R. A. MEHTA, J. ( 1 ) THE main matter is Spl. Civil Application No. 7560 of 1988. It is a representative petition. The petitioner association of 700 employees challenge the status of 161 employees represented by respondent no. 5 - association. 161 are senior to 700 in the common seniority list. These 161 are the persons who were working in Public Health Engineering Wing one of the three wings of Public Works Department. It was separated. Thereafter the other two wings i. e. (i) Roads and Buildings (Buildings and Communication) and (ii) Irrigation were separated. At the time of separation of these two wings in 1978-79 the employees were asked to give their options in favour of either Irrigation or Road and Buildings. The Government was not bound to accept their options. These 161 employees though working in Public Health Engineering (Health and Family Welfare Department) gave options for either Irrigation or Road and Buildings Department. It was realised that the employees of Public Health Engineering were not given the option to remain in Public Health Engineering. Therefore subsequently revised options were called within a very very short time. These 161 employees have not given or could not give revised options. while finalising the options the Government seems not to have accepted the original options of these 161 employees who were working in Public Health Engineering and the Government has while rejecting their options allocated them to Health Department in March 1979. By the same allocation orders the group of 700 petitioners was also allocated to Health Department. Thus they were the existing officers and servants in the organisation functioning for the purpose of providing water supply and sewerage services as a wing of Health and family Welfare Department of the Government of Gujarat. 1. 2 After the commencement of the Gujarat water supply and Sewerage Board Act 1978 and constitution of the Board the Government (Health and Family Welfare Department) transferred all the functions and duties of the Public Health Engineering wing to the Board. All these employees were also to be transferred to the Board and have been transferred to the Board. 1. 3 According to the petitioners ( the group of 700 these 161 employees (members of respdt no. 5-association) had opted for Irrigation or R and B. Deptt. and the Govt. All these employees were also to be transferred to the Board and have been transferred to the Board. 1. 3 According to the petitioners ( the group of 700 these 161 employees (members of respdt no. 5-association) had opted for Irrigation or R and B. Deptt. and the Govt. had accepted their options and they should be transferred to those departments in Government and they have no place and no right in Public Health Department and they cannot be transferred and absorted in the Board. Therefore the simple question is whether the Government action of transferring them to the Board is valid. 1. 4 This group of petitions is a triangular contest of employees having conflicting interests. This group of petitions arises on account of transfer of functions duties and employees of the State Government to the newly constituted Gujarat water supply and Sewerage Board (hereinafter referred to asthe Board) constituted under the Gujarat Water Supply and Sewerage Board Act 1978 Three contesting group of employees are as under : (1): Special Civil Application No. 7560 of 1988: The petitioner is an association of 700 employees of the Government who have been transferred and permanently absorbed in the Board on February 10 1988 with effect from April 1 1981 Their grievance is against the respondent no. 5 an association of other group of 161 employees of the Government who have also been similarly transferred and absorbed in the Board. According to the group of 700 they (161) could not have been transferred and absorbed in the Board. (2): Special Civil Application Nos. 2807 2808 4343 4345 4354 of 1984. Special Civil Application No. 4175 of 1988. These petitions are by 32 employees of the group of 161 persons who have been transferred and absorbed in the Board by the same order dated February 10 1988 with effect from April 1 1981 but it is subject to a rider that their transfer to the Board is provisional. Out of this group there is a sub group of 30 employees petitioners in five petitions. (3): Special Civil Applications No. 658 of 1986 and 3711 of 1987. Out of this group there is a sub group of 30 employees petitioners in five petitions. (3): Special Civil Applications No. 658 of 1986 and 3711 of 1987. According to this group of employees ( who are directly appointed in the Board after April 1 1981 all the transferred 700+161 employees were on deputation from 1981 to 1988 and they cannot be given any seniority or promotion in the Board above the existing employees of the Board on the date of their transfer and absorption in the Board. ( 2 ) THE multiplicity of these proceedings orders therein and on interlocutary applications initially seemed to create a lot of confusion. However when all facts have been gone through the picture-that emerges is clear and simple. ( 3 ) PRIOR to 1964 Public Works Department consisted of three wings namely (i) Irrigation (ii) Road and Buildings and (iii) Public Health with common seniority. By Government resolution dated October 8 1964 Public Health Engineering Wing was separated with effect from October 12 1964 and was placed under the Health Department and was renamed as Public Health Department which later on became Health and Family Planning Department and still later Health and Family Welfare Department. The Engineering staff of Public Health Engineering Wing was allocated to Health Department and was separated from P. W. D. and separate seniority and separate cadre of Engineering staff was created in the Health Department. However no gazetted ministerial staff working in Public Health Engineering wing continued to be administered by Public Works Department and common seniority of non gazetted ministerial staff continued even after October 12 1964 ( 4 ) THIS Engineering staff of Public Health Department was the petitioner in Special Civil Application No. 75 of 1981 and is the petitioner in Special Civil Application No. 5352 of 1987. They have nothing to do with the common seniority of ministerial staff and bifurcation of that seniority. However they are grouped with these petitions because their petitions and interim orders in their petitions have given rise to other petitions. They have nothing to do with the common seniority of ministerial staff and bifurcation of that seniority. However they are grouped with these petitions because their petitions and interim orders in their petitions have given rise to other petitions. ( 5 ) BY a Government Resolution dated May 29 1987 in the Health and Family Planning Department it was decided to have a separate zonal authority for Public Health Clerical Drawing Cadre and remaining class III technical staff and thus separate zonal seniority lists of these cadres were to be prepared and they were directed to be separated from the common society of P. W. D. This Government Resolution is annexure I to the affidavit in reply filed by Shri J. U. Mansuri in Special Civil Application No. 7560 of 1988 (page 33) of the paper book) By this Government Resolution the following decisions were taken: (1): Persons recruited by Public Health Engineering before May 1 1960 and working in Public Health Engineering Wing were out right transferred to Public Health Engineering Wing. (2): Persons recruited subsequently by Public Health Engineering Wing and working in Public Health Engineering Wing were also transferred to Public Health Department. (3): Persons recruited by Public Works Department but working on transfer and promotion in Public Health Engineering Wing were to be given options. (4): Persons recruited by Public Health Engineering Wing but working in PWD on transfer and promotion were also to be given options. However the acceptance of their options by the Government would depend on the options of category (3 ). (5): If there were more persons in PWD junior most were to be absorted in Public Health Engineering". ( 6 ) THEREAFTER by a Government Resolution dated October 7 1978 the Government decided to have two separate departments of (i) Irrigations and (ii) R. and B. (Buildings and Communication) and it was decided to give options to the employees to opt either for (i) Irrigation Department or (ii) Buildings and Communication (hereinafter referred to as B and C department ). This Government Resolution is annexure B (page 52 and also at page 412) to Special Civil Application No. 7560 of 1988. The option required the employee to declare that he desired to be allocated to the Irrigation Department/ B and C Department. The last date for receipt of the options was upto January 10 1979 i. e. more than three months. The option required the employee to declare that he desired to be allocated to the Irrigation Department/ B and C Department. The last date for receipt of the options was upto January 10 1979 i. e. more than three months. It was also mentioned that option once exercised shall be final. Note 4 is important which provides that the options exercised shall not confer any right of allocation to the department opted for. It is also provided that those failing to exercise the option within the time limit shall forego the right to do so and the Government shall take decision in such cases as may be deemed appropriate. The reading of the circular dated October ( 7 ) 1988 and the form of option made it absolutely clear that the options could be for either Irrigation Department or B and C Department only. It was not indicated and not made clear that the employees of the Public Health Engineering Department also could exercise the option for either of these two departments. 