ORDER Shivdayal, J. 1. This is a petition under Articles 226 and 227 of the Constitution for quashing the order of the petitioner's reversion and the order changing the date of his promotion and for issuance of a suitable writ and consequential directions. 2. In 1947 the petitioner was appointed a Sub-Overseer in the Public Works Department of the Central Provinces. By order of the Chief Engineer, dated October 16, 1956 (annexure A), he was promoted as Overseer with retrospective effect from April 1, 1952. Then, on November 1, 1956, the new State of Madhya Pradesh came into being. On April 24, 1961, he was appointed a Sub-Divisional Officer (annexure B). On December 10, 1963, he was promoted to the post of an Assistant Engineer temporarily, subject to (1) the concurrence of the Public Service Commission and (2) the condition that in case the promotion was found to be improper on the ground of seniority, he would be reverted. However, prior to this order, a notice dated July 20, 1961 (annexure D), had been served on him to show cause why the date of his promotion be not altered from April 1, 1952 to April 1, 1956. In response to this notice, he made a representation dated August 10, 1961, (annexure E) against the proposed change in the date of his promotion. 3. On September 30, 1961, was published a provisional gradation list (annexure F), in which the "date of commencement of continuous officiation in equated cadre" was shown as "1-4-1952". It may be Doted that it was after this that the order dated December 10, 1963 (annexure E) appointing him an Assistant Engineer was made. In the Final gradation list dated June 4, 1965, the date of his promotion was shown as April 1, 1955. By order dated July 29, 1966 (annexure H), he was reverted to his substantive post. 4. On October 1, 1966, he filed this petition. His grievance was that his representation, which he had made in response to the show cause notice, had not been considered and no decision had been taken. He urged that under section 115 of the States Re-organisation Act, his status and date of promotion as prevailing on November 1, 1956, were bound to be acknowledged and the same could not be affected adversely, particularly when no decision had been taken on his representation. 5. He urged that under section 115 of the States Re-organisation Act, his status and date of promotion as prevailing on November 1, 1956, were bound to be acknowledged and the same could not be affected adversely, particularly when no decision had been taken on his representation. 5. During the pendency of this petition, the order of the Madhya Pradesh Government dated February 16, 1965 (annexure K) and the approval of the Government of India dated March 12, 1965 were communicated to the petitioner. It appears from the former that the representation was considered by the State Government. The Government decided to shift the date of confirmation and the date of appointment of the petitioner as Overseer from April 1, 1952, to April 1, 1956. And, as this affected his service conditions, approval of the Government of India was necessary in accordance with the provisions of section 115 (7) of the States Reorganization Act. The decision of the State Government is based on the following three grounds:- "(1) The Madhya Pradesh Public Service Commission, while agreeing to the promotion of Sub-overseers as Overseers as recommended by the Chief Engineer wished to consider the cases of all deserving persons for promotion so that by subsequent promotions they should not lose their seniority. The Chief Engineer, B & R thereafter vide his order dated 16-10-56 promoted Mahasingh with effect from 1-4-1952 while other who were senior to him were promoted with effect from 1-4-1956. The result of giving earlier date of promotion to Shri Mahasing in that he will be ranked above those persons who were senior to him in the lower cadre and who were promoted under the same order in the recommendation of Madhya Pradesh Public Service Commission. This will upset the inter se seniority in the cadre of the Sub-Overseers. (2) It was irregular to appoint a person retrospectively on a post on which he bas not actually worked. As Shri Mahasingh had not actually worked as Overseer before October, 1956 it was irregular to promote him as overseer with effect from a date more than 4 years back. (3) There was no permanent post of Overseer available for the confirmation of Shri Maha Singh with retrospective effect from 1-4-1952. 6. As Shri Mahasingh had not actually worked as Overseer before October, 1956 it was irregular to promote him as overseer with effect from a date more than 4 years back. (3) There was no permanent post of Overseer available for the confirmation of Shri Maha Singh with retrospective effect from 1-4-1952. 