JUDGMENT K.N. Goyal, J. - In this bunch of writ petitions promotions from the posts of Junior Engineers in the Electrical and Mechanical Wings of P. W. D. to the posts of Assistant Engineers are in issue. 2. The posts of Assistant Engineers are filled mainly by direct recruitment, but 25 per cent, and by a subsequent Government decision 30 per cent posts were to be filled by promotion from amongst Junior Engineers and Computers working in the department. 3. Regular promotions had not been made from the post of Junior Engineer to post of Assistant Engineer for quite a long time, to be precise, from "recruitment year" 1968-69 onwards. When the cardre of Assistant Engineer was originally created, there was no Electrical or Mechanical wing. Accordingly when the Service Rules for Assistant Engineers Service were framed in 1936 (for short, the 1936 Rules), the qualifications mentioned 'or appointment had no reference to the Electrical and Mechanical wing but referred only to Civil Engineering. However, in practice the same rules were being mutalis mutandis followed for appointment to the Electrical and Machanical branches as well. These rules provided that exceptional merit would be the criterion for promotion from among overseers and computers to the posts of Assistant Engineers. The 1936 Rules were, however, amended in 1969. Even at that time, while making amendments in Rule 9 of the 1936 Rules, which related to technical qualifications, no specific mention of any of the qualification in Mechanical or Electrical Engineering was made. Those Rules and the amendments made therein were the subject matter of a bunch of writ petitions, the leading ease being Vijai Naresh Mittal v. State of U.P., Writ Petition No. 2447 of 1980, decided on 14.1.82 (All). decided by a Bench of this Court of which one of us (Goyal, J.) was a member. In that decision it was inter alia, held that the amendments made in Rules 3 (c), 5 and 6 in 1969 were void and that as the old Rules also stood wiped out, there remained i no corresponding Rules in the field, Rule 5 of the 1936 Rules deal with sources of recruitment, while Rule 6 dealt with the numbers to be recruited from each source. Rule 23 which dealt with seniority was also struck down. As already observed, Rule 9 which dealt with technical qualifications was already inapplicable to Electrical and Mechanical Wings. Rule 23 which dealt with seniority was also struck down. As already observed, Rule 9 which dealt with technical qualifications was already inapplicable to Electrical and Mechanical Wings. Thus in effect there were no statutory rules which could govern the promotion from the posts of Junior Engineers to the posts of Assistant Engineers in respect of Electrical and Mechanical Wings of P.W.D. 4. The State Government has however, promulgated the U.P. Promotion by Selection in Consultation with Public Service Commission (Procedure) Rules, 1970 (for short the 1970 Rules) which apply to all services and posts to which recruitment by promotion is required to be made by selection in consultation with the Commission otherwise than on the result of a competitive examination. By long-standing practice, promotions to the posts of Assistant Engineers (which posts fall within the purview of the Commission) were made from among Junior Engineers without any competitive examination. One of the qualifications prescribed by various executive orders was that Junior Engineer in order to be eligible for promotion should be either A.M.I.E. or B.E. or should have passed a qualifying examination held departmentally for Overseers who later came to be called Junior Engineers. Thus, undisputedly these 1970 Rules were to govern the promotion to the post of Assistant Engineer from the post of Junior Engineer, even though no separate service rules relating to the particular cardre were in force. 5. The Government intimated to the Commission various vacancies for the years 1968-69 to 1979-80, both for Mechanical and Electrical wings which were to be filled by promotion on the criterion of merit. The 1970 Rules provided, vide Rule 8, a formula, based on the number of vacancies to be filled, for determining the number of candidates to be included in the eligibility list. Accordingly, year wise eligibility lists were prepared. The Rules also define "year of recruitment" as the period of 12 months beginning from the first of July of a calendar year. Thus, the recruitment year 1968-69 meant the year beginning on 1st July, 1968 and ending on 30th June, 1969. It was on this basis that candidates eligibility for promotion to vacancies of each recruitment year was determined as provided in Rule 6(1). 6. Thus, the recruitment year 1968-69 meant the year beginning on 1st July, 1968 and ending on 30th June, 1969. It was on this basis that candidates eligibility for promotion to vacancies of each recruitment year was determined as provided in Rule 6(1). 6. The Commission was also intimated that the Government had decided that the candidates should fulfil two qualifications firstly, that they should have put in a minimum of ten years service as Junior Engineer and secondly, that they should have become permanent, i.e., confirmed on the post of Junior Engineer. Length of experience prior to confirmation was also to count for purposes of fulfilment of the first condition. 7. There was thereupon some correspondence between the Commission and the Government, and some corrections were made in the eligibility lists. Interview letters were issued to all persons included in the eligibility lists. Ultimately a selection committee was constituted consisting of a member of the Commission as Chairman and two officers of the Government, one a Special Secretary to Government in P.W.D. and the other a Chief Engineer, P.W.D. as members. The Special Secretary was in fact an Engineer-The member of the Public Service Commission who presided over the. selections initially, was Sri D.P. Arya, and as he retired before all interviews could take place he was succeeded in the Committee by another member Sri Shari Hari Murtisingh. The Officers of the Government represented on the selection committee were throughout the same. 8. While the interviews by the selection committee were going on, some persons who had not been included in the eligibility lists and as such had not been called for interview, approached this Court through writ petitions. They contended on various grounds that they had been wrongly excluded from the eligibility list. The Court passed interim orders permitting a hundred and odd candidates who had not been called by the Commission for interview to be interviewed by the Commission subject to the result of the writ petitions. The selection committee accordingly interviewed those candidates as well. Some of them also came to be selected, The names of those successful candidates who had not been included in the eligibility lists but who had been permitted to be interviewed under order of the court were not disclosed in the results declared. The selection committee accordingly interviewed those candidates as well. Some of them also came to be selected, The names of those successful candidates who had not been included in the eligibility lists but who had been permitted to be interviewed under order of the court were not disclosed in the results declared. Against the relevant serial number in the selection list it was merely indicated that the person selected was a petitioner before the High Court whose result had been withheld until the decision of his petition. 