7 By letter dated 16/17th November 1978 the Government informed the authorities that clerical orders of Public Health Engineering Circles Non gazetted staff should be bifurcated alongwith Public Works Department bifurcation and therefore those authorities were requested to obtain options from clerical personnel within the stipulated time limit. This was a letter from Under Secretary to the Public Works Department. On December 13 1978 it was decided to include in the option form the name of the Public Health Department. By letter dated December 13 1978 the request made by the Superintending Engineer of Public Health Circle Rajkot for extension of two months time for filling up the options was not accepted by the Government. ( 8 ) ON December 30 1978 (page 421) Under Secretary Public Works Department informed the authorities that those employees who were recruited or appointed in Public Health Department after October 1 1964 are not required to fill in the options. It was also mentioned that those who are appointed after October 1 1978 also have not to fill in the option but in response thereto the Superintending Engineer Public Health Circle Ahmedabad had written a letter dated January 15 1978 to the Government stating that not giving option to these persons might result into injustice. It was also mentioned that those who are appointed after October 1 1978 also have not to fill in the option but in response thereto the Superintending Engineer Public Health Circle Ahmedabad had written a letter dated January 15 1978 to the Government stating that not giving option to these persons might result into injustice. It was pointed out that after October 1 1964 some employees have been transferred and promoted from Irrigation and B and C Department in Public Health Wing and if those persons are not given options to opt for the other departments it would be improper and therefore they should also be given options. ( 9 ) BY letter (page 425) dated January 17 1979 from the Superintending Engineer Central Design Organisation to the Under Secretary to the Government of Gujarat it was suggested that persons who were initially appointed may be retained in the respective wings where they were posted first as far as practicable but those who were recruited in P. W. D. initially but posted in Public Health Wing on promotion may be allowed to exercise their option even for the period after October 1 1964 and the principle of allocation on the basis of as is where is will need to be applied to persons working in Public Health Department also in order to ensure that there is no excess allotment to any particular department. It was also mentioned that a committee would require one months more time to finalise the allocation after receipt of the concurrence from the Government. ( 10 ) AFTER the Government endorsed the decision to give an opportunity of giving option for all the three departments and to the employees of all the three wings a letter (page 56 and 428) dated January 19 1979 was addressed to all the Superintending Engineers by the Central Design Organisation. Therein it is mentioned that looking to the options received it would be seen that all the persons had opted either for Irrigation or R. and B. Department and none had opted for Public Health and therefore they were directed to inform their subordinate offices and the staff that even they could give fresh option and cancel the earlier option and those options were to be given by January 31 1979 These letters had reached subordinate offices through the offices of the Superintending Engineers of different circles on different dates. It is not clear whether all the employees had notice or knowledge and had reasonable time and opportunity to exercise their option or to cancel their earlier option. According to the petitioners in Special Civil application No. 7560 of 1988 (group of 700 persons) each and everyone had been given notice to revise their options and everyone who wanted to do it had done it. ( 11 ) ON behalf of the other respondents it is submitted that there was no notice or knowledge to many and there was not sufficient time to think and decide about the revision of options. It is not disputed that these 161 persons originally opted for Irrigation or R. and B. Department even though they were working in Public Health Engineering Department. They submit that when they gave their options it was on clear understanding ( or misunderstanding) that they could give option either for Irrigation Department or for B. and C. Department only and that they were prevented from giving any option for Public Health Department. Since they were already working in Public Health Department there was no question of their option for the other department and no such option could have been taken from them and could have been acted upon. It was an option given and taken at a stage when they were not told that they could opt for Public Health Engineering Department. Therefore according to them these options had no value and in fact there was a confusion in the Government itself as to whether these persons were entitled to give options and the Government took a decision as late as on January 19 1979 and by the time the concerned employee would know about the same the time to give revised options had expired by January 31 1979 ( 12 ) IN the letter dated March 6 1979 (page 431 from the Government the Government laid down the principle for allocation of employees to different departments as follows: (I): For Irrigation Department if the options received were not less than the poses all those options to be accepted. (ii): In respect of B and C Department if more options are received than the number of posts persons working in that department and who have opted for that department should be allocated to that Department. (ii): In respect of B and C Department if more options are received than the number of posts persons working in that department and who have opted for that department should be allocated to that Department. (iii): Those who have not given any option should be considered on the basis of their experience in the Department; (iv): Inspite of this if there are vacancies in any Government Department the allocation shall be made in the interest of the Government disregarding the option and having regard to the seniority and experience of the employee". ( 13 ) THE bifurcation committee had met on March 8 1979 and the minutes thereof are at page 341 and the guidelines and principles adopted included the following at para 2. 0 (7 ). "in respect of persons working in public health decision regarding their option may not be taken at present". ( 14 ) ON February 6 1979 by a notification of General Administration Department issued under Article 166 of the Constitution of India the Government of Gujarat Rules of Business 1976 were amended from April 1 1979 and for the entry Public Works Department in Part I of the Schedule to the Rules Irrigation Department was substituted and after entry no. 13 a new entry 14 B. and C. Department was added. The subjects allocated to Irrigation Department included all matters pertaining to appointments postings transfers and promotions in respect of Government servants under its administrative control. Similarly subjects allocated to B. and C. Department included similar control over the Government servants under its administrative control. It may also be mentioned that there was a similar amendment in these Rules of Business in 1977 when Public Health Department Wing and its class III staff was administratively separated from Public Works Department and a Department of Health and Family Planning was contributed and there was a similar entry of control over the Government servants under its administrative control. ( 15 ) IN pursuance of the amendment of the rules of Business regarding bifurcation of Irrigation and B. and C. Department the Government issued a resolution dated March 21 1979 (annexure H to Special Civil Application No. 908 of 1979) ( the record of which was called for and is received) and it recited that under the Rules of Business the existing Public Works Department was to be bifurcated into two departments; Irrigation Department and B. and C. Department with effect from April 1 1979 As a result of this the administrative division was worked out for these two departments and nothing was provided for Public Health Engineering Wing which did not go with any of the department obviously so because it was already a separate department. By different orders dated 27th 28 29 and 31st March 1979 the-Government passed allocation orders allocating the employees to different departments and all these 700 + 161 employees came to be allocated to Health and Family Planning Department There is no dispute regarding these allocation orders which include all these employees in their schedules. ( 16 ) HOWEVER at this stage Special Civil application No. 908 of 1979 came to be filed by Gujarat Public Works Department Clerical Employees Association and Gujarat PWD Drawing Branch Association. Both these are recognised and registered associations and in that petition it was stated that it represented majority of employees of PWD in Class III. The petitioner No. 3 was working in Public Health and petitioner no. 4 was working in R and B Department. This petition was directed against a letter dated January 23 1979 whereby the Government had replied to the Association that their request of continuing status quo and common seniority could be accepted and it was stated that even after bifurcation interse seniority would be maintained in the respective department and that there was no co relation between bifurcation and the seniority and the employee who was senior would continue to be senior even after bifurcation. In para 11 of the petition it was pointed out that the petitioner association had raised an objection with the Government in respect of the form of option and pointed out the difficulties in exercising the option. However that representation was rejected by the impugned letter dated January 23 1979 annexure E in that petition. In para 11 of the petition it was pointed out that the petitioner association had raised an objection with the Government in respect of the form of option and pointed out the difficulties in exercising the option. However that representation was rejected by the impugned letter dated January 23 1979 annexure E in that petition. The averments made in paras 15 17 19 25 and 26 are relevant and they are as follows:"15 On March 21 1979 the Government issued another Resolution with regard to the bifurcation of the existing Public Works Department into two separate Departments as staled above. The said Resolution interalia provided for the actual division of the two Departments and some details with respect to divisions of the various departments existing at present. Except the Public Health Engineering Department which is a branch working under the Public Works Department all other departments and branches of the Public Works Department have been divided into two Departments viz. (1) Irrigation Department and (2) Buildings and Communication Department by the said Resolution. Annexed hereto and marked as annexure 11 is a true copy of the said Resolution of the Government. ( 17 ) THE petitioners submit that on and from April 1 1979 with these changes sought to be introduced by the respondent State by dividing the original Public