6. The petitioner then amended his petition and challenged these orders (annexures K and L.) Inter alia, he alleged that the Chief Engineer was the competent authority for promoting him as Overseer and that his order was, final. Moreover, there were many other appointments with retrospective effect so that the appointment of the petitioner alone could not be disturbed as such discrimination would violate Articles 14 and 16 of the Constitution. He further asserted that his promotion as overseer with retrospective effect was via media settlement adopted by the Chief Engineer on the petitioner's pending representations. He further asserted that the duties of the Sub-Overseer and the Overseer were identical according to paragraph 189 of the P.W.D. Manual, Vol. I. He also averred that there were about 100 vacancies in the posts of Overseers on April 1, 1952, and that he was actually doing the work of an Overseer. 7. The State Government filed a supplementary return. It is conceded that the Chief engineer was the competent authority to appoint Overseers. It has not been disputed that the duties of a Sub-Overseer and an overseer were identical. It is also not controverted that the Chief Engineer had made several other appointments with retrospective effect and some of them were from April 1, 1952. The main argument of the learned Government Advocate before us was that the petitioner's appointment as Overseer with retrospective effect from April 1, 1952, was a nullity inasmuch as no such post was available for being filled on that specified date. 8. The first question is whether there was any permanent post of Overseer available to which the Petitioner could be promoted with retrospective effect from April 1, 1952. If no post was available to which the petitioner could be promoted, his promotion was null and void. In the State of Punjab Vs. 8. The first question is whether there was any permanent post of Overseer available to which the Petitioner could be promoted with retrospective effect from April 1, 1952. If no post was available to which the petitioner could be promoted, his promotion was null and void. In the State of Punjab Vs. Jagdeep Singh and Others AIR 1964 SC 521 , their Lordships laid down thus:- "Where a Government servant has no right to a post or to a particular status, though an authority under the Government acting beyond its competence had purported to give that person a status which it was not entitled to give, he will not in law be deemed to have been validly appointed to the post or given the particular status .....................the so-called confirmation by the financial Commissioner of Pepsu was no confirmation at all and was thus invalid". In the present case the contention for the State is that out of 122 posts of Overseers vacant on April 1, 1952 only 1/4th could be filled by promotion of Sub-Overseers while the rest were to be filled by direct recruitment. The stand taken before us on behalf of the State is that 1/4th of 122 which comes to 30 and a half should be taket1 as 30 and not 31. Out of these 30 there had already been filled 28, as shown below, so that only two remained. By this Older dated October 16, 1956, the Chief Engineer promoted 3 Sub-Overseers as Overseers with retrospective effect from April 1, 1952. The contention is "since there were only 2 posts of Overseers vacant on 1-4-1952, three persons could not obviously be promoted. The petitioner being junior to the other two Sub-Oversees named below he could not be promoted for want of a third vacancy." 9. From the supplementary return and the affidavits dated September 3, 1968 and September 18, 1968, made in this Court by the Under Secretary to Government, Public works Department, M. P. Bhopal, the following position emerges clear:- (a) There were 122 posts of permanent Overseers available in 1952. Case for the State Government is that only 1/4th of those posts could be filled by promotion of Sub-Overseers; the rest were to be filled by direct recruitment. Case for the State Government is that only 1/4th of those posts could be filled by promotion of Sub-Overseers; the rest were to be filled by direct recruitment. (b) Under order No. 785/1/E dated September 5, 1952, six posts were filled by promoting the following Sub-Overseers as Overseers:- (1) Balbir Singh (2) S. B. Shahane (3) G. S. Baghel (4) M. N. Bobde (5) N. K. Godbole (6) K. N. Titole These promotions were made retrospectively from April 1, 1952, as these posts had been lying vacant since then. (c) By another order (No. 795/L/E) of the same date, gather Sub-Overseers named below were promoted as Overseers with retrospective effect from April 1, 1952:- (1) V. P. Kulkarni (2) G. M. Saptaputre (3) Ganga Singh (4) J. R. Seengal (5) Bihari Lal Sori (6) Teluram (7) Baburam Mahajan (8) K. S. Sodhi (d) Then, by the third order No. 785/R/E. dated November 24, 1952, the following 14 other