ivil Appeal No 1191 of 1990
From the Judgment and Order dated 1571988 of the Madhya Pradesh High Court in MP No 600 of 1985
AK Sen AK Gupta and NP Mahendra for the Appellants
RB Datar Satish K Agnihotri Devender Singh Ashok Singh and RB Misra for the Respondents
The Judgment of the Court was delivered by RANGANATHAN J
The controversy in this Special Leave Petition arises out of the merger with effect from 1101982 of the staff of the Madhya Pradesh Lift Irriga tion Corporation hereinafter referred to as the Corpora tion  with that of the Irrigation Department of the State Government consequent on the abolition of the Corporation
We have heard counsel on both sides and we are of opinion that these matters should be disposed of finally even at this 428 stage
We therefore grant leave in the Special Leave Peti tion and proceed to dispose of the appeal
Appellants 2 to 17 and certain other writ petitioners in the High Court were serving as Senior Technical Assistants STA in the Corporation
The cadres of STAs and the lower cadre of Junior Technical Assistants JTAs in the Corporation were equivalent respectively to the cadres of Junior Engineer JE and Sub Engineers SE in the Irrigation Department of the State
It is common ground that the qualifications for appointment to the two sets of posts were the same and that their pay scales were also the same
The appellants claim that they are entitled after the merger of the Corporation into the Irrigation Department to be treated as Junior Engineers and considered for promotion as Assistant Engineers on completion of two years of service but that this avenue of promotion is being denied to them by the State
To appreciate the above contention it is necessary to set out some historical background of the cadres in the State Department
Initially the Junior Engineer s post in the State Government was a non gazetted post governed by the Madhya Pradesh Irrigation Department Non Gazetted Service Recruitment Rules 1969
The Junior Engineers on completion of two years  minimum service were entitled to consideration for promotion to the gazetted post of Assist ant Engineer a post governed by the Madhya Pradesh Irriga tion Engineering Service Gazetted Recruitment Rules 1968
On March 19 1973 the posts of Junior Engineers were de clared to be gazetted posts
75 of the posts of Assistant Engineers could be filled up by promotion from amongst Junior Engineers
On January 1 1978 the Junior Engineer s post was once again converted into a non gazetted post
The quota for such of those Junior Engineers as were working as gazetted officers immediately before the issue of this order was retained at 75 as before for a period of two years by which time it was expected that all of them would get pro moted as Assistant Engineers
But for this the posts of Assistant Engineers were to be filled up equally by promo tion from subordinate cadres and direct recruitment
The promotion quota was distributed among the subordinate cadres in the following proportion Junior Engineers Non Gazetted 25 Overseers Sub Engineers 20 Head DraftsmanDraftsman 5 429 In July 1979 the Government decided to abolish the post of Junior Engineers in the State Irrigation Department
The relevant cabinet order set out the following terms there fore 1
The posts of Junior Engineer in the three works depart ments should be abolished
The Junior Engineers presently working in these departments shall continue to work in their existing payscales under the existing service conditions till their promotion
emphasis added 2
The quota of recruitment for the post of Assistant Engi neer which is at present 50 should be raised to 75
3 25 posts in the Sub Engineer cadre be converted into selection grade posts and selection for the selection grade post should be made on the basis of merit cum seniority
The quota prescribed for promotion of the Draftsmen should be reduced from 5 to 3
Promotion quota of 2 should be reserved for those Sub EngineersDraftsmen who obtain degree while in service
The posts of Junior Engineer cadre which presently exists should be converted into the posts of Assistant Engineers and Sub Engineers with the concurrence of the finance department
Eventually the State Government decided on 27th May 1980 that the 941 posts of Junior Engineers in the Irrigation Department should be abolished by converting 658 of those posts into posts of Assistant Engineers and 233 posts into posts of Sub Engineers OverseersIt must be however pointed out that though the existing posts of J Es
or SEs stood abolished from 275
1980 in fact a number of Junior Engineers appointed earlier continued to function as before under the memorandum of July 1979 until they re ceived promotions as Assistant Engineers AEs  in due course
We now come to the details of the merger between the Corporation and the State Department
In August 1982 a decision was taken to abolish the Corporation
The Govern ment decided on the merger the surplus staff of the Corpora tion in the Irrigation Department and 81082 was decided upon as the effective date of merger for purposes
We are concerned here with the formula for transition set out in the opening para of a memorandum of the above date regarding the 430 merger of the posts of STAs
