S. B. MAJMUDAR, J. ( 1 ) IN these three petitions under Art. 226 of the Constitution common questions arise for consideration in addition to further questions which are confined to some of the petitions. So far as the main two common questions are concerned they pertain to the legality and validity of the Reorganised State Overseers and Deputy Engineers Seniority Lists Rules 1978 (hereinafter referred to the impugned Rules ). The second common question pertains to legality and validity of the provisional and final seniority lists of overseers as on 1-11-1956 and the provisional and final seniority lists of deputy engineers as on the same dates framed by the respective authorities in the light of the impugned Rules. As these main questions were common to all the three petitions all these petitions were heard together by consent of the learned Advocates for the respective parties and are being disposed of by this common judgment. We shall deal with the common questions at the outset and thereafter refer to several other points which have been raised in the concerned petitions But before we do so it would be necessary to quickly glance through a few relevant introductory facts leading to the present petitions. ( 2 ) I. Introductory facts: (A) Special Civil Application No. 726 of 1978 :- In this petition three petitioners who are graduates having Bachelor degree in engineering are presently working in the engineering service of the State of Gujarat respondent No. 1 herein as executive engineer and superintending engineer as the case may be. They had initially joined the service as overseers in the erstwhile State of Saurashtra. All of them were allocated to the bigger bilingual State of Bombay as graduate overseers. With the merger of the State of Saurashtra with the erstwhile State of Bombay said allocation took place on 1-11-1956. The petitioners continued to work under the Saurashtra region after their allocation as aforesaid. The bigger bilingual State of Bombay comprised of several areas and regions. In the pre-reorganised Bombay region the seniority of overseers was maintained circlewise on the basis of pay and continuous length of service while as far as Saurashtra region was concerned prior to merger the seniority was maintained in the cadre of overseers on the basis of continuous length of service and not on the basis of pay. In the pre-reorganised Bombay region the seniority of overseers was maintained circlewise on the basis of pay and continuous length of service while as far as Saurashtra region was concerned prior to merger the seniority was maintained in the cadre of overseers on the basis of continuous length of service and not on the basis of pay. The first respondent herein in company with the second respondent State of Maharashtra promulgated the impugned Rules for preparation of select lists of overseers for being promoted as deputy engineers as on 1-11-1956 and onwards upto 30-4-1960 during which period the bigger bilingual State of Bombay was holding the field. The impugned Rules are at Annexure `k to the petition. The petitioners challenge not only these Rules but also the Central Governments order at Annexure `j dated 9-3-1978 giving clearance to the concerned State authorities respondents Nos. 1 and 2 herein for promulgating the impugned Rules. 4 (b) Special Civil Application No. 3483 of 1979 :- In this petition 11 petitioners who had joined the service in the erstwhile State of Bombay on different dates between 1948 and 1956 have also brought in challenge the impugned Rules and the impugned seniority-cum-select list. The concerned petitioners at the time of their filing the present petition were working as executive engineers and deputy engineers as the case might be. These petitioners were holding diplomas in civil engineering. Two of them obtained a degree equivalent to a bachelors degree in civil engineering by passing section A and B of A. M. I. (India) during the tenure of their service as overseers. They were all recruited as overseers in the erstwhile State of Bombay. On the formation of bigger bilingual State of Bombay. the petitioners were allocated to bigger bilingual State as overseers. Petitioners Nos. 1 to 3 were thereafter promoted to the posts of deputy engineers. Other petitioners remained overseers and were allocated to the State of Gujarat as deputy engineers and overseers respectively. Thereafter during the regime of the State of Gujarat the petitioners were promoted to the posts of deputy engineers and executive engineers on the respective dates shown in chart at Annexure A to the petition. The petitioners were formerly working in the Public Works Department. By virtue of a Government resolution the Public Works Department was bifurcated into buildings and communications department and irrigation department. The petitioners were formerly working in the Public Works Department. By virtue of a Government resolution the Public Works Department was bifurcated into buildings and communications department and irrigation department. The petitioners were then allocated to buildings and communications department irrigation department and were working as executive engineers and deputy engineers in the said departments. These petitioners have challenged the Govt. resolution dated 27-8-1954 issued by the State of Bombay. It is at Annexure C to the petition. These petitioners have also brought in challenge the impugned Rules which are annexed at Annexure M to the petition as amended in 1980 which amendment has been brought on record at page 170/14 They have also brought in challenge the seniority lists of overseers at Annexure N as well as revised provisional seniority lists of overseers at Annexure P. They have also challenged the final seniority list of overseers at Annexure R-1 as well as provisional seniority list of deputy engineers at Annexure W and final seniority list of deputy engineers at Annexure W-2. The main contentions canvassed for voiding these Rules and Lists will be referred to by us later on. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 (c) Special Civil Application No. 4244 of 1985 :- In this petition three petitioners who were at the relevant time when this petition was filed working as executive engineers or superintending engineers as the case may be have brought in challenge the impugned Rules which are at Annexure A to the petition and Govt. of India letter dated 9 at Annexure J to the petition. They have also challenged Govt. of Bombay resolution dated 27-8-1954 which is the same as impugned resolution at Annexure sc in companion petition No. 3483 of 1979. They have also challenged the amendments impugned Rules 1980 at Annexure C to the petition and similarly they have mounted challenge to the seniority list of overseers at Annexure M and the provisional combined seniority lists of deputy engineers at Annexure N to the petition. The petitioners state that they had joined the services of the P. W. D. in the former State of Saurashtra as overseers. The petitioners state that they had joined the services of the P. W. D. in the former State of Saurashtra as overseers. They are all degree-holder overseers They were allocated as overseers on reorganisation of the State of Bombay under the States Reorganisation Act 1956 to the former bilingual State of Bombay. That bigger bilingual State of Bombay comprised of several areas and regions. in the pre-organised Bombay region the seniority of overseers was maintained circlewise on the basis of pay and not on continuous length of service. A true copy of the Govt. resolution dated 27-8-1954 containing the principles of seniority in respect of overseers working in the prereorganised State of Bombay is Annexed at Annexure A to the petition. As per these principles an overseer drawing higher pay was placed senior to the overseer drawing lesser pay. The petitioners state that in the regions of Saurashtra and Kutch prior to bifurcation the seniority was maintained in the cadre of overseers on the basis of continuous length of service and not on the basis of pay. The contentions raised in this petition will be referred to by us a little later. . . . . . . ( 3 ) IV. Points for consideration :- In the light of the contentions canvassed by the learned Advocates for the petitioners and the party-in-person Mr. Avasthy the following points arise for our consideration: (1)WHETHER the Govt. resolution dated 27-12-1947 (Ex. Y in Spl. C. A. 3483 of 1979) and Govt. circular dated 27-8-1954 (Ex. C to Spl. C. A. No. 3483 of 1979) are ultra vires the Bombay Civil Services (Classification and Recruitment) Rules 1939 and revision of Pay Rules 1948 or they are otherwise illegal and inoperative. (2) Whether the impugned Rules especially Rules 2 and 4 (7) are ultra vires Arts. 14 and 16 of the Constitution and otherwise illegal. (3) Whether impugned Rule 4 (7) is illegal and inoperative being contrary to the principles laid down for preparation of select list of deputy engineers as per Govt. Resolution dated 24-8-1954 (Ex. B in Spl. C. A. No. 726 of 1978) slated 14-6-1956 (Ex. C to the affidavit in reply of Shreekrishna Dedkey on behalf of State of Maharashtra in Spl. C. A. 726 of 1978) and 14-6-1958 (Ex. C to Spl. C. A. No. 726 of 1978 ). Resolution dated 24-8-1954 (Ex. B in Spl. C. A. No. 726 of 1978) slated 14-6-1956 (Ex. C to the affidavit in reply of Shreekrishna Dedkey on behalf of State of Maharashtra in Spl. C. A. 726 of 1978) and 14-6-1958 (Ex. C to Spl. C. A. No. 726 of 1978 ). (4) Whether the impugned Rules are ultra vires powers of the Governors of the States of Gujarat and Maharashtra; (5) Whether the impugned Rules are contrary to the directions contained in the Division Bench judgment of the High Court in Spl. C. A. Nos. 1644 of 1971 and 493 of 1973 decided by B. J. Divan C. J. and M. P. Thakkar J. (as they then were) on 22-7-1974. (6) Whether Rule 2 of the impugned Rules laying down criteria for deemed dates is ultra vires Absorption Seniority and Pay Allowances Rules for allocated Govt. servants 1957 (7) Whether Rules 2 and 4 (7) of the impugned Rules are illegal and unreasonable on the ground that they give double weightage to graduate overseers of Ex-Bombay State. (8) Whether the impugned seniority/select lists of overseers and deputy engineers are arbitrary unconstitutional and illegal (9) Whether the impugned seniority/select lists of overseers are ultra vires Secs. 115 and 117 of the States Reorganisation Act 1956 and Absorption Seniority and Pay and Allowances Rules 1957 (10) Whether non-inclusion of petitioners of Spl. C. A. Nos. 726 of 1978 and 4244 of 1985 in the select list of overseers fit for promotion as deputy engineers at least as on 30-4-1960 is illegal and void. (11) Whether the first two petitioners in Spl. C. A. No. 3483 of 1979 should have been treated as eligible for being considered for the posts of deputy engineers moment they graduated during their service tenure as overseers as by then they had already completed three years service as overseers substantially. If not whether the provisions for considering 3/10th of their service as diploma holders prior to their graduation that held the field during the time of bigger bilingual State of Bombay should have been applied in their cases and whether such provision is in any way ultra vires the impugned Rules. ( 4 ) V. Pointwise discussion: (1) For answering this question we will have to turn to the concerned Govt. resolutions and circular. Govt. ( 4 ) V. Pointwise discussion: (1) For answering this question we will have to turn to the concerned Govt. resolutions and circular. Govt. resolution at Annexure Y to Special Civil Application No. 3483 of 1979 is dated 27-12-1947. It was issued by the erstwhile State of Bombay in PWD. It directed amongst others that all Superintending Engineers of circles Electrical Commissioner with the Govt. of Bombay Electrical Engineer to Govt. and Public Health Engineer to 50vt. should fix the seniority of temporary overseers on their substantive appointment to the subordinate service of engineers on the basis of pay in the subordinate service of engineers. Thus by the said resolution seniority of temporary overseers in the then State of Bombay service of engineers was linked up with pay meaning thereby overseer drawing initially higher pay had to be treated as senior to another overseer drawing lesser pay. When we turn to the circular dated 27-8-1954 (Annexure C to Special Civil Application No. 3483 of 1979) we find that it refers to Govt. resolution in PWD dated 14-12-1948 as annexed at Annexure T to Special Civil Application No. 3483 of 1979 and the full text thereof is found at Annexure `b to the affidavit-in-reply of Mr. Shreekrishna Ganpatram Dedkey Under Secretary to Govt. of Maharashtra. In the said circular dated 14-12-1948 it has been provided that the orders authorising PWD others to grant higher starting pay should he continued. Their starting pays being fixed in the revised scale of Rs. 80 5-100-8-140 EB-10-270 as follows: (I) Rs. 132. 00 p. m. for engineering graduates during one year of probation Rs. 132. 00 p. m. for one year after confirmation and Rs. 140 p. m. thereafter on permanent basis in the revised scale of pay and (ii) upto Rs. 200. 00 p. m. for engineering graduates and Rs. 132. 00 per month for diploma holders on the temporary and work charged establishments. Now turning to circular dated 27-8-1954 issued by the State of Bombay we find that it refers with approval to the Govt. resolution dated 14-12-1948 and recites that the higher starting pay has been granted to overseers to tide over recruitment difficulties as a temporary measure. The higher starting pay is not to be given as a matter of course and it has happened that in some circles it has been payable to recruit candidates on the basic pay. resolution dated 14-12-1948 and recites that the higher starting pay has been granted to overseers to tide over recruitment difficulties as a temporary measure. The higher starting pay is not to be given as a matter of course and it has happened that in some circles it has been payable to recruit candidates on the basic pay. The grant of higher starting pays only to some of the overseers has led to several anomalies in fixation of seniority of overseers as the main criteria for fixation of seniority in this department is pay it has been accepted by Govt. that there should be a difference of 8 years in seniority between DCE and the graduate in view of the higher qualification of the latter. With a view to removing all anomalies in fixing seniority of overseers in service Govt. was pleased to direct that the seniority of all overseers appointed on higher starting under the orders issued in Govt. resolution PWD No. 9564/36 dated 14-12-1948 and continued from time to time should be fixed on the basis of initial pay admissible to them viz. Rs. 80 p. m. to a DCE and Rs. 132. 00 p. m. to a graduate in the pay scale of Rs. 80-5-100-8-140-EB-10-220-EB-10-270 and the increments they would draw from time to time and not on the basis of higher starting pay. It becomes obvious that as compared to diploma holder overseers graduate overseer was to be granted weightage of 8 years service in running time scale of Rs. 80-270 by giving him 8 advance increments. Thus a DCE who joined service as an overseer on the initial basic pay of R s. 80/- would take four years to reach basic pay of Rs. 100. 00 as yearly increment in the same time is Rs. 5. 00 and thereafter he will take further four years to reach basic time pay of Rs. 132. 00 yearly increment beyond Rs. 100. 00 being Rs. 8. 00 per year in the said running time scale. As a graduate overseer was to be given Rs. 132. 00 per month as basic initial pay it became at once clear that 8 years weightage of seniority was being conferred on him by being placed in the same running scale of overseers at a stage where he would have reached after 8 years from the initial starting salary of Rs. 80. 132. 00 per month as basic initial pay it became at once clear that 8 years weightage of seniority was being conferred on him by being placed in the same running scale of overseers at a stage where he would have reached after 8 years from the initial starting salary of Rs. 80. 00 p. m. had he been a non-graduate overseer. It is in the light of the scheme of this G. R. and circular that we have to consider various contentions raised on behalf of the petitioners. ( 5 ) IT was firstly contended by Mr. Mehta that the said G. R. and the circular are ultra vires statutory Rules of 1939 and 1948 viz. Bombay Civil Services (Classification and Recruitment) Rules 1939 and Revision of Pay Rules 1948 It is difficult to appreciate how the impugned G. R. and the circular are ultra vires the statutory Rules. So far as Rules of 1939 are concerned they were framed by the then State of Bombay in exercise of the powers conferred by clause (b) of sub-sec. (1) and clause (b) of sub-sec. (2) of Sec. 241 and Sec. 255 of the Govt. of India Act 1935 These Rules were framed by the Govt. with a view to regulating the classification of and the methods of recruitment to the services and posts for which the Govt. of Bombay was competent to make Rules. Therefore the scope and ambit of these Rules pertained to classification of services and posts and regulations of method of recruitment to these services and posts. They had nothing to do with fixation of seniority of persons who were recruited to the posts and whose inter se seniority had to be assigned. Rule 63 found in Sec. VI of the Rules dealing with subordinate services under the control of the Public Works Department on which great reliance was placed by Mr. Mehta also cannot advance his case any further. The said Rule provided that persons already serving in the department as temporary supervisors or overseers and found to be suitable and deserving will be eligible for appointment to the subordinate service of engineers and preference will usually be given to such subordinates on account of their experience and knowledge of Public Works Department accounts etc. over candidates fresh from colleges when filling vacancies over and above the guaranteed number from the colleges. over candidates fresh from colleges when filling vacancies over and above the guaranteed number from the colleges. All that this Rule provides is for giving preference at the time of initial recruitment to the departmental candidates who might be serving as temporary supervisors and overseers and who were to be considered for regular appointment to subordinate service of engineers. The impugned circular and the resolution have nothing to do with the initial recruitment or any preference in connection therewith. It is not as if that the impugned circular and the resolution lay down a different criterion of preference in connection with initial recruitment of overseers. Therefore these circular and the resolution do not touch upon the field covered by the recruitment Rule 63. Same is the position with the Revision of Pay Rules 1948 which are found at Annexure S to Special Civil Application No 3483 of 1972. They are framed by the then Government of Bombay in exorcise of its powers conferred by sub-sec. (2) of Sec. 241 of the Government of India Act 1935 as certified by the Indian Independents Act 1947 and the India (Provincial Constitution Order) Order 1947 These Rules tried to fix various pay-scales of Government servants who were already in service. Existing pay-scales were sought to be revised upwards. So far as overseers pay-scales were concerned Pre-1931 scales which were treated as old scales under the Rules provided a running scale of Rs. 60-5-100-10 The new (post-1931) scales was fixed at Rs. 54-4-90-EB-4-130- EB-5-130-175 (selection grade) and the revised pay-scale of overseers as per the said revision was prescribed at Rs. 80-5 100-8-140-EB-10- 220 Thus the then existing pay-scales of overseers were raised. They had nothing to do with the fixation of inter se seniority of graduate and non-graduate overseers which is sought to be done by the impugned circular and the resolution. The aforesaid statutory Rules do not cover the field which is sought to be covered by the circular and the resolution in question. They operate in their distinct and separate fields. In these Circumstances there is no question of these statutory Rules being in conflict with the impugned resolution at Annexure Y dated 27-12-1947 and the Govt. circular dated 27-8-1954 giving weightage of 8 years seniority to degree holders. They operate in their distinct and separate fields. In these Circumstances there is no question of these statutory Rules being in conflict with the impugned resolution at Annexure Y dated 27-12-1947 and the Govt. circular dated 27-8-1954 giving weightage of 8 years seniority to degree holders. In this connection it is pertinent to refer to a decision of the Supreme Court in the case of S. B. Patwardhan v State of Maharashtra AIR 1977 SC 2051 . At para 27 of the report it has in terms been laid down by the Supreme Court that 1939 Rules bad nothing to do with the question of inter se seniority of employees in the engineering service of the State. Under the circumstances the submission of Mr. Mehta that impugned resolution and the circular are in conflict with the statutory Rules of 1939 and 1948 Rules has to be rejected. ( 6 ) IT was then contended by Mr. Mehta that the impugned resolution and the circular cannot apply to the petitioners (excepting petitioner No. 11 in Special Civil Application No. 3483 of 1979) as they were recruited as overseers prior to the date on which the circular dated 27-8-1954 was issued. Now a mere look at the circular dated 27 Annexure C to Special Civil Application No. 3183 of 1979 shows that it is clarificatory in nature. It has to be read as complimentary to the Govt. circular at Annexure Y dated 27-10-1947. What is implicit in the Govt. Letter dated 27-12-1947 to the effect that salary of graduate overseers would be so fixed that starting salary of graduate overseer would include 8 increments to make difference between Rs. 80. 00 the starting salary and the salary of Rs. 132. 