Rajib Ranjan Pathak v. State Of Bihar — 1996 DIGILAW 22 (PAT)

Judgment S. K. Homchaudhuri, J. 1. In this petition under Article 226 of the Constitution of India, the petitioners have challenged the recommendation dated 16-5-1994 made by the Departmental promotion Committee (hereinafter referred to as the d. P. C. ) (Annexure 8 to the petition) and the decision of the government (Annexure 13 to the petition)accepting the said recommendation of the D. P. C. as well as the notification dated 21-9-1994 (Annexure-15 to the amendment petition)promoting Respondents No.6 to 9 as engineer-in-chief. According to the petitioners the recommendation for the d. P. C. dated 16-5-1994 is wholly arbitrary, discriminatory and has been made in gross disregard and disobedience to the directions of this court contained in C. W. J. C. Nos. , 3941/83, 8341/93 and 4500 of 1937 as well as the directions of the Hon ble supreme Court. 2. To decide the controversy, it is necessary to state relevant facts in a nutshell. The Bihar Engineering Service, class I and Class II consists of the following cadres. Class-I (1) Engineer-in-Chief (2) Chief Engineer (3) Superintending Engineer (4) Executive Engineer class-II (1) Assistant Engineer in the class-I service, the post of executive Engineer is the lowest and that of Engineer-in-Chief is the highest and that the Assistant Engineer is promoted to the post of Executive Engineer, Executive Engineer is promoted to the post of Superintending Engineer, superintending Engineer is promoted the post of Chief Engineer and the chief Engineer is promoted to the post of Engineer-in-chief according to the provisions of Bihar Engineering Class-I service Rules. The petitioner Nos.1 and 2 were appointed to the post of Assistant Engineer in the Bihar Engineering Service after being selected by the Bihar Public service Commission in the year 1957 and 1960, respectively and respondent nos.7, 8 and 9 were appointed to the post of Assistant Engineer after being selected by the Bihar Public Service commission in the year 1963 while respondent No.6, Major Yadav, was appointed to the post of Assistant Engineer in the year 1975 after being selected by the Bihar Public Service commission. The relevant dates of appointments of the petitioners and the respondents and their promotions to the posts of Executive Engineer, Superintending engineer and Chief Engineer are as follows : 2_829_BLJ1_1996.htm 3. The relevant dates of appointments of the petitioners and the respondents and their promotions to the posts of Executive Engineer, Superintending engineer and Chief Engineer are as follows : 2_829_BLJ1_1996.htm 3. Respondent No.6, Major yogendra Narayan Yadav after passing b. E. was appointed in the Short Service commission in the Indian Army to the post of Second Lieutenant in the year 1963. He was promoted in the rank of captain and thereafter in the rank of major before he was released from the army in the year 1970. In response to the advertisement of the Bihar Public service Commission made in the year 1973 for recruitment in the post of Assistant Engineer in the Bihar engineering Service Class II, the respondent No.6 applied for the post and on being selected by the Bihar Public Service commission he was appointed to the post of Assistant Engineer. The government of Bihar, Appointment department, by the notification No. III/ri-608/65a-8778, dated 21.6.1969 made some provision for giving weight age of the service in the Army to the released Officers from Army for counting their seniority in the post to which such persons were appointed. Paragraphs 8 and 9 of the said notification provide as follows: "8. Seniority and pay of these candidates who are appointed against the reserved vacancies will be determined in the following manner: (a) A candidate shall be treated as belonging to the year in which he would have been appointed on attaining the minimum age of entry into service/post concerned or on the date of his joining military service, whichever is later. (b) All such candidates shall rank below the non-service recruits of the year in which they are allotted. (c) The particular date on which a candidate should be deemed to have been appointed to the service/post concerned shall be decided by the Administrative Department.9. Seniority of Emergency Commissioned/short Service Commissioned officers appointed temporarily will be fixed according to the formula contained in the preceding paragraph and they will be made permanent in their own turn according to their position in the seniority list as and when permanent vacancies. Seniority of Emergency Commissioned/short Service Commissioned officers appointed temporarily will be fixed according to the formula contained in the preceding paragraph and they will be made permanent in their own turn according to their position in the seniority list as and when permanent vacancies. " As such, normally respondent No.6 was entitled to get the benefit of service rendered in the Army since 1963 towards fixation of his seniority in the rank of Assistant Engineer allotting 1963 as the year of entry in the cadre of assistant Engineer and he was entitled to the place just below the last non-service recruits in the Bihar Engineering service Class II in the year 1963. The government of Bihar on consideration of the representation of respondent No.6 for giving weightage of his service in the Army by the notification dated 18th january, 1980 ordered that the respondent no.6 would be deemed to be of 1963 in the permanent cadre of Assistant Engineer in the Public Works department because in that particular year he joined the Army. Thereafter on the basis of the said notification dated 18th January, 1980, the seniority of respondent No.6 in the cadre of Assistant engineer was fixed above the appointees of 1957 to 1963 in the Bihar engineering Service Class II and thereafter on the basis thereof by the notification dated 24-8-1983, the government of Bihar, Road Construction Department, promoted respondent no.6 to the post of Superintending Engineer from the post of Assistant engineer on ad hoc basis on and from the date he took over the charge. The aforesaid notification dated 18th january, 1980 of fixation for seniority as well as the notification dated 24-8-1983 appointing the respondent No.6 from the post of Assistant Engineer was impugned by six officers who were appointed in the cadre of Assistant engineer during the period 1957 to 1963. Respondent No.6 Major Yadav was impleaded as respondent No.4 in c. W. J. C. No.3941 of 1983. During the pendency of C. W. J. C. No.3941 of 1983, respondent No.6 further promoted to the post of Chief Engineer. C. W. J. C no.3941 of 1983 was heard by a division Bench of this Court but there having been difference of opinion the petition was referred to Hon ble Single judge, namely, Hon ble Mr. During the pendency of C. W. J. C. No.3941 of 1983, respondent No.6 further promoted to the post of Chief Engineer. C. W. J. C no.3941 of 1983 was heard by a division Bench of this Court but there having been difference of opinion the petition was referred to Hon ble Single judge, namely, Hon ble Mr. Justice S. B. Sinha, who after hearing the parties by the judgment dated 17-12-1990 allowed the petition by quashing the impugned notifications, copies of which are annexed as Annexure 9, notifications, copies of which are annexed as Annexures 9, 10, 11 and ISA to the said writ petition. In paragraph 154 of the said judgment the following directions were