9. A large number of Junior Engineers who were officiating as Assistant Engineers on ad hoc basis were then ordered by Government to be reverted to their substantive post (Junior Engineer) in order to accommodate the persons selected as aforesaid through the Commission. Those sought to be reverted also then filed writ petitions. Their reversions were stayed, as also the implementation of the selections made as aforesaid by interim orders passed by this Court. Later, a detailed interim order dated 28th February, 1984 was passed by this Court in supersession of earlier orders. It was therein mentioned that inasmuch as implementation of the regular selections had been stayed, ad hoc promotions could continue. The general criterion laid down by the Appointment and Personnel Departments of Government for ad hoc promotions is that of seniority subject to rejection of the unfit. Accordingly, it was provided in the interim order dated 28-2-84 that ad hoc promotees who could be accommodated on the vacancies available, on the basis of seniority subject to rejection of the unfit, be allowed to continue subject to satisfactory work and conduct, while others could be reverted. But while making, the reversions, i.e., while applying the criterion of 'rejection of the unfit', the impugned selection was not to be taken into account. It transpires, however, that while purporting to implement the interim order dated 28-2-84, the Government did not follow this directive, namely, that the impugned selection was not to be taken into account. Thereupon a number of officers who claimed that on account of their seniority and non-rejection by Government as 'unfit' they were entitled to continue as Assistant Engineers on ad hoc basis and were being reverted in violation of the court's order dated 28th February filed fresh writ petitions. Thereupon such reversion orders passed after 28-2-84 were also stayed by this Court. 10. Thereupon such reversion orders passed after 28-2-84 were also stayed by this Court. 10. There are thus before us the following sets of writ petitions : - (a) Petitions in which the correctness of the eligibility lists and the selection process have been challenged. In other words, petitions challenging the regular selections made through the Commission. (b) Petitions in which orders reverting ad hoc promotees passed prior to 28-2-84 and writ petition in which reversion orders made after 28-2-84 have been challenged. (c) In some writ petitions filed on behalf of scheduled castes candidates it has been contended that the reservation quota for scheduled cases and scheduled tribes had not been observed either in the selection made on regular basis or while making reversions from ad hoc promotions. Some of the scheduled castes candidates who have been selected have also filed unnecessary petitions praying merely for implementation of the regular selection made through the Commission. 11. Counter-affidavits have been filed on behalf of the State and also on behalf of the selected candidates in some of the eases, It has, however, been provided by various orders of this Court while admitting writ petitions mat if any counter-affidavit or rejoinder affidavit is filed in any of the cases, it shall be read in all the cases falling in this bunch of writ petitions. The petitions have all been heard together. Though the pleas taken by various writ petitions are not uniform we have thus been addressed arguments on all the pleas taken in different petitions and counter-affidavits and been referred to documents and other factual date contained therein. We would therefore take into account all such to the same is un-controverted or unimpeachable. 12. We have heard learned counsel for the parties at some length. 13. It has first been contended by Sri R.N. Trivedi learned counsel for some of the petitioners that there was no valid basis for holding the selections on the basis of the criterion of merit instead of the criterion of seniority-cum-fitness. There were no service rules in existence governing the Electrical and Mechanical wings of P.W.D. nor were there any executive instructions on this point, nor, according to the learned counsel, was there any consultation between the Government and the Commission with regard to the criterion for selection as contemplated by Rule (5) (3) of the 1970 Rules. There were no service rules in existence governing the Electrical and Mechanical wings of P.W.D. nor were there any executive instructions on this point, nor, according to the learned counsel, was there any consultation between the Government and the Commission with regard to the criterion for selection as contemplated by Rule (5) (3) of the 1970 Rules. While examining this contention, reference may be made to Rule 4(e) of these Rules which defines "service rules" as including any Government orders regulating recruitment to, and conditions of service of persons appointed to, any service or post. The service of Junior Engineers is a "subordinate service" while the service of Assistant Engineers is one of what are called State Services. It was laid down by the Appointment (b) Department as far back as on 27th December, 1956 that while promotions to higher grades within the same Service or from one Subordinate Service to another Subordinate Service shall be governed by the principle of seniority subject to rejection of the unfit, promotions from a Subordinate Service to a State Service, such as from Tahsildar to Deputy Collector, shall be governed by the principle of strict Selection on merit from the entire field of eligibility (vide O.M. No. 3962/2-B-50-1955 of 27-12-56). This O. M. still holds the field and finds place even in the latest (1983) collection of Circulars published by the Personnel Department (Vol. I, p. 275). Undisputedly, this criterion has all along been followed in actual practice in regard to promotions from the post of Junior Engineer to the post of Assistant Engineer. The criterion has also been mentioned in the 1936 Rules which though not applicable in terms were always applied mutatis mutandis to Electrical and Mechanical Wings as well. There is thus no basis for the contention that the Government and the Commission committed any illegality in following this criterion. 14. We may add that even if there were any double about applicability of the criterion of merit under Rule 5(1) it would by implication be deemed to have been agreed upon between the Government and the Commission under Rule 5(3) of the 1970 Rules. 15. We may also observe in this connection that in Vijai Naresh Mittal, also, this Court had held that the criterion for promotion was merit. 16. 15. We may also observe in this connection that in Vijai Naresh Mittal, also, this Court had held that the criterion for promotion was merit. 