Chandrashekhar, J.
(1)In these two writ petitions, the petitioner G.N. Sarwade and N.B. Patil, have prayed for the issue of a writ of mandamus, directing the Government, (i) to confirm their appointments as Tahsildars with effect from 24-9-1958 and 17-9-1958 respectively; (ii) to fix their ranks above respondents 2 to 107 in the seniority list of Tahsildars and (iii) to consider their cases for promotion to class I posts over and above the cases of respondents 2 to 107.
(2) Respondent 1 is the state of Mysore, and respondents 2 to 107 are officers in the Mysore Administrative Service, who according to the petitioners, are still officiating as Tahsildars.
(3) The following facts are undisputed between the parties :--
The posts of Tahsildars are class II posts in the Mysore Administrative Service. The petitioners are among the fifty officials selected by the Mysore Public Service Commission under the Mysore Tahsildars and Block Development Officers (Recruitment) Rules, 1958, issued under Notification No. GAD (OM) 5 GRR 57 dated 26-2-58, as amended by Notification No GAD 25 GRR 58, dated 4-8-1958. These fifty officials including the petitioners were appointed by the Government under Notification No. RD 100 RGP 58 dated 9th September 1958. On the same day, memos were sent to these individual appointees including the petitioners intimating that they had been appointed. Both the notification and the individual memos sent to the respective officials stated that these officials were appointed as probationary Tahsildars. The notification also stated that they were posted for training to the divisions noted against their names.
(4) Petitioner G.N. Sarwade joined the appointment on 24-9-1958 and petitioner N.B. Patil joined the appointment on 17-9-1958.
(5) By the Government Order No. RD 62 RGP 58 dated 26-7-1958, a course of training was prescribed for these appointees. The said Government order also stated that all the candidates selected for appointment as Tahsildars were to be appointed as probationary Tahsildars on a fixed pay of Rs. 150/- per mensem or on their substantive pay whichever was higher, during the probationary period of two years. The petitioners underwent the course of training and claim that they successfully completed the period of two years probation.
(6) The relevant portion of Government Order No. RD 87 EGO 61 dated 30th November 1962 reads as follows :-
'........ After going through the records of all the fifty officers, Government have decided that the following forty-two officers should be considered suitable for the post of Tahsildar. Government hereby declare that these forty-two Probationary Tahsildars have satisfactorily completed their probation of two years on the dates indicated in column 4 against them.............'
(7) The petitioner were among these forty-two officers and the respective dates of their completion of the period of probation were 23-9-1958 and 16-9-1958. The Government Order further stated that these forty-two officers should be allowed to draw increments after the completion of one year and the day they were declared to have satisfactorily completed their period of probation.
(8) Respondents 2 to 107 were promoted as Tahsildars before the petitioners were appointed to the posts of Tahsildars by the notification dated 9-9-1958. All of them were promoted as Tahsildars even before the Reorganization of States, 1-11-1956, and they have now been officiating in Class I posts in the Mysore Administrative Service.
(9) The petitioner's allegation and contentions in their respective affidavits (which are identical except for the respective date of joining duty and the completion of the period of alleged probation) are as follows:-
The petitioners were appointed as probationary Tahsildars and they have successfully completed the period of probation of two years. The said period of probation was not extended by the Government nor were they discharged from the posts of Tahsildars. Under Rule 5 of the Mysore Governments Service (Probation) Rules, 1957, as it stood before it was amended by the Government Notification No. GAN (S.I) 10 SRR 62 dated 10th September 1962, the Government should have passed orders confirming them as Tahsildars. But the Government has not issued formal orders of confirmation.
(10) Respondents 2 to 107 are officiating Tahsildars while the petitioners were appointed to substantive posts of Tahsildars. Hence the petitioners should be placed above respondents 2 to 107 in fixing the seniority as provided by Rule 2(a) of the Mysore Government Servants' (Seniority) substantively in clear vacancies shall be senior to all persons appointed on officiating or any other basis in the same cadre of services or class of post. Petitioners have alleged that the Government has preferred respondents 2 to 107 to petitioners in making promotions to Class I posts in the Mysore Administrative Service from the year 1961. The petitioners claim that they have superior claims over respondents 2 to 107 for promotion to Class I posts of the Administrative Service.