issued: "154. In this situation, in my opinion, the best course would be that the State should immediately constitute a valid and legal Departmental Promotion committee for consideration of the case of the petitioners vis-a-vis respondent No.4 and all other eligible candidates for the purpose of finding out as to from which date respondent No.4 should have been promoted in the post of executive Engineer and thereafter, proceed to consider the promotions of all eligible candidates including petitioners and respondent no.4 in the post of Superintending Engineer and above. It would be open to the departmental Promotion Committee upon consideration of all the relevant facts, to fix the dates from which the successful candidate (s) would be promoted and on that basis fresh seniority list both in the cadre of Executive engineer and Superintending Engineer shall be prepared. " 4. In the said judgment dated 17-12-1990 this Court further held as follows : (i) Respondent No.6 Major Yadav, who was impleaded as respondent No.4 in the said petition, was junior to all the petitioners of that writ petition. Respondent No.4 Major Yadav was not entitled to Class I post in the civil service on the basis of his functioning/working either as Captain or Major in the Army. (ii) Respondent No.6 after release not having applied for the post of assistant Engineer in response to the advertisement made by the Bihar Public service Commission in the year 1971 and in the year 1972 for the post of Assistant Engineer, the benefit of counting service rendered in Army by him should be reduced by two years and for that purpose he should be allowed 1965 as the year of entry in service. 5. 5. Respondent No.6 impugned the judgment dated 17-12-1990 passed in c. W. J. C. No.3941 of 1983 in S. L. P. (Civil) Nos.1784 and 2615 of 1991 in the Hon ble Supreme Court and in the said petition, the Hon ble Supreme court on 1.4.1991 passed the following order: "special Leave granted. Hearing expedited. D. P. C. to be constituted and to take the decision as directed by High Court without delay. The decision being taken by the D. P. C. , it will be implemented subject to the result of the appeal. Till the decision by D. P. C. the appellant will not be reverted. The D. P. C. will unless it is not possible to decide the question within a period of four weeks. " 6. In pursuant thereof, the D. P. C. was constituted and the said D. P. C. in its meeting on 9-8-1991 after taking into consideration all the materials in paragraphs 5 and 9 decided as follows : "5. From the records of the department it appeared that 49 persons were appointed as assistant Engineer by the Government in the year 1963 vide notification No. E/a1-5010/63 p. W.35849 dated 21st December, 1963. In the combined gradation list the first person of 1963 batch would be at serial No.368, the last man appointed in the year 1963 would, therefore, find his place at serial 416 in the combined gradation list. The department, however, indicated during the discussion in the meeting of the Departmental Promotion committee that ten persons appointed in the year 1963 did not join and therefore the position of the last person for 1968 batch appointed by the Government would be at serial no.406 instead of 416 in the combined gradation list. Accordingly respondent No.4 would in accordance within the provisions of appointment Departments Order dated 21st june, 1969, would be placed at serial 407 in the combined gradation list, the year of allotment being 1963, the year in which he joined the Army service.9. There is an observation of Hon ble patna High Court in paragraph 85 of the judgment in the case under reference (C. WJ. C. No.3941/83) that "respondent No.4 is not entitled to at least two years in computation of his seniority, inasmuch as he did not apply for appointment in the past when the advertisement was issued in the year 1971 as also in the year 1972". C. No.3941/83) that "respondent No.4 is not entitled to at least two years in computation of his seniority, inasmuch as he did not apply for appointment in the past when the advertisement was issued in the year 1971 as also in the year 1972". It has been further observed that "no cogent and plausible reason has been given in this direction". We are not quite clear about the relationship of this observation of the Hon ble Patna High Court with reference to the Government instructions in the Appointment Department dated 21st June, 1969, referred to above. It pay perhaps be the intention of the Hon ble Patna high Court that respondent No.4 may be given the benefit of seniority from the date of his appointment, but limited to the extent of service rendered by him in the Armed Forces. In deference to the observation of the Hon ble Patna High Court on the matter and anticipating the intention, as mentioned above, it may be said that if the seniority of respondent No.4 is pushed back by two years, his position in the combined gradation list of Assistant Engineers would be at serial no.587, i. e. just below serial No.586 Shri baban Prasad of reserved category who is the last man in the gradation list of appointees of the year 1965. Considering the candature of respondent No.4 at serial No.587 along with other candidates of general category for promotion to the level of Executive Engineer on 12-1-1987, i. e. the date on which his immediate senior in the general category Shri indu Bhushan Prasad at serial 570 was promoted as Executive Engineer. " 7. The respondent No.6 (Major Yadav)impugned the aforesaid resolution dated 9-8-91 of the D. P. C. in the Supreme Court in 1a no.3 in C. A. No.1394 of 1991 which was dismissed by Hon ble the Supreme Court by order dated 30-1-1992 as follows: "the order made by us will not preclude the appellant from filing a separate writ petition in the High Court if he has any grievance about the decision of the Departmental promotion Committee. We express no opinion as to what would be the merit of such a writ petition. The application is dismissed. " The respondent No.6 (Major yadav) thereafter impugned the resolution of the D. P. C. in C. W. J. C. No.1563 of 1992. We express no opinion as to what would be the merit of such a writ petition. The application is dismissed. " The respondent No.6 (Major yadav) thereafter impugned the resolution of the D. P. C. in C. W. J. C. No.1563 of 1992. A Division Bench of this Court by order dated 13-11-1992 disposed of the said petition holding that the petition was premature and that it was open to the Government either t6 accept or to reject the recommendation of the d. P. C. Thereafter, on 20-10-1992, the council of ministers accepted the resolution of the D. P. C. and despite that fact that that Chief Minister gavehis approval, no action was taken in pursuant to the resolution. On the contrary, the minister in charge of Road Construction on 9-2-93 directed that no notification in terms of the decision of the Council of Ministers accepting the recommendation of the D. P. C. should be issued. In the meantime, respondent No.6 (Major yadav) filed an -representation before the State Government. The petitioners thereafter filed C. WJ. C. No.8341 of 1993 for implementation of the judgment rendered in C. W. J. C. No.3941 of 1993 and the order dated 1-4-1991 of the Supreme Court as well as the resolution of the D. P. C. and for further direction to consider the case of the petitioner No.1 for the post of Engineer-in-Chief. But respondent No.6 was promoted to the post of Engineer-in-Chief. Prior to filing of C. W. J. C. No.8341 of 1993, the petitioner No.1 filed c. W. J. C. No.4500 of 1987 in this Court praying for the relief for quashing. (1) the seniority list of Superintending Engineer placing respondent nos.7 to 9 above him. (2) promotion of respondent Nos.7 to 9 to the post of Chief Engineer. (3) The petitioner also prayed for issuance of appropriate writ or direction commanding the respondent Government to consider the case of the petitioner for the post of Chief Engineer. After the judgment in C. W. J. C. No.3941 of 1983 was passed the petitioner No.1 by way of amendment of pleading also made additional prayer in C. W. J. C. No.4500 of 1987 for- (a) quashing annexure-15 (gradation list) placing respondent No.6 (Major Yadav) (b) quashing annexure-19 (posting of respondent No.6 (Major Yadav) as engineer-in-Chief. (c) quashing annexure-17-18 posting of respondent Nos.7,8 and 9 as En-gineer-in-chief. 