and JTAs
It read thus 2
Senior Technical Sectioned posts Nil Assistants The above employees may be Equivalent Post merged in the posts of Junior Engineer Junior Engineers and an Rs 360 650 equivalent number of posts may be deemed to have been 27 posts Civil created in the dying cadre Posts Electrical of Junior Engineers
Mechanical posts Geologists post Geophysist 3
Junior Technical Sanction 30 posts reserved
Assistants Equivalent These may be merged against post Sub Engineer the posts of Sub Engineers Rs280 480 which have been obtained by conversion of the posts of 62 Posts Civil Junior Engineer
The posts reserved for Scheduled Castes and Scheduled Tribes may be made unreserved and appointments may be made against them also
 The memorandum of 8101982 was followed up by a commu nication dated 10111982
The enclosures to this letter described the absorptions as ad hoc but this word was deleted on 291
1983 with reference to the posts with which we are concerned making it clear that the absorption was to be permanent
The letter set out three conditions for the merger which admittedly are fulfilled by the appellants i The staff will be absorbed only subject to their ful filling the qualifications prescribed for the posts against which they are to be absorbed ii The inter se seniority of the employees of the Corpora tion shall be in accordance with the seniority list cleared by the Managing Director
The inter se seniority of the departmental employees and the employees of the Corporation shall be determined in accordance with the orders of the Government and 431 iii It was open to an employee of the Corporation to join the Government department or not to do so for the employees were to be required to join duties at the place of their posting within 20 days from 1011
1982 failing which it was to be deemed that the appointment was not acceptable to them
The seniority rule was announced much later on 1641984
It said The regular officersemployees of the Corporation shall in the event of merger in the Irrigation Department be consid ered as Junior to the permanent officersemployees of the Department and their seniority in the lists of the temporary officersemployees of the department shall be fixed on the basis of the dates of assuming office without affecting the inter se seniority of the Corporation
The result of all this according to the appellants was that the STAs of the Corporation became wef 810982 JEs of the department but their seniority therein was below the JEs of the State Department who had been in office in July 1979 and continued to function as such even thereafter
It is stated that these Junior Engi neers in the Department were being gradually promoted as AEs
and it was only sometime in 1983 that the appellants who were at the bottom of the seniority list became eligible for promotion as AEs
Their legitimate claims in this regard it is alleged were being stalled by the State and so the appellants filed a writ petition in the High Court in 1985
Sometime later the appellants allege it came to light that the State far from giving the petitioners their legit imate entitlement was planning a voiteface to upset the whole scheme of merger as envisaged earlier to the detri ment of the applicants
This they did it is said by issu ing a memo on 13 1986 which read thus 1
The State Government amends point No 2 of paragraph 1 of the orders issued vide Irrigation Department s Memo No 22C4332P37 dated 8101982 as follows 2 Senior Technical   The above employees Assistants   may be absorbed on equivalent to Junior   the post of Sub Engineer Rs350 650   Engineer protecting 432 the pay which they were drawing 27 posts Civil   previously
Such 34 posts Electrical   absorbed employees shall be eligible for promotion to the posts of A Es
from the quota of Graduate Sub Engineers
These orders shall come into effect from 810 1982
 This order vitally affected the interests of the appellants in four respects a Having been absorbed into the State Department as JEs
in 1982 they were suddenly demoted to the post of SEs
retrospectively with the saving grace that their pay was protected b Under the seniority rules of 1984 earlier referred to they were at the bottom of the list of JEs
but above the SEs
But now they became juniors to all the Sub Engineers of the Department c While previously a substantial quota for promotion from JEs
to AEs
was applicable to them the quota now got reduced as will be explained later to 4 and d While previously an experience of 2 years was sufficient for their promotion now they had to have a minimum experi ence of 8 years as will be seen later
The combined effect of all this is it is alleged that the appellants will become eligible for consideration for promo tion as AEs
in the distant future as follows Year No of posts available Graduate Sub Engineers quota 1989 1 1997 3 2004 2 2007 1 2008 1 433 In other words only 8 persons will become eligible at distant dates whereas all of the appellants should have received promotions gradually since 1983 as and when vacan cies occurred