Works Department into two Departments as aforesaid the respondent State has also been contemplating expansion of the Irrigation Department and the number of circles will be 34 in the Irrigation Department while there will be only 13 circles in the Buildings and Communication Department. It may also be noted (that) at this stage that there are 8 circles in the the Public Health Engineering Department the class III employees wherein are on common seniority with PWD Employees and for that nothing is mentioned anywhere in the Government Resolutions referred to earlier. ( 18 ) THE petitioners submit that if there will be 34 circles in the Irrigation Department and only 13 circles in the Buildings and Communication Department which will come into being from April 1 1979 the rights of promotion of the members of the petitioner associations will not only be deserted but also will be jeopardised. ( 18 ) THE petitioners submit that if there will be 34 circles in the Irrigation Department and only 13 circles in the Buildings and Communication Department which will come into being from April 1 1979 the rights of promotion of the members of the petitioner associations will not only be deserted but also will be jeopardised. In reply to the letter complaining against the said bifurcation of the Department the respondent State has stated that common seniority list will also be divided according to the Departments with the formation of the new Department. It is therefore apprehended by the petitioner Association that the common seniority list will also be bifurcated and if that happens that will prejudice the rights of the members of the petitioner Associations. ( 19 ) X x x x x x x x x ( 20 ) X x x x x x x x x . ( 21 ) X x x x x x x x x ( 22 ) X x x x x x x x x ( 23 ) X x x x x x x x x ( 24 ) THE petitioners say that the options exercised by the members of the petitioner Associations are not final. The respondent State regards it as a mere desire to exercise an option; and the respondent State may take its own decision and reject the options exercised altogether; and therefore the said options are not in any manner helpful in deciding this controversy. The option is itself defective and decision could be taken because the formality of options are gone into. ( 25 ) THE petitioners say that there is one more loose and in this decision taken by the respondent State in bifurcating these two departments so far as the members of Class III service working in the Public Health Engineering Department are concerned. The Public Health Engineering Department Class III staff is also on common seniority of the Public Works Department. A large number of employees of Class III service represented by the petitioner Association is serving in the said Department. There is no provision of bifurcating seniority list of the employees working in the said department and also they have not been considered in exercising option. A large number of employees of Class III service represented by the petitioner Association is serving in the said Department. There is no provision of bifurcating seniority list of the employees working in the said department and also they have not been considered in exercising option. Thus they will be left high and dry without any provision for their seniority and promotions in the newly created Department- and therefore those members who have been serving in the Public Health Engineering Department will be seriously prejudiced with respect to the scope and averness of their promotion even if they are found in be senior on the common seniority list. This is therefore clearly violative of their rights under Arts. 14 and 16 of the Constitution of India". ( 26 ) THUS these associations clearly expressed their grievance that Public Health Engineering Department employees had no reasonable and effective opportunity to exercise their option. However the prayer in the petition was confined to the decision to bifurcate the department and separate seniority list. In that petition on March 30 1979 order was passed issuing notice also admission and ultimately on May 10 1979 rule was issued and the following order was passed: rule to be heard on 25th June 1979. BY way of interim relief it is directed that promotions if so decided may be made on the following principles: (1): Promotions will be on adhoc basis subject to result of petition (order itself shall mention the condition ). (2): From amongst the persons who have opted for a particular branch promotions should be made on the basis of interse seniority". In that petition affidavit in reply was filed on May 7 1979 and the. Government stated in para 6 that the Public Health Engineering Department had been separated long before and was functioning as Health and Family Welfare Department. It also stated in para 11 that the Government had accepted options of all the persons of former Public Works Department working in its Irrigation and R. and B. Wings who had opted for Irrigation Department. In para 15 the Government denied that the options were defective and were not final and stated that the persons working in the department for which they had opted were allocated to those departments and the options were finalised. In para 15 the Government denied that the options were defective and were not final and stated that the persons working in the department for which they had opted were allocated to those departments and the options were finalised. In para 16 they had denied that the employees of Public Health Department had not been considered for exercising options and it was also stated that the employees were informed to exercise their option by January 31 1979 and the petitioners apprehension that this bifurcation process did not include the Public Health Engineering was also denied. In the affidavit in rejoinder filed by the Secretary of the petitioner Association it was again stated in paras 5 and 8 as under:"5 It is also pertinent to note that all the employees working in the Public Health Wing in Class III posts have been finally allocated to the said Wing though many of them have exercised their options to go to the Irrigation Department or Roads and Communication Department. Their options have not been accepted by the State Government. "8 I say that there are many employees working in the Public Health Wing who have exercised their options for Irrigation and Roads and Communication Departments and still they have been allocated to the Public Health Wing which will cause serious prejudice to their rights of promotion and seniority and will cause permanent damage to their career in the Government service. I crave leave to refer to and rely upon a list of such employees who have already exercised their option to go to Irrigation and Roads and Communication Departments but have been allocated to the Public Health Wing and whose options have been rejected. I say that hundreds of employees who are members of the petitioner Association have been seriously prejudiced with respect to their rights of seniority and promotion; and therefore their rights under Articles 14 and 16 of the Constitution of India have been exfacie violated. ( 27 ) IT is thus clear that there was a common case of the employees association as well as of the Government that the allocation had been made to different departments and the employees working in Public Health Wing even though they had exercised their option for Irrigation and R and B. Department had been allocated to Public Health Wing. ( 28 ) DURING the pendency of that petition Gujarat Water Supply and Sewerage Board Act 1978 came into force on June 6 1979 after having received the Presidents assest and on August 20 1979 the Board was constituted by a gazetted notification. Even as late as on December 11 1979 (clarification by the government annexure D page 27 to Special Civil Application No. 7818 of 1988) the Government had given time to file option to those employees till January 30 1980 ( 29 ) ON January 31 1980 by a Government Resolution (P. 41) of Health and Family Planning Department all the functions and duties or Public Health Engineering Wing were transferred to the Board. At this stage the Public Health Engineers (Class II) Association and its President and Secretary filed Special Civil Application No. 75 of 1981 on January 12 1981 against the State of Gujarat through the Health and Family Welfare Department. The Board though already constituted was not joined as a party and it came to be joined as late as on April 21 1987 That petitioner (Engineers Association) apprehended that under section 20 (1) their services would be transferred to the Board. They challenged the constitutional validity of sections 20 (1) 20 and 20 (6) of the Act on the ground that such transfer was violative of Articles 310 311 14 and 16 of the Constitution of India. On January 13 1981 rule was issued and notice to Advocate General was issued. Ad interim relief in terms of para 29 (c) was also granted and thereby the State Government was restrained from implementing or acting in pursuance of the impugned sub section of section 20 of the Gujarat Act 18 of 1979 i. e. sections 20 20 and 20 (6 ). This interim relief was confirmed on January 27 1981 However while confirming the interim relief it was observed Liberty to the State Government to depute the petitioners under section 20 sub section (10) of the Gujarat Water Supply and Sewerage Board Act 1978 The petitioners through their advocate state that in the event of such deputation the petitioners will not claim any deputation allowance. There were identical three other petitions being Special Civil Application Nos. There were identical three other petitions being Special Civil Application Nos. 119 120 and 121 of 1981 filed by the Association of Public Health Junior Engineers Association Association of Technical Staff or Public Health Engineering Wing and the Association of Supervisors (Mechanical ). All these petitions were admitted with identical interim order on the same day. However these three later petitions came to be dismissed for want of prosecution for failing to remove office objections on October 6 1981 However interim relief granted in Special Civil Application No. 75 of 1981 against the implementation or acting in pursuance of the provisions of sections 20 (1) 20 and 20 (6) continued. It was an order which stayed the operation of these sections and therefore even though the Engineering staff was not concerned with the questions of clerical and ministerial cadre and their options bifurcation allocation transfer and absorption in the board the entire process of transfer and absorption of all employees to the board under section 20 (1) came to a stand still. However the provisions of section 20 enabled the Government to post all the employees to the Board under sub section (10) of section 20 because that section was not stayed. That section uses the word posting and not deputation. ( 30 ) THIS interim order continued for more than seven years upto February 10 1988 when Special Civil Application No. 75 of 1981 came to be withdrawn by the following order and the interim relief was vacated. "mr. P. M. Thakkar learned advocate for the petitioners states that as there is a settlement with the Government in regard to the rights of the employees in question he does not purpose to proceed with this petition. He places on record a letter received from the Deputy Secretary to the Government of Gujarat Health and Family Welfare Department dated 9th Feb. 1988 conveying the decision of the Government. In view of this development Mr. Thakkar states that the grievance of the employees stands largely resolved and therfore the petition has become infructuous. He is therefore permitted to withdraw. This petition therefore stands withdrawn. Rule discharged with no order as to costs. Interim relief granted earlier will stand vcacated". 