8. (c) quashing annexure-17-18 posting of respondent Nos.7,8 and 9 as En-gineer-in-chief. 8. A Division Bench of this Court by the judgment and order dated 25-3-94 disposed of C. W. J. C. No.4500 of 1987 and C. W. J. C. No.8341 of 1993 with the following direction and observation: "in this situation, Sri Yadav, in our opinion, should be restrained from functioning as incharge Engineer-in-chief forthwith and the State of Bihar is directed to appoint any suitable candidate for the aforementioned purpose giving utmost consideration to the seniority. The State is further directed to refer the matter to the sam Committee for consideration of the cases of promotion to the post of Superintending Engineer, Chief Engineer and Engineer-in-chief upon taking into consideration the cases of all eligible candidates in terms of the judgment passed in c. WJ. C. No.3941 of 1983 and the order of the Supreme Court of India passed in S. LJ. (Civil) Nos.1784 and 2613 of 1991. " The said committee must held its sittings and submit its recommendation to the state Government within one month from the date of receipt of a copy of this order. "in the facts and circumstances of the case, C. WJ. C. No.8341 of 1991 is allowed to the extent mentioned herein. In view of our afore mentioned findings, no separate direction is required to be given in C. WJ. C. No.4500 of 1987, as, all directions have been issued in the judgment of this Court passed in c. WJ. C. No.3941 of 1983. " In para 34 of the judgment this court observed: "it also appears strange that about eleven months were taken in obtaining the opinion of Advocate-General. It further appears strange that although the recommendations of the said Committee were accepted by the Council of Minister but no notification was issued in terms thereof. On the other hand, the minister of the Road construction Department set its foot down to see that no notification is issued in this regard. It further appears strange that although the recommendations of the said Committee were accepted by the Council of Minister but no notification was issued in terms thereof. On the other hand, the minister of the Road construction Department set its foot down to see that no notification is issued in this regard. " In paras 58, 59 and 60 of the judgment this Court observed: "however, from a perusal of the proceedings of the meeting of the said Committee dated 9-9-1991 it appears that the said committee considered the question of seniority but not consider the merits of the candidates for the purpose of considering as to which of the candidates are entitled to be promoted to the post of Superintending engineer, Chief Engineer and Engineer-in-chief and from which date. " "the said Committee has not considered the merits of the eligible candidates, although, in terms of Rule 17 of the Bihar engineering Service Class I, the same has to be considered on the basis of the merit and seniority. Merit, thus, is the first criteria according to that Rule. " "the said Committee has also not considered the question as to whether Sri Yadav does or does not come within the zone of consideration as per seniority list as if his case comes within the zone of consideration, his case also should be considered along with all other eligible candidates strictly in accordance with law. " 9. The respondent No.6, impugned the judgment and order passed in c. W. J. C. No.8341 of 1993 and C. W. J. C. No.4500 of 1987 in S. I. P. No.6749 of 1994 which was disposed of by the Hon ble the Supreme Court by order dated 8.4.1994 as follows: "upon motion the matter is taken on board. With the consent of learned counsel on both sides the matter is taken up for final disposal. We have heard counsel on both sides. On a consideration of the matter we are of the view that that apart of the direction of th High Court by which the reconstituted d. P. C. would require to be convened to make the selection within a time-frame, does not call for interference of the High Court in this regard and accordingly the order remains undisturbed. However, the restraint that in the meanwhile, the petitioner should not act as engineer-in-Chief, cannot be supported. However, the restraint that in the meanwhile, the petitioner should not act as engineer-in-Chief, cannot be supported. The direction of the High Court in this behalf seems to proceed on the promise that as engineer-in-chief, the petitioner holds two posts. Learned counsel for the petitioner urges that the post of Engineer-in-chief is only one and that it is erroneous to predicate that the petitioner really holds two posts. There is some point in this submission. Be that as it may, it is not appropriate that the petitioner, even before the selections are made by the reconstituted D. P. C. , be restrained from functioning. That part of the order by which the petitioner is restrained from functioning as Engineer-in-chief in the interregnum is set aside. The reconstituted D. P. C. will, however, proceed to make the selection in accordance with the directions of the High Court. The order of the High Court modified and the special leave petition disposed of accordingly. 10. The reconstituted D. P. C. thereafter in its meeting held on 16-5-1994 made impugned recommendation-English translation of which supplied at the Bar is as follows: "the Departmental Promotion Committee reviewed all the relevant papers regarding the proposal for fixation of seniority and promotion to higher posts of Major yogendra Narain Yadav, petitioner and other equivalent officers made available by the administrative Department vide Road Construction Department letter No.335 (S) dated 17-1-94 and 142 (S) dated 14-2-94 in the light of the orders passed by the Hon ble High court in C. WJ. C. No.3941/83 and C. WJ. C. No.8341/93 and Hon ble Supreme Court in s. L. P. No.6749/94. In course of review it was found that Major Yogendra Narain Yadav was appointed as a commissioned officer in the rank of Lieutenant in the Military Service with effect from 15-4-63 through short service commission which is equivalent to that of a Class I officer in the Civil Services. Thereafter he was promoted to the post of Captain and Major. The post of Captain equivalent to a Class I post in the Civil Services and the post of Major is equivalent to that of an Executive Engineer. The Committee reviewed the above facts and also the circular issued in Personnel department letter No.8778 dated 21-6-1969. Thereafter he was promoted to the post of Captain and Major. The post of Captain equivalent to a Class I post in the Civil Services and the