16. Some of the writ petitions such as Mahesh Chandra Nigam in Writ Petition No. 5383 of 1983, vide para 23 of the Writ Petition, had also themselves pleaded that in the absence of service rules the criterion for governing the promotions in question was that of merit. 17. It was next urged by learned counsel, Sri R.N. Trivedi, that the number of vacancies for the years 1975-76 to 1979-80 did not tally with the number of selections made by the Commission. This contention loses sight of the fact that the selection was held for the period from 1968-69 to 1979-80 and not for the period 1975-76 onwards. Because of non-availability of suitable persons for selection in various years a number of vacancies were carried forward to the succeeding years, and it is for this reason that the numbers does not seems to tally. 18. It was next contended by Sri R.N. Trivedi, learned counsel for the petitioner R.G. Prasad in Writ Petition No. 37 of 1984, that promotions should have been made through a qualifying examination as provided in various Government Orders. This argument is misconceived inasmuch as qualifying examination is contemplated not as a process of selection for promotion, but as a minimum condition of eligibility in respect of candidates who did not possess A.M.I.E., or B.E. Degree. In fact, neither the petitioners nor any of the opposite parties have passed any qualifying examination, and if no qualifying examination was held, the reason being that the holding of qualifying examination had been discontinued for the last several years, the same did not operate to the prejudice of the petitioners and cannot, therefore, form the subject-matter of a valid complaint on their behalf. 19. It was then argued by some of the learned counsel for the petitioners that the selection lists show that some persons who were not considered fit for selection in an earlier year were selected in respect of vacancy of later year. This is easily explained. The reason is that while making selection for any particular year the record of service of the candidates for the ten years immediately preceding was considered. Thus the net result of such consideration would vary from year to year. This is easily explained. The reason is that while making selection for any particular year the record of service of the candidates for the ten years immediately preceding was considered. Thus the net result of such consideration would vary from year to year. A candidate whose record of service often years preceding 1970-71 is not good enough may have a better record for the ten years immediately preceding the recruitment year 1974-75. 20. It was contended on behalf of some of the petitioners that the multiple provided for eligibility list in Rule 8 was also distorted by the fact that a large number of persons had been allowed by interim orders of the Court to be interviewed by the Commission. This is an amazing argument. The interim orders were secured by the petitioners themselves. Only some of them could be selected and most of them were not selected. The persons not selected cannot be permitted to turn round and contend that the selection was vitiated on account of the interim orders passed at their instance. Moreover, at any rate, the addition of the petitioners to the persons who were to be interviewed by the Commission was only provisional and subject to the result of the writ petition. Any person who may have been selected would be liable to be excluded if his position ultimately fails. Thus no grievance can be made in regard to the effect of the interim order passed by this Court in various petitions. 21. There was also a general complaint that the eligibility lists were not prepared in a proper manner and that they were not circulated and further that no eligibility lists could be prepared until the finalisation of the seniority list. Taking the 1st point first, it is to be noted that admittedly a provisional seniority list was in force at the time the eligibility lists were prepared. The said provisional seniority list was ultimately finalised. It has been pointed out on behalf of the State in their counter affidavit that the changes made in the provisional seniority lists did not effect the names of the persons who were to be included in the eligibility lists. The said provisional seniority list was ultimately finalised. It has been pointed out on behalf of the State in their counter affidavit that the changes made in the provisional seniority lists did not effect the names of the persons who were to be included in the eligibility lists. In view of this averment which could not be controverted by any of the petitioners in any convincing manner, there can be no valid objection to the preparation of the eligibility lists even before the finalisation of the seniority lists. The contention that eligibility lists should have been circulated is also without any substance. There is no such provision in the rules. There is no rule of natural justice either, which may require the circulation of the eligibility lists to all Junior Engineer. The petitioners could also not point out and illegality or irregularity about preparation of eligibility list. 22. Another contention raised was that the Interviewing Board was not the same inasmuch as there was a change of the Chairman of the Board. As noted earlier, the change was necessitated by the retirement of Sri D.P. Arya, Member of the Public Service Commission. The bulk of the interviews had already taken place by February, 1982 when he retired. It could not reasonably be expected that the entire process be gone through again under the new Chairman. We are informed that the new Chairman, who had with him the two other existing members on the Board, adopted the same criteria and method as the outgoing Chairman. 23. Admittedly, the method adopted was that 60 marks were allotted for service record of the previous ten years. If the entries in any year were poor, the candidate was allowed zero mark. If the entry for a year was Fair or Average or Ordinary, he was given 3 marks. If the entry was Good the marks awarded were 4. If the entry was Very Good, he was awarded 5 marks and if the entry Outstanding, he was awarded 6 marks Thus for ten years the maximum marks that a candidate could earn was 60 Besides these, 40 marks were allotted for interview. If the entry was Good the marks awarded were 4. If the entry was Very Good, he was awarded 5 marks and if the entry Outstanding, he was awarded 6 marks Thus for ten years the maximum marks that a candidate could earn was 60 Besides these, 40 marks were allotted for interview. There was no breakup in regard to these 40 marks under any sub-heads, This method which was adopted by the Committee with Sri P.D. Arya as its Chairman was also followed by the Committee when it met under the chairmanship of Sri Hari Murti Singh. 