be shown in a separate category. The petitioners who were appointed on emergency basis in the former State of Madras and continued as such till 31-10-1956 should therefore be included in a separate category.

(7) IT was the contention of the petitioners that they were neither appointed as local candidates ncr held the posts of Asst Engineers on any emergency basis. According to them it was a usual practice in their parent state to appoint officers temporarily under Rule 10 (a) (i) of the General rules for the State and Subordinate Services of the Madras State subject to the approval of the Public Service Commission therein. It was also contended that the petitioners along with their colleagues were temporarily promoted under the above rule as per their seniority and merit and the services of their juniors as usual have been later regularised by the Madras govt with approval of the Madras Public Service Commission; and therefore it was illegal to deny them the benefit of seniority which they were entitled to in their parent State.

(8) LET me now turn to the rule under which the petitioners were appointed. It reads as follows :

" 10 (a) (i). Where it is necessary in the) public interest owing to any emergency which has arisen to fill immediately a vacancy in a post borne on the cadre of a service class or category and there would be undue delay in making such appointment in accordance with these rules and the Special Rules the appointing authority may appoint a person otherwise than in accordance with the said rules temporarily until a person is appointed in accordance with the said rules. "

The rule provides for temporary appointment in accordance with the recruitment Rules. The rule does not prohibit the appointment by promotion of a person who is otherwise eligible for regular appointment or promotion as per the Recruitment Rules of his Dept. If a person who is available for regular appointment under the relevant cadre rules is temporarily appointed under the above rule till he is considered for regular appointment I fail to see any good reason why he should be treated as a local candidate or a candidate! appointed on any emergency basis. The nature of each appqintment in my view has to be examined before applying the sat principles laid dqwn by the Central Govt or otherwise it would cause great injustice to the allqttees. The question that requires to be investigated in the present case therefore is whether the petitioners appointment as Asat Engineers under the above rule was on the basis of their seniority in the cadre of Junior engineers and if so whether their appointment would have been regularised had they remained in their panent State; or whether it was purely as a stop gap arrangement or appointment as local candidates.

(9) THERE is ample evidence to show that the petitioners though appointed temporarily as Asst Engineers it was in fact a regular promotion to them as Asst Engineers on the basis of their seniority. It was stated that before their appointment their seniors were already promoted as Asst Engineers. It was further stated that they were appointed against clear vacancies and not as a stop gap arrangement or on ad hoc basis. The petitioners in support of the above averments have produced an extract of the seniority list of the Junior Engineers annexed as Ext. f to the reply statement and also produced a copy of the classified list of Gaaetted Officers of the former State of Madras as on first January 1956. Nagendra was ranged therein at Sl. No. 61 whereas Rama Mohan Nayak was ranked at si. No. 43. Before the Reorganisation of States the service records of the petitioners along with their colleagues were forwarded to the Madras public Service Commission. The Commission considered the case of the petitioners along with that of other officers and found them suitable for appointment aa Asst Engineers. This fact is disclosed by the Secretary to the Govt of Madras in his communication d. 15th Jan 1957 addressed to the PWD Secretary to the Govt of Mysore. A copy of the said letter has been produced as Ext. h to the reply statement. The said lettar reads thus:

" PUBLIC WORKS DEPARTMENT letter No. 3630 L 47-51 Fort St. Geqrge d/. 15th Jan 1957 from Sri S. K. Chettur ICS Secretary to Govt of Madras to The Secretary to Govt of Mysore PWD. Bangalore sir i am directed to stata that the Madras Public Service Commission has forwarded to this Govt list of candidates (Temporary Supervisors and Junior Engineers) selected by it for appointment as Asst Engineer highways. Action is being taken by this Govt on the recommendation of the Commission in regard to the candidates now serving in this state. Similar action will have to be taken by the Mysore Govt in respect of the candidates allotted to Mysore. I am therefore to forward relevant extracts from the Commissions letter for necessary action. Yours faithfully sd. A. J. Chandy for Secretary to Govt. "

It is obvious from the above correspondence that the petitioners if they had continued in their parent State would have been regularly appointed as Asst Engineers. In this context reference may be made to another letter addressed to the Secretary to the Govt PWD Madras by the Chief Engineer Highways Madras a copy of which has bee produced as Ext. jto the reply statement. The said letter so far as it is relevant, reads as follows :" The fallowing Asst Engineers wetre appointed temporarily on the dates hated against their names : -1. . . . . . . . . . . 3. Sri U. N. Parameshwar Rao 24-12-53 f. n. 4. Sri U. Rama Mohan Nayak 16- 8-54 f. n. 5. Sri V. L. Nagendra 7-12-55 f. n. The services of the above Asst Engineers would have been regularised from 1-4-46 or from the date of appointment noted against them whichever is later along with others had they contiriued in Madras State. "

From We above letter it becomes further clear that the petitioners appointment as Asst Engineers would have been regularised retrospecvely from the date of their temporary appointment When such being the position it is not correct to contend for the respondents that the petitioners wetre appinted on ad hoc basis and not entitled to get seniority in the cadre off Assistant Engineers.

(10) A case almost simitar to the one before me came up for consideration before the Supreme Court in Damodaram Nayar v. State of kerala, AIR. 1874 SC. 1348. In that casie a question arose as to whether the services rendered by an official f in his temporary appointment under Rule 7a of the Madras state Judicial Service Rules which is similar to Rule 10 (a) (i) of the madras State and Suborinadte Services Rules should be counted for the purpose of his seniority in preparing the Inter-State Seniority List. A contention to the contrary urged in that case was repelled by the Supreme court by observing thus :

" It is common ground that the appellant has been appointed in a regular manner through the Public Service Commission and his appointment cannot by any stretch of imagination be made to fill a "purely stop-gap or fortuitous" vacuum. As noticed earlier the Govt of India has accepted the position that an allotted employee should not suffer any disadvantage if he would not have been subjected to a like handicap in his parent State It is clear from the position taken by the Madras Govt that the appellant would have got the Benefit of his continuous appointment in Madras with effect from May 28 1951. That being the position the submissions of the learned Counsel for the respondents are of no avail. We hold that the appellant should be given the benefit of his seniority reckoning his continuous appointment and assigning the date 26th May 1951 and substituting the same in the final list for 6th October 1951. "

The above principles are equally applicable to the cas of the petitioners before me. It is clear from the position taken by the Madras Govt that the petitioners would have got the benefit of their continuous service in the cadre of Asst Engineers had they remained in Madras Staste Such being the position they should not be subjected to any disadvantage or prejudice as a result of Reorganisationn of the States.

(11) FROM the records it is clear that the petitioners were not appointed as local candidates. They were recruited by the Public Service Commission as junior Engineers and they were confirmed in that cadre before they were temporarily appointed as Asst Engineers. The persons holding permanent appointments in one cadre cannot under law be appointed as local candidates in the posts to which they were eligible for promotion. The temporary appointments of the petitioners under Rule 10 (a) (i) of the said rules in the context must be construed as temporary promotions of the petitioners as the posts of Asst Engineers were promotional posts from the cadre of Junior Engineers.

(12) IN my view the petitioners should be given seniority in the cadre of Asst Engineers from the dates on which they were appointed as such and the respondents were in error in deleting the names of the petitioners in the Final Inter-State Seniority List.

(13) IN the result thesis petitions are allowed and a writ in the nature of certiotari shall issue quashing the Notification Ext. d so far as it relates to the petitioners.

(14) IN the circumstances I make no order as to costs.