JUDGMENT : ( 1. ) THIS is a petition under Articles 226/227 of the Constitution of India for issue of a writ of certiorari to quash order dated 10-12-1981 (Ann.-4), whereby the appointment of respondent No. 3 on the post of Assistant Engineer was regularised with effect from 10-12-1963 and for quashing his promotion to the post of executive Engineer in December, 1981. The petitioner also prays for a writ of mandamus commanding respondent No. 1 to promote him to the post of Executive engineer from the date respondent No. 3 was promoted giving him seniority over respondent No. 3 and other consequential benefits. ( 2. ) THE, petitioner was first appointed as Overseer in the Public Works department (hereinafter in short the PWD) on 14-9-1950 while respondent No. 3 was appointed to the same post on 16-9-1950. The respondent No. 3 was thus junior to him on the said post On 10-12-1963, respondent No. 3 was allowed to hold temporarily charge of a Sub-Division in the leave vacancy of an Assistant Engineer on ad hoc basis. The petitioner, though senior, was not considered for the said charge and therefore he submitted a representation (Document No. 1) on 18-1-1964. The respondent No. 3 was reverted to the post of Overseer in or about 1964. ( 3. ) IN June 1971, the Departmental Promotion Committee (hereinafter in short the DPC) considered the petitioner and respondent No. 3 besides others and recommended both for promotion to the post of Assistant Engineer. In the seniority list of Assistant Engineers as on 1-4-1977 (Document No. 2), the petitioners name is at serial no. 159 while respondent No. 3 is at 160. Yet, in another Gradation List of Assistant engineers as on 1-4-1982 (Document No. 10), the petitioners name is at serial No. 134 while respondent No. 3 is at 135. This list revealed that while the petitioners date of promotion to the post of Assistant Engineer is shown as on 17-8-1971, the respondent no. 3s promotion to the same post is shown to be on 7-4-1971. ( 4. ) ON 11th and 12 March, 1980, the DPC met to consider cases of promotion from the post of Assistant Engineer to the post of Executive Engineer. 3s promotion to the same post is shown to be on 7-4-1971. ( 4. ) ON 11th and 12 March, 1980, the DPC met to consider cases of promotion from the post of Assistant Engineer to the post of Executive Engineer. The DPC prepared a list of suitable candidates and in that list the petitioners name was placed at serial No. 55 while the name of respondent No. 3 was at serial No. 56. The DPC recommended that the promotions for the posts of Executive Engineers be made in the order of seniority only as no candidate, was found to be extraordinary meritorious. The minutes of DPC is document No. 3. Contrary to the recommendations of the DPC and without obtaining concurrence of Public Sen/ice Commission (hereinafter in short psc), the State government superseded the petitioner and promoted respondent No. 3 alone to the post of Executive Engineer in December, 1981. The State Government also issued an order dated 24-10-1981 (Document No. 4) regularising the promotion of respondent no. 3 to the post of Assistant Engineer w. e. f. 10-12-1963. ( 5. ) THE petitioner made representations (Documents Nos. 5 to 8) against his supersession and regularising the promotion of respondent No. 3 with retrospective effect i. e. from 10-12-1963 and his promotion to the post of Executive Engineer. Since no action was taken, the petitioner filed this petition on 28-3-1983. The respondents nos. 1 and 2 filed their return opposing the petition. They admitted that the petitioner was senior to the respondent No. 3 not only as Overseer but also Assistant Engineer as indicated in the Gradation Lists (Documents Nos. 2 and 10), the DPC in its meeting dated 11-3-1980 prepared a list of suitable candidates in which the petitioners name is at serial No. 55 and of respondent No. 3 at 56, and recommended that the promotions to the post of Executive Engineer be made in the order of seniority only. While admitting the respondent No. 3 was promoted to the post of Executive Engineer, in December 1981, they submitted that the petitioner could not be promoted since his C. Rs. for two years were not available. However as per recommendations of the DPC in the year 1984, the petitioner has been promoted as Executive Engineer by order dated 4-3-1985 (Ann.-R-1)and therefore the petition is rendered infructuous. for two years were not available. However as per recommendations of the DPC in the year 1984, the petitioner has been promoted as Executive Engineer by order dated 4-3-1985 (Ann.-R-1)and therefore the petition is rendered infructuous. As regards order dated 24-10-1981 (Document No. 4) regularising respondent No. 3s promotion to the post of assistant Engineer w. e. f. 10-12-1963, they submitted that Rules 32 and 33 of the Public works Department Manual, Vol. I empowers the Superintendent Engineer to appoint a subordinate to hold the charge of Sub-Division in leave-vacancy for a period not exceeding 3 months and appointment for longer period requires the sanction of Chief engineer. The Superintendent Engineer appoints the most suitable Overseer. Thus the selection of respondent No. 3 in 1963 was on the basis of his merits and not on the basis of seniority. The Overseers who held the charge of Sub-Divisions submitted a memorandum to Tarachand Pay Commission to allow them pay-scales of Assistant engineers. This was recommended by the Commission and accepted by the State government with the clarification that the Overseers holding charge of Sub-Divisions should be appointed Assistant Engineer given the pay in the scale admissible to assistant Engineer during such officiation. As regards concurrence of PSC to such promotions, respondents 1 and 2 submitted that after a great deal of correspondence the last being on 26-3-1980, the PSC vide their letter dated 26-6-1981 conveyed concurrence for regularisation of promotions of the Overseers to the posts of Assistant Engineers ir the years 1963, 1965 and 1969. The Commission also gave concurrence to the effect that respondent No. 3 could be considered fit for promotion w. e. f. the date of his appointment as Assistant Engineer on the basis of C. Rs. The respondent No. 3 was selected on temporary basis as stop-gap-arrangement to hold the charge of