The appellants contend that this is a great travesty of justice which should be set right by quashing the decision of 13 1986 and restoring the position as it actually prevailed on 8101982 at the time of the merger
Sri Datar attempted to counter this what prima facie appeared to be a just and reasonable plea with his usual persuasiveness
He urged that the contentions of the appel lants overlook four important basic facts and that if these are kept in mind it will be seen not merely that no injus tice has been done to the appellants but that in fact the State has come to their rescue by providing an avenue of promotion where none existed
These basic facts are he says 1 As from 2751980 there was no cadre of junior engi neers at all in the State service
That cadre had been abolished by the decision of 1979 and the conversion on 2751980 of the existing posts of JEs into those of AEsSEs
2 There had been an amendment on 27781 to the relevant recruitment rules which made it clear that after that date at least there could be no promotions to the posts of AEs
from among JEs
3 When the Corporation was abolished in 1982 the State Government could have dispensed with the services of the appellants
Instead they considered the appellants  cases sympathetically and decided to absorb them into the State service
In doing so they purported to absorb them as JEs
overlooking that as on 8101982 there was no cadre of JE in the State service
It is this mistake that was rectified on 131986 by absorbing the appellants as SEs
instead of as JEs but protecting the pay they were drawing
4 The petitioners had an option to join or not to join the State service on 8101982 as JEs
When they decided to join they were aware that according to the rules prevail ing on that date there was no avenue of promotion for them as A Es
The net result of these considerations is says Sri Datar that instead of completely denying the appellants any promotion altogether as there was no right under the rules to any such promotion 434 the State has equitably decided to confer on these offi cers a right of promotion by treating them as SEs
This was a generous gesture on the part of the State
The appellants should have been happy that an avenue for promotion had been opened out to them instead of being disgruntled on the assumption that their promotion chances had dwindled by the action of the State
This was the only reasonable way of resolving the impasse that faced the appellants and the authorities
Since Sri Datar has referred to the rules it will be appropriate to pause here and notice the relevant service rules and the amendments made thereto Taking up the Non Gazetted Service Rules of 1969 first they provided in Schedule I read with rule 5 for 269 posts of Civil Engineers and 13 posts of ElectricalMechani cal Engineers in the cadre of Junior Engineers
Curiously enough these rules appear to have remained unamended not withstanding the decision of 1979 to abolish these posts and the office order of 1980 converting these posts these appear to have numbered 941 at the relevant time into AEs
or SEs
Turning next to the Gazetted Service Rules the follow ing provisions thereof are relevant Rules 7
Method of recruitment 1 Recruitment to the service after commencement of the rules shall be by the following methods viz a by direct recruitment by selection b by promotion of substantiveofficiating member of the MP Irrigation Engineering Service Gazettedand c by transfer of persons who hold in a substantive capaci ty such posts in such services as may be specified in this behalf
2 The number of persons recruited under clause b or clause c of sub rule 1 shall not at any time exceed the percentage shown in Schedule II of the number of duty posts as specified in Schedule I
435 3 Subject to the provisions of these rules the method or methods of recruitment to be adopted for the purpose of filling any particular period of recruitment and the number of persons to be recruited by each method shall be deter mined on each occasion by the Govt
in consultation with the Commission
4 Notwithstanding anything contained in sub rule 1 if in the opinion of the Govt the exigencies of the service so require the Govt
may after consulting the General Admin istration Department adopt such methods of recruitment to the service other than those specified in the said sub rule as it may by order issued in this behalf prescribe
Rule 15
Conditions of eligibility for promotions1 Subject to the provisions of sub rule 2 the Committee shall consider the case of all persons who on the 1st day of January of that year had completed the prescribed years of service whether officiating or substantive in the post service mentioned in column 2 of Schedule IV or any other post or posts declared equivalent thereto by the Govt
as under and are within the zone of consideration as per subrule 2 i Sub Engineers Head DraftsmanDraftsman to the posts of Assistant Engineers Minimum service of 12 years as Sub Engineers Head DraftsmanDraftsman