00 which a graduate overseer was to draw in the running time scale is make explicit by the Govt. circular at Annexure C. Therefore there is no question of circular dated 27-8-1954. being made applicable retrospectively to the petitioners who were appointed before 27-8-1954. Admittedly all these petitioners have been appointed as overseers after the Govt. resolution dated 27 was issued. They will therefore be squarely governed by the impugned resolution and the circular. circular at Annexure C. Therefore there is no question of circular dated 27-8-1954. being made applicable retrospectively to the petitioners who were appointed before 27-8-1954. Admittedly all these petitioners have been appointed as overseers after the Govt. resolution dated 27 was issued. They will therefore be squarely governed by the impugned resolution and the circular. Even that apart during the currency of service of an employee any change in seniority Rule would certainly be made applicable to the existing category of servants so that their future chances of promotion could be streamlined in the light of the subsequent change of policy regarding fixation of seniority for promotional chances. It has to be kept in view that none of the petitioners was ever promoted as deputy engineer prior to issuance of the impugned circular of 27-8-1954. Consequently there is no question of giving any retrospective effect to the said circular. It will apply prospectively for governing the inter se seniority of the petitioners inter-linked with their future chances of promotion to the higher post of deputy engineers. ( 7 ) IN any case the above contention of Mr. Mehta is squarely answered by a decision of the Supreme Court in the case of State of J. and R. v. Tralokinath Khosa AIR 1974 SC 1 . As laid down therein vide index note (b) rule which classifies existing employees for promotional purposes undoubtedly operates for all those who enter the service before framing of the Rule but it only operates in future in the sense that it governs future right of all those who are already in service. It does not recall promotions already made. The aforesaid ratio of the ruling of the Supreme Court squarely gets attracted to the facts of the present case. In the present case also none of the petitioners promoted as deputy engineers was sought to be recalled an account of fixing of seniority as per the impugned resolution for the simple reason that none of the petitioners was ever promoted as deputy engineer prior to the advent of the Govt. resolution of 1954. The question of giving retrospective effect to the said resolution vis-a-vis each petitioner does not arise at all. ( 8 ) MR. resolution of 1954. The question of giving retrospective effect to the said resolution vis-a-vis each petitioner does not arise at all. ( 8 ) MR. Mehta next contended that on the very language of the impugned resolution and the circular the petitioners would not be covered as the said resolution and the circular are to cater to the exigency of the situation wherein inter se seniority of overseers who have already been substantively appointed to the subordinate services of engineers was to be fixed and as the petitioners were not substantively appointed to the subordinate service of engineering by the time these resolution and circular saw the light of the day these resolution and the circular on the very language employed by them would not cover the cases of the petitioners. Even this contention does not hold water for more than one reason. Firstly the said resolution of 1947 nowhere indicates that it will not apply to temporary overseers who were appointed not on ad hoc basis but on regular basis against substantive vacancies. It is not the case of the petitioners in Special Civil Application No. 3a83 of 1979 that they were appointed on ad hoc basis as overseers. Even that apart 1939 Rules themselves indicate that temporary overseers belonged to subordinate service of engineering Rule 3 (f) of these Rules days lays that subordinate service means the services and posts specified in Appendix B. When we turn to Appendix `b we find at page 18 thereof a provision made regarding services and posts in Public Works Department. In the executive branch are found listed certain services of engineers including permanent supervisor and supervisors (temporary) and overseers (temporary ). Therefore it cannot be gainsaid that overseers (temporary) are also part and parcel of subordinate service of engineers as contemplated by recruitment Rules of 1939. Even that apart the very resolution dated 27-12-1947 indicates at para 3 thereof that it applies not only to permanent employees in the subordinate service of engineers but also to temporary employees in the subordinate services. Even that apart the very resolution dated 27-12-1947 indicates at para 3 thereof that it applies not only to permanent employees in the subordinate service of engineers but also to temporary employees in the subordinate services. It reiterates the policy laid down in the earlier resolution that as regards seniority a temporary subordinate appointed to the Bombay subordinate service of engineers will be placed next below the most junior permanent overseer in the circle drawing the same pay meaning thereby that sweep of the resolution dated 27 Will also cover temporary subordinate employees in the Bombay subordinate service of engineers and will not be necessarily confined only to regulation of seniority of permanent hands in the said service as tried to be suggested by Mr. Mehta for the petitioners. Even otherwise if Mr. Mehtas contention is accepted and 1947 resolution at Annexure `v to Special Civil Application No. 3483 of 1979 is treated to be confined to only permanent overseers then an impossible and absurd situation would crop up. In that case it can be effectively urged that permanent degree holder overseers only can rank senior to permanent diploma holders. But temporary diploma holder overseers may rank even above temporary degree holders or for that matter even above permanent degree holder overseers on the ground of continuous officiation as in that case on the argument of Mr. Mehta the thrust of the Govt. resolution of 1947 linking inter se seniority with pay would not be available for regulating inter se seniority of such overseers and in that eventuality even temporary diploma holder overseers may in a given case rank senior to even permanent degree holder overseers. If for example A who is a diploma holder temporary overseer was recruited on the initial salary of Rs. 80. 00 in 1948 and if B degree holder permanent overseer was recruited on the salary of Rs. 132. If for example A who is a diploma holder temporary overseer was recruited on the initial salary of Rs. 80. 00 in 1948 and if B degree holder permanent overseer was recruited on the salary of Rs. 132. 00 in 1950 and if coverage of resolution of 1947 was not available to cover the case for fixation of inter se seniority of temporary overseers vis-a-vis any permanent overseer or for that matter inter se seniority of all temporary overseers then A who is temporary diploma holder overseer will have to be treated as senior to B who is permanent graduate overseer on the principle of continuous officiation even though he is stated with eight advance increments in the same time scale as compared to A Such an anamolous and absurd result cannot be countenanced in connection with operation of the impugned resolution and the impugned circular. It must therefore be held that Govt. resolution at Annexure Y covers the question of fixation of inter se seniority of all overseers whether permanent pr temporary who were working against substantive vacancies meaning thereby whose appointments were not purely stop gap or ad hoc appointments. Leaving aside such ad hoc appointees all other overseers who were permanent or temporary working on substantive vacancies on long term basis were meant to be covered by the said resolution. However Mr. Mehta submitted placing reliance on Rule 3 of 1939 Rules that even the posts which may not be forming part of subordinate engineering service may still be treated as forming part of subordinate service. In this connection he also heavily learned on Rule 63 in Sec. VI of the Rules and Appendix B to the Rules He also invited our attention to Bombay Civil Service Rules Vol. II Appendices 1934 Edition being Pay Fixation Rules. Our attention was also specially invited to pages 604 606 and 610 to base the submission that temporary overseers are treated to be promoted to subordinate service of engineers in the contingencies mentioned therein. In view of Mr. Mehta that indicated a clear difference between temporary overseers and permanent overseers. Now it must be conceded that as the Govt. resolution of 1947 is worded an argument can legitimately arise that the principles laid down therein were mainly to apply to these temporary overseers who were appointed to the posts of overseers in subordinate service of engineers. Mehta that indicated a clear difference between temporary overseers and permanent overseers. Now it must be conceded that as the Govt. resolution of 1947 is worded an argument can legitimately arise that the principles laid down therein were mainly to apply to these temporary overseers who were appointed to the posts of overseers in subordinate service of engineers. However as discussed earlier on a combined reading of the entire resolution such a conclusion is not possible and on the other hand if such an interpretation is placed on the resolution of 1947 an absurd result would follow. But even that apart the practice consistently followed during the time of pre-organised State of Bombay was to the effect that even for fixing inter se seniority of temporary overseers principles contained in these resolution and the circular were mate applicable and it was not as if that for temporary overseers seniority a different principle was followed In fact a Division Bench judgment of this Court in Special Civil Applications Nos. 1644 of 1971 and 493 of 1973 (supra) has also accepted this factual position. On internal page No. 6 running page 212 of that judgment the Division Bench speaking through M. P. Thakkar J. (as he then was) observed as under:"the other important point of departure was that in regard to the overseers recruited by the former (preorganisation) state of Bombay whom we shall for the sake of convenience refer to in the course of the discussion as Bombay overseers seniority was not determined solely by the length of service and continuous officia tion principle. seniority was determined Inter alia on the initial salary drawn in the sense that persons drawing a higher initial salary were accorded a higher place in the seniority list than the persons drawing lower initial salary. Even if the former had joined the service later they were entitled to seniority in disregard of the principle of length of service. so also persons with special qualifications were accorded a higher place in seniority vis-a-vis other overseers even if such persons were not entitled to higher seniority going strictly by the length of service principle. It is unnecessary for the purposes of the present petition to examine the principles in greater or minute details. so also persons with special qualifications were accorded a higher place in seniority vis-a-vis other overseers even if such persons were not entitled to higher seniority going strictly by the length of service principle. It is unnecessary for the purposes of the present petition to examine the principles in greater or minute details. It is sufficient to realise that in preorganisation Bombay State seniority lists were maintained circle wise and seniority was not determined necessarily by the length of service and continuous officiation principle. "it is therefore too late in the day for the petitioners to submit now that principles underlying the aforesaid resolution and the circular would not apply for fixing inter se seniority of graduate and non-graduate temporary overseers during the time of pre-organised State of Bombay. Whatever may be the wordings of these resolution and the circular the principles underlying them were uniformly applied for fixing interse seniority not only of graduate but non-graduate temporary overseers. It is also obvious that if Mr. Mehtas contention is accepted then as shown earlier temporary graduate overseers would be worse off than permanent graduate overseers and temporary non-graduate overseers would be better of than permanent non-graduate overseers or even for that matter permanent graduate overseers. Consequently Mr. Mehtas contention has to be rejected. ( 9 ) IT was next contended by Mr. Mehta that the impugned resolution at Annexure Y and the circular at Annexure C automatically lapsed on 1-11-1956 when the bigger bilingual State of Bombay was formed and therefore these resolution and the circular cannot be pressed in service for fixing inter se seniority of Bombay overseers viz. the petitioners vis-a-vis their erstwhile graduate overseer colleagues in Bombay engineering service. It is difficult to appreciate this contention of Mr. Mehta. The short question which is relevant for our present purpose is as to how inter se seniority of pre-reorganised State of Bombay overseers was to be fixed and how these overseers had to be brought on common seniority list of absorbed overseers forming part of bigger bilingual State service of engineers as on 1-11-1956. The impugned statutory Rules of 1978 would be relevant for the same especially Rule 2 thereof which clearly brings out this position. It provides for fixing common seniority of persons absorbed as overseers as on 1-11-1956 meaning thereby as on the midnight of 31-10-1956 when the bigger bilingual State of Bombay was formed. The impugned statutory Rules of 1978 would be relevant for the same especially Rule 2 thereof which clearly brings out this position. It provides for fixing common seniority of persons absorbed as overseers as on 1-11-1956 meaning thereby as on the midnight of 31-10-1956 when the bigger bilingual State of Bombay was formed. The question of fixing inter se seniority of absorbed overseers in the engineering service of bigger bilingual State of Bombay as on 1-11-1956 had to be considered next. Thus inter se seniority of ex-preorganised Bombay State overseers as on 31-10-1956 had to be fixed and that can be done only on the basis of the then existing circulars and resolutions. Those resolution and circular obviously would serve out their purpose moment they were utilised for fixing inter se seniority of overseers in pre-reorganised State of Bombay and after crystalising the same as on 31-10-1956. From 1-11-1956 statutory Rules of 1978 would start operating for regulations inter se seniority of overseers appointed on and from 1 till 30-4-1960 and the criterion laid down for fixing such seniority is the criterion of continuous officiation as provided by Rule 3 of 1978 Rules. It therefore cannot be effectively submitted that for determining inter se seniority of ex-preorganised Bombay State overseers these circular and resolution were of no use. On the contrary they were the only circular and resolution which could have been pressed in service for that purpose. Under these circumstances there is no question of these circular and resolution automatically lapsing on 1 and but for statutory Rules of 1978 at Annexure M these circular and resolution could not have died of their own. In fact no part of the impugned Rules of 1978 lays down anything contrary to what is provided by the impugned circular and the resolution for fixing inter se seniority of preorganised Bombay State overseers upto 31 There would therefore be no question of supposed conflict between the aforesaid resolution and the circular on the one hand and the statutory Rules of 1978 on the other. However Mr. However Mr. Mehta in support of the contention of his placed reliance on the decision of the Supreme Court in Patwardhans case (supra) wherein in para 18 of the report the Supreme Court considered the circumstance that 1960 Rules of recruitment were made by the Government of Bombay on 29-4-1960 and were continued by the Government of Gujarat by its resolution of 1/05/1960 providing that all Rules Regulations Circulars etc. prevailing in the former State of Bombay will continue to operate in the new State of Gujarat until changed or modified by that Government. Mr. Mehta submitted that such an eventuality can happen when existing bigger State is sub-divided into smaller States. But present is the converse case wherein on 1-11-1956 smaller units were merged together for forming a bigger unit viz. bigger bilingual State of Bombay. In such an eventuality there is no question of continuing the operation of the then existing circulars holding the field in merging units for being automatically applied to the newly formed bigger unit. This contention of Mr. Mehta cannot be accepted for the simple reason that in the present case inter se seniority of overseers working in pre-reorganised State of Bombay which vas the merging unit had to be maintained and how it was to be fixed was the question which was to be answered in the light of relevant criterion governing the field till midnight of 31-10-1956 and that criterion would be as fixed by the impugned resolution of 1947 and the circular of 1954. As already seen earlier once they were utilised for fixing inter 5e seniority of overseers as on 31-10-1956 these resolution and the circular would have served their purpose and from 1-11-1956 there was no occasion to continue these circular and the resolution any further as from 1-11-1956 statutory Rule 3 of 1978 Rules would start operating. For these reasons therefore it is not possible to agree with the present contention of Mr. Mehta. ( 10 ) IT was next contended by Mr. Mehta that the impugned resolution at Annexure Y and the circular at Annexure C got over. ridden by the Government of Bombay resolution dated 26-4-1960 Annexure F to Special Civil Application No. 3483 of 19 9 read with subsequent Government of Maharashtra resolution dated 22-2-1964 at Annexure H to the said petition. It is very difficult to appreciate this contention of Mr. Mehta. ridden by the Government of Bombay resolution dated 26-4-1960 Annexure F to Special Civil Application No. 3483 of 19 9 read with subsequent Government of Maharashtra resolution dated 22-2-1964 at Annexure H to the said petition. It is very difficult to appreciate this contention of Mr. Mehta. As we have already discussed earlier the scope and ambit of the impugned resolution and the circular projected upto 31-10-1956 for fixing inter se seniority of Bombay overseers. These circular and the resolutions have nothing to do with the question of fixation of inter se seniority of absorbed overseers who became the servants of the bigger bilingual State of Bombay on the stroke of 12 midnight on 31-10-1956 meaning thereby on the advent of 1-11-1956. Subsequent Maharashtra Government resolutions therefore cannot have anything to do with this question. ( 11 ) BEFORE parting with this question it is necessary to note one submission of Mr. Mehta. He urged that there was vacuum in the matter of fixation of seniority after lapsing of Govt. resolution of 1947 and the circular of 1954. Under these circumstances Rule 9 of the Absorption Rules 1957 permitted Government to issue general or special orders on the matter of seniority of erstwhile Bombay State Employees. That resolution of 26-4-1960 read with resolution dated 22-2-1964 stipulating abandonment of pay-based seniority and providing for continues officiation were valid. He stated that as per the ruling of the Supreme Court in General Manager Mysore State Road Transport Co. v. Devraj Urs AIR 1976 SC 1027 directions issued under statutory provision have statutory force. It was also contended that these directions determined seniority in relation to the period during which no other Rules were in force: They operated in the matter of seniority. That pay-based seniority did not operate and could not have operated on and after 1-11-1906. It is difficult to appreciate this contention. Firstly the assumption of Mr. Mehta that there was vacuum in the matter of seniority after lapsing of 1947 resolution and 1954 circular is itself uncalled for. As we have observed above these resolution and the circular did hold the field till 31-10-1956 for fixing interse seniority of Ex-Bombay State overseers. It is difficult to appreciate this contention. Firstly the assumption of Mr. Mehta that there was vacuum in the matter of seniority after lapsing of 1947 resolution and 1954 circular is itself uncalled for. As we have observed above these resolution and the circular did hold the field till 31-10-1956 for fixing interse seniority of Ex-Bombay State overseers. Thereafter from 1-11-1956 statutory Rules of 1978 started operating as per Rule 3 of the said Rules seniority of persons appointed to the posts of overseers on or after 1-11-1956 and upto and inclusive of 30-4-1960 shall be determined on the basis on continuous officiation as overseers excluding the period or periods of fortuotous appointments and the common seniority list of overseers as on 30-4-1960 will be prepared accordingly. It is only in cases of overseers appointed in Ex-Bombay State service prior to 1-11-1956 that the impugned resolution and the circular held the field. Consequently even if resolution dated 26-4-1960 at Annexure F to Special Civil Application No. 3483 of 1979 read with later resolution dated 22-2-1964 at Annexure H cannot improve the position for the petitioners for the simple reason that these circular and resolution cannot impinge upon the inter se seniority of ex-preorganised Bombay State overseers as fixed in the light of the then prevailing circular and resolution which legally operated at least till 31-10-1956. Thereafter even assuming that this resolution of 26-4-1960 read with resolution of 22-2-1964 held the field they could regulate inter se seniority of overseers appointed