post of Major is equivalent to that of an Executive Engineer. The Committee reviewed the above facts and also the circular issued in Personnel department letter No.8778 dated 21-6-1969. Thereafter, the Committee fixing his seniority from the date of his joining the Military Service found major Yadav fit for paper promotion as an Executive Engineer with effect from 21-1-71. Along with it the Committee found Shri Birendra Prasad who was the main petitioner in C. WJ. C. filed in the Hon ble high Court fit for promotion as Executive engineer with effect from 21-1-71. After this Committee studied Rule 17 and 24 of the Bihar Engineering Service Code regarding promotion to Class I of the Bihar engineering Service. After study it was found that promotion to the rank of Superintending engineer and Chief Engineer is to be given on the basis of selection and not on the basis of seniority-cum-merit. In the context of these rules the Committee made a comparative review of the service records, merit and confidential character reports of Shri birendra Prasad, R. R. Pathak and other equivalent officers along with those of Major yogendra Narain Yadav, After the review it was found that the service record, merit and confidential character reports of major Yadav are best. He completes the kalanadhi for promotion to the post of Superintending engineer with effect from 21-1-78 and to the post of Chief Engineer with effect from 21-1-86. Major Yadav was found fit for promotion to the concerned selection posts with effect from these dates. However, the Committee found the promotion of Major Yadav as superintending Engineer with effect from 24-8-83 and as Chief Engineer with effect from 8-12-88 as completely valid. Thereafter, the Committee reviewed all the relevant papers made available by the administrative Department for promotion to the post of Engineer in Chief. During the review, the administrative Department informed the Committee that four posts of Engineer-in- Chief are vacant out of which two posts are admissible for general category, one post for scheduled caste and one post for scheduled tribe. On these vacant posts, the recommendation of the Committee is as follows: 10_829_BLJ1_1996.htm 11. The recommendation of D. RC. was approved by the Cabinet. On these vacant posts, the recommendation of the Committee is as follows: 10_829_BLJ1_1996.htm 11. The recommendation of D. RC. was approved by the Cabinet. A copy of the memorandum of acceptance of proposals in annexures 13 series, Thereafter, by impugned notification dated 21-9-94 a copy of which annexed as annexure-15 to the peti ion, respondents 6 to 9 were appointed as Engineer-in-Chief. The petitioners have contended that resolution of the D. RC. dated 16-5-94 (Annexure- 8) is wholly arbitrary and has been passed in gross disobedience to the direction of this Court contained in the judgment passed in C. W. J. C. No.3941 of 1983 and in C. W. J. C. No.8341 of 1993 as well as the direction of the "Hon ble the Supreme Court made by order dated 1-4-91 in S. L. P. No.1784 of 1991 and 2641 of 1991 and the direction issued by order dated 8-4-94 in S. L. P. No.6749 of 1994. The petitioners further contended that the reconstituted d. RC. totally ignored the earlier resolution dated 9-8-1991 of the D. RC. constituted as per direction of this Court and arbitrarily held that respondent No.6 (Major Yadav) was fit for promotion to the post of Executive Engineer in the year 2t-1-71 and to the post of Executive Engineer in the year 21-1-71 and to the post of Superintending Engineer and Chief Engineer on 21-1-78 and 21-1-86 and accordingly his promotion to the post of Superintending Engineer and Chief Engineer w. e. f.24-8-83 and 8-12-88, respectively were valid. 12. As against the promotion of respondents No.7 to 9, contention of the petitioners is that admittedly the petitioners were promoted as Executive engineer much earlier than respondents no.7,8 and 9, but respondents No.7 to 9 were promoted to the post of Superintending Engineer earlier to the petitioners against the post reserved for the members of Scheduled Caste and scheduled Tribe. In C. W. J. C. No.4500 of 1987 the petitioners amongst others challenged the seniority list of Superintending engineer so far the same related to the fixation of seniority of respondents No.7 to 9 above the petitioners. However, during the pendency of this writ petition the said seniority list was withdrawn by the Government by the order dated 24-7-87. In the said petition the petitioners also challenged the promotion of respondents No.7 to 9 to the post of Chief Engineer. However, during the pendency of this writ petition the said seniority list was withdrawn by the Government by the order dated 24-7-87. In the said petition the petitioners also challenged the promotion of respondents No.7 to 9 to the post of Chief Engineer. This c. W. J. C. No.4500 of 1987 was disposed of by a common judgment passed alongwith C. W. J. C No.8341 of 1993. In eara 72 of the said judgment this Court eld that in view of the findings given in c. W. J. C. No.8341 of 1993 as well as the directions issued in the judgment of this court passed in C. W. J. C. No.3941 of 1983 no separate direction need be issued. According to the petitioners, the post of Superintending Engineer and chief Engineer is made by selection and there cannot be reservation in respect of promotion to these posts. That apart respondent No.7, 8 and 9 being junior to the petitioners in the cadre of Executive engineer the petitions are senior to respondent Nos.7 to 9 in the cadre of superintending Engineer inspite of the fact that they were given promotion earlier to the petitioners against the posts reserved for the members of Scheduled caste and Scheduled Tribe. Consequently, they should have been promoted to the post of Chief Engineer earlier to Respondent Nos.7 to 9. The petitioners further case is that there cannot be reservation in the post of Engineer-in-Chief and that in any view of the matter 10% and 14% of the posts being reserved for them, out of 4 posts more than one post could not be reserved in the cadre of Engineer-in-Chief. 13. Respondent No.6 in his counter-affidavit have contended that in bihar Engineering Service there are two cadres, namely, permanent cadre and temporary cadre the person who are appointed in the temporary cadre are again to be appointed in the permanent cadre. Respondent No.6 was appointed 2nd Lieutenant in Army, and before he was released from army in the year 1970, he was promoted to the rank of Captain the next higher post of major and that the Post of Major is equivalent to the post of Executive Engineer in Bihar engineering Service Class-I. Both permanent post and temporary posts are reserved for appointment of the released army personnel in the Bihar engineering Service Class- II. In spite of availability of vacancies in the permanent posts of Bihar Engineering Service class II, the Government issued advertisement for temporary posts of assistant Engineers. The respondent nos.6 made application and was selected to the post of Assistant Engineer against the temporary post by the order dated 29-7-1974. After joining the post having come to know that permanent posts of Assistant Engineer was available, he made representation and the State Government after considering the representation with the concurrence of the Bihar Public Service Commission (In short b. P. S. C. ) by the notification dated 18-1-1980 modified the earlier notification dated 29-7-1974 and appointed respondent No.6 in the permanent cadre of Assistant Engineer, by treating him as permanent appointee in the year 1963 and his seniority was fixed accordingly among the permanent appointees. By that time the incumbents junior to respondent No.6 in the permanent cadre of Assistant Engineer, having been promoted to the higher post pf Superintending Engineer in bihar Engineering Service Class I, government by the order dated 24-8- 83 promoted respondent No.6 on ad hoc basis to the post of Superintending Engineer. 