Provided that a Sub Engineer and Head Draftsman Draftsman who has completed a minimum of 8 years  service and possesses degree in CiviElectricalMechanical Engineer ing from recognised university or qualification declared equivalent thereto by the State Govt will also be eligible for promotion to the post of Assistant Engineer and will be considered each time just after the zone of consideration and then final selection just will be made from both the groups on the basis of merit
For example if ten posts are vacant in the cadre of Asstt
Engineer to be filled by promotion of Sub Engineer then 10x550 diploma holder Sub Engineers from working list be considered first and thereaf ter the eligible graduate Sub Engineers be considered in the order of their seniority for promotion
436 ii Junior Engineers to the posts of Assistant Engineers minimum service of 2 years as Junior Engineer
XXX XXX XXX Rule 18
Select list 1The Commission shall consider the list prepared by the Committee along with the other documents received from the Govt
and unless it con siders any change necessary approve the list
2 If the Commission considers it necessary to make any changes in the list received from the Govt
the Commission shall inform the Govt
of the changes proposed and after taking into account the comments if any as may in its opinion be just and proper
3 The list as finally approved by the Commission shall form the select list for promotion of the members of the cadres of Sub Engineers Head DraftsmanDraftsmen Research Assistant and Junior Engineers of the MP Irrigation Engi neering Service or its higher cadres as the case may be
4 The selectee list shall ordinarily be enforced until it is reviewed or revised in accordance with sub rule 4 of rule 16 but its validity shall not be extended beyond a total period of 18 months from the date of its preparation Provided that in the event of a grave lapse in the conduct of performance of duties on the part of any person included in the select list a special review of the select list may be made at the instance of the Govt
and the Commission may if it thinks fit remove the name of such person from the select list
underlining ours Schedule I to the rules specified the number of posts in each cadre
So far as Assistant Engineers Class II are concerned the number of posts is put at 329 253 permanent and 76 temporary in the Civil Branch and 36 22 permanent and 14 temporary in the Electrical  Mechanical Branch
The description and contents of the relevant columns of Schedule II have to be set out a little more meticulously
They read 437 Name Name Total No MP Irrigation Engg
of of of duty Service Gazetted Deptt
service post PTT percentage of the number of duty posts to be filled in By direct By promo By transfer recruitment non of the of persons substantive from other service members of the service vide vide vide rule rule rule 7a 7b 7c1 1 2 3 4 5 6 Civil AE Class 253 76 329 50 50 25 by promotion Irriga II of JEs tion 20 by promotion Deptt of SEs previously Overseers 5 by promotion of Head Draftsman Draftsmen Elec do 22 34 36 50 50 As for AE trical  Mecha nical Branch underlining ours Schedule IV says that JEs
Class III with minimum experi ence of two years as well as SEs and Head DraftsmenDraftsmen with 12 years  experience 8 years in the case of degree holders will be eligible for promotion as AEs
Class II on selection by a departmental committee constituted as specified therein
The interesting feature regarding the amendments of 1981 relied upon by Sri Datar is that they left the rules quoted above and Schedules I  IV untouched
They only amended Schedule II in two respects 1 In the heading of column 5 the words By promotion were 438 substituted for the words By promotion of substantive members of the service vide rule 7b
2 The figures in columns 4 and 5 were substituted by the following in respect of both the Civil Branch and the Elec trical Mechanical Branch 4 5 60 40 33 by SEs
who are diploma holders 4 by SEsDraftsmen who are Engineering Graduates 3 by DraftsmenHead Draftsmen who are not Engineering Graduates
We have considered the submissions of the parties in the light of the above rules and amendments and come to the conclusion that there is force in the contention of the appellants that they are eligible for promotion as AEs
in the same manner as the erstwhile JEs
of the Irrigation Department
The assumption of the respondents that the cadre of JEs
had ceased to exist long before the absorption of the present appellants into the Department is incorrect
As pointed out earlier though the decision to abolish the cadre was taken in 1979 and the existing posts were convert ed into those of AEsSEs
on 275
1980 the cadre did not die for the JEs
of the Department who were then function ing continued to function as before until they were promoted in due course as AEs
It is also not correct to say that this crucial fact had been overlooked at the time of passing the merger order of 8101982
On the contrary the State was fully conscious of its earlier decision and the order of 8101982 specifically mentions that the posts of STAs
will be merged in the posts of JEs and an equivalent number of posts may be deemed to have been created in the dying cadre of Junior Engineers
These words make it per fectly clear that the cadre of YEs
was dying but not dead and the strength of the dying cadre was further enliv ened by taking in the STAs