in the bigger bilingual State of Bombay after 1-11-1956. These resolution and the circular instead on being in conflict with Rule 3 of the 1978 Rule run parallel to the same. In these circumstances no assistance can be derived-from these resolution and the circular by the learned Advocate for the petitioners for disturbing the inter se seniority of Ex-Bombay State Employees-overseers which was fixed prior to 31-10-1956 on the basis of the then current resolution and the circular Annexures Y and C respectively to Special Civil Application No. 3483 of 1979 and this inter se seniority being protected by the proviso to Rule 7 of the Absorption Rules 1957 cannot be whittled down except under proper order passed under Rule 9 of the said Rules and the subsequent resolutions dated 26-4-1960 and 22-2-1964 cannot satisfy the requirement of Rule 9 for that purpose. ( 12 ) MR. ( 12 ) MR. Patel learned Assistant Government Pleader appearing for the State of Gujarat rightly submitted that the Bombay Govt. resolution dated 26-4-1960 at Annexure F to Special Civil Application No. 3483 of 1979 on its own language was not retrospective in character and it would be so far the simple reason that it was not issued in exercise of any legislative or delegated legislative powers inhering in the State of Bombay. It could not therefore have governed the situation which prevailed prior to the date of its issue viz. 26-4-1960. Hence the question of inter se seniority of Bombay overseers as on 31 or for that matter the question of inter se seniority of absorbed overseers in the service bigger bilingual State of Bombay as on 1-11-1956 could never have been governed by the resolution at Annexure F dated 26-4-1960. The fact that this resolution is not retrospective in nature has been highlighted by the Division Bench judgment of this Court in Special Civil Applications Nos. 1644 of 1971 and 493 of 1973. At internal page 27 of running page 233 the Division Bench in connection with resolution of 26-4-1960 has observed as under:"it is evident on a perusal of the resolution that it does not anywhere indicate that the proposal mooted therein was to prepare a retrospective seniority list giving it about 4 wears retrospective operation with effect from 1-11-1956"coming to the subsequent resolution at Annexure H dated 22-2-1964 it becomes at once clear that the State of Maharashtra could not have given any retrospective effect to the resolution of 1969 as it was not exercising any legislative or delegated legislative function. Issuance of the said resolution at Annexure H was purely an executive act on the part of the Maharashtra Government. But even that apart Mr. Patel was right when he submitted that even if Annexure F can be treated to have been made retrospective by the thrust of subsequent resolution at Annexure H dated 22-2-1964 even then all that it purported to do was to give effect to the resolution at Annexure F dated 26-4-1960 from the back date of 1-11-1956 and not from any date prior thereto. Now as seen earlier from 1-11-1956 the question of inter se seniority of overseers appointed in bigger bilingual State of Bombay had to be fixed in the light of Rule 3 of 1978 statutory Rules. Now as seen earlier from 1-11-1956 the question of inter se seniority of overseers appointed in bigger bilingual State of Bombay had to be fixed in the light of Rule 3 of 1978 statutory Rules. Once these statutory Rules of 1978 operated the resolution at Annexure F read with Annexure H would receded in the background and would stand superseded Even otherwise all that this resolution at Annexure F read with resolution at Annexure H sought to do was to lay down criteria for fixing inter se seniority of overseers of reorganised State of Bombay from 1956 The impugned seniority list of overseers at Annexure P as on 1-11-1956 has taken into consideration the existing inter se seniority of overseers of pre-reorganised State of Bombay as on 31-10-1956. That seniority has been and had to be fixed on the basis of relevant statutory Rules applicable for overseers of reorganised State of Bombay upto 30-10-1956. In that view of the matter in no case Annexure F read with Annexure H can touch this question and were totally irrelevant for deciding the question passed for our consideration. ( 13 ) MR. Patel was also right when he contended that statutory Rules of 1978 at Annexure M especially Rule 5 thereof clearly indicated that these Rules had overriding effect on all previously existing inconsistent Rules resolutions etc. Therefore even if there was any inconsistency between the Government resolution at Annexure F read with resolution at Annexure H on the one hand and the statutory Rules of 1978 on the other the letter would prevail. It must therefore be held that on the advent of the statutory Rules of 1978 holding the field from 1-11-1956 the concerned resolutions at Annexures F and H on which strong reliance was placed by Mr. Mehta for the petitioners cannot give any assistance to his case and they stand superseded by these statutory Rules. ( 14 ) IT is also not possible to agree with the contention of Mr. Mehta that the Government resolution at Annexure G to Special Civil Application No. 3483 of 1979 save the aforesaid resolutions at Annexures F and `h. The reason is obvious. Rule 9 of the Allocated Government Servants Absorption Rules 1957 at Annexure D on which strong reliance vas placed by Mr. Mehta that the Government resolution at Annexure G to Special Civil Application No. 3483 of 1979 save the aforesaid resolutions at Annexures F and `h. The reason is obvious. Rule 9 of the Allocated Government Servants Absorption Rules 1957 at Annexure D on which strong reliance vas placed by Mr. Mehta provided that inter se seniority of allocated Government servants before 1 1956 belonging to the same former State was to be preserved and was not to be disturbed except by general or special order of the Government. Such general or special order contemplated by Rule 9 had to be to the effect that inter se seniority of allocated Government servants of merging units that existed before 1-11-1956 was required to be disturbed in individual cases or in common class of cases as the case may be. There is nothing on record to indicate that such an order was ever passed by the bigger bilingual State of Bombay. Annexure G being the Govt. resolution dated 29-4-1960 on which strong reliance was placed by Mr. Mehta in this connection does not answer the requirements of Rule 9 of the aforesaid Rules. All that Annexure G has done is to give weightage to graduates as compared to diploma holders while considering their cases for being listed in the select list for being appointed as deputy engineers. Diploma holders had to wait for atleast eight years for that purpose having served as overseers while for graduates waiting period was only three years. This provision cannot by any stretch of imagination be treated to be a general order directing that inter se seniority of overseers of ex-prereorganised Bombay State as existing on 31 was to be disturbed in any manner thereby. Even if Government resolution at Annexure `g giving weightage to graduate overseers for the purpose of promotion as deputy engineers is considered to be one falling within the scope of clause VI of Government resolution at Annexure `f laying down criteria for confirmation of clause III and IV employees in PWD even then as seen earlier the resolution at Annexure `g cannot be considered to be general or special order to the contrary as envisaged by Rule 9 of the Allocated Government Servants Rules 1957 This contention of Mr. Mehta therefore also cannot be accepted. ( 15 ) IT was lastly submitted by Mr. Mehta therefore also cannot be accepted. ( 15 ) IT was lastly submitted by Mr. Mehta that in any case the weightage given to the degree holder overseers in ex-prereorganised Bombay State by way of eight years seniority vis-a-vis non-degree holder overseers is patently arbitrary and illegal. In this connection Mr. Mehta submitted that the degree holder and diploma holder overseers carried out the same duties and responsibilities and were in the same unified cadre and carried the same pay scales. In these circumstances to give lead of eight years seniority to degree holder overseers over non-degree holder overseers is totally arbitrary. In the submission of Mr. Mehta this arbitrariness has also affected the impugned combined seniority list of overseers and therefore assigning of deemed dates to various overseers of ex-prereorganised Bombay State is equally violative of Art. 14 of the Constitution. In reply Mr. Patel for the State of Gujarat submitted that in the first place this contention of Mr. Mehta should be rejected on the ground of gross delay and laches. That 1947 and 1954 resolution and the circular had applied to ex-prereorganised State of Bombay Employees since long. When they joined their service they very well knew that their inter-se seniority will be governed accordingly. Still they never challenged the policy underlying these circular and the resolution. Their grievance is not four decades old. It was submitted that in pre-reorganised State of Bombay circlewise seniority was fixed since the time the concerned petitioners were recruited. At that time they very well knew that their seniority will be fixed after the seniority of graduate and graduates will be given fight years lead. Knowing all this they had entered the service and it is now too late for them to turn round and make grievance about it. In this connection strong reliance was placed by Mr. Patel on the decision of the Supreme Court in the case of K. R. Mudgal v. R. P. Singh AIR 1986 SC 2086 . ( 16 ) IT was next submitted that from 1947 itself two separate payscales were offered to graduate overseers and non-graduate overseers. That diploma holders had started at Rs. 80. 00 in the pay scale of Rs. 80-5-100-8-140-EB-10-220-EB-10-270; while the graduates were offered time scale of Rs. 132-8-140-EB-10-220-EB-10-270. ( 16 ) IT was next submitted that from 1947 itself two separate payscales were offered to graduate overseers and non-graduate overseers. That diploma holders had started at Rs. 80. 00 in the pay scale of Rs. 80-5-100-8-140-EB-10-220-EB-10-270; while the graduates were offered time scale of Rs. 132-8-140-EB-10-220-EB-10-270. That at the time of initial recruitment it was perfectly open to the recruiting authority to give higher start to graduate overseers and to fix their seniority accordingly. ( 17 ) IT was next contended that the Supreme Court in number of cases has taken the view that difference in treatment of pay-scales and seniority and chances of promotion as made between graduates on the one hand and non-graduates on the other is not violative of Arts. 14 and 16 of the Constitution. Reliance was placed by Mr. Patel in this connection on three Supreme Court decisions reported in State of J. and K. case AIR 197) SC 1 D. D. Joshis case AIR 1983 SC 420 and Union of Indias case 1987 (3) SCC 161 . Reliance was also placed on the decision of the Supreme Court in the case of Union of India v. G. R. Prabhavalkar AIR 1973 SC 2102 in para 16 of the report at page 2107 it was observed that it would be impossible to satisfy all Government servants and some distinction which is not void may cause hardship to the concerned employees but he cannot be helped. It was submitted that adoption of deemed date principle for the purpose of preparing combined seniority list of overseers in bigger bilingual State of Bombay as on 1-11-1956 was neither arbitrary nor irrational and that the laid principle had to be adopted for having combined seniority list. That when different overseers were coming from different merging units having different principles of inter se seniority and when they were to be brought pat and had to be emerged in common seniority list principle of deemed date had to be adopted and this was nationally done. None was paid any amount during the time they were not in service. That inter se seniority of overseers in the merging units was kept in tact. Only for the purpose of amalgamation this exercise was undertaken and for that purpose only notional deemed dates were given. None was paid any amount during the time they were not in service. That inter se seniority of overseers in the merging units was kept in tact. Only for the purpose of amalgamation this exercise was undertaken and for that purpose only notional deemed dates were given. Even though they apparently appeared to be arbitrary and unreasonable in practice they have not worked hardship to any one. ( 18 ) MR. Mehta in rejoinder submitted that there is no question of delay in the present case as impugned seniority list at page 170/1 in Special Civil Application No. 3483 of 1979 is the basis of challenge and that till the High Court decision in Special Civil Application No. 1644 of 1971 (supra) earlier seniority list of overseers held the field wherein the petitioners were shown to be senior to others on the principle of continuous officiation. Thus they had no occasion to make a grievance at that stage. Their real grievance arose only on the promulgation of seniority list at Annexure P to Special Civil Application No. 3483 of 1979 based on 1978 Rules and there is no delay in challenging the said list and as sub-list is based on irrational principles following from the circular and the resolution at Annexures `y and `c respectively they are being challenged at the earliest after the publication of the impugned seniority list at Annexure `p. Earlier there was no occasion to challenge the same. Mr. Mehta further submitted that the grant of double advantage to the graduates firstly by giving 8 years weightage in seniority and secondly being considered carrier for promotion to the posts of deputy engineers cannot stand scrutiny of Art. 14 of the Constitution. ( 19 ) IN our view the present grievance voiced by Mr. Mehta centering round legality of the resolution at Annexure Y dated 27 and the circular dated 7-8-1954 at Annexure C is ex facie stale and cannot be entertained. For the first time in 1979 the said circular and the resolution are brought in challenge by the ex-preorganised Bombay State non-graduate overseers. It is pertinent to note that Special Civil Application No. 3483 of 1979 was filed on 6-12-1979 and it is in this petition that the said resolution and the circular were challenged. Challenge to circular of 27-8-1954 in Special Civil Application No. 4244 of 1985 is even more belated. It is pertinent to note that Special Civil Application No. 3483 of 1979 was filed on 6-12-1979 and it is in this petition that the said resolution and the circular were challenged. Challenge to circular of 27-8-1954 in Special Civil Application No. 4244 of 1985 is even more belated. But even taking the date of filing of Special Civil Application No. 3483 of 1979 as the earliest date when the resolution and the circular in question are challenged even then challenge belated by 32 years or atleast 25 years. It has to be kept in view that the petitioners who were non-graduate overseers had joined the services of the then pre-reorganised State of Bombay years back before 1954. At that time they very well knew that they will be assigned lower seniority as overseers as compared to their graduate colleagues who will be given 8 years weightage meaning thereby that if A was non-graduate overseer and B was a graduate overseer if A and B both joined the service of the then pre-reorganised Bombay State as overseers on the same day A would be given starting pay of Rs. 80. 00 while B will 8et 8 advance increments and will get starting salary of Rs. 132 and because of this difference in the starting pay in the same running time scales of overseers B will rank senior by eight years as compared to A in the cadre of overseers. Now this situation was very well known to all the non-graduate overseers who joined the service of the then pre-reorganised State of Bombay decades back knowing all these facts if they chose to join such service it would be too late for them to contend after 2 or 3 decades that initial fixation of their inter se seniority was arbitrary and void. It is true that subsequently their inter se seniority might have been reshuffled but ultimately again under the 1978 Rules and as per the impugned circular and the resolution status quo ante has been restored and their inter se seniority is again refixed in the light of these circular and the resolution. It is true that subsequently their inter se seniority might have been reshuffled but ultimately again under the 1978 Rules and as per the impugned circular and the resolution status quo ante has been restored and their inter se seniority is again refixed in the light of these circular and the resolution. But that would not give them a fresh cause of action to challenge these circular and the resolution as the challenge is ultimately to the said circular and the resolution which were within their knowledge when they joined the service as overseers in the pre-reorganised State of Bombay before number of decades. It has to be in view that the impugned seniority list at Annexure P is based on the impugned resolution and the circular which were holding the field since decades. They were holding the field accordingly to the knowledge of the petitioners. No one prevented the petitioners from challenging this resolution and the said circular of the appropriate time when they came to their knowledge even during the time the pre-reorganised State of Bombay was in existence. Consequently the preliminary objection raised by the learned Assistant Government Pleader Mr. Patel for the respondents in this connection has to be upheld. In this connection we may profitably have a look at the observations made by the Supreme Court in R. R. Mudgal v. R. P. Singh AIR 1986 SC 2086 . In that case the Supreme Court speaking through Venkataramiah J. held that the writ petition filed in the High Court 18 years after the first draft seniority list published in the year 1958 could not have been entertained by the High Court on merits and such a challenge was required to be summarily rejected. It was further held that satisfactory service conditions postulate that there should be no sense of uncertainty amongst the Government servants created by the writ petitions filed after several years. It is essential that any one who feels aggrieved by the seniority assigned to him should approach the Court as early as possible as otherwise in addition to the creation of a sense of insecurity in the minds of the Govt. servants there would also be administrative complications and difficulties. A Govt. It is essential that any one who feels aggrieved by the seniority assigned to him should approach the Court as early as possible as otherwise in addition to the creation of a sense of insecurity in the minds of the Govt. servants there would also be administrative complications and difficulties. A Govt. servant who is appointed to any post ordinarily should at least after a period of 3 or 4 years of his appointment he allowed to attend to the duties attached to his post peacefully and without any sense of in security. In our view on the facts of the present case the ratio of the aforesaid decision squarely gets attracted. A similar view in also taken by the Supreme Court in a later decision in the case of Yashbir Singh v. Union of India 1987 (4) SCC 345 . In that case the Supreme Court speaking through Singh J. held that challenge to the Railway Board circular dated 2-7-1970 in 1981 after 11 years was a stale challenge and could be entertain. Under the said circular respondents were granted seniority by retrospective effect and the petitioners before the Supreme Court were aggrieved by the said grant of seniority to the respondents. Challenge to the said circular in the Supreme Court under Art. 32 of the Constitution was raised after 11 years. Repelling the said challenge on the preliminary ground that it was not maintainable on account of delay Singh J. speaking for the Supreme Court made the following observations in para 10 of the report:"all the petitioners were in service on the date that circular was issued and they were aware that their colleagues (promotees belonging to grade D) were placed in Grade C and they had been granted seniority with retrospective effect but none of them challenged the validity of the circular. Now petitioners cannot be permitted to challenge the validity of that circular after 11 years. If the petitioners were aggrieved by the Railway Boards circular dated 2/07/1970 they should have challenged the same within a reasonable period of time which they did not do. It is well settled that anyone who may feel aggrieved with an administrative order or decision affecting his right should act with due diligence and promptitude and not sleep over the matter. It is well settled that anyone who may feel aggrieved with an administrative order or decision affecting his right should act with due diligence and promptitude and not sleep over the matter. Raking of old matters after a long time is likely to result in administrative complications and difficulties and it would create in security an instability in the service which would effect its efficacy. The petitioners are therefore not entitled to challenge the validity of the Railway Boards circular dated 2/07/1970 after 11 years and their challenge is bound to fail on this ground alone. The aforesaid two decisions of the Supreme Court therefore clearly Rule out such stale challenge. In the present case the challenge is more stale then the challenges which were held to be stale by the Supreme Court is the aforesaid two decisions. Consequently on the facts of the present case the ratio of the aforesaid two decisions of the Supreme Court applies with greater vigour and on that ground alone the challenge is liable to be summarily rejected. But even that apart when we consider the merit of this contention we find that there is no substance in it. In the pre-reorganised State of Bombay diploma holders had started at Rs. 80. 