1988 conveying the decision of the Government. In view of this development Mr. Thakkar states that the grievance of the employees stands largely resolved and therfore the petition has become infructuous. He is therefore permitted to withdraw. This petition therefore stands withdrawn. Rule discharged with no order as to costs. Interim relief granted earlier will stand vcacated". ( 31 ) THE letter dated February 9 1988 clarified the apprehension of the petitioners appearing in their letter dated January 29 1988 On the same day i. e. February 10 1988 the Government issued orders (P. 443) u/s 20 (1) transferring with effect from la. 1991 all the 700 + 161 employees to the Board. However out of these 861 employees in respect of 30 employees it was made provisional in view of the pendency of the five writ petitions filed by them in 1984 and therefore transfer and absorption of those 30 in the Board was subject to the result of the petitions. ( 32 ) BY further order dated February 23 1988 the Government made the transfer of the other 131 employees also provisional and it was provided that in respect of 161 (131 + 30) employees the Government would take a decision lateron. By the circular dated 18th Oct. 1988 (Page 447) in respect of these 161 employees the Government decided to give them a fresh opportunity of giving options. This has been challenged in Special Civil Application No. 7560/1988 by the Association of the group of 700 employees and it is contended that all these 161 persons are not entitled to any fresh option. They are the persons though working in Public Health Engineering Wing had opted for Irrigation or B. and C Department and their options have been finalised by the Government and therefore they should be sent to the department of their choice and could not be transferred to the Board. ( 33 ) A. Special Civil Application No. 4175 of 1988 is by two of the persons out of 131 and they have challenged the subsequent modification dated February 23 1988 whereby the transfer of 131 employees to the Board was made provisional which was originally not. ( 34 ) IN the meanwhile in the year 1984 there were five petitions by 30 employees. ( 34 ) IN the meanwhile in the year 1984 there were five petitions by 30 employees. They were working on deputation or posting in the Board and they were sought to be transferred and promoted in Irrigation or B. and C. Department and they challenged the action of the Government contending that their options were wrongly taken; were not to be given and could not have been acted upon and that they not only were working in the Public Health Engineering Wing but belong to that department and were allocated to that department and that they do not belong to Irrigation or B. and C. Department. All those petitions were admitted and interim relief against their transfer and promotion in the Government was granted. ( 35 ) IN 1986 Special Civil Application No. 658 of 1986 was filed by the Association of the directly recruited employees of the Board contending that the deputationists (700 + 131) in that Board had no claim for any seniority or promotion in the Board and they should not be given any promotion in the Board and that they should be repatriated to their parent department in the Government. That petition was admitted and interim relief was granted against the promotion of deputationists in the Board. Lateron that interim relief was modified and clarified that it was open to the Government to promote them in the parent cadre. ( 36 ) AFTER this clarification the Government promoted persons who were on deputation to the Board and these promotions were given in the Government but these persons were again posted in the Board in the promoted posts. This was challenged by way of Special Civil Application No. 3711 of 1987 and interim relief was granted against taking over charge by these persons in the Board and liberty was given to communicate the order by telephone. However all these persons took charge of the higher post in the Board except two. The petitioners in those petitions filed Civil Application No. 1223 of 1987 complaining that the respondents had committed breach of the order by giving the charge and it was contended that the telephonic information of the order was given and inspite of that orders were issued and the charge was given. The petitioners in those petitions filed Civil Application No. 1223 of 1987 complaining that the respondents had committed breach of the order by giving the charge and it was contended that the telephonic information of the order was given and inspite of that orders were issued and the charge was given. In reply it was pointed out that no such telephonic information was given and before the interim order was served all except two had taken charge. The High Court record shows that on the same day of the interim order there is a noting made by the Court Officer that telephonic communication was not made as per the say of the advocate and it is signed by the court officer. That Civil Application is also pending and will be disposed of by this judgment. ( 37 ) SPECIAL Civil Application No. 5352 of 1987 is by the same petitioner association as in Special Civil Application No. 75 of 1981. In both these petitions the petitioner association is the same. In this petition of 1987 the petitioners claim they they should have been promoted much earlier when the vacancies are for promotion and they were not given promotions and the vacancies were filled in from amongst the new deputationists by the Government and they claim that they should be given deemed date of promotion. Promotions have already been given to them. ( 38 ) THIS narration of the facts of large number of litigations and interim orders shows that there was some confusion. However after going through all this it can be immediately seen that as far as Public Health Engineering Wing is concerned the engineering staff had fully and effectively separated in 1964 and their seniority was seaprated from the PWD cadre and they belonged to Public Health Engineering Service. They apprehended that they would be transferred to the Board under Section 20 (1) and they would lose the benefit of the conditions of service in the Government and therefore they had challenged the validity of the provisions. They apprehended that they would be transferred to the Board under Section 20 (1) and they would lose the benefit of the conditions of service in the Government and therefore they had challenged the validity of the provisions. Section 20 reads as under:"20 (1): On and after the establishment of the Board the State Government may from time to time direct that the services of such of the existing officers and servants of the State Government in the Gujarat Public Health Engineering Service who in its opinion are rendered surplus to its requirements shall stand terminated and their posts shall stand abolished from such date as may be specified by it (hereinafter in this section referred to as the appointed date) and shall on that date (which may be different for different officers and servants) become the officers or servants of the Board. (2): Every permanent or temporary employee of the Gujarat Public Health Engineering Service in respect of whom a direction is issued under sub-section (1) shall on and from the appointed date be a permanent or temporary employee of the Board as the case may be against a permanent or temporary post which shall stand created in the establishment of the Board with effect from the appointed date. (3): Any officer or servant so transferred shall hold his office under the Board on the same tenure remuneration and other conditions of service and with the same rights and privileges asto pension gratuity provident fund and other matters as he would have held on the appointed date if this Act had not come into force until his employment under the Board is duly terminated or his remuneration or other conditions of service are duly revised or altered by the Board in pursuance of the law which for the time being governs his conditions of service: provided that the conditions of service applicable immediately before the appointed date to the case of any such officer or servant shall not be varied to his disadvantage except with the previous approval of the State Government. (4): Any service rendered by such Government servants under the State Government shall be deemed to be service rendered under the Board. (4): Any service rendered by such Government servants under the State Government shall be deemed to be service rendered under the Board. (5): The sums standing to the credit of the employees referred to in sub section (1) in any pension gratuity provident fund or other like funds constituted for them shall be transferred by the State Government to the Board alongwith any accumulated interest due till the appointed date and with the accounts relating to such funds. (6): On and after the appointed date the Board shall to the exclusion of the Slate Government be liable for payment of pension provident fund gratutiy or other like sums as may be payable to employees referred to in sub-section (1) at the appropriate time in accordance with the conditions of their service. (7): Notwithstanding anything contained in the Industrial Disputes Act 1947 or in any other law for the time being in force the transfer of services of any employee to the Board under sub-section (1) shall not