of the Corporation as JEs
Thus the position is that as on 81082 the cadre of JEs
continued to subsist and comprised of the old JEs
of the Irrigation department and the STAs
engrafted from the Corporation
This conclusion is reinforced by the interest ing circumstance that the refe 439 rence in Schedule I of the Non Gazetted Service Rules to JEs
was not omitted despite the decisions of 1979 and 1980
It is true that the number of these posts was mentioned as 269 in the Civil Branch and 13 in the Electrical  Mechani cal Branch
But the actual number had far exceeded these without a corresponding amendment in the Schedule
This however is inconsequential
Rule 6 of these Rules is in the following terms Rule 6
Method of recruitment i Recruitment to the service after the commencement of these rules shall be by the following methods viz a by direct recruitment by Selectionby Competitive Examination as shown in Schedule II b by promotion of substantiveofficiating members of the service as shown in the Schedule IV and c by promotion of persons who hold in a substantive capac ity such posts in such services as may be specified in this behalf
ii The number of persons recruited under clauses b and c of sub rule 1 of the rule 6 shall not at any time exceed the percentage shown in the Schedule II
iii Subject to the provisions of these rules the methodmethods of recruitment to be adopted for the purpose of filling any particular vacancyvacancies in the Service as may be required to be filled during any particu lar period of recruitment and the number of persons to be recruited by each method shall be determined on each occa sion by the appointing Authority
iv Notwithstanding anything contained in sub rule i if in the opinion of Engineer in ChiefChief Engi neer the exigencies of the service so require the said Engineering ChiefChief Engineer may after consulting the Govt may adopt such methods of recruitment to the service other than those specified in the said sub rule as he may by order issued in this behalf prescribe
Rule 6iv read with the Schedule I clearly empowered the Govern_ 440 ment in the exigencies of the situation to continue the cadre for limited purposes and augment the same by the number of STAs
absorbed from the Corporation
We have therefore no hesitation in holding that on the terms of the relevant rules as well as on the language of the order of 8101982 the appellants viz STAs
absorbed from the Corporation were constituted as a part of the cadre of JEs placed on complete par with the JEs
of the depart ment already in service and given the same promotional eligibility and opportunities as the latter
Counsel for the State contends that this conclusion would directly run contrary to the rules of the Gazetted Service particularly after their amendment in 1981 and that after the date of said amendment no AE could be recruited by promotion from among JEs
The objection on this account is two fold
The first not clearly articulated by counsel is that rule 7b permits recruitment by promotion only from among the members of the service and that a Non Gazetted JE is not eligible for promotion
The second is that after the 198amendment JEs have been excluded as one of the sources of recruitment by promotion
We shall deal with these two objections one after another
It is true that rule 7b of the Gazetted Service Rules of 1968 provides only for JEs belonging to the said service being promoted as AEs
However when the JE s post became a non Gazetted one in 1978 the relevant Government orders made it clear that AEs will be recruited by promotion from among JEs to the extent of 25 out of the 50 quota avail able for promotion
The Schedule clearly mentioned this
As it also mentioned SEs and Head Draftsman as other sources from which promotion could be made the reference to JEs was also clearly to the non Gazetted JEs
Promotion of Gazetted JEs had been separately provided for as before
Thus under the Schedule non Gazetted JEs were also clearly eligible for promotion despite the restriction in rule 7b
This inconsistency between the Schedule and the rule was appar ently noticed only in 1981 and the heading of Column 5 of Schedule I1 was amended to make it clear that the promotions therein referred to were from the non Gazetted service although rule b was left unamended
The omission to amend rule 7 however is not of much significance
It was open to the State in view of rule 74 to promote members of the non Gazetted Services also to the Gazetted Service to the extent of a prescribed quota
The restricted language of rule 7 cannot therefore be construed in such a way as to render redundant the specific provision in the Schedule entitling several persons from the non Gazetted services to promotion
441 It is then argued that at any rate after the amendment of the relevant columns of Schedule 1I in 1981 there is no right in any JE to claim promotion as AE At least from that date the promotional avenue for JEs
stands abol ished claims Sri Datar