00 in the pay scale of Rs. 80-5-100-8-140-EB-10-220-EB-10-270; while the graduates were offered time scale of Rs. 132-8-140-EB-10-220-E8-10-270. It is true that no separate time scales were earmarked in the Pay Rules as submitted by Mr. Mehta. However the fact remains that for all practical purposes for graduate overseers there was running time scale from Rs. 132. 00 onwards while non-graduate and diploma holder overseers started at rock bottom of Rs. 80. 00. It cannot be disputed that at the time of initial recruitment it was open to the recruiting authority to give higher start to graduate overseers and to fix their seniority accordingly. Consequently there was nothing illegal or arbitrary in the then pre-reorganised State of Bombay offering higher start to graduate overseers and giving them weightage of 8 years in seniority. It cannot be disputed that at the time of initial recruitment it was open to the recruiting authority to give higher start to graduate overseers and to fix their seniority accordingly. Consequently there was nothing illegal or arbitrary in the then pre-reorganised State of Bombay offering higher start to graduate overseers and giving them weightage of 8 years in seniority. Whether the weightage should be given of 8 years or five years or six years is all in the realm of policy making Unless it is shown that the weightage is ex facie arbitrary and unconscionable the policy underlying the same cannot be faulted on the touch stone of Art. 14 of the Constitution Looking to the exigency of situation then prevailing if the then pre-reorganised State of Bombay found years back in 1947 that to attract graduate overseers it was necessary to offer them higher time scale linked up with higher seniority as overseers as compared to non-graduate and diploma holder overseers it cannot be said that the State was guilty of giving any arbitrary or irrational or discriminatory treatment inter se these overseers. ( 20 ) WE may now turn to various Supreme Court decisions on which reliance was placed by the learned Advocates for the respective parties. In the case of State of J. and K. v. T. N. Khosa AIR 1974 SC 1 the Constitution Bench of the Supreme Court while upholding vires of J. and K. Engineering (gazetted) Service Recruitment Rules 1970 classifying diploma holder engineers and degree holder engineers separately for being considered for promotion as Executive engineers laid down as under:"though persons appointed directly and by promotions were integrated into a common class of Assistant Engineers they could for purposes of promotion to the cadre of Executive Engineers be classified on the basis of educational qualifications. The Rule providing that graduates shall be eligible for such promotion to the exclusion of diploma holders does not violate Arts. 14 and 16 of the Constitution and must be upheld. "since the constitutional code of equally and equal opportunity is a charter for equals equality of opportunity in matters of promotion means an equal promotional opportunity for persons who fell substantially within the same class. A classification of employees can therefore be made for first identifying and then distinguishing members of one class from those of another. "since the constitutional code of equally and equal opportunity is a charter for equals equality of opportunity in matters of promotion means an equal promotional opportunity for persons who fell substantially within the same class. A classification of employees can therefore be made for first identifying and then distinguishing members of one class from those of another. The classification of Assistant Engineers into degree holders and diploma holders could not be held to rest on any unreal or unreasonable basis. The classification was made with a view to achieving administrative efficiency in the engineering services If this is the object the classification is clearly correlated to It for higher educational qualifications are at least presumptive evidence of a higher mental equipment. Classification on the basis of educational qualifications made with a view to achieving administrative efficiency cannot be said to rest on any fortuitous circumstances and one has always to bear in mind the facts and circumstances of the case in order to judge the validity of a classification . ( 21 ) IT has been further observed in this connection as under: Unless the classification is unjust on the face of it the burden is on the petitioners to set out facts necessary to sustain the plea of discrimination and to adduce cogent and convincing evidence to prove those facts for there is a presumption that every factor which is relevant or material has been taken into account in formulating the classification. Thus it Is no part of the respondents State s burden to justify the classification or to establish its constitutionality. Formal education may not always produce excellence but a classification founded on variant educational qualifications is for purposes of promotion to the post of an Executive Engineer to say the least not unjust on the face of it and the onus therefore cannot shift from where it originally lay. Classification is primarily for the legislature or far the statutory authority charged with the duty of framing the terms and conditions of service: and if looked at from the stand point of the authority making it the classification is found to rest on a reasonable basis it has to be upheld. ( 22 ) IN our view the ratio of the aforesaid decision of the Supreme Court fully meets the challenge raised by Mr. Mehta even on merits. Mr. ( 22 ) IN our view the ratio of the aforesaid decision of the Supreme Court fully meets the challenge raised by Mr. Mehta even on merits. Mr. Mehta however submitted that on the facts of the present case the ratio of the Supreme Court in the case of Mohmed Shujat Ali v Union of India AIR 1974 SC 1 631 which is also a Constitutional Bench decision is attracted and that in the said decision earlier decision of the Supreme Court in State of J. and K. case (supra) is explained. In Mohmeds case (supra) the Supreme Court was concerned with the question of vires of A. P. Engineering Service Rules 1966 whereunder graduate supervisors were given preferential treatment over non-graduate supervisors in the matter of promotion to the higher posts of Assistant engineers in para 26 of the report observations of Krishna Iyer J. in State of J. and K case AIR 1974 SC 1 to the following effect have been quoted with approval:"mini Classifications based on micro-distinctions are false to our egalitarian faith and only substantial and straight forward classifications plainly promoting relevant goals can have constitutional validity. To overdo classification is to undo equality. "while referring to the scope and ambit of the decision of the Supreme Court in State of J. and K. case AIR 1974 SC 1 in para 28 of the report Bhagvati J (as he then was) speaking for the Bench observed as under:"a very similar question arose in 1974 (1) SCC 19 : AIR 1974 SC 1 : 1974 Lab IC 1 where a Rule which provided that only degree holders in the cadre of Assistant Engineers shall be entitled to be considered for promotion to the next higher cadre of Executive Engineers and Diploma holders shall not be eligible for such promotion was challenged as violative of the equal opportunity clause. This Court repelled the challenge holding that though persons appointed directly and by promotion were integrated into a common class of Assistant Engineers they could for the purposes of promotion to the cadre of Executive Engineers be classified on the basis of educational qualifications and the rule providing that graduates shall be eligible for such promotion to the exclusion of diploma holders was that obnoxious to the fundamental guarantee of equality and equal opportunity. But from these decisions it cannot be laid down as an invariable rule that whenever any classification is made on the basis of various educational qualifications such classification must be held to be valid irrespective of the nature and purpose of the classification or the quality and extent of the differences in the educational qualifications. It was also observed that:"for the purpose of achieving efficiency in public service only degree holders in Engineering shall be eligible for promotion and not Diploma or Certificate holders. That is what happened in AIR 1974 SC 1 and a some what similar position also obtained in AIR 1973 SC 811 . But where graduates and non-graduates are both regarded as fit and therefore eligible for promotion it is difficult to see how consistently with the claim for equal opportunity any differentiation can be made between them by laying down a quota of promotion for each and giving preferential treatment to graduates over non-graduates in the matter of fixation of such quota The result of fixation of quota of promotion for each of the two categories of supervisors would be that when a vacancy arises in the Post of Assistant Engineer which according to the quota is reserved for graduate supervisors a non-graduate supervisor cannot be promoted to that vacancy even if be is senior to all othe graduate supervisors and more suitable than they. His opportunity for promotion would be limited only to vacancies available for non-graduate supervisors. That would clearly amount to denial of equal opportunity to him. " ( 23 ) MR. Mehta placed strong reliance on the aforesaid observations found in Mohmed Shujats case (supra) in para 28 of the report. It is difficult to appreciate how these observations can be pressed in service by him for supporting his contention on the facts of the present case. In Mohmed Shujats case (supra) the Supreme Court was concerned with the Rule for promotion which because of the quota fixed for promotion of graduate and non-graduate supervisors enabled the authorities to by-pass even senior Supervisors if they were non-graduates and to take up admittedly junior supervisors who were graduates if promotion was to be effected to the posts of Assistant Engineers reserved for graduate assistants. Such are not the facts of the present case. Here admittedly graduate overseers are treated as senior to non-graduate overseers from the very inception of their service career. Such are not the facts of the present case. Here admittedly graduate overseers are treated as senior to non-graduate overseers from the very inception of their service career. It is not as if that an admittedly senior non-graduate overseer is bypassed and admittedly a junior degree holder overseer is preferred for affecting promotion to the higher post of deputy engineer. Consequently the observations made in para 28 of the report in Mohmed Shujats case (Supra) cannot be of any assistance to Mr. Mehta. But even that apart the ultimate decision of the Supreme Court in the above case itself goes against the petitioners. In para 28 of the report itself the Supreme Court upheld the validity of the impugned A. P. Engineering Service Rules by observing as under:" A Rule of promotion which while conceding that non-graduate supervisors are also fit to be promoted as Assistant Engineers reserves a higher quota et vacancies for promotion for graduate supervisors as against non-gradate supervisors would clearly be calculated to destroy the guarantee of equal opportunity. But even so we do not think we can be persuaded to strike down the Andhra Pradesh Rules in so far as they make differentiation between graduate and non-graduate supervisors. This differentiation is not something brought about for the first time by the Andhra Pradesh Rules It has always been there in the Engineering services of the Hyderabad and the Andhra States. The graduate supervisors have always been treated as a distinct and separate class from non-graduate supervisors both under the Hyderabad Rules as well as the Andhra Rules and they have never been integrated into any class. Under the Hyderabad Rules the pay scale of graduate supervisors was Rs. 176-300 while that of non-graduate supervisors was Rs. 140- 300 and similarly under the Andhra Rules the pay scale of non-graduate supervisors was Rs. 100-250 but graduate supervisors were started in this pay scale at the stage of Rs. 150. 00 so that their pay scale was Rs. 150-250 Graduate supervisors and non-graduate supervisors were also treated differently for the purpose of promotion under both sets of Rules. In fact under the Andhra Rules a different nomenclature of Junior Engineers was given to graduate supervisors. The same differentiation into two classes also persisted in the reorganised State of Andhra Pradesh. 00 so that their pay scale was Rs. 150-250 Graduate supervisors and non-graduate supervisors were also treated differently for the purpose of promotion under both sets of Rules. In fact under the Andhra Rules a different nomenclature of Junior Engineers was given to graduate supervisors. The same differentiation into two classes also persisted in the reorganised State of Andhra Pradesh. The pay scale of Junior Engineers was always different from that of non-graduate supervisors and for the purpose of promotion the two categories of supervisors were kept distinct and apart under the Andhra Rules even after the appointed day. The common graduation list of supervisors finally approved by the Government of India also consisted of two parts one part relating to Junior Engineers and the other part relating to non-graduate supervisors. The two categories of supervisors were thus never fused into one class and no question of unconstitutional discrimination could arise by reason of differential treatment being given to them. Contention E cannot therefore prevail and must be rejected. " ( 24 ) ON the facts of the present case we have already found earlier that from the very inception of the service career of graduate and non-graduate overseers in the erstwhile pre-reorganised State of Bombay initial starting pay of these two cadres of overseers was different and therefore even though both these cadres of overseers were fitted in the same running time scales graduate overseers were given a advance increments which made them seniors by eight years as compared to their non-graduate colleagues. Thus for all practical purposes there were in fact two separate classes of overseers and differentiation about these classes of overseers continued all throughout till 31-10-1956 when bigger bilingual State of Bombay was formed. In these circumstances even on the same lines on which ultimately in Mohmed Shujats case (supra) Andhra Pradesh Rules were upheld the impugned resolution and the circular will have to be upheld in the light of almost parallel historical facts and circumstances. ( 25 ) MR. Mehta also placed reliance on the decisions of the Supreme Court in A. Janardana v. Union of India AIR 1983 SC 769 and G. P. Dowal v. Special Secretary of U. P. AIR 1984 SC 1527 and submitted that cruel cut back of seniority is unconstitutional. ( 25 ) MR. Mehta also placed reliance on the decisions of the Supreme Court in A. Janardana v. Union of India AIR 1983 SC 769 and G. P. Dowal v. Special Secretary of U. P. AIR 1984 SC 1527 and submitted that cruel cut back of seniority is unconstitutional. He also relied upon a decision of the Supreme Court in O. P. Singhla v. Union of India AIR 1984 SC 1595 . In our view these decisions cannot be of any help to Mr. Mehta on the peculiar facts of this case. We do not find any cruel cut back of seniority on the facts of the present case. Whether difference in seniority was made available to graduate overseers was there from the very inception of their service vis-a-vis non-graduate overseers. We may at this stage refer to a decision of the Supreme Court on which strong reliance was placed by the learned Advocate for the respondents. In the case of D. D. Joshi v. Union of India AIR 1983 SC 420 the Supreme Court was concerned with the legality and validity of the amended Army Instruction No. 78 of 1977 which became effective from 1-4-1978 and the note appended to it. By the said note benefit of ante-dating the period of commission to the candidate who was having higher qualifications was made available from a fixed date which naturally excluded those candidates who did not satisfy the test of that cut off date. The question was whether such provision was violative of Arts. 14 and 15 of the Constitution. Rejecting the contention canvassed on behalf of the petitioners about alleged arbitrariness of such provision D. A. Desai J. (as he then was) speaking for the Supreme Court made the following pertinent observations:"an employer has a right to grant incentive for attracting better qualified persons to the service offered by the employer. If the incentive is devised with a view to offering inducement to those wavering whether to enter a certain service or not. If the incentive is devised with a view to offering inducement to those wavering whether to enter a certain service or not. It is difficult to accept that such incentive should also be extended to those who have already entered service and have already taken full advantage of the benefit available at the time of entering service In this case it is clearly made out that the benefit of enlarged period of ante-dating the commission for persons joining AMC after having acquired post graduate qualification was given as an incentive with a view to attracting more persons who have already acquired post graduate qualification Those who were already in service and had that benefit once cannot be beard to say that this new incentive should be retrospectively enforced so as to give to the same benefit. " ( 26 ) MR. Patel for the respondents also invited our attention to the decision of the Supreme Court in the case of U. P. State Electricity Board Lucknow v. P. L. Kelkar 1987 (3) SCC 161 . In that case the Supreme Court had to consider the scope and ambit of the service regulations which granted advance increments to candidates having special qualifications and past experience and its consequent effect on seniority. Supreme Court speaking through Khalid J. upheld the fixation of higher seniority on the basis of the advance increment gives to the candidate who was better qualified as compared to his other colleagues. Mr. Mehta for the petitioner was right when he contended that in the aforesaid decision of the Supreme Court validity of the service regulations was not on the anvil and consequently the Supreme Court had no occasion to consider whether linkage of seniority with advance increment was violative of Arts 14 and 16 of the Constitution. However the fact remains that the Supreme Court has upheld such linkage and has not found fault with operation of such service regulations. So far as the decision of the Supreme Court in D. D. Joshis case (supra) is concerned Mr. However the fact remains that the Supreme Court has upheld such linkage and has not found fault with operation of such service regulations. So far as the decision of the Supreme Court in D. D. Joshis case (supra) is concerned Mr. Mehta submitted that ante-dating of commission for postgraduate diploma holder was found valid by the Supreme Court on the facts of that case because anti-dating was commonsurate with the time spent by the concerned incumbent in obtaining such post graduate diploma and that therefore two years for obtaining diploma was found proper being directly linked up with two years time which was spent in obtaining the diploma. Mr. Mehta submitted that in the present case the degree holder graduates have been given 8 years weightage as compared to non-graduate overseers some of whom also obtained diploma. In our view how much weightage should be given to graduates as compared to non-graduates is essentially in the realm of policy making. If the then State of Bombay felt looking to the then existing market conditions that graduate overseers will not be attracted to engineering service unless 8 years weightage is given in seniority by giving them a advance increments it cannot be said that the said policy was ex facie arbitrary and unconscionable. It is now well settled that if the impugned policy is not shown to be on the face of it arbitrary or unconscionable whether a better policy should have been adopted or not will not be for the Court to consider and to pronounce upon it. It is entirely in the domain of the policy makers. On the facts of this case we do not find grant of 8 years weightage in seniority to graduate overseers of the then Bombay State in the facts and circumstances then existing year back in 1947 can be said to be arbitrary or irrational from any view point. ( 27 ) IN this connection we may also refer to a decision of the Supreme Court in the case of Devi Prasad v. Govt. of U. P. AIR 1980 SC 1185 . Krishna Iyer J. speaking for the Supreme Court in that case upholding the validity of the A. P. Engineering Subordinate Service Rules note (2) giving special weightage or benefit of service to supervisors acquiring A. M. I. E. while in service held as under:"supervisors and Junior Engineers discharge substantially similar functions. of U. P. AIR 1980 SC 1185 . Krishna Iyer J. speaking for the Supreme Court in that case upholding the validity of the A. P. Engineering Subordinate Service Rules note (2) giving special weightage or benefit of service to supervisors acquiring A. M. I. E. while in service held as under:"supervisors and Junior Engineers discharge substantially similar functions. Supervisors get the special weightage only if they acquire A. M. I. B. which is equivalent to an Engineering degree. Furthermore the weightage given is only for half the period they have served as supervisors. In the light of their wide experience and basic qualification it cannot be said that there is anything capricious in giving them the limited benefit or weightage under the new Rule. "in this Connection it was also observed as under:"ultimately it is a matter of Government policy to decide what weightage should be given as between two categories of Government servants rendering somewhat similar kind of service. Mere hardships without