Sub-Overseers were promoted as Overseers with retrospective effect from April 1, 1952. They were:- (1) Bhagatram Sharma (2) Ganeshilal Agrawal (3) Melaram (4) R. K. Sharma (5) Dayachand (6) S. M. Zawar (7) Sadanand (8) V. S. Chaudhary (9) N. V. Hardas (10) Prabhakar Indersen (11) H. C. Bhandari (12) C. G. Saoji (13) S. G. Wakode (14) Sobharam Verma In this way, 28 posts had already been filled. (e) Then, by his order dated October 16, 1965, the Chief Engineer promoted 37 Sub- Overseers as Overseers. Out of them, the promotion of the first three was to take effect from April 1, 1952 and of the remaining 34 with effect from April 1, 1956. Those first three were:- (1) R. V. Dighe (2) R. B. Diwanji (3) Mahasingh (petitioner) 10. Let it first of all be mentioned that having admitted that there were 122 permanent posts of Overseers available for appointment on April 1, 1952, the State did not place before us the relevant rule under which only 1/4th of the posts could be filled by promoting Sub-Overseers while 3/4th were to be filled by direct recruitment. The learned Government Advocate told us that this rule was framed by the Chief Engineer himself. If the rule was before us we would have known its language precisely. But assuming what the learned Government Advocate told us is right, we find that 1/4th of 122 posts is not a whole number. The learned Government Advocate told us that this rule was framed by the Chief Engineer himself. If the rule was before us we would have known its language precisely. But assuming what the learned Government Advocate told us is right, we find that 1/4th of 122 posts is not a whole number. It comes to thirty and half. There is nothing to show that 30-1/2 did not mean 31. No rule nor precedent was placed before us to show that in this department 30-1/2 meant 30, but not 31. On the other hand, the very fact that by order dated October 16, 1956, the Chief Engineer promoted 3 Sub-Overseers with retrospective effect from April 1,1952, shows that he considered 30-1/2 to mean 31. The appointment was made by no less an authority than the Chief Engineer himself, who is the head of the Department and who is said to have framed the rule. It is remarkable that in the same order dated October 16,1956, the Chief Engineer himself promoted as many as 37 Sub-Overseers, as overseers but only the first three with retrospective effect from April 1, 1952 while the rest with effect from April 1, 1956. If 30-1/2 meant only 30, he would have promoted only two out of those 37 with retrospective effect from April 1, 1952. 11. Secondly, when 122 posts of Overseers were available to be filled the dictum of the Slate of Punjab Vs. Jagdeep Singh (supra) will not apply. A distinction must be drawn between a case where there is no post at all to be filled and a case where although the post is there, it has to be filled from a specified category of persons. In the present case the State admits that there were 121 posts available for appointment on April 1, 1952. Therefore, it cannot be said that the appointment of the petitioner on the 31st post was a nullity, on the ground that there was no post available on which he could be appointed. Even assuming that the 31st post belonged to the quota allotted for direct recruitment and not to the quota for Departmental promotions, all the same, the post on which the petitioner was appointed was the post of an Overseer and that it was available for being filled. Even assuming that the 31st post belonged to the quota allotted for direct recruitment and not to the quota for Departmental promotions, all the same, the post on which the petitioner was appointed was the post of an Overseer and that it was available for being filled. It is altogether different that the Chief Engineer may have committed an irregularity (although we co not hold so), yet the appointment cannot be said to be invalid on the ground of non-availability of the post on which the petitioner was appointed. At this juncture, we must mention that the State has placed no material before us to show that the other 92 posts of Overseers had already been filled by direct recruitment so that only 30 posts had remained available for Departmental promotion. 12. Thirdly, the fixing of proportionate quotas for Departmental promotions and direct recruitment was merely for the sake of administrative convenience or for the department's own guidance. If the Chief Engineer had himself fixed these quotas for his own guidance or as a matter of his own policy, but he departed from it, the appointment can not be called a nullity. It is not known what consequences were provided in the Rule (relied on by the State, but not filed before us), for a case where the appointing authority did not rigidly observe that policy. It is quite clear to us that the appointment of the petitioner as Overseer cannot be called a nullity even assuming that the Chief Engineer did not observe the rule regarding the quota for departmental promotion. 