Sri Ashok Sen for the petitioner contended that the petitioners having been given a right at the time of absorption in 1982 that they will be eligible for promotion in the same way as the erstwhile JEs of the State Department this right cannot be taken away by invok ing an earlier amendment of the rule
He cited some authori ties in support of the proposition and pointed out that the petitioners had amended the original writ petition to in clude a prayer for quashing the amendment purportedly ef fected on 27781
On the other hand Sri Datar contends that no employee has a vested right to promotion and that it was in law open to the Government to change the conditions of service so as to take away a right to promotion that may have existed earlier
But he pointed out so far as the petitioners were concerned there was no taking away of any right to promotion at all because even as on 81082 when they claim to have become JEs the rules provided for no promotional avenue at all and none was promised to them either by the order dated 81082
We do not think it is necessary for us to express any views on the question whether an amendment taking away the rights of promotion earlier available to a cadre of employ ees is constitutionally valid
We shall proceed on the assumption as contended by the State that this is permis sible and that the effect of the amendment is that on and from 27781 no AE can be recruited under the amended Schedule from among the J Es
Assuming this to be correct this rule should apply to all the JEs
in the dying cadre
It is seen from the records placed before us that such of the JEs
belonging to this cadre as had been in service with the State Department have continued to get their promotions even after the 1981 amendment
This is clear from the gradation list filed by the appellants which shows that three Junior Engineers were promoted as AEs
on 17883
Further the specific averments to this effect in the affidavits filed on behalf of the petitioners at various stages have not been denied
The petitioners have also placed on record an order dated 18101985 which shows that a JE of the State Department in the Electrical  Mechani cal Branch perhaps the last of that category was promoted as AE
If this be so then clearly the Department cannot discriminate as between officers belonging to the same cadre by promoting some of them and denying promotion to others
Sri Datar emphasised that the JEs
belonging to the State service had a right of promotion earlier and this was coti nued even after 442 the amendment whereas the appellants became JEs
at a time when there was no further promotion available to them and that this makes all the difference
This argument runs somewhat contrary to the earlier argument of counsel that the amendment of 1981 should be treated as applicable to all claims for promotion after 27781 and that the State is at complete liberty to deny promotion after that date even in respect of those who may have earlier had a right to such promotion
But even assuming that the distinction now sought to be pointed out by him marks a difference between the two categories of JEs
on the cadre as on 81082 a discrimi nation between them would be totally arbitrary and contrary to the scheme of absorption envisaged in 1982
It cannot be presumed that the State when it absorbed the STAs
into the dying cadre of JEs was unaware that though since 1981 there were no promotional avenues for JEs
as AEs
under the rules the incumbents of that cadre were entitled to such promotion under the cabinet orders dated 5779
The order of 81082 places the absorbed STAs
into that dying cadre by creating fictionally an equal number of_posts to accommodate the persons so absorbed
The inten tion and effect of the order of 81082 was to grant to all the STAs
so absorbed exactly the same status as was enjoyed by those already in the cadre
In other words if the JEs
already existing in the cadre has a right of promotion as on 81082 the new incumbents were also given that right and if they had none after 277198 1 the new incumbents would have none either
The State has admittedly proceeded on the footing that despite the 1981 amendment the JEs from the State Department were eligible for promo tion in fact they have been promoted since 1979 as AEs
as and when vacancies arose
This being so any differential treatment of the absorbed STAs would clearly be discrimi natory and unconstitutional
In interpreting these rules and Government orders one should bear in mind that the promo tional stipulations in Schedule II should be read in the light of rule 74 which permits a wide latitude to the Government in making recruitments by way of promotion even otherwise than in the manner outlined in rule 71
Reading the rules and the Government orders issued from time to time harmoniously the effect of the cabinet order of July 1979 was that all J Es in position as such should continue to be promoted until all of hem became AEs
It is no doubt somewhat difficult to see how after 27781 only a part of the pattern of recruitment in vogue earlier could stand side by side with that introduced on that date
One could have  understood a stand on the part of the State that as and from that date promotions would be limited only to the new feeder categories and would not be available to any JE at all