anything arbitrary in the Rule does not call for judicial intervention especially when it flows out of a policy which is not basically illegal. In the present case we do not find anything basically illegal"in the policy adopted by the then State of Bombay since years beginning from 1947 whereunder at the time of recruitment itself eight years weightage was given to graduate overseers as compared to non-graduate or diploma holder overseers. This policy which had come to stay in the old Bombay State and which had stood the test of time cannot be held to be patently illegal or arbitrary so as to be made liable to be voided under Arts. H and 16 of the constitution. Mr. Mehtas effort to distinguish the ratio of the aforesaid decision on the ground. that the weightage given in that case to degree holders as compared to diploma holders was sought to be reduced by new Rules in question and that was upheld and that the present is a converse case also cannot be of any real assistance to the petitioners. Whether weightage is given to one class of employees or the other is still in the domain of policy decision as held in the aforesaid decision and unless it is shown that the said policy is patently arbitrary it would not call for any judicial intervention. Under these circumstances therefore even the last contention canvassed by Mr. Whether weightage is given to one class of employees or the other is still in the domain of policy decision as held in the aforesaid decision and unless it is shown that the said policy is patently arbitrary it would not call for any judicial intervention. Under these circumstances therefore even the last contention canvassed by Mr. Mehta in support of the first point has to be rejected. ( 28 ) IV (2) The second point for consideration pertains to vires of the impugned 1978 Rules. It becomes therefore necessary to have a close look at these Rules. These Rules have been framed conjointly by the Governors of the States of Maharashtra as well as Gujarat under Art. 309 of the Constitution. As the introductory part of the said Rules at Annexure M to Special Civil Application No. 3483 of 1979 recites the said Rules had to be promulgated with a view to preparing a common seniority list of absorbed civil overseers for the entire reorganised Bombay State as on the 1/11/1956 and also preparing common seniority lists of overseers and deputy engineers in respect of the subsequent periods upto and inclusive of the 30/04/1960 Thereafter 15 references have been listed on the basis of which these Rules have been framed. Two decisions have been listed at Sl. Nos. 1 and 2. The first is decision in the case of Patwardhan and Others v. State of Maharashtra AIR 1977 SC 2051 and other decision referred to is the decision of this Court in Special Civil Application No. 1644 of 1971 and Another (supra ). Various other Govt. resolutions have been listed therein. Nos. 1 and 2. The first is decision in the case of Patwardhan and Others v. State of Maharashtra AIR 1977 SC 2051 and other decision referred to is the decision of this Court in Special Civil Application No. 1644 of 1971 and Another (supra ). Various other Govt. resolutions have been listed therein. Thereafter it is recited that whereas the reorganised State of Bombay was formed on the 1/11/1956 under Sec. 8 of the States Reorganisation Act 1956 comprising of parts of the prereorganisation State of Bombay parts of the State of Hyderabad parts of the State of Madhya Pradesh and the entire territories of the States of Saurashtra and Kutch and whereas the persons allocated from the different areas have been absorbed in the cadre of overseers in the reorganised State of Bombay as on the 1/11/1956 and whereas a common seniority list of deputy engineers as on the 1/11/1956 has been published on the 10/04/1970 but there is no such valid seniority list of overseers as on the 1/11/1956 and whereas it is necessary (i) to prepare a common seniority list of overseers as on the 1/11/1956 and for the periods subsequent thereto upto and inclusive of the 30/04/1960 (ii) on the basis of these lists to prepare select list of overseers fit to be deputy engineers in the vacancies available for the promotees upto and inclusive of the 30/04/1960 (iii) to prepare seniority lists of deputy engineers in respect of various periods from the 1/11/1956 to the 30/04/1960 (both inclusive ). Therefore in exercise of the powers conferred by Art. 309 read with sub-sec. (6) of Sec. 81 of the Bombay Reorganisation Act 1960 (II of 1960) and the Government of India Ministry of Home Affairs (Department of Personnel and Administrative Reforms) Order No. 21-2-1978-9r (5) dated 9/03/1978 and of all other powers enabling them in this behalf the Governor of Maharashtra and the Governor of Gujarat with the previous approval of the Central Government thereby are making the concerned Rules. It is therefore obvious that these Rules were required to be promulgated with a view to streamlining the question of inter se seniority of absorbed overseers allocated to the bigger bilingual State of Bombay on its formation on 11 It is apparent that prior to 1-11-1956 different overseers were working in different circles in the then State of Bombay as well as were also working in the merging States being the States of Hyderabad being parts of the State of Madhya Pradesh and entire territories of States of Saurashtra and Kutch. As the concerned overseers working in different merging units were having different Rules of seniority an effort had to be made to bring them on a common and combined seniority list for the purpose of working out their eligibility for being considered on a comprehensive basis for being promoted to the higher posts of deputy engineers in the bigger bilingual State of Bombay which came into force on 1-11-1956. As the impugned Rules themselves recite there was a common seniority list of deputy engineers as on 1-11-1956 which was published on 10-4-1970 but there was no valid seniority list of overseers as on 1-11-1956. Unless there was such combined seniority list of overseers allocated to the State of Bombay from different merging units further seniority lists of overseers till 30-4-1960 which was the last day for the existence of the bigger bilingual State of Bombay could not be prepared. It is not in dispute that such a comprehensive exercise was never undertaken during the time of bigger bilingual State of Bombay. It had therefore to be undertaken subsequently. It has to be kept in view that common seniority list of deputy engineers in the bigger bilingual State of Bombay as on 1-11-1956 was given clearance by the Supreme Court in the case of Patwardhan (supra ). That is precisely the reason why out of the judicial pronouncements referred to in the introductory part of the Rules the very first decision referred to is the decision of the Supreme Court in Patwardhans case. That is precisely the reason why out of the judicial pronouncements referred to in the introductory part of the Rules the very first decision referred to is the decision of the Supreme Court in Patwardhans case. The Division Bench of this Court in Special Civil Application No. 1644 of 1971 and Another (supra) as we will hereinafter see Ruled that the combined seniority list of overseers allocated to the bigger bilingual State of Bombay as 1 had to be prepared and thereafter subsequently such seniority lists were to be prepared with a view to preparing a select list of overseers fit for promotion as deputy engineers during the time of bigger bilingual State of Bombay and as that exercise was not legally done earlier as pointed out by the Division Bench in this judgment it was required to be done and that is precisely the reason why the impugned Rules were framed. Thus the threads which were left untied during the regime of bigger bilingual State of Bombay were tried to be knit and the work which was left unfinished was tried be finished by the impugned Rules. So far as point No. 2 with which we are concerned at this stage goes. Mr. Mehtas submission is that Rule 2 of these Rules is violative of Arts. 14 and 16 of the Constitution on the same lines as the impugned Government resolution at Annexure Y and the circular at Annexure C are violative of Arts. 14 and 16 of the Constitution. While considering Mr. Mehtas challenge to the legality of the said resolution and the circular we have already held while rejecting the aforesaid contention on the first point that there is no informity in the impugned resolution and the circular Annexed to Special Civil Application No. 3483 of 1979. We have also held that merely because 8 years weightage is give to graduate overseers in working out inter se seniority of graduate and non-graduate overseers no illegality or arbitrariness is found to have entered the said policy decision of the pre-reorganised State of Bombay which existed at the relevant time from 1947 onwards till 31-10-1956. We have also held that merely because 8 years weightage is give to graduate overseers in working out inter se seniority of graduate and non-graduate overseers no illegality or arbitrariness is found to have entered the said policy decision of the pre-reorganised State of Bombay which existed at the relevant time from 1947 onwards till 31-10-1956. If these resolution and the circular ate not found to be void than fixation of inter se seniority of Ex-Bombay overseers on that basis cannot be found fault with and no illegality can be said to have been committed by the impugned Rules in reaffirming the said seniority. Rule 2 (1) of the impugned Rules provides that in respect of each circle or each group of circles as the case may be of the pre-reorganised State of Bombay a deemed date for the purpose of seniority as overseer shall be assigned to every absorbed overseer in the seniority list by giving the senior most overseer the earliest vacancy as evidenced from the date of appointment and so on. Sub-rule (2) of Rule 2 provides that a common seniority list of the persons from the pre-reorganised State of Bombay absorbed as overseers shall be prepared by amalgamation on the basis of the deemed dates in the seniority lists mentioned in sub-rule (1) provided that where more than one person has the same deemed dates the person born earlier shall be placed above. It becomes atonce clear that the provision of sub-rules (1) and (2) of Rule 2 of the impugned Rules is to the effect that while working out inter se seniority of Ex Bombay State overseers their existing inter se seniority will be protected and senior most overseers will be given earliest vacancies in the concerned circle. Mr. Mehtas grievance is that by providing as aforesaid these sub-rules have perpetrated an illegality which was brought into force and implemented by the impugned resolution of 1947 and circular of 1954 which held the field during the regime of pre-reorganised State of Bombay. If this contention is repelled and as we have already repelled it for the reasons given earlier his subsequent argument that the impugned Rules were bad for the same reason also cannot hold water. Consequently for the very same reasons given by us for repelling Mr. If this contention is repelled and as we have already repelled it for the reasons given earlier his subsequent argument that the impugned Rules were bad for the same reason also cannot hold water. Consequently for the very same reasons given by us for repelling Mr. Mehtas contention in connection with the alleged illegality of the resolution and circular the present challenge to the vires of sub-rules (1) and (2) of Rule 2 will have to be repelled. In this connection we have also to keep in view the relevant provisions of the Absorption Seniority and Pay and Allowance Rules for allocated Govt. servants 1957 They are at Annexure D to Special Civil Application No. 3483 of 1979. These Rules are framed in exercise of the powers conferred by Art. 309 of the Constitution. So far as question of absorption is concerned section I comprising of Rules 3 to 6 deals with that question. Coming to the question of seniority of absorbed Govt. servants who became employees of bigger bilingual State of Bombay on 1-11-1956 Rule 7 found in section II of the said Rules lays down as under:"seniority of an allocated Government Servants in the post or cadre of absorption shall on the 1/11/1956 be determined by the length of continuous service whether officiating or permanent rendered by him immediately before that date in the corresponding post or a post on the same time scale in the former State excluding periods of fortuitous appointments which are in the nature of stop gap arrangement. "proviso to that Rule which is material reads as under:"provided that the seniority of an allocated Government Servant who in the former State was assigned seniority otherwise than on the basis of length of service shall be fixed immediately above the allocated Government Servant next below him according to the seniority inter se in the former State on the 31/10/1956" ( 29 ) THE term allocated Govt. servant as defined by Rule 2 (a) means a person allotted for service in the State of Bombay under the provisions of Sec. 115 of the States Reorganisation Act 1956 and includes the Govt. servants of the former Bombay State continued in the service of the new State of Bombay. servant as defined by Rule 2 (a) means a person allotted for service in the State of Bombay under the provisions of Sec. 115 of the States Reorganisation Act 1956 and includes the Govt. servants of the former Bombay State continued in the service of the new State of Bombay. The combined reading of the aforesaid relevant Rules shows that when the bigger bilingual State of Bombay was formed under the provisions of the States Reorganisation Act various merging units were amalgamated and new bigger bilingual State of Bombay was constituted out of them. Thus the employees in service of different merging units as contemplated by Sec. 115 of the States Reorganisation Act 1956 and the erstwhile Govt. servants of the formea Bombay State became allocated Govt. servants for the purpose of these Rules. Now for maintaining their inter se seniority Rule 7 provided a yard stick of length of continuous service rendered by the concerned Govt. employee before 1-11-1956 in his concerned unit. However proviso to Rule 7 which we have extracted above guaranteed that if in any merging unit inter se seniority of the concerned allocated Govt. servants was fixed on any other Rule the said inter se seniority based on that Rule had to be protected. This proviso to Rule 7 of the Absorption Rules laid down a statutory obligation on the part of the rule making authority that enacted the impugned Rules of 1978 to see to it that inter se seniority of overseers in the merging units based on any the then prevailing Rules in the merging unit prior to 1 meaning thereby upto 31-10-1956 is kept in tact. That is presisely what has been done by the impugned Rules 2 (1) and 2 (2) of Rules of 1978. It is pertinent to note that proviso to Rule 7 of the Absorption Rules is not in challenge before us. We have therefore to proceed on the basis that the said proviso did cast a mandatory duty on the bigger bilingual State of Bombay to maintain the inter se seniority of allocated Govt. servants in their respective merging units as on 31 that might have existed till then. Even in that view of the matter it cannot be said that what has been laid down in the Rules of 1978 is in any way arbitrary or illegal. servants in their respective merging units as on 31 that might have existed till then. Even in that view of the matter it cannot be said that what has been laid down in the Rules of 1978 is in any way arbitrary or illegal. On the contrary if it had been otherwise it would have directly conflicted with the mandatory sweep of the Statutory proviso to Rule 7 of the Absorption Rules and the impugned 1978 Rules would have become vulnerable. It has therefore to be held that enter se seniority of graduate and non-graduate overseers that existed in the prereorganised State of Bombay as on 31 based on the impugned resolution and the circular at Annexures Y and C respectively had to be protected and maintained even under the impugned Rules on account of the mandate of proviso to Rule 7 of the Absorption Rules and it could not have been otherwise. Once we have found that 8 years weightage given in assigning seniority to graduate overseers in the prereorganised State of Bombay was not violative of Arts. 14 and 16 of the Constitution it must logocally and of necessity follow that the said seniority Rule as maintained by the impugned 1978 Rules especially in the light of the statutory mandate of the proviso to Rule 7 of the Absorption Rules cannot be found fault with. Challenge to the impugned Rule 2 of 1978 Rules also therefore fails. ( 30 ) SO far as Rule 4 (7) is concerned it provides that for preparing the select list for each of the four periods mentioned in sub-rule (1) read with sub-rule (4) viz. (i) as on 30-6-1957 (ii) as an 30-6-1958; (iii) as on 30-6-1959 and (iv) as on 30-4-1960 the cases of overseers shall be examined according to the common seniority list provided they have from the actual or the deemed date of seniority as the case may be upto the beginning of the period in question service if a graduate of atleast 3 years if is diploma holder of at least 10 years and in at other cases of at least 5 years. Mr. Mr. Mehtas contention was that even for preparing select list of overseers found fit to be promoted as deputy engineers common seniority list of overseers as on the relevant dates has to be prepared maintaining inter se seniority of Bombay overseers that existed prior to 31-10-1956 and according to his submission as that seniority was fixed arbitrarily on account of the fact that 8 years weightage given to graduate overseers is bad the provisions made in Rule 4 (7) is liable to be held illegal on the same grounds on which in his submissible Rule 2 (1) and (2) are to be held illegal. As we have seen earlier there was no infirmity in giving 8 years weightage to graduate overseers by the then State of Bombay and as inter se seniority based on such weightage is to be protected on account of the proviso to Rule 7 of the Absorption Rules and as adoption of the same principle by the impugned Rules 2 (1) and (2) was not illegal on the same set of reasoning. it must be held that there is no infirmity in Rule 4 (7) which has accepted the very same principles fixing inter se seniority of erstwhile Bombay State overseers graduate as well as non-graduate. Consequently challenge to Rule 4 (7) must necessarily fail on the same grounds on which challenge of Mr. Mehta to Rule 2 (1) and (2) has failed and for that matter on the same grounds matter his pivot challenge to the very heart of this Rule the Govt. resolution and the circular has failed. ( 31 ) IV (iii) So far as this point is concerned we fail to appreciate how statutory Rule 4 (7) can be held illegal and inoperative only because it has allegedly conflicted with the principles laid down for preparation of select list of deputy engineers as per Govt. resolutions dated 24 14 and 14-6-1958. It is true that in the pre-reorganised State of Bombay Govt. resolution dated 24-8-1954 was issued which laid down that seniority of officers on the select list should be determined by the date of entry of their names in the list. The seniority inter se of the officers whose names are entered on the same day should be determined in accordance with their seniority in the subordinate cadre. resolution dated 24-8-1954 was issued which laid down that seniority of officers on the select list should be determined by the date of entry of their names in the list. The seniority inter se of the officers whose names are entered on the same day should be determined in accordance with their seniority in the subordinate cadre. But so far as this resolution was concerned it obviously had limited operation in connection with employees of the erstwhile pre-reorganised State of Bombay. This resolution could not have any say in the preparation of comprehensive select list of allocated overseers in the bigger bilingual State of Bombay for being considered to be fit for promotion as deputy engineers. That comprehensive exercise had to be undertaken on relevant and rational principles which would govern all the allocated overseers to bigger bilingual State of Bombay and so far as that question is concerned it would obviously be not governed by the Government resolution of 24-8-1954 which had of necessity truncated operation. So far as other two resolutions are concerned it becomes obvious that 14-6-1956 resolution also applied to pre-reorganised Bombay State employees as bigger bilingual State was formed only on 1 Therefore it will fall in the same lines with resolution dated 24-8-1954. So far as the last resolution is concerned it is dated 14 That of course was issued by the bigger bilingual State of Bombay and it laid down certain principles for deciding the question of promotion of overseers to the posts of deputy engineers. That very resolution indicates that those promotions were being effected circlewise or areawise under the concerned Superintending engineers and port officers. This resolution also did not undertake the exercise of considering the claims of all allocated overseers in the bigger bilingual State of Bombay for being considered for promotion to the posts of deputy engineers on the basis of vacancies that may be available in the entire bigger bilingual State of Bombay and not necessarily confined to the vacancies that might be available in limited areas or zones or circles under the concerned Superintending engineers or port officers. Consequently what is sought to be done by the impugned 1978 Rules on a comprehensive basis as per Rule 4 (7) cannot be treated to be in any way illegal or unauthorised only because earlier the aforesaid resolutions had tried to lay down certain norms and principles for considering the eligibility of overseers for being considered for the posts of deputy engineers. Such