SANJAY KISHAN KAUL, J. .1. The petitioner was commissioned in the Army in the Corps of Engineers on 28.12.1952 and the service of the petitioner was placed at the disposal of the Ministry of Education and Scientific and Research for employment in the Survey of India on 30.09.1957. The petitioner achieved the substantive rank of Major on 28.12.1965 and was granted the substantive rank of Lieutenant Colonel in the post of Deputy Director on 23.11.1977. The petitioner was granted the substantive rank of Colonel in the post of Director on 01.09.1983. A selection was carried out by the UPSC for the post of a Surveyor General of India in the scale of Rs.5900-200-7300. The recruitment rules required the post to be filled up 100 per cent by direct recruitment with a probation period of two years. The petitioner was selected by the UPSC and was appointed as the Surveyor General of India on 02.01.1989. The petitioner was granted the local rank of a Major General on 16.01.1989. The Ministry of Science and Technology, however, requested the Military Secretary to confer the acting rank of Lieutenant General instead of local rank of .Major General during the probation period to be made into substantive rank after successful completion of probation as per a letter dated 07.03.1989. The letter also referred to the appointment of the petitioner on direct recruitment basis on probation period of one year. The letter reads as under: Dear Gen.Sharma, Based on the recommendation of the UPSC and with the approval of the Government, Col.S.M.Chadha, an officer of Corps of Engineers on permanent secondment to Survey of India (SOI), has been appointed as Surveyor General of India with effect from 2nd January, 1989. Since his appointment is on direct recruitment basis, he would be on probation for a period of one year. As per letter No.28160/Svy/18/MS(X) dated 16.01.1989, local rank of Major General has been conferred on Col.S.M.Chadha. As per the revised Recruitment Rules framed recently for the Army stream of SOI Group A Service, the rank of acting/substantive rank of Lt.General would be conferred on the incumbent occupying the post of Surveyor General. I would request that the acting rank of Lt.General (instead of local rank) may please be conferred on Col.S.M.Chadha during the probation period, which could be subsequently made into a substantive rank after he successfully completes the probation. I would request that the acting rank of Lt.General (instead of local rank) may please be conferred on Col.S.M.Chadha during the probation period, which could be subsequently made into a substantive rank after he successfully completes the probation. With kind regards, Yours sincerely (D.B.Sehgal) Lt.Gen Y.N.Sharma, AVSM, VSM, Military Secretary, Army Headquarters, South Block, New Delhi 2. The service conditions were earlier governed by Survey of India Group A Recruitment Rules, 1960, Survey of India (Recruitment from Corps of Engineer Officers) Rules, 1950 and Surveyor General of India (Survey of India) Recruitment Rules, 1974. These Rules were superseded by the Survey of India (Group A) Service Rules, 1989 (the said Rules for short) which came into force on 17.06.1989. Rule 1(2) of the said Rules provides for the Rules to come into force from the date of their publication in the official gazette while Rule 4 reads as under: 4. Members of the Service 1) The following persons shall be members of the Service: a) Persons appointed to the service at the publication of these rules in the Official Gazette; b) Persons appointed to the service under rule 8 after the publication of these rules from the dates so appointed. 2) A person appointed under clause (a) of subrule (1) of the rule shall on such publication be deemed to be a member of the service in the corresponding grade. 3. It is the case of the petitioner that in view of the aforesaid Rule, the petitioner already having been appointed to the service, was deemed to be a member of the service in the corresponding grade on publication of the Rules. The petitioner was holding the post of Surveyor General of India and the Rule 6 of the said Rules provided for the pay and allowances and other benefits. Rule 6 in so far as it applies to the petitioner is as under: 6. Pay and Allowances and other benefits: . iv) The officers holding posts against the Defence Stream would have the following equivalence of ranks Post of Group A Service (Defence Stream) The Corresponding rank in Corps of Engineers for the purpose of fixation of pay Minimum No.of years of service for substantive rank 6. Surveyor General (Rs.7300-7600) (Whenever from Defence Stream) Lt. General 28 years. .4. iv) The officers holding posts against the Defence Stream would have the following equivalence of ranks Post of Group A Service (Defence Stream) The Corresponding rank in Corps of Engineers for the purpose of fixation of pay Minimum No.of years of service for substantive rank 6. Surveyor General (Rs.7300-7600) (Whenever from Defence Stream) Lt. General 28 years. .4. It is the case of the petitioner that he is thus deemed to be a member of the service in the pay scale of Rs.7,300-100-7,600 with substantive rank of Lieutenant General with effect from 17.06.1989. It may, however, be noticed that in terms of the letter dated .07.03.1989 and the Ministry of Science and Technology of the Government of India, the appointment of the petitioner as a Surveyor General of India with effect from 02.01.1989 on the direct recruitment basis stipulated that the petitioner would be on probation for a period of one year. Thus, the said Rules came into operation when the petitioner was still on probation. A letter was thus addressed on 04.07.1989 by the Assistant Surveyor General in respect of the pay fixation of the petitioner in the new scale with effect from 17.06.1989, the date when the said Rules came into force. This was as per FR-23. 