(11) The petitioners have alleged that the Government had fixed the permanent strength of Class II posts of Mysore Administrative Service as 195 posts and that out of those 195 posts, 50 posts should be assigned to Tahsildars who were appointed by the Government Order dated 9-9-1958, the petitioners being two of them. The petitioners claim that in the inter-state seniority list of Tahsildars and officers holding equivalent posts published by the Government Notification No. RD 372 EGO 59 dated 26th September 1962, the petitioners should be placed above serial No. 146 in the said list.
(12) The representations made by the petitioners to the Government in this behalf had been rejected by the Government. On account of the Government not recognising the petitioners legitimate claim for seniority, several persons, who, according to the petitioners are far junior to them are likely to be promoted as Assistant Commissioners.
(13) In the counter affidavit filed on behalf of the state it is stated that the petitioners were not appointed in substantive vacancies. In view of the urgency for filling up certain number of posts of Tahsildars, the age limit and the educational qualifications for the said posts were relaxed and 50 persons were selected for the posts of Tahsildars from among officials already in service. Of these fifty persons, 27 were posted straightaway to work as Tahsildars and the remaining 23 were sent for training. Since there was no posts of Tahsildars available for these 23 persons, twenty three super innumeracy posts of Tahsildars were created with effect from 9-9-1958 by Government Order dated 28-4-1959. The petitioners were considered as probationers for the purpose of undergoing training for a period of two years.
(14) As respondents 2 to 107 had been promoted as Tahsildars prior to the appointment of the petitioners and 48 others as Tahsildars, the petitioners cannot claim seniority over respondents 2 to 107. The question of confirmation of both officiating and probationary Tahsildars can only be taken up after the finalisation of the inter-state seniority list. The petitioner's claim that the Government should have confirmed them with effect from 24-9-1958 and 17-9-1958 respectively, has no basis. Respondents 2 to 107 and other officials who were promoted as Tahsildars prior to the appointment of the petitioners and 48 other persons as Tahsildars, will be confirmed earlier and they are bound to have seniority over the petitioners.
(15) Regarding the contention of the petitioners that the fifty Tahsildars appointed on 9-9-1958 should be allotted against fifty permanent vacancies of Tahsildars, it is stated in the Counter affidavit filed by the State that as the Mysore Administrative Service Recruitment Rules 1957, came into force on 2-12-1957, the vacancies till that date have to be regularised first and then the position of vacancies has to be ascertained. The contention of the petitioners that they should be placed above serial number 146 in the inter-state seniority list, is untenable.
(16) Respondents 2, 12 and 27 have filed counter affidavits stating that they were appointed as probationary Tahsildars or in equivalent posts in their respective States before the Reorganization of States and that they had completed the period of probation and had been confirmed as Tahsildars or equivalent posts prior to 1-11-1956.
(17) Respondent 94, K. Jannappa, has filed a counter-affidavit raising many contentions as to the validity of the appointment of the petitioners as Tahsildars and denying the petitioners' claim that they were appointed as probationers.
(18) Though in addition to the petitioners, forty other appointees were declared to have completed their period of probation by the Government Order dated 30-11-1962. none of those forty appointees have filed any writ petitions making any grievances about their ranks vis a vis respondents 2 to 107.
(19) During the course of the arguments, Mr. V. Krishna Murthy, the learned Counsel for the petitioners stated that the petitioners would accept the position of that respondents 2 to 27 were entitled to be placed above the petitioners in the seniority list of Tahsildars and that the petitioners would restrict their challenge only to the seniority of the remaining respondents, namely, respondents 28 to 107.