truncated consideration permitted under these resolutions could not satisfy or meet the constitutional requirement of Arts. 14 16 of the Constitution viz. all the allocated overseers working in the bigger bilingual State of Bombay coming from different units had to be given an equal and comprehensive chance of being considered for promotion to the posts of deputy engineers in the light of the vacancies existing in the entire State. As that was not done by the said Govt. resolutions they of necessity did not meet the requirements of Arts. 14 and 16 of the Constitution and therefore they were of no avail to the petitioners and on the basis of such truncated circular and resolutions which did not meet the requirements of Arts. 14 and 16 and for that matter were incompetent and unconstitutional the impugned Rules of 1978 cannot be found fault with on the supposition that they were in conflict with these resolutions. In this connection we may usefully refer to the Division Bench judgment of this Court in Spl. C. A. No. 1644 of 1971 and Another (supra ). Somewhat identical questions arose before the Division Bench in those cases. Before the Division Bench seniority list of civil overseers of the Gujarat (including Saurashtra and Kutch region) as on 1-11-1956 was brought in challenge by some of the dissatisfied overseers who were shown juniors to their colleagues in the said seniority list. One of the respondents in the said petition was Mr. Avasthi the party in person who is also petitioner in Spl. C. A. No. 4244 of 1985 before us. This seniority list prepared by the State of Maharashtra by concurrence of the State of Gujarat was based on earlier resolution dated 26-4-1960 pasted by the then State of Bombay five days prior to bifurcation. Avasthi the party in person who is also petitioner in Spl. C. A. No. 4244 of 1985 before us. This seniority list prepared by the State of Maharashtra by concurrence of the State of Gujarat was based on earlier resolution dated 26-4-1960 pasted by the then State of Bombay five days prior to bifurcation. The said resolution embodied a decision to bring into existence two zonal lists one in relation to the area referred to as the Gujarat Region (including Saurashtra and Kutch) and the other in relation to the area referred to as the Maharashtra region (including Vidarbha and Maharashtra) in place of the then existing system of separate PWD circles independent of each other. The said seniority list was challenged on various ground. This Court upheld the challenge and quashed the seniority list on two grounds firstly on account of the fact that the exercise of preparing seniority list of overseers zonewise and not on comprehensive basis for all allocated overseers working in different regions of the bigger bilingual State of Bombay was violative of the guarantee of Arts. 14 and 16 of the Constitution as some of the overseers working in some of the circles would not have got equal opportunity of being considered for promotion to the posts of deputy engineers where these posts were in the Statewise cadre. It was also set aside on the ground that the State of Maharashtra could not have prepared such seniority list for the erstwhile employees of bigger bilingual State of Bombay who ultimately were allotted to the State of Gujarat. The Division Bench in terms found that the promotions given to the overseers working in the bigger bilingual State of Bombay on zonal vacancies of deputy engineers were clearly fortutious as these promotions were given on ad hoc basis without there being a combined seniority list of overseers allocated to the State of Bombay from different merging units. Placing reliance on the decision of the Supreme Court in Ramchandra Shankar Deodhar v. State of Maharashtra AIR 1974 SC 259 the Division Bench of this Court in the aforesaid decision made the following pertinent observations:"admittedly the cadre of Deputy Engineers to which the Saurashtra overseers as also the Bombay overseers have been promoted in officiating capacity between November 1 195 6/04/1960 is a Statewise cadre. The promotions were required to be made in the basis of a select list of overseers fit to be promoted in consultation with the State Public service Commission. and the select list was required to be maintained for the entire bilingual State of Bombay and promotions were to be made on the basis of overseers found fit from out of the said list. The promotions of the Saurashtra overseers as also of the Bombay overseers were made during this period on ad hoe basis in the absence of a combined Statewise seniority list or a combined Statewise select list prepared on the basis thereof Now these promotions were required to be made on the basis of the seniority lists as also the select lists operative for the entire bilingual State of Bombay as on 1/11/1956 Admittedly such a lists has not been prepared. And admittetly promotions of neither the Saurashtra overseers nor of the Bombay overseers to the officiating posts of Deputy Engineers in the Statewise bilingual Bombay Statewise) cadre have been made on such basis. Now the principle laid down in Deodhars case is that for the purpose of promotions to a Statewise cadre it is essential that there is a Statewise select list on which the officer in the lower cadre seeking promotion to the higher cadre is entitled to be placed if found meritorious in conformity with his seniority. It would therefore be necessary In order to regularise the promotions both of Bombay overseers as also of Saurashtra overseers who have been promoted in an officiating capacity by way of an ad hoc stop gap arrangement till the select list operative for the entire State of bilingual Bombay is prepared from out of the circlewise select list or from out of a combined seniority-cum-select list erected therefrom. If this is not done and if promotions take place on the basis of translated select lists for Divisions of circles or areas carved out of the entire State then the promotions made on the basis of such select lists would offend the equal opportunity and equal protection clauses enshrined in Arts. 14 and 16 of the Constitution of India. If this is not done and if promotions take place on the basis of translated select lists for Divisions of circles or areas carved out of the entire State then the promotions made on the basis of such select lists would offend the equal opportunity and equal protection clauses enshrined in Arts. 14 and 16 of the Constitution of India. In Deodhars case the law on the subject has been laid down in the following passage:now it is clear that this procedure suffers from a serious infirmity in that it provides for promotions to the State cadre of Deputy Collectors to be made on the basis of Divisional select lists. This clearly amounts to denial of equality of opportunity to Mamlatdars in the State in the matter of promotion to the cadre of Deputy Collectors. If a Mamlatdar aspires to be promoted to the cadre of Deputy Collectors which is the next higher cadre of promotion for him he has to be promoted first as officiating Deputy Collector. It is only after he is promoted as officiating Deputy Collector that he can become eligible to be confirmed in the cadre of Deputy Collector. But in order to be promoted as officiating Deputy Collector he has to wait until a vacancy occurs in the post of Deputy Collector in this Division. Even if he is senior to a Mamlatdar in another Division and more suitable he cannot be promoted to officiate in a vacancy which arises in the other Divisions. His opportunity for promotion is limited to a vacancy in his own Division. The consequence is that if a vacancy in the post of Deputy Collector arises earlier in one Division a Mamlatdar in the select list of the Division would get promoted as officiating Deputy Collector earlier than a Mamlatdar in another Division where a vacancy in the post of Deputy Collector arises later and subject to the operation of the Rule of deemed dates of Continuous officiating that would mean that the former would gain entry in the cadre of Deputy Collector earlier than the latter even though the former may be junior and less suitable than the later. The entry in the cadre of Deputy Collector is thus made to depend not on the assessment of the relative merits of a Mamlatdar vis-a-vis the other Mamlatdars in the State but on the fortuitous circumstances as to when a vacancy in the post of Deputy Collector arises in the Division to which the Mamlatdar belongs. This is clearly violative of the equal opportunity clause because it is wholly unrelated to the object and purpose of promotion which is to secure an efficient cadre of Deputy Collectors and in fact negates it. It must be remembered that the cadre of Deputy Collectors is a State cadre and for promotion to such State cadre every Mamlatdar must have equal opportunity to be considered. Where promotion is made by selection on the basis of merit-cum-seniority every Mamlatdar should be able to enter the lists; he should have equal opportunity with others for being considered for promotion. There must be one common door for entry into the cadre of Deputy Collectors though which every Mamlatdar should be equally entitled to enter provided he is selected on the application of the principle of merit-cum-seniority. There cannot be six doors of entry one door available exclusively for the Mamlatdars of each Division. That is bound to create inequality of opportunity in the matter of promotion. It is true that confirmations in the cadre of Deputy Collectors are made on the basis of combined seniority list of officiating Deputy Collectors but that does not cure the infirmity in the mode of promotion. The assignment of deemed dates of continuous officiation cannot help retrieve those who have had no opportunity to be promoted as officiating Deputy Collectors not on account of want of higher seniority or better merit but purely on account of lack of adequate number of vacancies in the post of Deputy Collector arising in their Division. Moreover since the officiating Deputy Collectors are a till substantively Mamlatdars and it is in virtue of their being Mamlatdars that they are eligible to be promoted to the cadre of Deputy Collectors by confirmation the combined seniority list of officiating Deputy Collectors is in truth and reality nothing but a combined select list of Mamlatdars prepared by amalgamating the Divisional select lists. The amalgamation of the Divisional select lists is not made on a comparative assessment of the relative merits of the Mamlatdars in the Divisional select lists so as to produce a combined seniority list based on merit-cum-seniority but it proceeds on the basis of deemed dates of continuous officiation as Deputy Collectors given to Mamlatdars in their respective Divisional select lists. The giving of deemed dates of continuous officiation no doubt reflects the relative merits of the Mamlatdars in each Division taken as a separate unit but it does not seek to adjust the seniority of the approved Mamlatdars in all the Divisions taken as a whole on the basis of assessment of their relative merits. It does not therefore eliminate the inequality of treatment which inhers at the initial stage of promotion as officiating Deputy Collectors. The vice of inquality of opportunity continuous to inhibit promotions to the cadre of Deputy Collectors. The procedure followed by the State Government in making promotions must therefore be held to be violative of Art. 16 of the Constitution. It therefore. becomes abundantly clear that the entry in the higher Statewise cadre of Deputy Engineers cannot be made dependent on the assessment of relative merits of one overseer vis-a-vis other overseers in his own region circle or area. The comparison must be vis-a-vis every other overseer in the entire State. Every overseer of the State must have equal opportunity to be considered for promotion irrespective of the circle area or the Region in which he happened to be employed at the material time. Every overseer of the State was entitled to enter the select list prepared for the entire bilingual State of Bombay. There can be only one door for entry Into the cadre of Deputy Engineers through which every overseer would h equally entitled to enter on the basis of merit-cum-seniority reflected in the select list for the entire bilingual State of Bombay at the material time from 1956 to 1960. No such select list has been prepared at any time. What has been done by virtue of Annexure K is to prepare a seniority list as on 1/11/1956 for a part of the bilingual State of Bombay which has been referred to as the Gujarat Zone. No such select list has been prepared at any time. What has been done by virtue of Annexure K is to prepare a seniority list as on 1/11/1956 for a part of the bilingual State of Bombay which has been referred to as the Gujarat Zone. And what has been done by way of the seniority list for Deputy Engineers (Annexure L) has its roots in the seniority list of a small part of the entire State of Bilingual Bombay and a select list prepared on the basis of such list is referable to only a small part of the entire bilingual State of Bombay instead of for the whole State. in other words seniority list of Deputy Engineers (Annexure L) dated 11/08/1970 reflects the seniority and merits which have been retrospectively determined as on 1/11/1956 on the basis of the post facts select lists prepared for the period of 1956 to 1960 in 1970 i. e. some 10 years after the event. And that has been done by the State of Maharashtra in consultation with the State of Gujarat for a truncated small part of the bigger bilingual State of Bombay. The select lists are not prepared for the respective periods from 1956 to 1960 for the entire bilingual State of Bombay even though every overseer of the entire State including the Saurashtra overseers the Bombay overseers and the rest were entitled to be placed on such lists if they satisfied the merit-cum-seniority test. The lists were not prepared after considering the claims of these who were eligible from out of the entire bilingual State of Bombay. Now it was absolutely essential in order not to offend the principle laid down in Deodhars case (supra) to prepare the select list for the entire bilingual State of Bombay in order that all the overseers in the entire State who were eligible under the seniority-cum-merit principle could have entered through one common door to the Statewise cadre of Deputy Engineers. Surely the select lists for 1956 to 1960 were not for the Zonal section of the Bombay Engineering Service (B. E. S. ). The Service was a Statewise service. It was not Statewise less Maharashtra Zone Service. They were promoted as Deputy Engineers in bilingual Bombay State in B. E. S. not in B. E. S. minus a particular Zone. Surely the select lists for 1956 to 1960 were not for the Zonal section of the Bombay Engineering Service (B. E. S. ). The Service was a Statewise service. It was not Statewise less Maharashtra Zone Service. They were promoted as Deputy Engineers in bilingual Bombay State in B. E. S. not in B. E. S. minus a particular Zone. If petitioners and respondents who are now allocated to Gujarat had been placed on a Statewise select list for entire bilingual Bombay for ought. we know many of them might have attained much higher positions vis-a-vis employees of other regions and might have becomes Executive Engineers or even Superintending Engineers. Now this anomaly creeps in because what is sought to be done under the impugned list is to prepare with retrospective effect an ex-post facto select list for only a part of the bilingual State of Bombay namely the area now comprised within the State of Gujarat by recourse to the Zonal formula. This would be in consistent with and in conflict with the principles laid down in Deodhars case and hence violative of Arts. 14 and 16 of the Constitution of India and consequently in valid. On this ground alone the petitioners are entitled to succeed and seniority list Annexure L must be quashed and set aside. (Emphasis supplied) ( 32 ) IN view of the aforesaid Division Bench judgment of this Court it is too late in the day for Mr. Mehta and Avashthi to content that whatever promotions were obtained by the concerned petitioners during the bigger bilingual State of Bombay may be treated as sacrosanct and in fact they have to be treated as ad hoc and will have to be subject to legal effects of preparation of combined seniority list of overseers as allocated to bigger bilingual State of Bombay as on 1-11-1956 and consequently preparation of select list of overseers on that basis. Hence it cannot be urged that impugned Rule 4 (7) is contrary to the principles laid-down for preparation of select list of overseers as per earlier Govt. resolution dated 24-8-1954 14 and 14-6-1958. All these resolutions cannot be of any avail in view of the aforesaid Division Bench judgment of this Court based on the decision of the Supreme Court in Deodhars case (supra ). resolution dated 24-8-1954 14 and 14-6-1958. All these resolutions cannot be of any avail in view of the aforesaid Division Bench judgment of this Court based on the decision of the Supreme Court in Deodhars case (supra ). What was required to be done by the authorities as per the said decision of the Division Bench is actually done by the authorities by enacting impugned 1978 Rules. ( 33 ) EVEN otherwise it is not possible to agree with the learned Advocate for the petitioner and for that matter Mr. Avasthi party-in-person who also raised the same contention that earlier Govt. resolution dated 24-8-1954 which laid down principles for preparation of select list of overseers for promotion to the posts of deputy engineers had to be preferred and relied upon as compared to 1978 Rules and that 1978 Rules must yield to the said resolution or that 1978 Rules are ultra vires the said resolution. There are obvious reasons. Why this contention cannot be accepted. Firstly the impugned 1978 Rules are statutory Rules framed under Art. 309 of the Constitution. If they provided something which is contrary to what is provided by earlier Govt. resolutions which are framed in exercise of executive powers and which would indicate only executive instructions then these executive instructions must of necessity stand superseded by the statutory Rules and only statutory Rules would operate if at all there is any conflict between the executive instructions contained in the Govt. resolution on the one hand and the statutory Rules on the other than statutory Rules would prevail and the executive instruction have to yield to the statutory Rules and not vice-versa as tried to be suggested by the learned Advocate for the petitioners and Mr. Avasthi. Second reason is that these statutory Rules themselves have provided as per Rule 5 thereof that 1978 Rules shall take affect in respect of the period till 30-6-1960 notwithstanding anything contrary thereto or inconsistent therewith contained in any Rules Resolutions Circulars Directions or Orders previously issued by any erstwhile Government or existing Government in respect of matters covered by these Rules but shall not affect the validity of the said Rules Resolutions Circulars or Orders in respect of the period subsequent to 30/04/1960 We are concerned with the situation that prevailed from 1-11-1956 to 30-4-1960 during the time the bigger bilingual State of Bombay was in existence. Consequently for deciding the question of inter se seniority of allocated overseers during this relevant period if earlier circulars and resolutions are found to be in conflict with the Rules then by Rule 5 of the statutory Rules these instructions and circulars would stand overridden. Thirdly the resolutions or circulars issued by the erstwhile pre-reorganised State of Bombay or even for that matter by the then bigger bilingual State of Bombay would be of no avail as the topic which was sought to be covered by these resolutions is now expressly covered by the statutory Rules of 1978 read with Sec. 81 (6) of the Bombay Reorganisation Act 1960 It has to be kept in view that concerned petitioners including Mr. Avasthi might have been promoted as deputy engineers between 1 and 30-4-1960 during the time of bigger bilingual State of Bombay. But as that was done without there being combined seniority list of overseers allocated to the State of Bombay from different merging units promotions given had to be treated as fortuitous and unscientific and based on truncated opportunities given to the overseers working in the bigger bilingual State of Bombay in the light of Deodhars case (supra) as explained by the Division Bench judgment of this Court in Special Civil Application No. 1684 of 1971 and Another (supra) to which we have made a detailed reference earlier. Suffice it to say that as per the aforesaid decision it has been clearly ruled that if cases of all Govt. servants similarly situated are not considered on a comprehensive basis for deciding their eligibility for promotion to the higher post the impugned decision or consideration has to be voided on the touch-stone of Arts. 14 and 16 of the Constitution. servants similarly situated are not considered on a comprehensive basis for deciding their eligibility for promotion to the higher post the impugned decision or consideration has to be voided on the touch-stone of Arts. 14 and 16 of the Constitution. It has to be kept in view that all allocated overseers in the bigger bilingual State of Bombay as on 1-11-1956 were coming from various merging units Their inter se seniority was fixed as per the then existing Rules operating in the merging units They were protected and had to be protected But after they became overseers in the bigger bilingual State of Bombay as on 1 after being allocated as such and once the question of considering their eligibility for being promoted to the higher posts of Deputy Engineers during the relevant period from 1-11-1956 to 30 had to be tackled the said question had to be decided on a comprehensive basis and not in a trancated manner on zone basis or