24. None of the petitioners has questioned the allotment of marks for 10 years' service record. What they have questioned is the allotment of 40 marks for interview. It has been contended that the allotment of 40 marks was on very high side and was liable to distort the result which should have been based only on substantially consideration of service rules. It has also been contended that Rule 12(3) do not contemplate that interview must take place. These sub-rules are as follows : - "(2) In case the Commission or the appointing authority considers it necessary that all or any of the candidates included in the eligibility list or lists should be interviewed by the selection committee, the appointing authority shall call such candidates or candidate, as the case may be, for the purpose on the aforesaid date or dates. (3) The selection committee shall in each case consider the character rolls of the candidates and may consider any other factor relevant in its opinion." 25. There is nothing in sub-rule (2) to rule out an interview. When a large number of candidates were to be considered and the Government and the Commission decided that all of them should be interviewed, then no grievance could be made inasmuch as all of them were treated uniformly. Sub-rule (3) quoted above itself lays down that apart from character rolls of the candidates other factors which are relevant in the opinion of the selection committee could also be considered. We have no doubt that all other relevant factors went into the consideration of the Committee when it interviewed the candidates. 26. Sub-rule (3) quoted above itself lays down that apart from character rolls of the candidates other factors which are relevant in the opinion of the selection committee could also be considered. We have no doubt that all other relevant factors went into the consideration of the Committee when it interviewed the candidates. 26. As regards the alleged excessiveness of the marks allotted for interview, it has been pointed out that the Hon'ble Supreme Court in Ajay Hasia's case, expressed the view that up to 15 per cent marks may be allotted for interview. This case related to admission to an educational institution and not to promotion. On the other hand, we find that in Liladhar v. State of Rajasthan, A.I.R. 1981 S.C. 1977 : 1981 (4) S.C.C. 159 the decision in Ajay Hasia was distinguished and the allotment of 25 marks for interview for selection by direct recruitment for the posts of Munsifs by the Public Service Commission, Rajasthan, was upheld. In this connection, reference can be made to Officers' Association, Bhilai v. Steel Authority of India Ltd., 1983 (1) S.L.R. 477 (M.P.) in which a Division Bench of the Madhya Pradesh High Court headed by G.P. Singh, C.J., held that the allotment of 30 points out of 110 points for interview while making selection for promotion was not bad. Their Lordships pointed out that reliance on character rolls alone was also not quite safe. Character rolls were also subjective. Some superior officers were very strict, while others were relatively soft. A candidate who was lucky enough to serve under a soft officer could get much more commendatory entries than a candidate who had the misfortune of serving under an overstrict officer. Thus it was necessary to iron out the imbalance created by subjective impressions if different officers. This corrective could be supplied through an interview. 27. In the instant case the interview was held under the chairmanship of a Member of the Public Service Commission (for short. P.S.C.) who was assisted by every senior officers of the Government. Not a word has been whispered Tin any of the writ petitions against the fairness or impartiality of the member of the P.S.C. or of the officers We have no reason to assume that the members of the selection committee made any arbitrary allotment of marks while awarding the marks set apart for interview. Not a word has been whispered Tin any of the writ petitions against the fairness or impartiality of the member of the P.S.C. or of the officers We have no reason to assume that the members of the selection committee made any arbitrary allotment of marks while awarding the marks set apart for interview. The selection committee's recommendations were approved by P.S.C. as well. In Parvez Qadir v. Union of India, 1975 (4) S.C.C. 318 , para 17, their Lordships were considering a case of promotion from State Forest Service, to Indian Forest Service. It was held that competitive examination, viva voce, and scrutiny of record were various alternative methods permissible for a selection for promotion. A similar view was expressed in United Bank Officers' Association v. United Bank of India, 1982 (3) S.L.R. 287, by the Patna High Court and in Mehfooz Ali v. State of Rajasthan, 1981 (2) S.L.R. 431, by the Rajasthan High Court. It is also to be noted that in the past also whenever promotions were made from the post of Junior Engineer to the post of Assistant Engineer, the promotions were based on interview and this was a method which was approved in Vijai Naresh Mittal, as well. Considering the circumstances of the case, we thus find no inherent infirmity in the process of selection merely on the ground that the marks allotted for interview were 40 per cent. Although we are upholding the allotment of 40 per cent marks for interview in the instant case, we may make it clear that as observed by the Hon'ble Supreme Court in various cases the marks allotted for interview should be minimal in order to reduce the chances of arbitrariness and subjective prejudice. It seems, therefore, desirable that the Commission and the Government would take these observations of Hon'ble Supreme Court into account while deciding on the quantum of marks to be allotted for viva voce in future. 28. The next question, which by far is the most important, that arises for consideration is whether the Government and the Commission had wrongly excluded from eligibility lists those permanent Junior Engineers who had put is seven years' service but not ten years' service. 28. The next question, which by far is the most important, that arises for consideration is whether the Government and the Commission had wrongly excluded from eligibility lists those permanent Junior Engineers who had put is seven years' service but not ten years' service. We have seen above that the 1936 Rules did require ten years' service as minimum for promotion to the post of Assistant Engineer, and although those Rules did not apply as such to the Electrical and Mechanical Wings, they were in practice followed mutatis mutandis for these wings as well. On 7th January, 1980, however, the State Government issued an Office Memorandum, a copy of which is Annexure 8 to Writ Petition No. 5383 of 1983. As considerable argument has been addressed to us on both sides on the interpretation and effect of this O.M., it would be convenient to reproduce the same. Freely rendered into English, it reads as follows : - "The following conditions of eligibility have hitherto been required for promotion from the post of Junior Engineers to the post of Assistant Engineers : (1) The candidate should be confirmed (permanent) on the post of Junior Engineer. (2) The candidate should be A.M.I.E./B.E. or have passed the qualifying examination laid down by the Government. (3) The candidate should have ten years experience of service on the post of Junior Engineer. The Government after consulting other Engineering Departments and the Public Service Commission decided on 13-4-1978 to amend the above formula. The amended formula is as follows : - "(1) Against the 25 per cent posts reserved for promotion, half of them would be filled by promoting those Junior Engineers who are A.M.I.E./B.E. or have passed the prescribed qualifying examination, while the remaining half, as well as those vacancies which cannot be filled from among A.M.I.E./B.E. or qualifying examination passed Junior Engineers for want of such candidates being available, shall be filled by other Junior Engineers who arc neither A.M.T.E./B.E., nor have passed qualifying examination. (2) Those candidates who are nor A.M.I.E./B.E. not have passed qualifying examination should have seven years' experience on the post of junior Engineer. This condition of seven years' experience will not be required for those junior Engineers who are A.M.T.E./B.E. or have passed qualifying examination. 