Sub-Division, vide Superintendent Engineers order dated 17-5-1963. He took over charge on 22-5-1963 forenoon. ( 6. ) THE petitioner filed rejoinder pointing out that the respondent No. 3 did not hold the post of Assistant Engineer continuously till 26-3-1971 when he was promoted as assistant Engineer. In support he filed order dated 22-5-1969 (Document No. 9), whereby respondent No. 3 was allowed time scale of selection grade Overseer w. e. f. 1-4-1966. ( 7. ) IN view of the aforesaid pleadings of the parties, the service records of respondent No. 3 were sent for. In support he filed order dated 22-5-1969 (Document No. 9), whereby respondent No. 3 was allowed time scale of selection grade Overseer w. e. f. 1-4-1966. ( 7. ) IN view of the aforesaid pleadings of the parties, the service records of respondent No. 3 were sent for. On perusal of these records, it was found that the respondent No. 3 was allowed to hold the charge of Sub-Division as Assistant Engineer w. e. f. 31-12-1963 and was reverted to the post of Overseer on 4-7-1966. ( 8. ) THE question for decision is whether the petitioners supersession and promotion of respondent No. 3 as Executive Engineer in pursuance of the DPC meeting dated 11-3-1980 is vitiated by illegality. It is not disputed that the petitioner was senior to respondent No. 3 both on the post of Overseer and Assistant Engineer. The DPC found both suitable and recommended their promotions as Executive Engineer in order of their seniority. When respondent No. 3 was promoted to the post of Executive Engineer in December, 1981, the petitioner was also entitled to his promotion to the said post. The State Government tried to justify the omission on the ground that the petitioners two years C. Rs. were not available. In our opinion the explanation offered by the State government is a lame excuse and a device to cover up its lapses. It is presumed that all the relevant service records including the C. Rs. must have been sent to the DPC for its meeting dated 11-3-1980. The minutes of the DPC is filed as Document No. 3. In the said minutes it is not mentioned anywhere that the petitioners C. Rs. for two years were not available. In the absence of any such mention and the finding of the DPC that according to the criteria in para 3 the petitioner and others were found suitable for promotion to the post of Executive Engineer, we must presume the petitioners C. Rs. for three years were placed before the DPC. In the selection list, the petitioners name is at serial No. 55 and that of respondent No. 3 at 56. The respondents Nos. 1 and 2 do not state when the petitioners service records for the relevant years were misplaced. Petitioner cannot be made to suffer. for three years were placed before the DPC. In the selection list, the petitioners name is at serial No. 55 and that of respondent No. 3 at 56. The respondents Nos. 1 and 2 do not state when the petitioners service records for the relevant years were misplaced. Petitioner cannot be made to suffer. In such a situation the State Government should have proceeded on the recommendation of the DPC by assuming that there was nothing adverse to the suitability of the petitioner for promotion to the post of Executive Engineer. There is no manner of doubt that the State Government did not give treatment to the petitioner similar to the one given to the respondent No. 3 and thus it resulted in violation of article 16 of the Constituion of India. ( 9. ) THE respondents Nos. 1 and 2 further submitted that the petitioner has already been promoted to the post of Executive Engineer on 4-3-1985 (Annexure R-1) on recommendations of the DPCs meeting dated 19/20th November, 1984 and therefore the petition is rendered infructuous. We are unable to accept this submission. The petitioner was entitled to promotion on the basis of recommendation of the DPCs meeting of 1980. The DPC had recommended to promote the candidates in order of seniority. Therefore the petitioners promotion in 1985 is no answer to his prievances and he must be deemed to have been notionally promoted along with respondent No. 3 maintaining the petitioners seniority over respondent No. 3. The petitioner also claimed monetary benefits but we are unable to accept this prayer on principles of no work no pay. In our opinion, this is not a fit case in which we should direct the respondent No, 1 to give monetary benefits. It was also argued on behalf of the petitioner that the regularisation of respondent No. 3s appointment to the post of assistant Engineer w. e. f. 10-12-1963 is illegal. This question is academic now since the petitioners main grievance against his supersession and seniority over respondent No. 3 have already been redressed. ( 10. ) WE have next to examine the legality of order dated 24-10-1981 (Document No. 4 ). While issuing this order State Government failed to bear in mind that respondent No. 3 worked as Assistant Engineer w. e. f. 31-12-1963 to 4-7-1966 only. ( 10. ) WE have next to examine the legality of order dated 24-10-1981 (Document No. 4 ). While issuing this order State Government failed to bear in mind that respondent No. 3 worked as Assistant Engineer w. e. f. 31-12-1963 to 4-7-1966 only. From 5-7-1966 until his promotion on 6-4-1971, the respondent No. 3 worked as overseer. Tarachand Commission merely recommended payment of salary in the scale of Assistant Engineer which was accepted by the State Government with certain clarification. Therefore the respondent No. 3 could not be treated as Assistant Engineer from 6-7-1966 to 5-4-1971. The concurrence of PSC was only for the period, he held the charge of Sub-Division and not thereafter. In the circumstances, the State Government order regularising appoitment of respondent No. 3 to the post of Assistant Engineer with retrospective effect prima facie appears to be irregular. However, we do not express any final opinion on this issue in this petition, since the impugned order has benefited many overseers who are not parties to this petition and is not germane for disposal of the petition. ( 11. ) THE petition is partly allowed. The petitioner is entitled to notional seniority on the post of Executive Engineer, over respondent No. 3 and shall be so considered for all future promotions. The parties shall bear their costs. Petition partly allowed.