area basic. As the Government resolution which reliance was placed by the learned Advocate for the petitioners did not consider the cases of all allocated overseers on a comprehensive basis these resolutions and circulars had to be treated as incompetent in the light of the aforesaid decisions of the Supreme Court and this Court and such incompetent resolutions could not give any valid ground for the petitioners to make any submission based thereon and to get the impugned 1978 Rules which tried to undo mischief contained in these resolutions and tried to set the matter right in the light of the decisions of this Court and the Supreme Court voided on the supposition that these Rules were contrary to these resolutions. The third point for determination also therefore has to be answered against the petitioners. IV (IV ). It was contended by Mr. Avasthi party-in-person that the impugned Rules could not have been conjointly promulgated by the Governors of Maharashtra and Gujarat in exercise of their powers under Art. 309 of the Constitution of India. That the said exercise submitted Mr. Avasthi was totally ultra vires and unauthorised. It was contended that the present States of Maharashtra and Gujarat jointly cannot fix the seniority of overseers in the earlier State of Bombay when in 1978 such State was not in existence and in retrospect the Governors of successor States viz. That the said exercise submitted Mr. Avasthi was totally ultra vires and unauthorised. It was contended that the present States of Maharashtra and Gujarat jointly cannot fix the seniority of overseers in the earlier State of Bombay when in 1978 such State was not in existence and in retrospect the Governors of successor States viz. Gujarat and Maharashtra could not have fixed the seniority of the overseers serving in the erstwhile State of Bombay and that the Central Government also had no authority to endorse such exercise. Now it must be stated that such a submission was not canvassed by Mr. Mehta and he expressly gave it up. However Mr. Avasthi persisted with the same. We have therefore to examine the same on merits. It appears clear that for the purpose of undertaking the exercise of fixing inter se seniority of allocated overseers and deputy engineers as on 1-5-1960 in the State of Gujarat earlier combined seniority list of overseers as on 1-11-1956 in the bigger bilingual State of Bombay had to be fixed and subsequently latest position in seniority list qua these overseers and deputy engineers had to be fixed till 30-4-1960 the last date of the existence of the bigger bilingual State of Bombay and it is only thereafter that inter se seniority of allocated overseers as on 1-5-1960 in the Gujarat State or in the Maharashtra State as the case may be can be fixed. It is also not in dispute that during the existence of bigger bilingual State of Bombay this execise was not undertaken. Once these circumstances it became the duty of the successor two States viz. States of Gujarat and Maharashtra to conjontly undertake the said exercise retrospect. It is not in dispute that the entire area comprised in bigger bilingual State of Bombay where the concerned overseers were working between 1 and 30-4-1960 got split up into the States of Gujarat and Maharashtra with effect from 1-5-1960 and the concerned overseers came to be allocated to either Gujarat State or Maharashtra State service. We are concerned in these petitions with the inter se seniority of overseers allocated to the State of Gujarat on 1-5-1960. For that purpose earlier steps which were required to be taken during the existence of bigger bilingual State of Bombay had to be taken by the State of Gujarat in collaboration with the State of Maharashtra. We are concerned in these petitions with the inter se seniority of overseers allocated to the State of Gujarat on 1-5-1960. For that purpose earlier steps which were required to be taken during the existence of bigger bilingual State of Bombay had to be taken by the State of Gujarat in collaboration with the State of Maharashtra. Comprehensive inter se seniority of all the ov erseers working in the bigger bilingual State of Bombay could be fixed of necessity conjointly by both the States of Gujarat and Maharashtra in retrospect and could not have been fixed by only one of the two States in isolation. It is for that purpose that both the Governors of the concerned States had to promulgate the impugned Rules conjointly. None of the Governors could have undertaken that exercise singly. Save and except such exercise there was no other way for fixing the combined seniority of absorbed overseers as on 1-11-1956 in the bigger bilingual State of Bombay. If Mr. Avasthss contention is accepted there would be a total stalemate After 1-5-1960 neither the State of Maharashtra nor the State of Gujarat either individually or jointly could undertake this exercise. Bigger bilingual State of Bombay which is no longer in existence obviously could not be called upon to undertake that exercise with the result that combined seniority list of absorbed overseers and deputy engineers as on 1-5-1960 in both the States of Maharashtra and Gujarat could never be fixed for all times to come and all these officers would be kept in a state of perpetual flux. This type of situation cannot be countenanced. Only way to break the ice was to undertake joint exercise in that direction as has been done in the present case by promulgation of impugned 1978 Rules by the Governors of both the states and by preparation of impugned seniority list at Annexure P and for that matter Annexure R to Spl. C. A. No. 3483 of 1979. Consequently the aforesaid contention of Mr. Avasthi stands rejected. . . . . . . . . . . . . . . . . . . ( 34 ) IV (vi ). So far as this contention is concerned it was submitted by Mr. Mehta for the petitioners as well as Mr. C. A. No. 3483 of 1979. Consequently the aforesaid contention of Mr. Avasthi stands rejected. . . . . . . . . . . . . . . . . . . ( 34 ) IV (vi ). So far as this contention is concerned it was submitted by Mr. Mehta for the petitioners as well as Mr. Avasthi party-in-person that adoption of deemed date principle for fixing inter se seniority of overseers in the bigger bilingual State of Bombay as on 1-11-1956 was patently arbitrary. It is difficult to agree with this contention. It must be kept in view that inter se seniority of overseers working in different merging units used to be fixed on different seniority principles prior to 1-11-1956. When all these overseers became employees of bigger bilingual State of Bombay as on 1-11-1956 they had to be put on par. For that purpose a combined seniority list of such overseers had to be prepared. For doing so principle of deemed date had to be of necessity pressed in service so that all overseers coming from different merging units could get equal opportunity of being placed in the combined seniority list at proper places however ensuring that their inter se seniority as existing in the respective merged units prior to 1-11-1956 was not disturbed. It is also necessary to keep in view that the principle of deemed date has a limited operation as aforesaid. Only for the purpose of amalgamation and for placing all the overseers in the combined seniority list of overseers as on 1-11-1956 that deemed date principle was brought in service and for that purpose only notionally deemed dates were given. None was to be paid any amount for the period during which he was not in actual active service whatever be the earlier date of seniority assigned to him. Thus the emoluments which the concerned overseers got were not to be paid for the period during which they had not actually rendered service under the principle of continuous officiation during for which they were notionally shown to be seniors to others. Thus though deemed date principle was apparently looking to be arbitrary and unreasonable in practice it had not worked any hardship to any one. An overseer who was admittedly senior to his colleagues in his merging units retained his seniority qua his erstwhile colleagues in his own circle or merging unit. Thus though deemed date principle was apparently looking to be arbitrary and unreasonable in practice it had not worked any hardship to any one. An overseer who was admittedly senior to his colleagues in his merging units retained his seniority qua his erstwhile colleagues in his own circle or merging unit. We will demonstrate a little later while considering point No. 8 how the impugned seniority and select list of overseers based on the principle of deemed date are not rendered arbitrary by adoption of principle of deemed date. Suffice it to say at this stage that nothing arbitrary is found in adopting the principle of deemed dates while preparing such combined seniority list of overseers coming from different merging units having heterogeneous principles for fixing seniority of overseers in different merging units. Consequently there is no substance in the contention centering round the alleged arbitrariness of deemed date principle. ( 35 ) BEFORE parting with the discussion on this point it is necessary to note one additional contention canvassed Mr. Avasthi party in person. He invited our attention to Rule 4 (9) of the impugned Rules of 1978. It has been laid down therein that persons who were holding or discharging the duties of the deputy engineer in the pre-reorganised Bombay State on 30-4-1960 but do not find a place in the seniority list of deputy engineers worked out as above mentioned in respect of the period 1-7-1959 till 30-4-1960 inclusive shall be shown in a separate list and the said appointments as deputy engineers will be deemed to be fortuitous and shall be regulated under the proviso to Sec. 82 of the Bombay Reorganisation Act 1960 Mr. Avasthi submitted that even though the concerned overseers who were mentioned in the said list were actually promoted as deputy engineers in the bigger bilingual State of Bombay between 1-11-1956 and 30-4-1960 their appointments are deemed to be fortuitous and they have not been treated to be overseers working from the concerned dates on which they were so promoted. Even this contention cannot be of any assistance to him for the simple reason that during the time of bigger bilingual State of Bombay these concerned overseers who were working in Saurashtra region were promoted as deputy engineers on ad hoc basis by the concerned superintending engineers on the basis of vacancies available in their region. Even this contention cannot be of any assistance to him for the simple reason that during the time of bigger bilingual State of Bombay these concerned overseers who were working in Saurashtra region were promoted as deputy engineers on ad hoc basis by the concerned superintending engineers on the basis of vacancies available in their region. Thus promotions of these overseers were not effected after considering the claims for promotion of all the overseers working in different divisions and circles in the bigger bilingual State of Bombay and they could not have been done in those days when the combined seniority list of absorbed overseers for the entire State of Bombay as on 1-11-1956 was not at all prepared. This is precisely the reason why the Division Bench of this Court in Special Civil Application No. 1644 of 1971 and Another (supra) held that promotions given to the concerned overseers as deputy engineers during the time of bigger bilingual State of Bombay on consideration of zonewise seniority and vacancies were purely fortuitous and gave no right to the concerned promotees to be treated as regularly appointed deputy engineers. These findings to which the Division Bench reached are binding on Mr. Avasthi and other petitioners who were parties to the decision before the Division Bench and even otherwise the ratio of the Division Bench judgment is clearly based on the decision of the Supreme Court in Deodhars case (supra ). Therefore it is too late in the day for Mr. Avasthi to contend that Rule 4 (9) of the impugned Rules treating promotions given to the concerned Saurashtra overseers during the time of bigger bilingual State of Bombay as fortuitous is in any way illegal or discriminatory or violative of Arts. 14 and 16 of the Constitution. Therefore it is too late in the day for Mr. Avasthi to contend that Rule 4 (9) of the impugned Rules treating promotions given to the concerned Saurashtra overseers during the time of bigger bilingual State of Bombay as fortuitous is in any way illegal or discriminatory or violative of Arts. 14 and 16 of the Constitution. Far from being so it runs parallel to the ratio of the Division Bench judgment of this Court as well as the decision of the Supreme Court in Deothars case (supra) arid if it had not so treated those promotions as aforesaid it would been rendered ultra vires Art. 14 of the Constitution on the ground that those overseers whose cases were wrongly not considered for promotion were wrongly bypassed by other overseers who would have been admittedly their juniors if combined and comprehensive seniority and select list of overseers for the entire bigger bilingual State of Bombay would have been prepared at the relevant time. ( 36 ) IV (VII ). So far as this contention is concerned it was vehemently urged that Rules 2 and 4 (7) of the impugned Rules of 1978 were illegal and unreasonable as they gave double advantages to graduate overseers who were Ex-Bombay State servants. It is difficult to appreciate this contention. As we have already seen earlier during the pre-reorganised State of Bombay inter se seniority of overseers was based on the principle of weightage being given to graduate overseers as compared to non-graduate overseers viz. diploma holders and others. Once we have upheld the principle of fixation of seniority in the light of weightage of 8 years seniority given to graduate overseers during the time of pre-reorganised State of Bombay it has to be held that this inter se seniority had to be protected on account of mandate of proviso to Rule 7 of the Absorption Rules of 1957. As already discussed earlier this inter se seniority could not have been disturbed while preparing comprehensive and combined seniority list of overseers from all regions and merging units drafted to the bigger bilingual State of Bombay as on 1-11-1956. Now the weightage which has been given by Govt. resolution at Annexure G dated 29-4-1960 is an additional weightage. As already discussed earlier this inter se seniority could not have been disturbed while preparing comprehensive and combined seniority list of overseers from all regions and merging units drafted to the bigger bilingual State of Bombay as on 1-11-1956. Now the weightage which has been given by Govt. resolution at Annexure G dated 29-4-1960 is an additional weightage. It provided that for inclusion in the select list of overseers fit to be promoted as deputy engineers a graduate shall have to his credit not less than 3 a diploma holder not less than 8 and a non-qualified period of not less than 12 years service as an overseer. This weightage has nothing to do with the initial weightage given to a graduate overseer in the pre-reorganised State of Bombay for fixing his seniority vis-a-vis his non-graduate colleagues Fixation of inter se seniority of overseers of pre-reorganised State of Bombay based on the 8 years weightage for graduate overseers has nothing to do with the question of considering the eligibility of the concerned overseers on the combined seniority list for being considered for further promotion to the posts of deputy engineers. For that eligibility further requirement has been laid down by the said Govt. resolution dated 29-4-1960 and it cannot replace or substitute the original weightage of 8 years given to graduate overseers when they entered the service in the erstwhile pre-reorganised State of Bombay. Both these weightage were separate and they operated in separate and distinct fields and satisfied distinct requirements. If because of their combined operation graduate overseers got added benefit no grievance can be legitimately made for the simple reason that if original weightage of 8 years in seniority is not illegal and as we have already shown earlier it is not illegal the logical consequences thereof have to be countenanced. It is also not possible to agree with the contention of Mr. Mehta that degree holders or erstwhile Bombay State prior to reorganisation obtained a two-fold advantage under the impugned Resolutions and Rules. It is also not possible to agree with the contention of Mr. Mehta that degree holders or erstwhile Bombay State prior to reorganisation obtained a two-fold advantage under the impugned Resolutions and Rules. They obtained a weightage of eight years qua diploma holders and other overseers and secondly while being considered for promotion a s degree holders they required for lesser experience of 3 years compared to experience of 10 years and 15 years required by diploma holders and other overseers respectively or that this weightage is extortionate unconscionable and unrelated to the object of the relevant Rules and resolutions and not justified as the training period for degree holders is only two years lodger than that for diploma holders and more than made up by prescription of longer eligibility period for other overseers qua degree holders. It must be kept in view that as a graduate overseer the concerned incumbent had started with higher pay scale of Rs. 132. 00 in the running time scale of overseers in the erstwhile pre-reorganised State of Bombay. Thus at the time of his entry in service. . . . . . he got that advantage of weightage. So he became necessarily senior to non-graduate overseer by eight years. Therefore when the question of further promotion to the post of deputy engineer cropped up if he had completed three years of service he would be considered. If diploma holder who is admittedly junior to him has not got requisite experience of 10 years he had to wait till he acquired that experience. But that would not amount to giving double advantage to a degree holder overseers as they were even otherwise 8 years senior to their erstwhile non-degree holder overseers colleagues from the very inception and if that weightage is upheld as we have already done the other result follows as a logical corollary or consequence. No question of double advantage is involved in that exercise. In any case such policy decision reflected by the concerned resolutions does not indicate any totally arbitrary or unreasonable decision which can be voided on the touchstone or Art. 14 of the Constitution. If at all it can be said that another and better policy could have been adopted. But this is for policy maker to consider and it is not for this Court to pronounce upon the question as to which policy is better. If at all it can be said that another and better policy could have been adopted. But this is for policy maker to consider and it is not for this Court to pronounce upon the question as to which policy is better. All that is to be seen by this Court is whether the policy underlying the impugned weightage is patently arbitrary and unconscionable. We do not find it to be so as we have already discussed earlier. This contention therefore has to be rejected. ( 37 ) IV (VIII ). We now come to the main grievance of the petitioners and the party-in-person Mr. Avasthi centering round the impugned seniority-cum-select list of overseers and deputy engineers. It was submitted that the impugned final seniority list of overseers at Annexure P as corrected by Annexure R and the final common seniority list of deputy engineers at Annexure W/2 are arbitrary illegal and void. That by adoption of deemed date principle inter se seniority is fixed arbitrary and capriciously. Mr. Mehta for the petitioners invited our attention to some of the entries in the impugned seniority list at Annexure P. He took us to Appendix I dealing with common seniority of overseers of (Civil) Reorganised Bombay State as on 1-11-1956 and pointed out the name at Serial No. 2 Mr. B. B. Phanse who was from Vidarbha and whose date of birth was 22-12-1930 and whose actual date of appointment or continuous officiation as overseer is 28-5-1954 but who has been assigned deemed date of seniority as 16-4-1925 meaning thereby he is deemed to be appointed as overseers about 5 years before his birth. It was further submitted that there were many such entries which showed that the concerned incumbents who might be even studying as schoolians at the relevant time have been treated to be seniors to their colleagues on the adoption of principle of deemed date of seniority. It was contended that the impugned list shows that as many as 33 degree holders got dates prior to their passing matriculation examination and several others got dates while they were in college and 3 got dates prior to their birth. It was therefore submitted that the impugned seniority lists are patently discriminatory and violative of Arts. 14 and 16 of the Constitution. It was therefore submitted that the impugned seniority lists are patently discriminatory and violative of Arts. 14 and 16 of the Constitution. At first blush the aforesaid argument appears to be formiddable but on a closer scrutiny it falls through It must be kept in view that the task which was facing the authorities was in connection with fixation of combined inter se seniority of the overseers allocated to the bigger bilingual State of Bombay as on 1-11-1956. These overseers came from different merging units and had their separate Rules of seniority. Their inter se seniority had to be protected and kept in tact. But having done so they were to be brought on par so that they can be placed in combined comprehensive seniority list of overseers in the entire bigger bilingual State of Bombay. For doing so the impugned Rules have adopted the principle of deemed date which is now a well recognised principle by resorting to which dis-similarly situated persons can be brought on a common pedestal and can be clubbed together in the least