5. The notification was published by the Govt. of India dated 15.10.1990 appointing the petitioner in his existing post of Surveyor General of India in the upgraded scale with effect from forenoon of 10.10.1990. The petitioner represented against the same on 21.11.1990 as the petitioner was claiming the upgraded pay scale from 17.06.1989. It is the case of the petitioner that as per Rule 4, the said Rules were to have immediate application and thus the petitioner was entitled to the new scale from 17.06.1989 and not from 10.10.1990 as was done. 6. It is the case of the petitioner that officers who were subordinate to the petitioner in the Army were granted the acting rank of a brigadier with effect from 17.06.1989 in terms of the said Rules whereas the petitioner remained in the substantive rank of a colonel. The representations of the petitioner did not succeed as the petitioner was granted only a local rank and not a substantive rank of a Lieutenant General as per the letter dated 20.11.1989 prior to the issuance of the notification dated 15.10.1990. The representations of the petitioner did not succeed as the petitioner was granted only a local rank and not a substantive rank of a Lieutenant General as per the letter dated 20.11.1989 prior to the issuance of the notification dated 15.10.1990. The petitioner retired on 30.11.1990 and even thereafter followed up the matter making representations. However, the respondents clarified vide letter dated 24.02.1992 in respect of the issue of substantive promotion as under: To, The Chief of Army Staff New Delhi Sub: Substantive promotion: Corps of engineers Officers seconded to the Survey of India. Sir, The Corps of Engineers Officers seconded to the Survey of India were being given substantive military ranks under the provisions of Ministry of Defence letter No.27(1)58/6426/D(W-II) dated 23.04.1977 and Nos.90797/EIA/4409/D(W-II) dated 01.05.1986. The Department of Science and Technology have published GSR 437 dated 26.05.1989 regulating the method of recruitment to posts in the Survey of India, Group A, Service. Equivalence of ranks of the officers holding posts against the Defence Stream has been laid down in Rule 6(iv) of the said GSR, which has come into force on 17.06.1989 : ( Extracts of this rule are annexed). 2. The matter regarding grant of substantive ranks to Corps of Engineers Officers of the rank of Lt. Col and above seconded to Survey of India in view of the provisions of Rule 6(iv) of the above cited GSR has been under consideration of the Ministry of Defence for some time. The president is pleased to decide that such officers will, subject to fulfillment of provisions obtaining in regard to length of service as laid down in Rule 6(iv) and the requisite medical standards will be given substantive military ranks as indicated in the GSP, on their being appointed to the equivalent civil posts from the date of holding such posts. 3. For granting substantive military ranks to such officers the provisions laid down in Para 67 of Defence Services Regulations, Volume I, Revised Edition, 1987 and other Army Orders/Instructions issued from time to time in this regard will be followed. 4. The substantive posts in the Defence stream in the Survey of India will be supernumerary to the sanctioned substantive cadre strength of Lt. Colonel and above in the Regular Army. 5. This letter shall also apply in cases where promotions in the civil posts have already been made in pursuance of the above cited GSR. 6. 4. The substantive posts in the Defence stream in the Survey of India will be supernumerary to the sanctioned substantive cadre strength of Lt. Colonel and above in the Regular Army. 5. This letter shall also apply in cases where promotions in the civil posts have already been made in pursuance of the above cited GSR. 6. This letter issues with the concurrence of Finance Division of this Ministry vide their ID No.577/Addl.FA(P) of 1992. Yours faithfully (Dr.S.K.Sharma) Director (Pensions) 7. The request of the petitioner was thus not acceded to vide letter dated 25.02.1992 on the ground that the Appointments Committee of the Cabinet had approved the appointment of the petitioner as Survey General Of India in the upgraded scale only with effect from 10.10.1990. The petitioner once again made representations on 13.03.1992 and 05.05.1992 urging the anomaly and injustice done to the petitioner as officers junior to the petitioner were granted substantive ranks of Brigadier and Major General as against the case of the petitioner who continued in the substantive rank of a colonel and drew pension related to the said rank. The petitioner claims that in view of Rule 4 r/w Rule 6(iv) of the said Rules, the fitment of the petitioner is automatic and there is no probation period for officers appointed by selection from among the departmental officers. In the alternative, it is submitted that even otherwise the petitioner was appointed on one year probation from 02.01.1989 and he completed the probation of 01.01.1990. The said Rules came into force on 17.06.1989 which entitled him to the pay in the enhanced grade as also the substantive rank of Lieutenant General. 