But if the subsequent variation of 1981 did not over ride this benefit extended to the former State 443 JEs
and has not been understood as having done so and the pattern of promotion indicated in the amendment of 1981 was subject to the right of such JEs
in the cadre for promo tion as per the cabinet order of 1979 it is difficult to see how a different rule could be applied to the STAs
Who have been absorbed to augment that cadre
The truth of the matter is that when abolition of the cadre of JEs
was thought of the State decided that this should not effect the existing JEs
and their promotional chances
Again when the merger of the Corporation and State services was thought of the decision was that the STAs should be placed on a par with the JEs of the State service and that the JTAs should be placed on par with the SEs
This was a conscious and equitable decision for as is common ground the post of STA was equivalent to JE and to go back upon it has resulted in arbitrary discrimination against the appellants
By the decision of 1986 they lose their status as JE and are equated to SEs
which is the status also accorded to the JTAs their subordinates in the erstwhile Corporation they lose their right to promotion they lose seniority by being placed at the bottom of the SEs of the State service and the promotional quota now allotted to them is illusory
It is true that they had volunteered for absorption as JEs
in 1982 a date when there was no promotional avenue to a JE under the rules
But they did so because they were told that they would be placed on part with the JEs
in the State service and never imag ined that they would be denied promotion on the basis of the amended rules while the JEs in the State service continued to get promotions despite the amendment
The fact that they opted for the State service does not therefore entitle the State to treat them differently from the JEs of the State service
We have therefore no doubt in our minds that gross injustice has been done to the appellants by the subsequent decision of the State Government
We therefore quash the decision of 1386 and direct that the appellants will be entitled to be considered for promotion as AEs
in the same manner and to the same extent as the JEs
of the State service have been considered and not on the basis of the percentages prescribed for S Es
under the amended rules
In the view taken by us that the rules and the amend ment therein do not override the effect of the orders of 571979 and 81082 it is not necessary for us to pro nounce any opinion on the validity of the 1981 amendment to the Rules
The appeals succeed to the extent indicated above
There will be no order as to costs
RSS Appeals allowed


Summary:
On September 6 1952 the appellant who was being tried by an Assistant Sessions Judge and a jury was caught while giving a bribe to one of the jurors
By a notification dated November 27 1952 the Government of West Bengal acting under section 42 Of the West Bengal Criminal Law Amendment Special Courts Act 1949 entrusted the case against the appellant under section 161116 Indian Penal Code to the Special judge Burdwan for trial
Before this date as a result of the introduction of section 165A in the Indian Penal Code by the Criminal Law Amendment Act 1952 providing for punishment for abetment of offences under sections 161 and 165 abetment of section 161 had ceased to be an offence under section 161116 though it was an offence specified in the Schedule to the West Bengal Act
The records were received by the Special judge on December 23 1952 and he took cognizance of the case
On February 10 1954 a charge under section 165 A Indian Penal Code was framed by the Special judge and on July 7 1954 the appellant was convicted under section 165 A and sentenced to rigorous imprisonment for six months
An appeal to the High Court of Calcutta was dismissed
The appellant obtained special leave and appealed
Held that the special judge had no jurisdiction to try and convict the appellant for the offence under section 165A Indian Penal Code as when the case was distributed to the Special judge section 165A was not one of the offences specified in the Schedule of the West Bengal Act
The case which was distributed to the Special judge was one under section 161116 Indian Penal Code an offence which was non existent at that time
Section 165A cannot be deemed to have been specified in the Schedule merely because abetment of the offences under sections 161 162 163 and 165 Indian Penal Code was specifically mentioned in the Schedule
The offence under section 165A is a distinct offence
It is not merely a restatement of the offence of abetment under section 116  it comprises also abetment under section 109 and provides for in enhanced penalty
This defect of jurisdiction could not be cured by section 529e of the Code of Criminal Procedure
Section 529e applied to 1277 Magistrates and would not apply to Special judges whose jurisdiction arose not on their taking cognizance under section 190 of the Code but on the case for offences specified in the Schedule being distributed to them by the State Government by a proper notification