arbitrary manner. Rule 2 of 1978 Rules reads:"2 In respect of each circle or each group of circles as the case may be of the pre-reorganised State of Bombay a deemed date for the purpose of seniority as overseer shall be assigned in every absorbed overseer in the seniority list by giving the seniormost overseer the earliest vacancy as evidenced from the date of appointment and so on. "as per Rule 2 (1) in the first instance circlewise or group of circleswise seniority of overseers had to be maintained and the concerned overseers had to be given deemed dates of seniority keeping in view their inter se seniority. On the basis of such deemed dates all these vacancies of different circles or group of circles had to be brought on par in amalgamated common seniority list of such overseers as per sub-rule (2 ). On the basis of such deemed dates all these vacancies of different circles or group of circles had to be brought on par in amalgamated common seniority list of such overseers as per sub-rule (2 ). Sub-rule (3) deals with the question of inter se seniority of the areas of the State of Hyderabad State of Madhya Pradesh State of Saurashtra and State of Kutch which got merged into the bigger bilingual State of Bombay on 1956 and on the same principle deemed dates are to be assigned to the overseers working in these concerned merging areas As per sub-rule (4) amalgamated combined seniority list of all overseers belonging to different circles group of circles and areas prior to 1-11-1956 has to be prepared on the basis of respective deemed dates given to these concerned overseers coming from different units or circles. Then under sub-rule (4) amalgamated combined seniority lists were merged. In order to appreciate the working of these various sub-rules of Rule 2 based on the principle of deemed date of seniority it will be profitable to take a simple example as under: ( 38 ) THERE are three areas or circles in which different overseers are working. In Circle No. I four overseers A B C and D are working. On the basis of Rules of infer se seniority applicable to that area A is senior to B B is senior to C and C is senior to D though they were appointed as overseers in that Circle on different dates or months and their inter se seniority is not governed by the principle of continuous officiation. In Circle No. 11 four overseers E F G and H are working. Their inter se seniority is also not based on the principle of continuous officiation and applying prevailing principle of fixation of inter se seniority E is treated as senior to F F to G and G to H. In the Third Circle are working four overseers I J K and L whose inter se seniority is governed by the principle of continuous officiation. Now if we take different months in calendar year showing appointment of the concerned overseers on a hypothetical basis the following picture would emerge:a look at the hypothetic example shows that in Circle I though the concerned imcumbents A B C and D are given their inter se seniority on the principle other than of continuous officiation meaning thereby even though A is appointed in September he is treated to be senior to his colleagues appointed in August April and July and so on for the remaining overseers. Once their inter se seniority is so fixed in Circle I it has to be respected and it cannot be changed As the earliest vacancy in this Circle is in April this will be given to senior most overseer A. Next senior overseer B will get next vacancy which occurred in July. Therefore his deemed date of seniority is September. The third overseer C will get the third vacancy which occurred in Circle in August and the last overseer D will get last vacancy which occurred in September. That is how deemed dates of seniority are assigned to the concerned overseers strictly maintaining their inter se cadrewise seniority. Thus though A is appointed in September he would be deemed to be appointed in April. Now there is no question of giving him any backwages or any monetary benefit by assigning him deemed date of seniority of April. This is purely notional and it is only for the limited purpose of fitting this vacancy in the combined seniority list of overseers considering the inter se seniority of overseers in other Circles which we will presently show. We may adopt the same line of reasoning on hypothetic basis for working out inter se seniority of overseers E F G and H in Circle II:thus so far as this Circle is concerned senior most overseer E will be given deemed date of seniority by assigning to him earliest vacancy that occurred in the given month in that Circle. That vacancy occurred in January. Therefore E gets deemed date of seniority as in January. Second vacancy occurred in February. That is given to F who is next senior overseer. Therefore though he was appointed in January he will get deemed date of seniority in February. The third vacancy occurred in May. That vacancy occurred in January. Therefore E gets deemed date of seniority as in January. Second vacancy occurred in February. That is given to F who is next senior overseer. Therefore though he was appointed in January he will get deemed date of seniority in February. The third vacancy occurred in May. That will be given to the third senior overseer G and the last vacancy will go by way of deemed date to the junior most overseer H. Now let us take the case of the third Circle where inter se seniority of overseers is based strictly on the principle of continuous officiation as was the case of Saurashtra region. We may note at this stage that so far as inter se seniority of ex-prereorganised State of Bombay was concerned overseers were not governed by the principle of continuous officiation. Therefore circlewise or group of circlewise seniority of overseers in pre-reorganised State of Bombay could not be based on continuous officiation and consequently Ex-Bombay overseers who might have joined later could rank as seniors to their erstwhile colleagues Bombay overseers who might have been appointed earlier but who because of being non-graduates may rank juniors. Thus the latter appointed graduate overseer in pre-reorganised Bombay State could steal a march over non-graduate overseers appointed earlier in pre-reorganised Bombay State from the point of view of inter se seniority. It becomes obvious that so far as the third Circle is concerned because the inter se seniority of the conerned overseers I to L is based on the principle of continuous officiation the first vacancy necessarily goes to senior most overseer. Second goes to second senior most overseer and so on. Now on the basis of deemed dates of seniority we have got three Circles I II and III. Overseers working in these respective Circle have been assigned due dates of seniority from the point of view of vacancies available in the concerned Circles. If we want to have combined seniority list of overseers working in all these Circles the next step which we have to take is to arrange inter se seniority of all these overseers in the light of deemed dates of their seniority. In this simple example we have assumed that different vacancies in different Circles have occurred in given calendar year monthwise. Therefore the overseer who has got January as the deemed date will rank senior most. In this simple example we have assumed that different vacancies in different Circles have occurred in given calendar year monthwise. Therefore the overseer who has got January as the deemed date will rank senior most. He will be followed by overseer who has got February as the deemed date of seniority. On that basis the following combined seniority list can be prepared for all those overseers working in different ( 39 ) THUS combined inter se seniority of overseers from all these Circles when brought on common pedestal will work out as aforesaid. This combined seniority list of overseers is based on principle of teemed dates of seniority allotted to the concerned overseers circlewise. This combined seniority list will not be arbitrary for the simple reason that inter se seniority of the concerned overseers working in erstwhile circles will not be adversely affected. A will always remain senior to B. B will always remain senior to C and C will remain senior to D. But keeping in tact their inter se seniority some other overseers of other Circles will steal a march over them for the simple reason that they were entitled to be given deemed seniority in their Circles where vacancies occurred earlier. This is precisely the modus operandi underlying preparation of combined seniority list of overseers as contemplated by various sub-rules of Rule 2. If we turn to Appendices to Annexure P which is provisional seniority list as on 1-11-1956 we notice how these various Appendices in the impugned seniority lists have been prepared keeping in view the mandate of sub-rules (1) to (4) of Rule 2. Appendix II deals with inter se seniority of overseers of Bombay Circle of pro-reorganised State of Bombay. They have been arranged in the order of their seniority. But the earliest vacancy in that Circle is given to senior most overseer. In the process same apparently inconsistent situation may appear to have resulted at first blush. But the principle of deemed date means that what is actually not there is assumed to be there and that is only for a limited purpose as discussed earlier. Consequently the submission of the learned Advocates for the petitioner that a schoolian or collegian is given deemed date of seniority or an overseer is given deemed date of seniority which is prior to his date of birth will pale into insignificance. Consequently the submission of the learned Advocates for the petitioner that a schoolian or collegian is given deemed date of seniority or an overseer is given deemed date of seniority which is prior to his date of birth will pale into insignificance. These deemed dates of seniority are assigned in the light of available vacancies in the given Circle and the earliest vacancy is always given to the senior most overseer. Nothing more is being done by assigning deemed date of seniority. Deeming fiction has to be given its full play so that it can serve out the purpose for which it is meant. It would frustrate the very concept of deemed date if more is read into it and if it is urged that what is unreal is being treated as real from any view point. The senior most overseer may get deemed date of seniority in his Circle which may be five years before his birth but still he is senior most overseer and he is given earliest vacancy in the Circle. It is for the purpose of combining the inter se seniority of overseers circlewise that this exercise had to be undertaken. Therefore deemed date fiction has to be given its full play so that it can serve out its purpose completely. We cannot allow our imagination to boggle while considering the scope ambit and impact of the deeming fiction and while appreciating the underlying principle and the purpose for which it was meant. Appendix 3 to Annexure P deals with overseers working in Central Circle of the pre-reorganised Bombay State. Appendix 4 deals with inter se seniority of overseers working in Deccan Irrigation Circle of the pre-reorganised Bombay State. Appendix 5 deals with overseers working in Koyna Organisation of the pre-reorganised Bombay State. Appendix 6 deals with Gujarat Irrigation Circle/north Gujarat. Irrigation Circle of the pre-reorganised Bombay State. Appendix 7 deals with overseers in South Gujarat Circle and Tapi Construction Circle of the pre-reorganised Bombay State. Thus Appendices 2 to 7 deal with inter se seniority of concerned overseers working in these Circles or group of Circles in pre-reorganised State of Bombay that existed upto 31-10-1956. These overseers working in different Circles have been assigned deemed dates of seniority by giving earliest vacancy in each Circle to the senior most overseer and so on. Thus Appendices 2 to 7 deal with inter se seniority of concerned overseers working in these Circles or group of Circles in pre-reorganised State of Bombay that existed upto 31-10-1956. These overseers working in different Circles have been assigned deemed dates of seniority by giving earliest vacancy in each Circle to the senior most overseer and so on. This exercise is carried out as per the requirement of Rule 2 (1) of the Rules of 1978. Now comes Appendix 8 which deals with pre-reorganised Bombay State common seniority list as on 1-11-1956. This Appendix seeks to arrange all this overseers working in different Circles 2 to 7 in the pre-organised State of Bombay in a combined list in the light of the concerned deemed dates assigned to them and listing the concerned deemed dates in a chronological order respective recipients of the earliest deemed dates are listed as senior most overseers followed ar next seniors and so one as we brave seen in our illustration fixing the combined seniority of overseers A to L in three Circles. Thus Appendix 8 follows the mandate of sub-rule (2) of Rule 2. Then we come to Appendix 9 which deals with inter se seniority of overseers working in Marathawada ares of Ex-Hyderabad State. These overseers are arranged in the order of seniority and they have been given deemed dates of seniority as overseers in the light of available vacancies in that area. Appendix 10 deals with overseers working in Vidarbha are of Ex-Madhya Pradesh State. Appendix 11 deals with overseers in Ex-Saurahstra State and Appendix 12 deals with inter se seniority of overseers in the Ex-Kutch State. Even these areas also got merged in bigger bilingual State of Bombay on 1-11-1956. Therefore the overseers working in these areas also had to be brought on common seniority list of overseers allocate to the State of Bombay on 1-11-1956. Inter se seniority of these concerned overseers working in different areas as per Appendices 9 to 12 has been fixed on the principle of deemed dates as per requirement of Rule 2 (3) of the 1978 Rules. Then we come to Appendix 1 which is the combined common seniority list of all overseers of pre-reorganised State of Bombay as on 1-11-1956. Then we come to Appendix 1 which is the combined common seniority list of all overseers of pre-reorganised State of Bombay as on 1-11-1956. This common combined seniority list of overseers allocated to the Bombay State would necessarily include overseers earlier working in different Circles as mentioned in Appendices 2 to 7 as well as in the merging areas mentioned in Appendices 9 to 12. As per Rule 2 (2) of 1978 Rules Appendix 8 is prepared showing inter se seniority of all the overseers from different Circles as arranged serially in the light of chronological deemed dates assigned to them. Thus Appendix 8 when clubbed with deemed dates of concerned overseers in Appendices 9 to 12 would result in Appendix I which is combined comprehensive seniority list of overseers in the entire reorganised State of Bombay as on 1-11-1956. This is the culmination of the exercise or last act thereof. It has been prepared as per Rule 2 (4 ). In that list all the deemed dates of seniority given to different overseers in different circles and areas are arranged in chronological sequence and whoever is corresponding recipient of that deemed date is arranged in the combined seniority list as senior to others who might have got deemed dates which are of later periods. Thus earliest vacancy holder on the principle of deemed date will be the senior most. He will be followed by second vacancy holder who might have been given second vacancy on the principle of deemed date and so on. This is how the impugned ultimate combined seniority list of overseers has been prepared. If we keep the aforesaid principles of deemed dates and the limited purpose for which they are pressed in service in view it becomes at once easy to appreciate that there in so arbitrariness or unreasonableness discernible from the said exercise. On the contrary if any other principle is adopted for fixing inter se seniority of overseers working in different Circles and zones governed by heterogeneous Rules of seniority absolutely a wrong picture will emerge and exercise will falter on the touchstone of Arts. 14 and 16 of the Constitution. It is therefore not possible to agree with the contention of the learned Advocate for the petitioners and Mr. Avasthi party-in-person that the impugned combined seniority list as on 1-11-1956 is arbitrary or irrational from any view point. 14 and 16 of the Constitution. It is therefore not possible to agree with the contention of the learned Advocate for the petitioners and Mr. Avasthi party-in-person that the impugned combined seniority list as on 1-11-1956 is arbitrary or irrational from any view point. So far as the impugned seniority list of overseers fit for promotion as deputy engineers is concerned the said list at Exhibit W/2 has also followed the same pattern of deemed dates and the senior most overseers in the entire bigger bilingual State of Bombay if not found positively unfit to be promoted to the post of deputy engineer which is in the State cadre is placed at the top in the said combined seniority-cum-select list. It has to be kept in view that recruitment by promotion to the post of deputy engineer is governed by the Rules of seniority-cum-merit. Therefore it is the senior most overseer who should normally be promoted first if he is not found otherwise positively unfit for the said promotion. Adopting that principle the combined select list-cum-seniority list of overseers fit to be promoted as deputy engineers has been prepared at Annexure W/2. It necessarily reflects the same inter se seniority of the concerned overseers for the entire bigger bilingual State of Bombay as is reflected by Appendix 1 to Annexure P. Under these circumstances it is not possible to agree with the contention of the learned Advocate for the petitioners and Mr. Avasthi that the impugned seniority-cum-select list of overseers and deputy engineers is arbitrary and unconstitutional. In our view this is a very rational method for carrying out the exercise which was required to be carried out in the light of the decision of the Supreme Court in Deodhars case (supra) and the decision of the Division Bench in Special Civil Application No. 1644 of 1971 and Anr. (supra ). In view of the aforesaid discussion therefore it is also not possible to agree with Mr. J. R Nanavati learned Advocate for the petitioners in Special Civil Application No. 4244 of 1985 that the impugned seniority list is not just and equitable because the principle of continuous officiation for fixing inter se seniority is given go-bye. (supra ). In view of the aforesaid discussion therefore it is also not possible to agree with Mr. J. R Nanavati learned Advocate for the petitioners in Special Civil Application No. 4244 of 1985 that the impugned seniority list is not just and equitable because the principle of continuous officiation for fixing inter se seniority is given go-bye. As discussed above in different circles and areas which ultimately merged in bigger bilingual State of Bombay diverse principles of inter se seniority were in vogue and inter se seniority of concerned incumbents in different areas and circles had to be protected on account of the mandate of proviso to Rule 7 of the Absorption Rules. It cannot therefore be urged that continuous officiation was the only normal Rule for fixing Inter se seniority and had to be followed for preparing combined seniority list of the overseers drafted to the bigger bilingual State of Bombay from different circles. It is also not possible to agree with Mr. J. R. Nanavati that the combined seniority of overseers amounts to second integration of cadres of overseers and that the overseers were already integrated in the bigger bilingual State of Bombay service and therefore there was no need to integrate them again. The said submission wrongly assumes that by combined seniority list as prepared in the light of Rule 2 and its sub-rules any fresh integration of overseers was sought to be effected. Integration of overseers had taken place on the advent of Bombay Reorganisation Act 1955 in the light of Absorption Rules 1957 The combined seniority list was to be prepared for entirely a different purpose and that purpose was to rationally regularise chances of promotion of all overseers in the bigger bilingual State of Bombay on uniform basis so that promotions effected in a truncated manner can be set right. That was required to be done in the light of the decision of the Supreme Court in Deodhars case (supra) as applied to the facts of the present case by the earlier decision of this Court. It is also equally impossible to agree with the contention of Mr. Nanavati that Central Governments intervention in this matter was wholly contrary to law. It is also equally impossible to agree with the contention of Mr. Nanavati that Central Governments intervention in this matter was wholly contrary to law. On the contrary it was absolutely necessary as without its clearance the State of Maharashtra and State of Gujarat could not have undertaken the exercise of preparing combined seniority list of overseers for the entire bigger bilingual State of Bombay as on 1-11-1955 retrospecitvely. It is equally impossible to agree with the contention of Mr. Nanavati that in the light of the Division Bench judgment of this Court in Special Civil Application No. 1644 of 1971 and Anr. (supra) common select list of overseers fit to be promoted as deputy engineers could have been prepared by combining all circlewise lists. That could not have been done for the simple reason that circlewise lists were prepared in a truncated manner as held by the Division Bench of this Court. Comprehensive exercise had to be undertaken after preparing combined seniority list of all overseers coming from different regions and circles and after putting them on par. For that purpose adoption of deemed date principle was the only efficacious remedy. For all these reasons therefore this contention has to be rejected. (REST of the Judgment is not material for the Reports.)RULE discharged. .