(20) After the formation of the new State of Mysore, in supersession of all the previous Rules on the subject, the Mysore Administrative Service Recruitment Rules 1957, were framed by the Governor under the proviso to the Articles 309 of the Constitution, on 2-12-1957, to govern recruitment to Class I and Class II posts in the Mysore Administrative Service. According to these Rules, fifty percent of Class II posts had to be filled by direct recruitment by a competitive examination held by the Public Service Commission. The minimum educational qualification for direct recruitment was a University degree and the maximum age limit was 28 years. Thirty percent of these posts had to be filled by promotion among officials in Class III services of the Revenue, Survey Settlement and Land Records Departments. The remaining twenty percent of the posts had to be filled by selection through the public service commission of persons who had put in at least five years in certain departments.
(21) A probation of two years was prescribed only for direct recruits and not for promotees. As the Government felt urgency in recruiting a certain number of Tahsildars and a certain number of Block Development officers in Class II Posts and as the recruitment in accordance with the Mysore Administrative Service Recruitment Rules, 1957, would take considerable time, the Government issued on 26-2-1958 a special set of Rules called 'the Mysore Tahsildars and Block Development Officer (Recruitment) Rules, 1958. (hereinafter called the Special Rules). Rule 1 of these special Rules stated that the provisions of the Mysore Administrative Service (Recruitment) Rules, 1957 shall not apply to the recruitment of this particular batch of Tahsildars and Block Development officers. By an amendment dated 4-8-1958 the number of Tahsildars and Block Development Officers to be recruited under these special rules was fixed at 50 in each of these two categories. The method of recruitment under these special Rules was a selection through the public service commission of persons already serving in the Revenue Department and five other departments for a period of not less than five years. The educational qualification was relaxed to a mere pass in the S.S.L.C. or equivalent examination. The maximum age limit was fixed at 40 years for those who had not passed certain departmental tests and 50 years for those who had passed departmental tests.
(22) The special Rules did not expressly mention about probation at all. The probation prescribed under the Mysore Administrative Service (Recruitment) Rules, 1957, for direct recruits can have no application to the Tahsildars recruited under the special Rules as R. 1 of the said special rules has expressly stated that the provisions of the former Rules will not apply to the posts filled in accordance with the special Rules.
(23) Even before these special Rules were issued, the Mysore Public Service Commission published a Circular dated 9-12-1957 in the Mysore Gazette calling for application from officials already in service for the vacancies likely to occur in the near future in the cadre of Tahsildars. The qualifications stated in the said circular were the same as the qualifications which were later prescribed under the Special Rules. The irregularity in the Public Service Commission calling for application for posts even before framing of the Recruitment Rules was sought to be cured by Rule 4 of the Mysore State Civil Services (General Recruitment) Rules (Amendment and Miscellaneous Provisions) Rules, 1957, which provide that the Commission should invite further applications from persons possessing the prescribed qualifications under the relevant recruitment rules and that such application should be considered along with the applications received before the relevant recruitment rules were framed. What is material for the purpose of these two petitions is that in the circular issued by the Public Service Commission, no mention was made of any period of probation for the posts of Tahsildars. The Notification, if any, issued by the Public Service Commission subsequent to the issue of Special Rules, has not been place before Court by any of the parties.
(24) Mr. Krishna Murthy the learned Counsel for the petitioners referred to the definition of the word 'probationer' in rule 8 (37) of the Mysore Civil Services Rules, 1958, which reads as follows :-
'Probationer means a Government Servant employed on probation in or against a substantive vacancy in any cadre of a department.'
Relying on this definition Mr. Krishna Murthy contended that as the Government Notification appointing the petitioners and 48 other and the individual memos issued to these appointees, specifically stated that the appointees were probationary Tahsildars, their appointments should be treated as being in or against substantive vacancies in the cadre of Tahsildars. Mr. Krishna Murthy also sought to derive support form Rule 2(I) of the Mysore Government Servants' Probation Rules, 1957, (hereinafter referred to as 'probation' Rules which states :-
'Appointed on probation' means appointed on trial in or against a substantive vacancy.'
(25) Mr. Krishna Murthy produced at the time of arguments and extract from the Mysore Gazette dated 4-9-1958, containing the Government Order No. RD 62 RGP 58 dated 26-7-1958, referring to the Tahsildars recruited under the Special Rules. The following are the relevant extracts in that Government Order:-
'.............Government are therefore pleased to direct that all the candidates selected for appointment as Tahsildars may be appointed as Probationary Tahsildars on a fixed pay of Rs. 150/- per mensem or their substantive pay whichever is higher during the probationary period of two years.......