entitle any such employee to any compensation under that Act or such other law and no such claim shall be entertained by any Court Tribunal or authority. (8): (a): Nothing contained in sub-section (1) shall apply to any employee who by notice in writing given to the State Government within two months from the appointed date or such extended time as the State Government may by general or special order specify intimates his intention of not becoming or continuing as an employee of the Board. (b): Where such notice is received from any employee. (i): in case of a permanent employee he shall be allowed to retire giving him the benefit of pension gratuity provident fund and other benefits accrued to him had he retired from the Government service on the appointed date: (ii): in case of a temporary employee his services shall stand terminated after giving him notice or remuneration in lieu of notice as per the existing service rules of the State Government. (9): Notwithstanding anything contained in the foregoing sub sections. (9): Notwithstanding anything contained in the foregoing sub sections. (a) no person employed in the Gujarat Public Health Engineering Service to whom any notice or order of termination of his services or compulsory retirement has been issued before the date of commencement of this Act shall be transferred to the Board; (b): the transfer of a person employed as aforesaid against whom any disciplinary proceeding is pending shall initially be provisional and the State Government shall review such transfer after the final order as a result of such disciplinary proceedings is passed and thereafter pass such order as may appear to it to be appropriate in the circumstances of the case: (c): the disciplinary or other action in relation to any person referred to in clause (d) or clause (b) may be taken after the date mentioned in clause (a) in such manner and by such authority as the State Government may be general or special order specify in this behalf; (d): if the services of any employees of the State Government stand transferred under sub section (1) or sub-section (2) to the Board the Board shall be competent after such transfer to take such disciplinary or other action as it thinks fit against or in respect of such employee having regard to any act or omission or conduct or record of such employee while he was in service of the State Government. (10): (a): For the purpose of enabling the Board to discharge its functions and duties under this Act it shall be lawful for the State Government to direct by a general or special order that such of officers of State Government shall be posted under the Board for such period and subject to such condition as may be specified in the order and accordingly the officers specified in the order shall be posted under the Board. (b): The pay and allowances of any officer posted in accordance with clause (a) under the Board shall during the period of posting be paid by the Board from its fund. (b): The pay and allowances of any officer posted in accordance with clause (a) under the Board shall during the period of posting be paid by the Board from its fund. "gujarat Public Health Engineering Service is defined in section 2 (xiii) as follows : "gujarat Public Health Engineering Service means the organisation functioning for the purpose of providing water supply and sewerage services as a wing of the Health and Family Welfare Department of the Government of Gujarat"; ( 39 ) THIS Engineering staff and the members of the petitioner association of Special Civil Application No. 75 of 1981 and 5352 of 1987 were the officers and servants of the State of Gujarat in Gujarat Public Health Engineering Service and were working in Health and Family Welfare Department functioning for the purpose of providing water supply and sewerage services as a Wing of Health and Family Welfare Department of the Government of Gujarat. Since that petition was admitted and in that petition interim relief was granted restraining the Government from implementing or acting in pursuance of the provisions of sections 20 20 and 20 (6) these sub-sections could not be operated even for other non engineering (clerical etc.) employees. The apprehension of the petitioners of Special Civil Application No. 75 of 1981 having been removed that petition was withdrawn on February 10 1988 ( 40 ) AS far as absorption and transfer of those engineering persons are concerned there is now no dispute and no litigation. The controversy concerns 700+161 and for that purpose it is to be seen whether these persons or any of them are covered by the definition of Gujarat Public Health Engineering Service in section 2 (xiii ). This clerical and ministerial staff was working in Public Health Engineering Wing and there is no dispute about the same. As far as the group of 700 is concerned there is no dispute that they had either opted for Public Health Engineering Wing or that they had not opted for Irrigation or B. and C. Department. There is no dispute that these 700 persons were allocated to Public Health Engineering and that those 700 were Part of Gujarat Public Health Engineering Service and were part of the organisation functioning for the said purpose. . There is no dispute that these 700 persons were allocated to Public Health Engineering and that those 700 were Part of Gujarat Public Health Engineering Service and were part of the organisation functioning for the said purpose. . ( 41 ) AS regards 161 again there is no dispute that they were working in Public Health Engineering Wing but not only that they had not opted for that wing but had opted for Irrigation Department or B. and C. Department. It is on this ground that the petitioners (i. e. group of 700) contend that they should be sent to the department of their choice and they cannot object to the same when the Government wants to send them to the parent department of their choice and it is submitted that they cannot be given new option as is sought to be given in 1988. ( 42 ) ON behalf of the group of 161 it is submitted that they have been working in Public Health Engineering Department since long years; some of them having been appointed directly in that wing and working in that wing and when options were invited for Irrigation Department or B. and C. Department they have given option for one or the other department clearly under misconception or misunderstanding because they were not told that they had any option to remain in Public Health Engineering Wing for which they were not offered any option whether they want to leave or not; in fact the options were not asked from them earlier. Yet they had given under misconception and when lateron options were asked and opportunity was directed to be given for revising the option it was very much delayed and there was no sufficient time to get the intimation regarding revision of option and reasonable time and opportunity to think about the same. Originally more than three months time was granted to give options but when decision was taken to include third category of options hardly 12 days time was there from the date of the Government decision and the final date of giving options. Even this 12 days time was not given to the employees. The employees did not get sufficient time. Originally more than three months time was granted to give options but when decision was taken to include third category of options hardly 12 days time was there from the date of the Government decision and the final date of giving options. Even this 12 days time was not given to the employees. The employees did not get sufficient time. In fact many of the employees did not get any time and that is the stand in the Social Civil Application No. 908 of 1979 filed by the Gujarat PWD Clerical Employees Association and Drawing Branch Association on behalf of their members and at the time that was the only association representing these cadres. Therefore there is lot of substance in the grievance made by the employees working in the Public Health Engineering Wing that they did not get any reasonable opportunity to revise their options. In fact the Board and the Government has also realised this aspect as is clear from the letters of the Board written to the Government in the year 1985 It is to be borne in mind that at several stages the Government itself had decided and held out that employees working in the Public Health Engineering Wing were not required to be given any option. In view of that the confusion in the mind of the employees is but natural and it cannot be said that these employees had validly exercised options in favour of Irrigation or B. and C. Department. This aspect of 161 persons having opted for Irrigation or B. and C. Department. This aspect of 161 persons having opted for Irrigation or B. and C. Department becomes insignificant in view of the fact that the Government was not bound to accept their options. Merely because the employees had exercised their options the Government was not bound to accept the same and this was made clear while inviting options. Just as the employees were given an opportunity to exercise their options the Government had kept its obtain open whether to accept the options of the employees or not having regard to the interest of the Government. Therefore when persons working in the Public Health Engineering Wing were all allocated to Public Health Wing inspite of the options of 161 for R. and B. or Irrigation Department it shows that the Government has never accepted their options. Therefore when persons working in the Public Health Engineering Wing were all allocated to Public Health Wing inspite of the options of 161 for R. and B. or Irrigation Department it shows that the Government has never accepted their options. ( 43 ) THE learned Counsel for the group of 700 employees submitted that the Government stated in their affidavit in reply in Special Civil Application No. 908 of 1979 that the options of the employees were finalised and it was therefore submitted that the Government had accepted all options. It is not possible to uphold this contention. Finalising options does not mean acceptance of the options. Finalisation of options would only mean that the Government has taken decision and in the process of that decision some options may be accepted and some may be rejected. But that is the process of finalisation of options. The fact that after the options and after laying down the principles of allocation the allocation orders have been passed allocating 700 + 161 person to Public Health Engineering shows that the Government had rejected the options of these 161 persons opting to Irrigation