14. The aforesaid contention of respondent No.6 has already been considered by this Court in C. W. J. C. No.3941 of 1983 and cannot be considered in the writ petition again. However, suffice it to say, that it is well settled by the decisions of the Hon ble Supreme Court that the date of confirmation cannot form the basis of fixation of seniority in the cadre/post. In other words, confirmation of the post cannot be linked with the seniority in the service. In this connection, reference may be made to the decision of the Constitution bench of the Hon ble Supreme Court in the case of Direct Recruits Class II Engineering Officers Association V/s. State of maharashtra, reported in AIR 1990 S. C.1607 and the decision in the case of O. P. Garg and Ors. V/s. State of U. P. , reported in air 1991 S. C.1202. In the case of direct Recruit Class II Engineering Officers Association (supra) the Hon ble supreme Court held as follows : "once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. In the case of direct Recruit Class II Engineering Officers Association (supra) the Hon ble supreme Court held as follows : "once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, The officiation in such post cannot be taken into account for considering the seniority. "if the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted. " In the case of O. P. Garg (supra) the Hon ble Supreme Court held that "proviso to Rule 26 (l) (a) of the State of Uttar Pradesh Higher Official Service rules which links the seniority with the date of confirmation, on the face of it is arbitrary and, as such, violative of Article 16. " 15. In paragraph 29 of the counter affidavit the respondents No.6 contended that some of the members of the d. P. C. were constituted in the year 1991 having superannuated and/or transferred to other Departments and the d. P. C. was reconstituted in the year 1993 by the State Government for the purpose of consideration of the case of promotion in terms of the direction contained in the judgment passed in c. W. J. C. No.3941 of 1983. According to respondent No.6 the D. P. C. reconstituted passed the impugned resolution dated 16-5-1994 in compliance of the direction of the Court issued in the judgment passed in C. W. J. C. No.3941 of 1983 as well as C. W. J. C. No.8341 of 1993, which is subject to the decision of the Supreme Court in the pending appeal preferred against the judgment passed in C. W. J. C. No.3941 of 1983. 16. Respondents No.7, 8 and 9 in their counter-affidavit have contended that they were promoted to the post of superintending Engineer earlier to the petitioners in the year 1981 and consequently were promoted to the post of chief Engineer earlier to the petitioners. 16. Respondents No.7, 8 and 9 in their counter-affidavit have contended that they were promoted to the post of superintending Engineer earlier to the petitioners in the year 1981 and consequently were promoted to the post of chief Engineer earlier to the petitioners. Their promotion to the post of Superintending Engineer and Chief engineer cannot be challenged at this belated stage and such belated challenge is liable to be rejected on the ground of laches alone. 17. I have heard the learned counsel for the petitioners, learned Addl. Advocate-General, the learned counsel for respondent No.6 and the learned counsel for respondents No.7 to 9. 18. Learned counsel for the petitioners submitted that D. P. C. constituted in the year 1991 proceeded correctly in accordance with the direction of this Court issued in the judgment passed in C. W. J. C. No.3941 of 1983 and by its resolution dated 9-8-1991 held that respondent No.6 (Major Yadav)was entitled to get notional promotion in the cadre of Executive Engineer in the year 1987 after giving weightage of the service rendered in the Army by allotting 1965 as the date of entry in the service. That resolution of the D. P. C was unsuccessfully challenged by respondent No.6 in the Supreme Court as well as in this Court and, thereafter the said resolution of the D. P. C. was accepted by the Government. but the government remain silent and did not give any effect to the said resolution of the D. P. C. As per the resolution of the d. P. C. dated 9-8-1991 respondent No.6 did not even become eligible for promotion to the post of Superintending. Engineer in 1994, not to speak of Chief engineer and Engineer-in-Chief. Faced with this situation, the reconstituted d. P. C. consisted of respondents Nos.2, 3, 4 and 5, which as per the direction of this Court met on 16-5-1994. Deliberately side tracked and ignored the earlier resolution of the D. P. C. dated 9-8-1991 duly approved by the government and proceeded arbitrarily and passed the resolution on 16-5-1994 in gross disobedience of the direction of this Court contained in the judgment passed in C. W. J. C. No.3941 of 1983 as fell as in the judgment passed in c. W. J. C. No.8341 of 1993. In the judgment passed in C. W. J. C. No.3941 of 1983 this Court discarded the plea of respondent No.6 for giving weightage of his promotion in the rank of Major before he was released from Army which is equivalent to the rank of Class i Engineering Service, i. e. Executive Engineer. Yet the reconstituted D. P. C. took into consideration of fact of promotion of respondent No.6 in the rank of Major in the Army. The reconstituted D. P. C. in passing the impugned resolution also arbitrarily held that service records of respondent No.6 was best in compression with those of other candidates although respondent no.6 did not work for a single day in the post of Executive Engineer. Learned counsel for the petitioners further submitted that the reconstituted D. P. C. wilfully and deliberately ignored the decision of this Court passed in c. W. J. C. . No.3941 of 1983 and C. W. J. C. No.8341 of 1993 and in disobedience of the direction of this Court as well as of the Supreme Court, passed the resolution arbitrarily to confer undue benefit on respondent No.6. Learned counsel for the petitioners submitted that there cannot be any reservation for promotion to the post of Superintending Engineer and Chief Engineer and that even if the earlier promotion of respondents no.7 to 9 in the post of Superintending engineer against the reserved post is permissible, respondents No.79 being junior to the petitioners in the cadre of executive Enginer, they should be junior to the petitioners in the post of superintending Engineer. 