The seniority of the candidates will be assigned to them in the order of appointment as Probationary Tahsildars........................'
(26) Mr. Krishnamurthy next referred to Government Order No. RD 87 EGO 61 dated 30-11-1962, (marked Annexure B) which stated that 42 probationary Tahsildars had satisfactorily completed their probation of two years and contended that the said order must be deemed to be an order passed under Rule 5 of the Probation Rules as it stood before it was amended on 10-9-1962, which reads as follows:-
5. 'When a probationer is about to complete the period of probation prescribed in the rules referred to in rule 3, the appointing authority shall record an order either confirming him with effect from the date of the completion of prescribed period of probation or extending the period of probation or discharging him. Before the completion of an extended period of probation, the appointing authority shall record an order either confirming the probationer from such date as such authority may deem fit to subject to the restrictions prescribed in Rule 9, or discharging him or again extending the period of probation.
According to Mr. Krishna Murthy, the effect of that order was that the petitioners were confirmed with effect from respective dates of the completion of the prescribed period of probation.
(27) Reliance was placed on the decision of this Court in Ramachandra v. State of Mysore, AIR 1960, Mys. 65. Considering the effect of Rule 5 of the Probationary Rules as it stood before it was amended in 1962, Das Gupta C.J. held that if the Government does not extend the period of probation or discharge the Probationer before the expiry of the period of probation even if the Government does not pass an express order confirming him.
(28) Mr. Krishna Murthy next referred to the Mysore Government Servants (Seniority) Rules, 1957, (hereinafter called the Seniority Rules). Rule 2 of the said seniority Rules reads as follows :-
'2. Subject to the provisions hereinafter contained, the seniority of a person in a particular cadre of service or Class of post shall be determined as follows:-
(a) Officers appointed substantively in clean vacancies shall be senior to all persons appointed on officiating or any other basis in the same cadre of service or class of post;.............'
Mr. Krishna Murthy contended that as the appointment of the petitioners on probation must be treated as being in or against substantive vacancies, they should be given the seniority over respondents 28 to 107 who were only officiating on the respective dates on which the petitioners completed the period of probation, and who are still officiating Tahsildars.
(29) A look at the inter-state seniority list of Tahsildars which is marked as annex. D to the affidavits, shows that even Tahsildars whose names are below the 146th place have been officiating as Tahsildars from a long time. Some of them started as officiating Tahsildars even as early as in the year 1948. The reason why those Tahsildars including respondents 28 to 107 have not been confirmed, has been explained in the counter affidavit filed by the State. It is stated that the Government have decided that until the inter-State Seniority list is finalised, no confirmation should take place. But for the context of the Reorganisation of States and the consequent problem of integration of services, it can be reasonably expected that most of them, if not all, would have been confirmed long before the petitioners were appointed. Unfortunately, the process of integration of services including finalisation of equation of posts and the inter-State Seniority list, has not been finalised in many departments and in many cadres even to this day.
(30) During the course of the arguments the counsel for some of the respondents produced two official memoranda. Though these are unauthenticated copies, the genuineness of these copies has not been disputed either by the petitioners or by the learned Government Pleader who appeared for the State or by the learned counsel for any of the respondents. The Official Memorandum No. S.R.D. 1-59 DIF 57 dated 21-6-1957 reads as follows :-
'The question whether all vacancies which had arisen before 1-11-56 should be utilised to confirm Government Servants from the particular region in which the vacancy arose is under consideration of Government. It is however, seen that some Departments are taking action to confirm Government Servants even now.
'The Heads of Departments and Secretaries to Government are requested not to take action to confirm Government Servants in the vacancies arising prior to 1-11-1956 until orders of Government are issued in the matter.
Government Servants may however be confirmed where such confirmation is justified on the basis of the overall seniority for the State as a whole also, and the confirmation is not likely to be affected whether the vacancies are filled up region-wise or on the basis of seniority in the new State.'