2. The above provision shall be deemed to be effective from 1-7-78. 3. (2) Those candidates who are nor A.M.I.E./B.E. not have passed qualifying examination should have seven years' experience on the post of junior Engineer. This condition of seven years' experience will not be required for those junior Engineers who are A.M.T.E./B.E. or have passed qualifying examination. 2. The above provision shall be deemed to be effective from 1-7-78. 3. The question of revising the promotion quota was also considered and after due consideration, vide G.O. No. 1035/23/4/94-N.G./72 dated 7-12-79 the Government had announced its decision that out of the available vacancies on the posts of Assistant Engineers 25 per cent would be filled by promotion of non-graduate Junior Engineers, while 5 per cent would be filled by promoting A.M.I.E./B.E. Junior Engineers. If, however, A.M.I.E./B.E. Junior Engineers are not available in sufficient numbers, then the vacancies allotted to them shall also be filled by promoting non-graduate Junior Engineers. This provision shall be effective in respect of vacancies of the year 1979-80 and subsequent years. 4. Provision shall be made in accordance with the above said decision in the service rules. 5. The Government orders issued from time to time in respect of reservation shall be strictly followed, and the basis of ad hoc promotions shall be seniority subject to rejection of unit." 29. The contention of the petitioners in several cases is that inasmuch as there were no statutory service rules applicable to the Electrical and Mechanical Wings of P. W. D., this O. M. which incorporates the Government decision, even though in the nature of executive instructions, was applicable to the promotions in question. It may not be applicable to the Junior Engineers (Civil) for promotion to the Assistant Engineers (Civil) inasmuch as there are statutory rules governing them, as held by a Bench of this court in Gopal Krishna Goel v. State of U.P., 1984 U.P.S.C. 445 but there is no reason why the O.M. should not be applicable to the Electrical and Mechanical Wings for which there were no service rules. 30. It has already been mentioned that there is no dispute before us in regard to the factual circumstance the statutory Rules of 1936 are not applicable to the Electrical and Mechanical Wings. It was so held in the case of Vijai Naresh Mittal. 30. It has already been mentioned that there is no dispute before us in regard to the factual circumstance the statutory Rules of 1936 are not applicable to the Electrical and Mechanical Wings. It was so held in the case of Vijai Naresh Mittal. The State in its counter-affidavit to para 12 of the Writ Petition No. 5383 of 1983 (Mahesh Chandra Nigam's case) has also explicitly admitted that those rules are not applicable to the Electrical and Mechanical Wings. 31. On behalf of the State and also on behalf of the selected candidates several arguments have been advanced in support of the contention that the aforesaid O.M. dated 7-1-80 was inapplicable to the selections in question. The plea of the State as taken in the counter-affidavit filed in Writ Petition No. 5383 of 1983, vide para 20, which is reply to paras 29 to 31 of the writ petition, was expressed as follows : - "20. That in reply to the contents of paras 29 to 31 of the writ petition it is stated that the said regular selection was held for the vacancies occurred in the recruitment year of 1968-69 to 1979-80. For these years of recruitment only those candidates were eligible who were permanent on the post of Junior Engineers and have completed services of minimum 10 years on 30-6-19 79 (year of recruitment means the period of twelve months beginning from the first day of July of a calendar year as mentioned in paragraph 27 of the writ petition). In view of t he fact stated above the G.Q. dated 7-1-1979 (Annexure No, VIII to the writ petition) is not relevant for the purposes of petitioners of the writ petition. The G.O. is prospective and will apply to the vacancies available for recruitment year 1980-81 i.e. the vacancies available on 30-6-1980 for which a regular selection has yet to be held." (Italics supplied) 32. We have seen above that the O.M. reproduced above consists of five paragraphs. The first paragraph sets out the existing conditions of eligibility and revised conditions of eligibility. The second paragraph says that the above provision, which means the revised formula of eligibility, "shall be deemed effective from 1-7-78". The third paragraph deals with the question of revising the promotion quota. The first paragraph sets out the existing conditions of eligibility and revised conditions of eligibility. The second paragraph says that the above provision, which means the revised formula of eligibility, "shall be deemed effective from 1-7-78". The third paragraph deals with the question of revising the promotion quota. About the revised quota it is mentioned in this paragraph that "this provision shall be effective in respect of vacancies of the year 1979-80 and subsequent years". The difference in the language of the second paragraph and the third paragraph is quite significant. The second paragraph, which gives the date of enforcement of the first paragraph, does not speak of vacancies or of year of recruitment at all. On the other hand, it is mentioned that the decision had been taken by the Government (in the P.W.D.) in consultation with other Engineering Departments (such as Irrigation) a id the Public Service Commission as far back as on 13-4-78 to amend the eligibility formula. The same it is stated shall be effective only from 1-7-78. It does not say that it will apply in respect of vacancies arising from 1-7-78 onwards. Comparing it with the language used in the third paragraph one would have thought that if the intention of the Government were to apply the amended eligibility formula also in respect of future vacancies, than the second paragraph would have been worded somewhat as follows - "The above provision shall be effective in respect of vacancies of the year 1978-79 and subsequent years." 