and/or B. de C. Department. These allocation orders of March 1979 have not been challenged by anyone in any proceeding. Those allocation orders are final. Therefore all those persons 700 + 161 who have been allocated Public Health Engineering Service in March/april 1979 are the Officers and servants of the State Government in the organisation functioning for the purpose of providing water supply and sewerage services as a wing of Health and Family Welfare Department of the Government of Gujarat and therefore they constitute part of Gujarat Public Health Engineering Service as defined in section 2 (13) and they were legitimately and rightly transferred to the Board because when the functions and duties of the Government in respect of water supply and sewerage were transferred to the Board all these existing employees in that respect became surplus to the requirement of the Government. Their services would stand terminated and their posts in Government would be abolished as a consequence thereof. At the same time there would be a corresponding requirement of the same personnel in the Board and therefore by operation of section 20 and the orders thereunder they would becomes the officers and servants of the Board. Their services would stand terminated and their posts in Government would be abolished as a consequence thereof. At the same time there would be a corresponding requirement of the same personnel in the Board and therefore by operation of section 20 and the orders thereunder they would becomes the officers and servants of the Board. In fact this would have happened under section 20 (1) on April 1 1981 but because of the interim order of the Court in Special Civil Application No. 75 of 1981 by which the Government was restrained from implementing or acting in pursuance of the provisions of section 20 (1) this thing did not come about. However the functions and the duties of the Government in respect of water supply and sewerage were already transferred to the Board and therefore the existing officers and servants in the Government in that respect had become surplus and their services in any case would be required to be terminated. At the same time the Board would require the same personnel. Therefore till the question was resolved whether section 20 was valid or not and till the interim stay operated against section 20 (1) the Court had permitted the State Government to act under section 20 (10) which provides that the State Government can direct that the employees of the State Government be posted in the Board for enabling the Board to discharge its duties under the Act and accordingly the officers specified in that order are required to be posted under the Board. Since section 20 (10) was not stayed and the Court had also granted liberty to act under it all the staff which was otherwise to be transferred on the years on April 1 1981 come to be posted under the Board. At several places those persons are referred to as deputationists and for the purpose of discussion the expression deputationists may be continued by making it clear that there is a dispute about the exact connotation of such so called deputation. ( 44 ) THE learned Counsel for the group of 700 persons submitted that the resolution of May 1977 regarding separation of clerical cadre of Public Health Engineering of PWD was never acted upon and the zonal authority for the same was not even constituted for about a year which shows that the said fectum of separation has not taken place. The fact that in 1977 the statutory Rules of Business have been amended under Article 166 of the Constitution of India shows that statutorily the Department of Health and Family Planning was separated and the subjects allotted to that department were specified which included all the officers and servants working in that department. Therefore in law Public Health Department was separated and the control of the employees in that department had vested in that department. In any case after the allocation orders of March 1979 there cannot be any doubt that all these persons who were allocated to Health and Family Welfare Department became a separate seniority group under a separate department and it had no longer any connection with the Irrigation R. and B. or erstwhile Public Works Department. ( 45 ) THE learned Counsel for the 700 also submitted that those allocation orders have also not been acted upon by the Government. This is not factually correct. The orders have been admittedly operated for the group of 700. It is submitted that in respect of 161 even after allocation orders the Government has treated them as not belonging to Health and Family Welfare Department and in 1984 the Government itself had promoted some of these persons in their so called parent department as per their option namely Irrigation or R. and B. Department. It is true that the Government tried to do that. However 30 of such employees have challenged the same and demonstrated that the Government could not have done it on several grounds which have been discussed earlier and some of which will be discussed hereafter. It is therefore not possible to hold that these 161 persons were allocated and were belonging to the Irrigation or R. and B. Department. The allocation orders in respect of all (700 + 161) are same. None is provisional or conditional. ( 46 ) AFTER the Special Civil Application No. 75 of 1981 was withdrawn and the interim order against implementation of section 20 (1) was vacated on 10-2-88 immediately the Government transferred all the employee (700+161) to the Board under section 20 (1 ). While they were posted in the Board after April 1 1991 the corresponding posts in the Government were abolished or were not in advance. When they were permanently transferred to the Board all the corresponding posts in the Government were abolished. While they were posted in the Board after April 1 1991 the corresponding posts in the Government were abolished or were not in advance. When they were permanently transferred to the Board all the corresponding posts in the Government were abolished. Therefore is nothing which can be said to be illegal or improper in this act of the Government. While doing so in respect of 861 the Government provided that in case of 30 petitioners in five pending petitions their transfer to the Board would be subject to the result of the petition. The learned Advocate General stated that but for the pending petitions the Government was not required to make that provisions. Even while carrying out the modification and making the transfer of 131 also provisional and providing that even in case of withdrawal of those petitions it would be open to the Government to send these to the Board or to the Government the intention of the Government was only to see that 131 and 30 are out in the same category because whatever be the outcome in respect of 30 would apply to 131 persons also. The learned Advocate General made it clear that the Government has no intention to send anyone back to the Government. ( 47 ) IT is in these circumstances that the Government had given one more opportunity to these 161 persons to indicate their options as to whether they wanted to remain in the Board or wanted to go back to the Government while retaining the ultimate decision to itself whether to accept or not to accept such options. This is only in view of the fact that during the course of these years from 1981 onwards out of these 161 about 73 persons were offered promotions in the Government and about 24 (this is not an exact figure) had already joined the Government. Out of these 24 about 21 have not challenged their transfer had promotion in the Government. Out of 73 persons who were offered promotions 49 have not joined and have continued in the Board. 88 persons have not been offered any promotion in the Government and they are continued in the Board. Three of them have already joined but they have challenged this action of the Government and they are the petitioners in Special Civil Application No. 4343 of 1984 being petitioners no. 88 persons have not been offered any promotion in the Government and they are continued in the Board. Three of them have already joined but they have challenged this action of the Government and they are the petitioners in Special Civil Application No. 4343 of 1984 being petitioners no. 5 and 16 and in Special Civil Application No. 4345 of 1984 petitioner No. 3. About these 21 persons (or 17 according to the Board) who have already joined the Government on promotion it is no clear whether they would like to continue in the Government or would like to be transferred. Since the Government had transferred them under a notion that the Government was entitled to transfer them to Irrigation and/or R. B. Department as they belonged to that department and as there was no clarity in that respect these employees had joined there it is but fair for the Government to give them option as to whether they would like to come back and remain in the Board. As far as the other employees who have not been offered any transfer in the Government now there is no question of their going back. Really speaking the last option offered by the Government is meaningfully open to those employees who have already gone to the Govt. and while they are in Government if they opt to remain in the Government the Government may consider the same and retain them there. If anyone wants to opt for the Board then also it is for the Government to consider whether having regard to all that has transpired it would be just and proper to allow them now to be transferred to the Board. In view of the fact that the offer of exercise of option acceptance or non acceptance and non finalisation thereof have been under doubt and confusion and also having created doubt in the mind of the employees it is very clear that these options for Irrigation and B. and C. Department were such that they can never be said to be final. In any case they are never binding to the Government and the Government has ultimate power to accept or not to accept such options. In any case they are never binding to the Government and the Government has ultimate power to accept or not to accept such options. Even if the options have been accepted and said to have been finalised the Government does not lose the power of offering options again depending upon the facts and circumstances and equity of the case. 47. 