8. The respondents have contested the petition by emphasizing that the appointment of the petitioner with effect from 02.01.1989 was under the Recruitment Rules being Surveyor General of India (Survey of India), the Recruitment Rules, 1974. In terms of the Recruitment Rules, the period of probation of petitioner was two years and the petitioner retired on 30.11.1990. It was thus submitted that the petitioner would have retired under the old Rules before the completion of probation period. The petitioner was still on probation when the said Rules came into force and, therefore, the appointment of the petitioner should be treated as a fresh appointment under the new Rules which would take effect from the date approved by the Appointments Committee of the Cabinet. 9. The petitioner was still on probation when the said Rules came into force and, therefore, the appointment of the petitioner should be treated as a fresh appointment under the new Rules which would take effect from the date approved by the Appointments Committee of the Cabinet. 9. The counter affidavit filed on behalf of the Surveyor General of India explains that the case for grant of substantive rank of Lieutenant General to the petitioner was examined by the Ministry of Defence in consultation with the Ministry of Science and Technology but was not agreed to as one of the conditions for grant of substantive rank of Lieutenant General was that the petitioner should be appointed substantively in the corresponding civil post. The petitioner remained on probation at the time of recruitment and could not be given the substantive rank of Lieutenant General. The proposal to appoint the petitioner with a retrospective effect from 17.06.1989 was put up for approval by the Appointments Committee of the Cabinet which found that the petitioner should be given the enhanced grade only from 10.10.1990. It is not in dispute that the other officers were granted substantive ranks of Brigadiers and Major General on 05.05.1992 as per the letter of the Ministry of Defence but the request in the case of the petitioner was not acceded to. A distinction is sought to be made on the ground that the appointment of the petitioner was through direct recruitment by UPSC and the petitioner was on probation at the time of his recruitment. 10. We have examined the rival submissions of the parties and have perused the pleadings. The controversy in question has arisen primarily on account of the fact that while the appointment of the petitioner as a Surveyor General of India took effect from 02.01.1989 under the earlier Rules of 1974 providing for a probation period of 2 years (the letter dated 07.03.1989 refers to probation period of one year, but the basis is not clear) , the Rules stood amended with the said Rules coming into force on 17.06.1989 which provided not only for a different pay scale and rank, but a revised probation period of one year. 11. The case of the petitioner thus is that the said Rules came into operation immediately as per Rule 1(2) of the said Rules. 11. The case of the petitioner thus is that the said Rules came into operation immediately as per Rule 1(2) of the said Rules. Rule 4 of the said Rules stipulates that a person like the petitioner appointed under Clause (a) of sub rule (1) of the said Rules shall be deemed to be a member of the service in the corresponding grade as per sub rule (2) of the said Rules. The effect would be that from the date the revised rules came into force, the probation period of the petitioner would stand reduced to one year apart from the fact that the petitioner would be in the new scale and the new rank. The substantive rank would thus be entitled on completion of the probation period of one year in January, 1990 and thus the petitioner was entitled to the pay scale and the substantive rank under the new Rules having retired only on 30.11.1990. The stand of the respondents, on the other hand, is that though the petitioner was appointed under the Rules of 1974, if the new Rules had not come into force, the petitioner would have remained on probation for two years and would have retired on probation since he would not have completed 2 years of service up to the date of retirement. Since new Rules came into force, the appointment of the petitioner is a fresh appointment under the said Rules which takes effect from the date it was made on 10.10.1990 and thus the petitioner cannot be said to have completed the period of one year of probation under the new Rules. 