33. This has not been so stated. If, however, inspite of the difference in the language of the two paragraphs of the same document, we give the two sets of wordings the same meaning, that would be clearly contrary to the intention of the author of the O.M. The court cannot substitute the words "from 1-7-78", occurring in the second paragraph, by the words "in respect of vacancies of the year 1978-79 and subsequent years". Such a course would amount to judicial legislation and is not permissible by the settled rules of interpretation. Such a course would amount to judicial legislation and is not permissible by the settled rules of interpretation. It seems that inasmuch as the decision had already been taken in consultation with the Commission as far back as on 13-4-1978 some promotions on ad hoc basis may have been made on the basis of the amended eligibility formula from 1-7-78 onwards, and it was for this reason that it was considered necessary to specify in the second paragraph that the provision shall be deemed to be effective from 1-7-78. There are standing instructions of the Appointment and Personnel Departments of the State Government to the effect that the criteria for eligibility even for ad hoc promotions shall be the same as for regular promotions. Thus the principle of seniority subject to rejection of the unfit shall be followed in respect of ad hoc promotions though the criterion of merit may be followed in respect of regular promotions. Indeed, in the fifth paragraph of this O.M. also it has been expressly mentioned that the basis of ad hoc promotions shall be seniority subject to rejection of the unfit. 34. It has been contended on behalf of the respondents that when the O.M. itself states that it would be effective from 1-7-78, it could not be made applicable in respect of the vacancies that had arisen earlier. This contention has no merit. For we are not concerned with the respective dates of occurrence of the vacancies but with the question as to when the selection was going to be made. To apply the amended provision in respect of existing unfilled vacancies, even though the same may have occurred in the past, does not amount to giving the amended formula retrospective effect from a date earlier than 1-7-78. It is well settled that the mere fact that a new provision either takes into account certain preexisting facts or that a part of the requisites of its actions is drawn from a time antecedent to its passing or that it applies cither in respect of, say, date of retirement, or determination of seniority, or classification for purposes of promotion to persons in service since before its enforcement does not amount giving retrospective effect to such provision. Its operation is prospective though it applies to such facts or such persons as aforesaid. Its operation is prospective though it applies to such facts or such persons as aforesaid. Reference in this connection be made to the following decisions : - Sajjan Singh v. State of Punjab, A.I.R. 1964 S.C. 464, para 13 ; Bishun Narain v. State of U.P., A.I.R. 1965 S.C. 1567, Ashok Kumar v. Union of India, A.I.R. 1982 S.C. 795 and State of J. & K. v. Triloki Nath Khosa, A.I.R. 1974 S.C. 1 : 1974 (1) S.C.C. 19 . 35. As reference has been made herein to this legal proposition, we may anticipate the discussion by referring to a plea taken by the petitioner in Writ Petition No. 3149 of 1984 (Riaz Ahmad v. State of U. P.). In that case the petitioner was a member of the so-called "backward classes" other than scheduled castes and scheduled tribes. The State Government had earlier provided for reservation even in respect of promotions in favour of such "backward classes". But the same was abolished by a G. O. dated 30-9-81. By a subsequent G.O. dated 16-11-81, Annexure 1 to this writ petition, it was provided that promotions already made were not to be effected by the withdrawal of the reservation made by G.O. dated 30-9-81. On behalf of this petitioner it was contended that the withdrawal of reservation in favour of backward classes made by G.O. dated 30-9-81 could have effect only in respect of vacancies arising after 30-9-81. There is nothing in the language of the G.O. to warrant such a construction. In view of the authorities mentioned above, the principle stated above is applicable to the interpretation of this G.O. dated 30-9-81 as well. We are, therefore, of the opinion that it cannot be contended by the so-called backward classes that even after the G.O. dated 30-9-81 reservation against promotions should continue in their favour in respect of vacancies that had arisen before 30-9-81 though they are to be filled subsequently. Just as we have held in respect of O.M. dated 7-1-80 that it applies to ail vacancies, whether they arose before or after 1-7-78, likewise, we hold that this G.O. dated 30-9-81 applies to all unfilled vacancies that were to be filled after 30-9-81 even though the vacancies themselves may have arisen before 30-9-81. 36. Leaving this digression apart, let us come back to the interpretation of O.M. dated 7-1-80. 36. Leaving this digression apart, let us come back to the interpretation of O.M. dated 7-1-80. Although the State did not take any other plea in support of this contention about non-applicability of O.M. dated 7-1-80 to the selections in question, other contentions were advanced during the course of arguments on behalf of the State as well as on behalf of the selected candidates. It was contended that the O.M. would apply only after rules had been amended as was contemplated in the fourth paragraph thereof. It was also urged that the O.M. was applicable only to ad hoc promotions and not to regular promotions. It was further contended that the O.M. was applicable only to civil wing and not to Electrical and Mechanical Wings at all. 37. The first contention has no force in so far as the Electrical and Mechanical Wings of P.W.D. were concerned. Even in Gopal Krishna Goel v. State of U.P., decided at Allahabad, the State Government had not raised any such contention. The State had actually contested the writ petition and it was the Court which held that the O.M. could not apply to the Civil Wing unless the 1936 Rules had been suitably amended. The State's contention was that the O.M. was applicable even without amendment, and it was this contention that has been overruled by the Court in its judgment dated 20-3-84. It is significant that the selections which are impugned before us were taken long before the judgment of this Court in the said writ petition was delivered. It cannot, therefore, be said that the State had at the time of preparation of eligibility lists been taking the view that the O.M. was not to apply until amendment of the rules. It is clearly an afterthought and moreover, as pointed out earlier, no such plea has been taken in the counter-affidavit either. 38. The reference to provision being made in the service rules, as stated in the fourth paragraph of the O.M., could only relate to the Civil Branch in respect of which service rules did exist and could not possibly relate to Electrical and Mechanical Wings in respect of which no service rules existed. 