1 The learned Counsel for the group of 700 employees submitted that offering a new option to 161 persons only and to the employees of erstwhile PHE would be an act of utter arbitrariness and discrimination and it will be an act of pick and choose only. There is nothing like arbitrariness in this offer by the Government. This clas s constitutes a special class. These 161 persons have been working in Public Health Engineering much prior to 1979 and at the time of options they have been working in Public Health Engineering. Thereafter they have been allocated to Public Health Engineering Department. Thereafter they have been posted in the Board for all these years and if they are given an option to remain in the Board it cannot be said that this class is not a rationally identifiable class by itself. In view of the fact that it is a rational and reasonable class and the fact that for all these years they have been working in Public Health the classification is absolutely reasonable just and fair. 47. 2 The original options exercised by the 161 employees were clearly based on misconception both on the part of the Government and also these employees because (i) these employees working in Public Health were not given the option yet they exercised the same; (ii) they had no option to opt for their own department Public Health; (iii) when revised options were asked from all the time given was too short to be reasonable meaningful and useful- (iv) the Government was not bound to accept their options and (v) in such facts and circumstances the Government can give further or fresh option to these 161 persons who are a special class by themselves. 47. 3 Their options were not accepted by the Government. They were allocated to Public Health Department in 1979 alongwith the 700 by the same orders. These orders of 1979 are not challenged in any proceedings and are not set aside. There is no infirmity in these orders. 47. 3 Their options were not accepted by the Government. They were allocated to Public Health Department in 1979 alongwith the 700 by the same orders. These orders of 1979 are not challenged in any proceedings and are not set aside. There is no infirmity in these orders. Thus they were part of Gujarat Public Health Engineering Service and could be validly transferred to the Board. The question of fresh options to them does not survive except for those few who are working in Government. ( 48 ) IN view of the aforesaid Special Civil Application No. 7560 of 1988 must fail and is dismissed with costs. It is a petition which is most comprehensive in many respects. In that petition a group of 700 is petitioner and on the respondents side respondent No. 5 is association of 161 persons. It is a petition under O. I. R. VIII for which due permission has been granted and due notices have been published and therefore the decision rendered in this petition would bind all concerned. ( 49 ) AS far as the Government and the Board are concerned they have made it amply clear and very fairly stated that they are not interested in either of the groups and they have placed the faces and assisted the Court and they have submitted to the orders of the Court. ( 50 ) IN view of the aforesaid discussion Special Civil Application of 30 petitioners namely Special Civil Application Nos. 2807 2808 4343 4345 and 4354 of 1984 as also Special Civil Application No. 4175 of 1988 are required to be allowed. In those petitions the main contention is that they belong to Public Health Engineering Service and they are entitled to be transferred and have been transferred to the Board by order dated February 10 1980 and their contention is that all along they belong to Public Health Engineering Service is already uphled. In those petitions the main contention is that they belong to Public Health Engineering Service and they are entitled to be transferred and have been transferred to the Board by order dated February 10 1980 and their contention is that all along they belong to Public Health Engineering Service is already uphled. Therefore the action taken by the Government impugned in those petitions on the basis that they belong to Irrigation or B. and C. Department is required to be quashed and set aside and all these 32 (30+2) petitioners shall be treated to have been allocated to Health and Family Welfare Department and posted to the Board under section 20 (10) as members of the Gujarat Public Health Engineering Service and are deemed to have been transferred to the Gujarat Water Supply and Sewerage Board permanently under section 20 (1) with effect from April 1 1981 and they shall be treated accordingly and shall be given all due benefits including the promotions in the Board on the same basis as all others including 700 and the respondents in their petitions were situated and given shall be given to these petitioners as if all of them belong to one single indentical category. Having regard to the lapse of time it may not be necessary to revert any of the respondents whose promotions have been challenged. Therefore at this stage we do not pass any directions for setting aside the promotions of the respondents and only direct the respondent authority to give benefits and promotions to the petitioners that may be due to them according to the relevant dales and from the relevant dates and in the process if the authority comes to the conclusion that such benefit cannot be given to the concerned petitioners without reverting some of the respondents the authorities will be entitled to undertake that exercise also. It will be no ground to refuse the benefit of promotion that may have become due to the petitioners. These five Special Civil Applications of 1984 are. therefore allowed accordingly with no order asto costs. ( 51 ) IN Special Civil Application No. 4175 of 1988 two out of 161 persons have challenged the modification of the transfer order of February 10 1988 done on February 23 1988 By that notification the transfer of 161 persons has been made provisional. therefore allowed accordingly with no order asto costs. ( 51 ) IN Special Civil Application No. 4175 of 1988 two out of 161 persons have challenged the modification of the transfer order of February 10 1988 done on February 23 1988 By that notification the transfer of 161 persons has been made provisional. However we have made it clear that this was provisional because of the pendency of the petitions. The learned Advocate General has also stated the same. Even otherwise we have found on merit that the same could not have been made provisional. In that view of the matter inviting fresh options would appear to be academic but it is not so particularly in respect of the persons who have already gone to the Government and accepted promotions there. They are not likely to come back to the Board. Therefore if those options are not kept open for them they may have to be brought back to the Board even though neither the Government nor those employees want such a situation to arise and it would be an absolutely unnecessary and inequitable situation not desired by anyone. Therefore while allowing this petition we direct that the paras 5 and 6 of the transfer orders making the transfer of 161 persons provisional was provisional because of the pendency of the petitions and would remain provisional in respect of the persons who have already gone to the Government and the finalisation of their transfer will be subject to the result of the exercise of option and as regards the persons out of 161 who are already working in the Board there is no question of their option to remain in the Board or to go out of the Board and therefore there is no question of their exercising any option or the Government deciding about the same. 42a Now that takes us to Special Civil Application No. 658 of 1986 and 3711 of 1987. These are the two petitions filed by the direct recruits of the Board. 42a Now that takes us to Special Civil Application No. 658 of 1986 and 3711 of 1987. These are the two petitions filed by the direct recruits of the Board. Their claim is based on their undisputed status of being regular Board employees and the uncertain status of the Government employees in the Board stated to be that of deputationists in the Board and therefore having no status of seniority or chance of promotion in the Board and on that basis it is claimed that the petitioners the direct recruits are senior and these deputationists must be repatriated to their parent department and they cannot be continued in any case beyond four years on deputation. This argument based on the notice of deputation is totally misconceived. This word does not find place in section 20 (10) or in the Government orders. Section 20 (10) merely provides for postings of Government servants in the Board and therefore it would not be correct to say that such posting would strictly be deputation. Moreover this peculiar situation had arisen because of the interim order passed in Special Civil Application No. 75 of 1981 which stayed the operation of Section 20 (1 ). Otherwise these persons were to be transferred to the Board and not merely to be posted in the Board. The clarification made by the Court in that interim order granting liberty to the Government to depute these very employees in the Board under section 20 (10) clearly indicated that this socalled posting or deputation in the Board was to continue till the interim order continued because it is a part of the interim arrangement that this liberty was given. Therefore there is no substance in the argument that this period of socalled deputation could be four years only. ( 52 ) THE second argument that as deputationists on foreign service they had no status right or seniority or chance of promotion in the Board is also required to be negatived. First of all they were strictly speaking not promoted in the Board. They were notionally promoted in the Government and redeputed in the Board. ( 52 ) THE second argument that as deputationists on foreign service they had no status right or seniority or chance of promotion in the Board is also required to be negatived. First of all they were strictly speaking not promoted in the Board. They were notionally promoted in the Government and redeputed in the Board. In Special Civil Application No. 658 of 1986 the petitioners direct recruits had obtained interim orders against the promotions of deputationists in the Board which later on came to be modified permitting their promotions in their parent cadre and notionally they were promoted in their parent cadre and redeputed to the Board. These are the persons who are entitled to be transferred to the Board right from their posting in the Board. In fact but for them the Board could not have functioned at all and the direct recruits who were subsequently appointed could not have been appointed at all. When all the functions and duties of the Department were transferred to the Board the staff had to be transferred and posted in the Board. They were posted in the Board and they could promoted in the Board and when ultimately with effect from April 1 1988 they have been transferred there is no illegality surviving and all the arguments have become academic. It is clear that so long as the order in Special Civil Application No. 75 of 1981 was operating staying the operation of section 20 (1) transfers to the Board could not be made. But for that and for all practical purposes they were the employees of the Board and the direct recurits cannot contend that the direct recruits who are appointed fresh in the Board and who are far junior to those persons be treated as seniors to the persons who have been working in the Board for almost about ten years and for many more years in the Government. The arguments of the direct recruits are therefore stated be rejected. 