19. Learned Addl. Advocate-General submitted that this Court by the judgment and order passed in c. WJ. C. No.3941 of 1983 as well as judgment passed in C. W. J. C No.8341 of 1993, directed the D. P. C. to consider the question of promotion of respondent no.6 to the higher posts of Executive Engineer onwards with all other eligible members in the cadre. The Hon ble Supreme Court also by the order dated 1-4-1991 passed in S. L. P. No.1784 of 1991 and 2641 of 1991 directed the D. P. C to take decision as directed by this Court without delay and the decision taken by the D. P. C. would be implemented subject to the result of the appeal. The Hon ble Supreme Court also by the order dated 1-4-1991 passed in S. L. P. No.1784 of 1991 and 2641 of 1991 directed the D. P. C to take decision as directed by this Court without delay and the decision taken by the D. P. C. would be implemented subject to the result of the appeal. As per the direction of the supreme Court the Government gave effect to the resolution dated 16-5-1994 of the D. P. C. The Government have committed no wrong in giving effect to the resolution of the D. P. C. dated 16-5-1994 by promoting the respondents nos.6 to 9 to the post of Engineer-in-Chief inasmuch as the Government is bound by the direction of the Hon ble supreme Court to implement to decision of the D. P. C. Learned Addl. Advocate-General further submitted that on the facts and circumstances of the case, respondent No.6 was to be given notional promotion to the higher post of the Executive Engineer and Superintending Engineer. Learned Addl. Advocate-General further submitted that respondents No.7, 8 and 9 were admittedly prompted in the post of Superintending Engineer against the post reserved for Scheduled Caste and scheduled Tribe. 20. Mr. Mahto, learned counsel for respondent No.6, has drawn by attention to the direction of this Court contained in the judgment passed in c. W. J. C. No.3941 of 1983 wherein this court directed that D. P. C. would consider the case of promotion of respondent No.6 alongwith other eligible candidates. Mr. Mahto also drawn my attention to the direction of the Hon ble supreme Court contained in the order dated 1-4-1991 passed in S. L. P. No.1784 of 1991 and 2615 of 1991 and submitted that the D. P. C. as per the direction of this Court considered the case of respondent No.6 and other candidates and recommended their promotion. The recommendation of the D. P. C. cannot be considered on merit in the writ-petition inasmuch as it is clear from the order dated 1-4-1991 of the Supreme court that the decision of the D. P. C. would be the subject of the result in the appeal pending in the Supreme Court. As such, no interference is called for. The recommendation of the D. P. C. cannot be considered on merit in the writ-petition inasmuch as it is clear from the order dated 1-4-1991 of the Supreme court that the decision of the D. P. C. would be the subject of the result in the appeal pending in the Supreme Court. As such, no interference is called for. Learned counsel for respondent No.6 also drawn my attention to paragraphs 58, 59 and 60 of the judgment passed in c. W. J. C. No.8341 of 1993 and submitted that this Court has noted the failure of the D. P. C. constituted in the year 1991 to carry out the direction of this Court contained in the judgment passed in C. W. J. C. No.3941 of 1983 and virtually discarded the resolution dated 9-8-1991 of the D. P. C. 21. Learned counsel for respondents no.7, 8 and 9 submitted that admittedly respondents No.6 to 9 were promoted to the post of Superintending engineer earlier to the petitioners. As such, they are senior to the petitioner and the petitioners at the belated stage cannot make any grievance against the promotion of respondents No.7, 8 and 9 earlier to the petitioners 1 and 2 in the cadre of Chief Engineer and Engineer-in-Chief. The challenge of promotion of respondents No.7, 8 and 9 to the post of Superintending Engineer in 1981 as well as to the post of Chief Engineer made in the year 1988, at this belated stage cannot be entertained and should be rejected on the ground of laches alone. 22. I have considered the submissions made on behalf of the petitioners, learned Addl. Advocate-General, learned counsel for respondent No.6 and the learned counsel for respondents no.7,8 and 9 and perused the materials on record. 23. The challenge made in this petition are (i) recommendation of the reconstituted D. P. C. in its meeting dated 16-5-1994 in respect of the promotion of respondent No.6 to the post of Executive engineer, Superintending Engineer, Chief Engineer and the engineer-in-chief and consequent order passed on the recommendation and (ii)promotion of respondents No.7, 8 and 9 to the post or Chief Engineer and recommendation of the D. P. C. for their promotion to the post of Engineer-in-Chief and consequent order passed on the recommendation. 24. 24. The scope of enquiry in this writ-petition is confined to the question as to whether the reconstituted D. P. C. considered the matter entrusted to it in accordance with and/or in compliance with the direction of this Court contained in the judgment passed in c. W. J. C. No.3941 of 1983 and C. W. J. C. No.8341 of 1993 or not 25. Admittedly respondent No.6, a graduate in Engineering was appointed m the Short Service Commission in Indian Army in. the post of Second lieutenant in the year 1963 and he was released from Army in the year 1970 while he was working as Major in the army. After release from Army the respondent No.6 did not apply for the post of Assistant Engineer in response to the advertisement made in the year 1971 and 1972. However, he applied for the post of Assistant Engineer in response to the advertisement made in the year 1973 and was selected by the bihar Public Service Commission and was appointed to the post of Assistant engineer in the year 1975. As per the notification dated 21st June, 1969 the respondent No.6 was entitled to get weightage of his service rendered in the army for the purpose of fixing his seniority in the cadre of Assistant engineer and his seniority would have normally been fixed by allotting 1963 as the year of entry in the service m which year he was appointed as Lieutenant placing him at the bottom amongst the non-service recruits in the year 1963 in the post. However, respondent No.6 not having applied for the post of Assistant Engineer in response to the advertisement m the year 1971 and 1972, this Court by the judgment passed in C. W. J. C. No.3941 of 1983 held that respondent No.6 would not be entitled to the benefit of service for two years rendered in the army for fixation of the seniority in the cadre of Assistant Engineer and he would be allotted 1965 as the year of entry in the service for the purpose of fixation of his seniority. The D. P. C. constituted in the year 1971 as per the direction issued in the judgment passed in C. W. J. C. No.3941 of 1983, took pain in fixing seniority of the respondent No.6 in the post of Assistant Engineer and found that if full period of service rendered in the Army is taken into consideration by allotting 1963 as the year of entry into the service respondent No.6 would have been entitled for notional promotion to the post of Executive Engineer on 18-1-1980. Since this High court by the judgment passed in c. W. J. C. No.3941 of 1983 held that respondent No.6 would be allotted 1965 as the year of entry in the service on the basis thereof the D. P. C. found that position in the seniority list of Assistant Engineer of the respondent No.6 would be at serial No.587 just below the serial No.586 the last man in the gradation list of the appointees of the year 1965 and on the basis thereof, he would be entitled to get benefit of notional promotion to the post of Execu- tive Engineer on 12-1-1987 on which date immediate senior amongst the appointees of 1965 was promoted. Respondent No.6 unsuccessfully assailed the decision of the D. P. C. made in its meeting dated 9-8-1991 in the Hon ble Supreme Court as well as in this Court and the Government accepted that decision of the D. P. C. dated 9-8-1991. 