39. There is also no basis for the contention that O.M. was meant to apply to the Civil Wing and not to the Electrical and Mechanical Wings. 39. There is also no basis for the contention that O.M. was meant to apply to the Civil Wing and not to the Electrical and Mechanical Wings. The language of the O.M. makes no such distinction, and, indeed, there could be no possible basis for such a distinction. The file of the Public Service Commission which was produced before us also indicated that the Government had made draft rules even in respect of Electrical and Mechanical Wings and in those rules also they had incorporated the condition of seven years' experience as Junior Engineer as requisite for eligibility for promotion instead of ten years. Those rules had been approved by the Public Service Commission but could not be promulgated finally by the State Government even thereafter because in the meantime, it seems, some thinking started about the separation of caders for hill areas and plains respectively. It was because of this new thinking that the promulgation of rules was held up. It cannot, therefore, be said that there was ever any thinking on the part of the Government or the Public Service Commission that the amended eligibility formula was to apply only to Civil Branch and not to Electrical and Mechanical Wings. 40. The contention that the O. M. was to apply only to ad hoc promotions is also clearly misconceived. About ad hoc promotions the Appointment and Personnel Department's clear directive is, vide para 2(3) of G.O. No. 19/5/81-Karmik-l 28-3-81, that the same rule of eligibility should be observed for ad hoc and regular promotions. It was, therefore, not even open to the P.W.D. to provide that for ad hoc promotions only seven years' experience would be enough while for regular promotions ten years' experience would be insisted on. There is reference to ad-hoc promotions only in the fifth paragraph of the O.M., but the same is quite independent of the decisions mentioned in the first four paragraphs. It cannot be said that the first four paragraphs are applicable only to ad hoc promotions. We are thus of the clear opinion that the said O.M. dated 7-1-80 was applicable to the selections in question. 41. It has, however, been contended by learned counsel for some of the respondents, Sri Robin Mitra, that no legal right can be claimed by the petitioners on the basis of a mere administrative instruction as distinguished from a statutory rule. 41. It has, however, been contended by learned counsel for some of the respondents, Sri Robin Mitra, that no legal right can be claimed by the petitioners on the basis of a mere administrative instruction as distinguished from a statutory rule. He has in this connection relied on G.Z. Fernandez v. State of Mysore, A.I.R. 1967 S.C. 1753. That was a case of a private contractor who wanted to enter into a contract with Government and tried to base his claim on the internal departmental instructions governing the P.W.D. It is unnecessary to consider the question whether the view taken in the case still holds the field after a series of subsequent decisions of the Supreme Court beginning with R.D. Shethy v. International Airport Authority, 1979 (3) S.C.C. 489 . The instant case is governed by the decisions relating to Government servants, such as Amarjit Singh Ahluwalia v. State of Punjab, 1975 (3) S.C.C. 503 and Sant Ram v. State of Rajasthan, A.I.R. 1967 S.C. 1910. In view of these authorities where there are no service rules applicable to a class of Government servants but there are administrative instructions of general application which are attracted to their case, there is no justification for not applying the same to some of them while applying them to others. 42. It was also urged by learned Standing Counsel and also by Sri Robin Mitra that it was after considerable delay that the Government and the Public Service Commission had been able to complete the regular selections by promotion for the posts of Assistant Engineers for vacancies spread over several years and that if we strike down the selections on the ground of violation of O.M. dated 7-1-80, it will not be in the public interest to do so as the selection process would be further delayed. Sri Robin Mitra contended that only four persons who could have been considered had been not considered on account of the O.M. dated 7-1-80 being disregarded. We asked the learned Standing Counsel and he informed us that 60 and odd persons had been excluded. The basis of the contention of Shri Robin Mitra was a supplementary affidavit which was filed by him only towards the close of the arguments in the case to which the petitioners had no opportunity to rebut. We asked the learned Standing Counsel and he informed us that 60 and odd persons had been excluded. The basis of the contention of Shri Robin Mitra was a supplementary affidavit which was filed by him only towards the close of the arguments in the case to which the petitioners had no opportunity to rebut. We find no reason not to accept the statement of the learned Standing Counsel made on the basis of instructions received by him, for Government is in a better position to inform us about the correct figures than any private party. However that may be, the fact remains that if out of a class of persons eligible for promotion, some were given opportunity of being considered while others were denied the same, the selections would clearly be hit by Article 16 of the Constitution. As such, there is no escape from striking down the selections in view of our finding that O.M. dated 7-1-80 did apply to it and had been wrongly dis- regarded while considering the candidates for promotions. 43. As regards the Writ Petition No. 3149 of 1984, the petitioner Riaz Ahmad claimed the benefit of reservation quota as a member of the backward classes other than scheduled castes and scheduled tribes. This point we have already disposed of while considering the question whether the abolition of the promotion quota in favour of backward classes could or could not have effect in respect of the vacancies that had fallen due prior to the abolition of the quota but had remained unfilled. 