43a The validity of section 20 has been challenged by the group of 700 as well as by the direct recruits. As far as the group of 700 is concerned they did not press the question realising that they have been transferred and absorbed in the Board under these provisions. Therefore at their instance the question of validity of section 20 is not required to be considered. As far as the group of 700 is concerned they did not press the question realising that they have been transferred and absorbed in the Board under these provisions. Therefore at their instance the question of validity of section 20 is not required to be considered. However the direct recruits have also challenged the validity of that provision and submitted that the said provision is illegal and ultra vires Articles 14 16 and 311 of the Constitution. There is no merit in this contention. There is no arbitrariness inequality or discrimination nor punitive termination in section 20 of the Act. Section 20 provides for transfer of functions and duties of the Government to the newly constituted Board. Once these powers and functions of the Government are transferred to the Board the employees of the Government engaged in the work which has been transferred to the board would obviously become surplus and their services would be required to be terminated. They have therefore been transferred to the Board. There is no compulsion on them to go to the Board. They have been given option under this very section not to go to the Board and in that case their services would be terminated in accordance law with the necessary consequences provided in the section itself. This class of employees working in the PHE Organisation of the Government is a rational and identifiable class and their transfer to the Board is in view of the transfer of the Government functions to the Board and is directly and closely connected with the objections of the Act. There is no discrimination and no termination of service in violation of Articles 14 16 and 311 of the Constitution. Section 20 (1) is not ultra vires and is a valid piece of legislation. ( 53 ) SPECIAL Civil Application No. 3711 of 1987 also stands on the. same footing. It is an off shoot of Special Civil Application No. 658 of 1986 In Special Civil Application No. 658 of 1986 what was challenged was apprehended promotion and in Special Civil Application No. 3711 of 1987 what is challenged are actual promotions. In both the cases the arguments are the same and the result also would be the same and therefore both the petitions are dismissed. In both the cases the arguments are the same and the result also would be the same and therefore both the petitions are dismissed. ( 54 ) SPECIAL Civil Application No. 5352 of 1987 is the petition by the same petitioners of Special Civil Application No. 75 of 1981. The petitioners are association of engineers. They obtained interim stay of section 20 (1) against their transfer and absorption in the Board and therefore they continued on deputation or posted in the Board under section 20 (10 ). During this period there were needs of personnel in the higher cadre. Since the Board was not in a position to give promotions because it did no have employees of its own the Government had to depute engineers from other departments to such posts in Board. It is in these circumstances that it is the petitioners themselves who are to be blamed if they have suffered anything. Perhaps this was the most ill-advised petition which has created all this confusion and choas. The petitioners have been promoted in the Board by now. Their prayer in that they should be given deemed date of promotion from the dates when vacancies were available in higher cadres. First of all they were not the employees of the Board and therefore the Board could not have given them promotion. In the Government all corresponding posts were either abolished or kept in abeyance and merely because some vacancy has arisen nobody gets right to that post from that date. It is open to the authority to fill in the post or not to fill in the post or to fill it up by deputation or by any other manner. Therefore the petitioners have no legal or any other right to claim promotion with any retrospective effect or from the deemed date. It is not the case of the petitioners that any person junior to the petitioners and similarly situated as the petitioners has been promoted. Therefore there is no question of any deemed date of promotion to the petitioners. Hence this petition is also required to be rejected and is dismissed. Rule discharged with costs. ( 55 ) CIVIL Application No. 1223 of 1987 is filed in Special Civil Application No. 3711 of 1987. Therefore there is no question of any deemed date of promotion to the petitioners. Hence this petition is also required to be rejected and is dismissed. Rule discharged with costs. ( 55 ) CIVIL Application No. 1223 of 1987 is filed in Special Civil Application No. 3711 of 1987. Civil Application No. 1223 of 1987 is an application for cancellation of promotion orders issued to the deputationists and to withdraw the charge of the promotional post from the deputationists on the ground that such promotion orders have been issued and charge has been given in breach of the interim order of the Court. There is a further prayer to initiate proceedings for disobedience of the orders of the Court. ( 56 ) THIS application is on the basis that by an interim order dated July 27 1987 the respondents were restrained from giving charge of the higher post to the deputationists with the Board and the petitioners advocate was allowed to communicate the order telephonically. In the application para 2 it is stated that on the receipt of the telephonic message from the office of the advocate for the applicant association the Joint Secretary of the association had met the Deputy Manager dealing with the problems of deputationists and told him about the High Court having granted stay about the deputationists taking over the charge of the promotional post. This averment has been denied by the respondents. In fact the endorsement of the High Court Officer made on the same day i. e. 27-7-1987 is to the effect that telephonic message not sent as per the say of the advocate. Therefore even though the petitioners had taken an order from the Court authorising telephonic communication the petitioners advocate had chosen not to adopt that course and the petitioners had chosen to rely on the oral word of having made oral communication to the officer of the respondent Board. This is not at all reliable and does not inspire any confidence. There was nothing to prevent the learned counsel to get the telephonic message conveyed through the Court Officer when he had obtained an order from the Court. Neither the learned Counsel communicated himself not did he get it done from the Court Officer and in fact the Court Officer had to record that the telelphonic message was not sent as per the say of the advocate. Neither the learned Counsel communicated himself not did he get it done from the Court Officer and in fact the Court Officer had to record that the telelphonic message was not sent as per the say of the advocate. In view of this it is impossible to hold that the respondents authorities had any knowledge of the interim order and that they had allowed the promotees to take charge of the promotional posts in breach of the interim order of the Court. In view of this this Civil Application must be dismissed and is dismissed with no order asto costs. ( 57 ) IN the result Special Civil Applications No. 658/86 3711 5322 of 1987 and 7560 of 1988 are dismissed Rule discharged with costs. ( 58 ) SPECIAL Civil Applications No. 2807 2808 4343 4345 and 4354 of 1984 are allowed and it is declared that these petitioners and 161 employees are validly and permanently transferred to the Board with effect from 1. 4. 1981 and transfer of any of them to the Government cannot be made without their consent and paras 5 and 6 of the orders dated 10. 2. 1988 and clarified and modified on 23. 2. 1988 are not to operate on them and the option given by those paras would be available only to those who have been transferred and promoted in the Govt. during the pendency of these petitions and it would be open to the Govt. to give them option to remain in the Government or to be absorbed in the Board and it will be open to the Government to accept or not to accept their options. ( 59 ) SIMILARLY Special Civil Application No. 4175 of 1988 is allowed and it is declared that their transfer and absorption in the Board is not provisional and they are not required to be given any option and they shall continue to remain absorbed in the Board. ( 60 ) CIVIL Application No. 1223 of 1987 is dismissed. No order asto costs. . ( 61 ) MR. Tanna learned Counsel for the persons who have been promoted out of 700 and whose promotions are subject to the result of the petition apprehends that as a result of this judgment those persons will be immediately reverted and the petitioners would like to carry the matter before the Supreme Court and obtain interim orders. . ( 61 ) MR. Tanna learned Counsel for the persons who have been promoted out of 700 and whose promotions are subject to the result of the petition apprehends that as a result of this judgment those persons will be immediately reverted and the petitioners would like to carry the matter before the Supreme Court and obtain interim orders. It is therefore directed that these promotees shall not be reverted till April 12 1993 However in the meanwhile it will be open to the authorities to process the promotions and reversions so that further time is not required to be taken. All Appeal except 1223/87 Allowed. .