26. Learned Addl. Advocate-General submitted that on the facts and the circumstances of the case the respondent No.6 had to be given notional promotion from the post of Assistant Engineer to the post of superintending Engineer. I find force in the submission of the learned Addl. Advocate-General that in the facts and circumstances of the case, respondent No.6 could be only given notional promotion to the higher post since he did not render any service for a single day in the post of Executive Engineer, it is not reasonable and practicable to make selection for the post of Superintending engineer on merit in comparison with the service records of other eligible executive Engineers Learned Addl. Advocate-General does not dispute that notional promotion to the post of Executive Engineer could be given to respondent No.6 on and from the date on which his immediate senior in the post of Assistant Engineer was promoted as Executive Engineer and similarly notional promotion from the post of Executive Engineer to the post of Superintending Engineer can be given to respondent No.6 on and from the date on which his immediate senior in the cadre of Executive Engineer is promoted as Superintending Engineer. The D. P. C. after fixing the seniority of respondent No.6 in the cadre of Assistant Engineer as per the direction of this Court, by the resolution dated 9-8-1991 having found that respondent No.6 was entitled to notional promotion to the post of Executive Engineer on 12-1-1987, the date on which the immediate senior was promoted and that respondent No.6 not having worked in the post of Executive Engineer for a single day, evaluation of comparative merit of his records of service with other Executive engineers for the purpose of selection to the post of Superintending engineer not being practicable, should have proceeded to decide as to whether turn of notional promotion of respondent no.6 to the post of Superintending Engineer came or not, and if so, from which date. But the D. P. C. after determining the date of notional promotion of respondent No.6 to the post of Executive Engineer did not proceed further to consider the question of promotion of respondent No.6 to the post of Superintending Engineer. The d. P. C. did not consider and determine the inter se seniority of respondent no.6 in the cadre of Executive Engineer after his notional promotion to that post on and from 12-1-1987, the D. P. C. also did not consider as to whether respondent no.6 come within the zone tor consideration of promotion to the post of superintending Engineer or not. Taking note of the aforesaid failure on the part of the D. P. C in paragraphs 58, 59 and 60 of the judgment passed in C. W. J. C. No.8341 of 1993, this Court in paragraph 71 of the said judgment directed the government to refer the matter to the said D. P. C for consideration of the cases of promotion to the post of superintending Engineer, Chief Engineer and engineer-in-Chief of the eligible candidate who would come within the zone of consideration. The Hon ble Supreme court also by the order passed on 8-4-1994 passed in S. L. P. No.6749 of 1994 filed against the judgment passed in c. W. J. C. No.8341 of 1993; directed that the reconstituted D. P. C. would proceed to make selection in accordance with the direction of the High Court. The submission of the learned counsel for respondent No.6 that in view of observation made in paragraphs "58, 59 and 60 of the judgment, this Court virtually discarded the resolution dated 9-8-1991 of the D. P. C. is without any substance. On the contrary, it is apparent from paragraph 71 of the judgment that this court directed that the said D. P. C. should complete the proceeding starting from the point where it discontinued to proceed in the meeting dated 9-8-1991. In other words, after having determined the seniority of respondent No.6 in the cadre of Assistant Engineer and the date of his notional promotion to the post of Executive Engineer in its meeting dated 9-8-1991 the D. P. C. was to proceed further to consider the question of promotion to the post of Superintending Engineer, Chief Engineer, and engineer-in- Chief. 27. On perusal of the impugned resolution of the reconstituted D. P. C. dated 16-5-1994, it becomes apparent that the reconstituted D. P. C. arbitrarily bade goodbye to the earlier resolution dated 9-8-1991 which was approved by the Government and proceeded to consider the matter ignoring the direction of this Court issued in the judgment passed in C. W. J. C. No.8341 of 1993. Although this court in the judgment passed in C. W. J. C. No.3941 of 1983 in no uncertain terms held that promotion of respondent No.6 in the rank of Captain and Major in the Army had no relevance in the matter of his promotion from the post of Assistant Engineer to the post of Executive Engineer, yet the reconstituted D. P. C. in gross disregard to the decision of this Court took into consideration the fact of promotion of respondent No.6 in the Army in the rank of Captain and Major and arbitrarily by fixing the seniority of respondent No.6 from the date of joining in the Army, held that he was fit for promotion to the post of Executive Engineer w. e. f.21-1-1971 and he completed Kalawadhi for promotion to the post of Superintending Engineer on 21-1-1973. Although respondent No.6 did not work for a single day in the Cadre of executive Engineer and had no records of service in that post, yet the reconstituted D. P. C. in the impugned resolution held that taking into consideration the service records alongwith the others, namely, the petitioner No.1, birendra Pathak and others, the confidential service records of respondent no.6 (Major Yadav) was found excellent and he was fit for promotion to the post of Superintending Engineer on 21-1- 1978 and to the post of Chief Engineer w. e. f.21-1-1986. As such his promotion to the post of Superintending Engineer with effect from 24-8-1983 and to the post of Chief Engineer with effect from 8-12-1988 was valid. In this connection it is to be noted that the petitioner No.1 was promoted to the post of Executive Engineer in 1963, the year in which the respondent No.6 was appointed in the Army as 2nd leiutenant. 28. As already observed above, the reconstituted D. P. C. as per the direction of this Court issued in the judgment passed in C. W. J. C. No.8341 of 1995 was required to proceed from the point where it discontinued to proceed further in its meeting dated 9- 8-1991. The direction of this Court issued in the judgment passed in C. W. J. C. No.8341 of 1993 is clear and that the reconstituted D. P. C. was to proceed further on the basis of the resolution dated 9-8-1991 in the matter of promotion to the post of Superintending Engineer, chief Engineer and the Engineer-in-Chief. As such apparently the reconstituted D. P. C. has neither proceeded nor passed the impugned resolution dated 16-5-1994 in accordance with the direction of this Court issued in the judgment passed in C. W. J. C. No.3941 of 1983 and C. W. J. C. No.8341 of 1993. On the contrary the reconstituted D. P. C. proceeded in its own way arbitrarily circumventing the decision and finding of this court passed in C. W. J. C. No.3941/83 and C. W. J. C. No.8341/93. I find foreign the submission of the learned counsel for the petitioners that reconstituted D. P. C. has passed the impugned resolution in disobedience to the direction of this Court issued in the judgments passed in c. W. J. C. No.3941 of 1983 and C. WJ. C. No.8341 of 1993. I find foreign the submission of the learned counsel for the petitioners that reconstituted D. P. C. has passed the impugned resolution in disobedience to the direction of this Court issued in the judgments passed in c. W. J. C. No.3941 of 1983 and C. WJ. C. No.8341 of 1993. As such, the impugned resolutions and the notification passed on the basis thereof cannot be sustained. 