(31) In the next official memorandum No. GAD 59 DIF 57 dated 20-3-1959, the relevant portion reads as follows :-
'a) Cases in which vacancies arose prior to 1st Nov. 1956.
1) In State-wise cadres and Divisional cadres, no confirmations should be effected until the Inter-State Seniority lists are finalised....
'b) Cases in which vacancies have occurred after 1st Nov. 1956.
It is clear that until the district-wise, divisional-wise and State-wise cadres in each Departments are specified and the Inter-State Seniority Lists finalised, confirmations cannot be effected.................'
As confirmation of persons appointed or promoted before 1-11-1956 had to be deferred until the Inter-State Seniority lists were finalised, it was only just that the Government should consider that appointments made subsequent to 1-11-1956 also should not be confirmed. Otherwise, the legitimate interests of officials who were appointed or promoted before 1-11-1956. If confirmation of officials who were appointed before 1.11.1956, has been deferred by the State, it is not because that the State considered in all those cases that the officials were not suitable for being confirmed in the posts held by them but because of the extraordinary situation created by the Reorganisation of States and the consequent problem of integration of services. If persons appointed or promoted subsequent to 1-11-1956 are confirmed, those persons might claim seniority over officials who have been promoted or appointed prior to 1-11-56 but whose confirmation had been deferred for the aforesaid reason. It is in order to avoid such unjust and anomalous position that the Government decided that even the confirmation of officials appointed or promoted subsequent to 1.11.1956 should be deferred.
(32) It is presumably for the aforesaid reason that the Government has not passed orders of confirmation in the case of the petitioners and forty other officials who had completed the alleged probation for two years. The Government Order dated 30-11-1962 annex. (B) merely states that the forty two probationary Tahsildars have satisfactorily completed their probation; but it does not declare that those 42 officials have been confirmed. In fact, any order confirming these officials would have run counter to the decision of the Government embodied in the aforesaid two official memoranda.
(33) Presumably to eliminate any possible contention on the part of the probationers appointed after 1.11.1956 that they should be confirmed immediately after they completed the period of probation, Rules 5 and 9 of the Probation Rules, have been amended by Notification No. GAD (SI) 10 SRR 62 dated 10th September 1962. According to the amended rule 5, the mere declaration that a probationer has satisfactorily completed the probation does not result in his being confirmed in the post for which he was recruited as a probationer. Amended Rule 9 states that a probationer who has been declared to have satisfactorily completed his probation, shall be confirmed as a full member of the service in the class or category for which he was selected, at the earliest opportunity in any substantive vacancy which may exist or arise in the permanent cadre of such class or category. Thus, even after a probationer is declared, to have successfully completed the probation, he does not become a permanent member of the post unless an express order is passed confirming him in that post.
(34) But Mr. Krishna Murthy, the learned counsel for the petitioners contended that the said amendments to Rules 5 and 9 made on 10-9-1962 cannot have retrospective effect and that the petitioners' cases are governed by Rules 5 and 9 of the Probation Rules as they stood at the time when the petitioners were appointed or, at any rate at the time when they completed the period of their probation. Mr. Krishna Murthy has relied on a decision of this Court in Govindaraju v. State of Mysore, AIR 1963 Mys 265 where it has been held that the rules framed under the proviso to Article 309 of the Constitution cannot have retrospective effect.
(35) Mr. Krishna Murthy contended that whatever might be the intention of the Government in not confirming the persons appointed or promoted subsequent to 1.11.1956, the legal consequences flowing under the several rules framed under the proviso to Article 309 of the Constitution, must be given effect to. If the petitioners were appointed as probationers and if they had completed the period of probation and if the Government has further declared that they have satisfactorily completed the period of probation, under the appropriate rules, they would automatically be confirmed as Tahsildars and the necessary consequence of such confirmation would be that they would become seniors to all persons who are still officiating as Tahsildars.