13. In the Supplementary return, it is admitted that retrospective appointments had been made in other cases, but it is contended that there was no discrimination against the petitioner in the matter of employment, because there was no post vacant on April 1, 1952, to which the petitioner could be promoted. Thus the sheet anchor of the State is the third ground. 14. Strongest instances cited by the petitioner are those of R. B. Dighe and R. B. Diwanji Sub-Overseers were also promoted as overseers with retrospective effect from 1-4-1952 by the same order dated October 16, 1956, by which the petitioner was so promoted. It is not the respondent's case that their promotions have also been struck down on the ground of their being retrospective. It is not the respondent's case that their promotions have also been struck down on the ground of their being retrospective. If no exception was taken to the promotion of Dighe and Diwanji, which was made by the same order and with retrospective effect from the same date as that of the petitioner, it could not be said that his promotion was invalid just because it was to operate retrospectively. The petitioner alone cannot be discriminated against so as to change his date of promotion form 1-4-1952 to 1-4-1956. Dighe and Diwanji had also not worked as Oversees from 1-4-1952 to 1-4-1956. They two had worked as sub-overseers like the petitioner. This lends strong support to the contentions that the duties of the sub-overseer and the overseer are identical so that a person who has worked as a sub-overseer should also be treated to have worked as an overseer, and that such promotions with retrospective effect were valid, Thus, the petitioner is similarly situated in all respects as Dighe and Diwanji, while their retrospective promotion was not disturbed that of the petitioner has been. 15. The petitioner has also relied on annexures R-1, R-2 and R. 3, filed by the State Government, (1) R-1 is order No. 785 J/B, dated September 5, 1952, of the Chief Engineer. By that order, six sub-overseers named in that order, were promoted as overseers with retrospective effect from April 1, 1950. (ii) R-2 is order No. 785/L/E, dated September 5, 1952, of the Chief Engineer, P.W.D., by which 8 Sub-overseers were promoted as overseers with retrospective effect from April 1, 1952. (iii) R-3 is order No. 785/R/F, dated November 24, 1952, by which 14 sub-overseers were promoted as overseers with retrospective effect from April 1, 1952. The petitioner's contention is that all these 28 appointments were with retrospective effect. Not one of them had worked as overseer between the date from which retrospective promotion was given and the date of the order yet, the promotion of not one of them has been disturbed. It is only in the case of the petitioner that the date of promotion is changed on the ground that he had not worked as overseer between the date of his promotion and the date of the order promoting him. Therefore, on this point the petitioner is similarly situated as all those 28 promotes. 16. It is only in the case of the petitioner that the date of promotion is changed on the ground that he had not worked as overseer between the date of his promotion and the date of the order promoting him. Therefore, on this point the petitioner is similarly situated as all those 28 promotes. 16. The petitioner contends that in their order the State Government have treated him with discrimination which offends Articles 14 and 16 of the Constitution. He says that S.S. Bedi was given retrospective date of promotion, that is, 17-9-1947, in accordance with the order issued on 20-2-1964; and Jaidayal Chug was given retrospective date of promotion from 1-4-1956 in accordance with the order issued on 31-3-1964. It is admitted in the return filed by the State that one S. S. Bedi was promoted as Overseer in October 1956 but, as he had passed the Overseer's Certificate Examination from Hevett Engineering College, Lucknow, in 1930, but the diploma of that College was not recognised by the then Government till 1934, he was reverted as sub-overseer in 1947, but later on: "A decision was then taken in 1964 to treat him as Overseer with effect from the date of his reversion as Sub-Overseer. He has been confirmed as Overseer with effect from 1-4-1952 on the basis of his seniority." From this statement, it is c1ear that S. S. Bedi had not worked as Overseer from 1947 to 1964, still a decision was taken in 1964 to treat him as Overseer with effect from the date of his reversion as Overseer (1947). 17. The petitioner further lays stress on the promotion and confirmation of S. S. Bedi in 1964 with retrospective effect; and he asks, if there was no vacant post on April 1, 1952, how could S, S. Bedi be promoted and confirmed on September 17, 1947 as an Overseer from 1-4-1952 ? 