12. In our considered view, the important fact is that the appointment of the petitioner under the Rules of 1974 on 02.01.1989 cannot be said to have been obliterated or discharged by reason of the said Rules having come into force. It is in order to protect the appointments made under the earlier Rules that the said Rules clearly provide that they come into force on the publication in the Official Gazette. The said Rules were in supersession of three sets of Rules earlier framed. As to whether the petitioner should be treated as a member of the service depends upon what is stated in Rule 4 of the said Rules. The said Rules were in supersession of three sets of Rules earlier framed. As to whether the petitioner should be treated as a member of the service depends upon what is stated in Rule 4 of the said Rules. There are two kinds of appointments envisaged i) appointments which were in existence at the date of publication of the Rules and ii) appointments made after the publication of the Rules. The petitioner is a person already appointed to the service at the stage of publication of the Rules and thus falls under Rule 4(1)(a) of the said Rules. Rule 4(2) of the said Rules makes it clear that in case of such a person, he shall be deemed to be a member of the service in the corresponding grade. Thus the petitioner is deemed to be Surveyor General of India under the new Rules in view of the aforesaid provisions and in the corresponding grade of Lieutenant General with pay scale of Rs.7300-100-7600. Once the petitioner becomes a member of the service, it is the probation period under the new Rules which comes into force and as per Schedule IV of said Rules, the period is one year for any direct recruit. The petitioner would thus complete the probation on expiry of one year from the date of appointment of 02.01.1989 and would thus be entitled to the substantive rank at this stage which is prior to the retirement of the petitioner on 30.11.1990. 13. We are of the view that the respondents are misinterpreting the aforesaid provisions as if fresh appointment has been made under the said Rules. If such a plea was to be accepted, it would imply that the initial appointment of the petitioner under the earlier Rules of 1974 stood terminated and abrogated. It is such a situation which is sought to be avoided by the clear provisions under Rule 4 of the said Rules. The respondents cannot be permitted to plead that since under the earlier Rules the petitioner was to be on probation for two years, the petitioner would not have completed the said probation period up to the date of his retirement. Firstly, nothing prevents the employing authority to confirm a person prior to the expiry of the full period of probation who have themselves referred to a probation period of one year under the old rules vide letter dated 07.03.1989. Firstly, nothing prevents the employing authority to confirm a person prior to the expiry of the full period of probation who have themselves referred to a probation period of one year under the old rules vide letter dated 07.03.1989. Secondly, the object of Rule 4 of the said Rules is apparent that a person already in service would be deemed to be in service under the new Rules and governed by the terms and conditions of the new Rules. There was thus no case of any fresh appointment to be made but of confirmation on expiry of probation period under the new Rules which is one year and which would arise in January, 1990 while the petitioner retired on 30.11.1990. The petitioner is thus, in our considered view, entitled to the pay scale of Rs.7300-100-7600 from the date when the Rules came into force on 17.06.1989 and would have attained the substantive rank of a Lieutenant General on expiry of period of probation since the petitioner was required to be in the substantive corresponding civil post. The petitioner would thus not be entitled to the substantive rank of Lieutenant General with effect from 17.06.1989 as prayed for but from 01.01.1990 on completion of period of probation of one year. The petitioner having retired form service thereafter would thus be entitled to the pension in accordance with the aforesaid scale and rank from the dates stipulated above. 14. We are also unable to accept the plea of the respondents that the petitioner should be denied the benefit because he had only a right to be considered to the substantive rank but does not have a right to be granted the substantive rank. It is apparent from the pleadings that the only reason for non grant of the substantive rank is the factum of the petitioner not being in the corresponding substantive civil post. Once we come to the conclusion that the petitioner was entitled to the substantive civil post of Surveyor General of India on completion of period of probation of one year form 01.01.1990, there was no other impediment in the way of the petitioner being granted the substantive rank of a Lieutenant General. 15. Once we come to the conclusion that the petitioner was entitled to the substantive civil post of Surveyor General of India on completion of period of probation of one year form 01.01.1990, there was no other impediment in the way of the petitioner being granted the substantive rank of a Lieutenant General. 15. A writ of mandamus is issued directing the respondents to treat the petitioner in the pay scale of Rs.7300-100-7600 with effect from 17.06.1989 and to grant a substantive rank of a Lieutenant General with effect from 01.01.1990 with a further direction to fix the pension of the petitioner in the rank and pay scale in terms thereof. The needful be done within a period of three months from today and the arrears be also paid to the petitioner within the same period of time. 16. The petition is accordingly allowed with costs quantified at Rs.5,000/-.