(36) In the counter affidavit filed on behalf of the State it is not contended that the petitioners were not appointed as probationers. Respondent 94 has contended in his counter affidavit that the petitioner and other Tahsildars appointed along with them, are not probationers in the eye of law and that the Government had inadvertently described them as probationers. It is also contended for some of the respondents that Rule 9 of the Seniority Rules expressly excludes the application of these Rules to determine the initial seniority in the State of persons who are allotted to the new State of Mysore on the Reorganisation of States.
(37) We shall now proceed to consider these contentions of respondents. A perusal of the Recruitment Rules of various Departments will show that whatever the Rules contemplated that persons recruited to a particular cadre should undergo probation, the Rules have specifically stated so as against those posts or cadres. For example, in the Mysore Information Department Services Cadre and Recruitment Rules, 1958, as against the category of posts of Assistant Directors of Publicity and Information, it is stated that for direct recruit there shall be probation for a period of two years. As against the post of Director of Publicity and Information even though direct recruitment for that post. We think, the reasonable inference to be drawn is that when a person is appointed as an Assistant Director of Publicity and Information by direct recruitment, there shall be a period of probation and that when a person is appointed as Director of Publicity and Information even by direct recruitment, there is no probation for any period whatsoever.
(38) As seen earlier, even in the Mysore Administrative Services (Recruitment) Rules, 1957, probation for a period of two years is prescribed for direct recruits to all Class II posts while under the Special Rules, there is no mention of probation for recruits to the fifty posts of Tahsildars. The inevitable conclusion is that as the Special Rules did not provide for probation the fifty appointees to the posts of Tahsildars did not become probationers when they were appointed on 9.9.1958. If the notification appointing them, the individual memos issued to them, the Government Order declaring them as having completed probation, described these appointees as probationers, they cannot confer on the same appointees the legal status of probationers because the Special Rules did not provide for probation of these appointees. A Government Order, even though issued in the name of the Governor under Article 166 of the Constitution cannot have the effect of repealing, amending or overriding the Rules made by the Governor under the proviso to Article 309 of the Constitution.
(39) Rule 3(1) of the Mysore Government Servant's Probation Rules, 1957, reads as follows :
'3. (1) Where it is intended that first appointment to a service or post shall normally be on probation shall be prescribed in the rules regulating the recruitment to that service or post.'
This sub-rule makes it clear that the questions whether any appointee should be on probation at all and if so for what period he should be on probation, are matters to be prescribed by the Rules regulating the recruitment to a cadre. Unless the recruitment rules to a cadre prescribe such probation, the Probation Rules have no application to that cadre of posts. As the Special Rules do not prescribe any probation for the fifty posts of Tahsildars appointed under those rules, the Probation Rules have no application to these 50 appointees to the posts of the Tahsildars. Hence the petitioners cannot invoke R. 5 of the Probation Rules and claim any consequential benefit flowing from that Rule. If the petitioners were not appointed as probationers under the appropriate recruitment rules, they cannot claim to have been confirmed in the posts for which they were appointed by the mere fact of their having undergone a period of training which the Government described as a period of probation. Nor can they claim that they have been appointed in or against any substantive vacancy.
(40) In the view we take, that the petitioners were not lawfully appointed as probationers to the posts of Tahsildars, the question whether the fifty posts of Tahsildars appointed under the Special Rules should be assigned as against the 195 permanent posts in the cadre of Class II posts as fixed by the Mysore Administrative Services Cadre Rules, does not require consideration. The contention of Mr. Krishna Murthy that the amendments to Rules 5 and 9 of the Probation Rules made on 10-9-1962 have no application to the petitioner's cases, also does not call for consideration in these cases. It is also unnecessary for us to consider whether the view taken by this Court in AIR 1960 Mys. 65 that no express order of confirmation is necessary before a probationer who has completed his period of probation becomes a permanent servant in that post, remains good law in the light of the decision of the Supreme Court in Sukhbana Singh v. State of Punjab, : (1963)ILLJ671SC .