29. Undisputedly while petitioners no.1 and 2 were promoted to the post pf Executive Engineer in the year 1963 and 1972, respectively, the respondents no.7, 8 and 9 were promoted to the post of Executive Engineer in the year 1974 and were junior to petitioners No.1 and 2 in the cadre of Executive Engineer. But, respondents No.7, 8 and 9 were promoted to the post of Superintending Engineer against the post reserved for the members of Scheduled caste and Scheduled Tribe. 30. The submission of the learned counsel for the petitioners that promotion to the post of Superintending Engineer is made by selection and, as such, there cannot be any reservation in respect of promotion to the post of Superintending Engineer, cannot be entertained at the belated stage. But the question arises whether because of promotion to the post of Superintending Engineer against the reserved post earlier to the petitioners No.1 and 2, who were senior to them, respondents no.7, 8 and 9 would be assigned seniority in the cadre of Superintending engineer above the petitioners No.1 and 2 who were also promoted to the post of Superintending Engineer subsequent to respondents No.7, 8 and 9, or not. Admittedly the seniority list assigning the seniority of respondents No.7, 8 and 9 in the cadre of Superintending Engineer above the petitioner was challenged in C. W. J. C. No.4500/87 and during the pendency of the writ petition, the notification fixing the seniority was revoked. Admittedly the seniority list assigning the seniority of respondents No.7, 8 and 9 in the cadre of Superintending Engineer above the petitioner was challenged in C. W. J. C. No.4500/87 and during the pendency of the writ petition, the notification fixing the seniority was revoked. In this connection, reference may be made to the decision of the Hon ble Supreme Court in the case of union of India V/s. Virpal Chauhan, reported in 1995 (Vol.6) S. C. C.684 in which it has been laid down that such promotion against the reserved posts would not confer seniority in the cadre earlier to senior persons who are subsequently promoted in the normal course in the said cadre and the seniority to the promoted post is to be assigned on the basis of seniority in the post from which such promotion is made. This position of law is not disputed by the learned counsel for the respondents. Admittedly petitioners No.1 and 2 were senior to respondents No.7, 8 and 9 in the cadre of Executive Engineer and as such although they were promoted to the post of Superintending engineer after promotion of respondents No.7,8 and 9 against the reserved posts, seniority of petitioners No.1 and 2 in the cadre of Superintending Engineer would be assigned above respondents No.7,8 and 9. It is not clear from the affidavit of the State as to whether respondents No.7, 8 and 9 were promoted to the post of Chief Engineer against the posts reserved for the members of Scheduled caste and Scheduled tribe. Even if they were promoted against the reserved post in the cadre of chief Engineer, they will be junior to petitioners No.1 and 2 after the promotion of the petitioners to the post of chief Engineer on the same analogy inasmuch as they deemed to be junior to the petitioners in the feeder post of Superintending Engineer. I also find force m the submission of the learned counsel for the petitioners that in any view of the learned counsel for the petitioners that in any view of the matter,out of four posts of Engineer-in-Chief, more than one post cannot be kept reserved for the members of the Scheduled caste and Scheduled Tribe put together. 31. I also find force m the submission of the learned counsel for the petitioners that in any view of the learned counsel for the petitioners that in any view of the matter,out of four posts of Engineer-in-Chief, more than one post cannot be kept reserved for the members of the Scheduled caste and Scheduled Tribe put together. 31. For the reasons stated above, this petition is allowed and the impugned resolution dated 16-5-1994 as well as the impugned order passed and the impugned notification No.7205 (5)dated 21- 9-1994 (Annexure 15) issued on the basis thereof are set aside. Respondent No.1 is directed to refer the matter to the validly constituted d. P. C. within a period of one month from today to complete the process of selection as per the direction of this court issued m the judgment passed in c. W. J. C. No.3941 did not proceed further, in the light of the above observations. The D. P. C. will complete the process of selections and submit its recommendation within a period of one month from the date of matter is referred to it. It is submitted by the learned counsel for the petitioners that during the pendency of the writ-petition petitioner No.1 has retired from service and that petitioner No.2 is going to retire from service shortly on attaining the age of superannuation. Because of the fact that petitioner No.1 has already retired during the pendency of the writ petition and petitioner No.2 is going to retire from service shortly, they cannot be deprived of the benefits of promotion in the cadre of Chief Engineer and the Engineer-in-chief to which they would have been lawfully entitled. Admittedly petitioner No.1 while in service was promoted to the post of Chief engineer and was found fit for promotion to the post of Engineer-in-chief by the constituted D. P. C. The Statement of petitioner to No.1 made in paragraph 38 to the effect that he had completed his Kolawadhi on 2-1-1994 for promotion to the post of Engineer-in-chief and that on 17-5-1993 the vigilence clearance was given by letter No.590, has not been specifically denied by respondent No.1 in the counter-affidavit. It is already held above that petitioners No.1 and 2 shall be deemed to be senior of respondents No.7,8 and 9 in the cadre of Superintending engineer. It is already held above that petitioners No.1 and 2 shall be deemed to be senior of respondents No.7,8 and 9 in the cadre of Superintending engineer. As such, I direct that the promotion of petitioner No.1 in the cadre of chief Engineer should be notionally given effect on and from the date on which his immediate junior is promoted and he should be deemed to be promoted to the post of Engineer-in-chief on and from the date on which his immediate junior is promoted in that post. The petitioner No.1 shall be entitled to all consequential benefit of promotion to the post of Chief Engineer as well as Engineer- in-Chief including in his pension and other pensioner dues. Similarly, notwithstanding with the retirement before the final selection is made by the D. P. C. in case the D. P. C. finds petitioner No.2 fit for promotion to the post of Engineer-in-Chief he shall be notionally promoted to the post of Engineer-in- Chief on and from the date of promotion of immediate junior in the post of Chief Engineer and he shall be entitled to get all consequential benefits of promotion. The petition is allowed with costs of Rs.1,000/-. The cost will be payable by respondent No.1. Petition Allowed