44. One of the grievances made by some of the petitioners was that Sri G.C. Upadhyay who is responded in some of the writ petitions and who has been selected by the Public Service Commission was included in the eligibility list although he did not possess the requisite experience for eligibility, It appears that this officer was earlier working as a Foreman in the Industries Department. The pay scale of Foreman was slightly higher than the pay scale of a Junior Engineer. He joined the P.W.D. the very next day after his relief from the Industries Department. Considering these circumstances, the Government had allowed hint additional increments in the pay scale of Junior Engineer on the basis of his earlier service in the Industries Department. The pay scale of Foreman was slightly higher than the pay scale of a Junior Engineer. He joined the P.W.D. the very next day after his relief from the Industries Department. Considering these circumstances, the Government had allowed hint additional increments in the pay scale of Junior Engineer on the basis of his earlier service in the Industries Department. There was, however, no specific order to the effect that his service as Foreman in the Industries Department shall be counted as service as Junior Engineer in P.W.D. for purposes of length of experience required for promotion to the post of Assistant Engineer. If the matter had rested at a mere want to specific order in this behalf, when we might have taken the view that by implication the Government had accepted the officer's service as Foreman as equivalent to service of Junior Engineer. There are, however, some other officers, including a couple of petitioners, namely, Harpal Singh in Writ Petition No. 6855 of 1983 and Braham Singh in Writ Petition No. 988 of 1982, who had served as Junior Engineers in the L.S.G. Engineering but whose service as such was not added to the length of their experience as Junior Engineers in P.W.D. Their cases have, however, not been considered for inclusion in the eligibility. Now that a fresh selection will have to be made in view of our finding in regard to the O.M. dated 7-1-80, it will be desirable if specific orders were passed in respect of persons similarly situated as to whether their earlier service in other department as Junior Engineer or Foreman shall be counted or not for the purposes of counting seven years' minimum experience required for promotion as Assistant Engineer in P.W.D. 45. It will, of course, always be open to make or amend any rules or orders, subject to constitutional limitations, in regard to selection for promotion. Nothing contained herein above shall be construed as preventing the Government from exercising its power in this regard. 46. As regards ad hoc promotions which had to be made or maintained because of the various stay orders passed by this Court, it was observed that the orders did not take into account the principle of seniority subject to rejection of the unfit. 46. As regards ad hoc promotions which had to be made or maintained because of the various stay orders passed by this Court, it was observed that the orders did not take into account the principle of seniority subject to rejection of the unfit. The Government orders relating to reservation in favour of scheduled castes and Scheduled tribes, which have been extended even to ad hoc promotions and to reversion from ad hoc promotions, have also not been faithfully observed, vide G.Os. dated 31-12-73, 20-3-74, 17-12-74, 10-5-76 and 5-7-84. It is not necessary, nor is it practicable, in view of the scanty material available in the counter-affidavits filed on behalf of the State, to examine individual cases. If we attempt to do so, it is possible that some of the officers who are not represented before us may suffer as a result of their case going by default. We would, therefore, leave it to the Government to examine individual cases in the light of these various G.Os. and to pass suitable promotion and reversion orders. 47. It was also brought to our notice that due to some misunderstanding the stay orders passed by this Court were interpreted by Government as preventing even direct recruits to the posts of Assistant Engineers, selected by the Public Service Commission, from being allowed to join their posts even though they had been duly selected and had passed medical examination etc. None of the orders of this Court was directed against appointments being made from among persons selected through direct recruitment. We, therefore, make it clear that persons recruited through direct recruitment shall be allowed to join and it is only in respect of the remaining vacancies that the question of making or continuing on ad hoc appointments from among Junior Engineers would arise. Reversions of ad hoc promotees can be made for accommodating the direct recruits. 48. It was for these reasons that immediately after the conclusion o f arguments which had gone on for several days, we had pronounced the following order : (1) The selection list contained in O. M. dated 5-11-83 which is Annexure 6 to the Writ Petition No. 37 of 1984 setting out of names of persons selected for promotions to the post of Assistant Engineer, Electrical and Mechanical branches, is hereby quashed. (2) The State Government and the Public Service Commission may now make a fresh selection for the vacancies of the years of recruitment 1968-69 on warding after preparing fresh eligibility lists for the year in question in the light of O.M. dated 7-1-80 which is Annexure 1 to the Writ Petition No. 1362 of 1983 and the U.P Promotion by selection in consultation with Public Service Commission (Procedure) Rules, 1970 as interpreted in our judgment. The aforesaid O.M. dated 7-1-80 applies to all selections to be made on or after 1-7-78 irrespective of whether the vacancies or years of recruitment be earlier or subsequent thereto. It has further been held that the G.O. dated 30-9-81 withdrawing reservation in favour of backward classes (other than scheduled castes and scheduled tribes) in respect of promotions posts shall also apply for selections to be made after 30-9-81 irrespective of whether the vacancies were of earlier years or of later years. As regards the question whether the candidates are to be interviewed and. if so, how many marks are to be allotted for viva voce and how many for record of service and other factors, the Government, the Commission and the Selection Committee concerned will take suitable decision in the light of the observations made in the judgment. (3) While preparing the eligibility lists, the Government will also consider the question of giving the benefit of earlier service in another department on a corresponding post given to G.C. Upadhyay, respondent No. 5 in Writ Petition No. 37 of 1984 to other Junior Engineers who may be similarly situated. (4) The above directions in regard to the fresh selection to beheld are subject to any rules or orders that may hereafter be promulgated by the State Government in respect of the selections for the vacancies in question. (5) In consequence of regular selections for the said vacancies having been held to be void, the vacancies, to the extent they are available after making appointments through direct recruitment against the direct recruitment quota, may be filled by ad hoc promotions on the basis of seniority subject to rejection of unfit and also subject to the Government orders referred to in the judgment in respect of reservation in favour of scheduled castes and scheduled tribes against ad hoc appointments. The 1: 4: 1 proportionality as between the Mechanical and Electrical branches shall be maintained in total number of posts filled on regular or ad hoc basis. It is made clear that the persons already selected by direct recruitment may be allowed to join and if thereafter any posts even out of direct recruitment quota be available, they can also be filled by promotion on ad hoc basis. The promotees who cannot be accommodated within the number of vacancies so available, may be reverted. 49. No order as to costs.