18. The petitioner contended in the petition as follows:- "Duties of sub-Overseers and Overseers are identical according to paragraph 189 P.W.D. Manual V0l-1." This averment is not controverted by the respondent State. He further averred:- "The only competent authority for promotion under Rule 311, P.W.D. Manual, is the Chief Engineer, whose orders are final". This is not only not contested but is admitted, in the supplementary return filed on behalf of the State. He further averred:- "The only competent authority for promotion under Rule 311, P.W.D. Manual, is the Chief Engineer, whose orders are final". This is not only not contested but is admitted, in the supplementary return filed on behalf of the State. The petitioner further contended that there was no rule that promotion could not be made with retrospective effect, when the competent authority found that there were vacancies. It was urged before us that since several other persons had been promoted as Overseers with retrospective effect, exception could not be taken to the petitioner's promotion alone. Neither in the return, nor at the hearing of this petition were we told that the other Sub-Overseers, who had been promoted as Overseers with retrospective effect under various orders of the Chief Engineer, were treated in the same manner as the petitioner. 19. The petitioner averred in the petition that he stood first class first in the Overseer's examination and had 12 years experience at the time of his first appointment in November 1947. When he was confirmed as Sub-Overseer in March 1955, he immediately moved his superior officers to accept his long pending claim for appointment as Overseer from the date of his initial appointment. He then averred:- "After prolong consideration and investigation he was promoted from 1-4-52 as a via media settlement under rule 311 of the P.W.D. Manual Vol. I (by which his services are governed), though he claimed promotion from the date of his appointment." 20. Having regard to all these facts and circumstances it could not be said that the appointment of the petitioner with retrospective effect was irregular or that his promotion was irregular as he had not worked as Overseer before October 16, 1966. It seems to us that it was for the above reasons that the State did not press into service that ground before us. 21. Regarding the objection taken in the State Government order that the result of giving the petitioner an earlier date of promotion would be that he would be ranked above those persons who were senior to him in the lower cadre and that would upset the inter se seniority. It has first to be said that in the return that ground was not specifically taken. So also at the hearing of the petition that ground was not urged. It has first to be said that in the return that ground was not specifically taken. So also at the hearing of the petition that ground was not urged. No concrete case was placed before us to show whose seniority was affected. There is nothing to show that any representation was filed against the promotion of the petitioner (by virtue of the order dated October 16, 1956). Nor does it appear from the order (annexure 'K') that the State Government had before it any such representation. Above all, the petitioner's promotion with retrospective effect was a via media settlement of his claim which he had been representing. Therefore, where as a result of accepting a representation, seniority of others is affected, there is nothing irregular in it. 22. The petitioner contended that since he has been asked to return the difference between that he was actually paid and the emolument to which he was entitled as Sub-Overseer, for the period from April 1951 to April 1956 the change in his date of promotion is accompanied by penal consequences, so that be was entitled to the protection of Art. 311 (2) of the Constitution. It was then pointed out that in the show cause notice dated July 20, 1961 (Annexure 'D') which was given to the petitioner, the ground that his appointment was invalid inasmuch as no post of Overseer was available for being filled by him was not taken. The petitioner was entitled to an opportunity to show a post was in fact available on 1-4-52. 23. The petition is allowed. The Government orders changing this date of promotion from April 1, 1952 to April 1, 1956 are quashed. It is also declared that the petitioner legally held the post in which he was on October 31, 1956. The State is restrained from making any recovery from the petitioner of the amounts paid to him on the basis of his date of promotion as Overseer being April, 1952. The first respondent State shall pay costs of this petition to the petitioner. Counsel's fee Rs. 100.