(41) Rule 9 of the Mysore Government Servants'(Seniority) Rules, 1957, reads as follows:-
'9. These rules shall not apply to the determination of initial seniority in the state of persons who are allotted or deemed to have been allotted to serve in connection with the affairs of the State of Mysore in pursuance of Section 115 of the State Reorganisation Act, 1956. The seniority of such persons shall be as determined in accordance with the provisions of the said Section and the orders issued in pursuance thereof.'
We think, the contention advanced on behalf of some of the respondents that the petitioners cannot invoke Rule 2(a) of the Seniority Rules as against respondents 2 to 107 whose services were allotted to the new State of Mysore, is well founded.
(42) But, Mr. Krishna Murthy the learned counsel for the petitioners referred to Notification No. GAD 12 ORR 61 dated 23rd November 1961, published in the Mysore Gazette dated 7-12-1961, issued by the Governor of Mysore under the proviso to Article 309 of the Constitution. Under clause 3 of the said Notification it is stated as follows :-
'3. The Mysore Tahsildars and Block Development Officers (Recruitment) Rules, 1957.
In the Schedule to the said Rules, at the end, after Note 2, the following note shall be added, namely :-
'Note 3.---In the case of a candidate belonging to Scheduled Castes or the Scheduled Tribes, who fails to pass tests or examination or tests required to be passed within the prescribed period of probation, the period of probation shall stand extended by such period as may be necessary to pass the departmental examinations or tests provided that such period shall not extend beyond the period in which the results of two consecutive departmental examinations or tests are announced.' '
Relying on Note 3 added by the said amendment, Mr. Krishna Murthy contended that probation was implied in the Special Rules and at any rate, Note 3 amended the Special Rules so as to provide probation for the fifty appointees to the posts of Tahsildars. The stand taken by Mr. Krishna Murthy himself at an earlier stage, in the case was that any rule made under the proviso to Article 309 of the Constitution cannot have retrospective effect. In the light of the decision of this Court in AIR 1963 Mys. 265, Note 3 inserted by the amendment dated 23-11-1961, cannot have retrospective effect. Further, even the amendment does not expressly state that probation is prescribed for these fifty appointees to the posts of Tahsildars.
(43) It was next urged by Mr. Krishna Murthy that as the Government had designated these appointees as Probationary Tahsildars in the order in their appointment and as the Government has all along treated them as probationer, the Government is now estopped from contending that the petitioners were not probationary Tahsildars. We are unable to accept this contention. In the first instance, there is no estoppel against a statute or against the Rules under the proviso to Article 309 of the Constitution which have statutory force. Further this is not a matter purely between the Government and the petitioners. The interests of respondents 2 to 107 are involved in the question whether the petitioners were probationers. The conduct of the Government in calling the petitioners as probationers, cannot affect the rights and interests of respondents 2 to 107 who were not parties to such representation or conduct on the part of the Government.
(44) Thus the petitioners have not established that they were probationary Tahsildars or that they were appointed in or against substantive vacancies. Hence, their prayer that the Government should be directed to declare them as having been confirmed with effect from the respective dates on which they completed the alleged probation, is unsustainable. Similarly, their contention that their rank should be fixed as being seniors to any of respondents 2 to 107, is also unsustainable.
(45) There is one more reason why the petitioners claim that they should be preferred to respondents 2 to 107 for promotion to the posts of Assistant Commissioner (which is Class I post in the Mysore Administrative Services), is unsustainable. In the Mysore Administrative Services (Recruitment) Rules, 1957, the minimum qualification required for promotion to Class I posts in the Administrative Service, the officers should have worked as Tahsildars or in equivalent posts in the same cadre for not less than a total period of five years including the period during which they were either officiating or on probation. The petitioners were appointed as Tahsildars only on 9-9-1958. They would complete five years' service including the period of probation as Tahsildars only on 24-9-1963 and 17-9-1963 respectively. The Writ petitions themselves were filed on 12-7-1963. Hence, the petitioners were not eligible for being promoted as Assistant Commissioners in preference to respondents 2 to 107.
(46) In the result, these two writ petitions fail and the same are dismissed.
(47) As the Government is partly responsible for the confusion in which the petitioners were placed, we think, the petitioners should not be made to pay costs and we order accordingly.
JH/D. R. R.
(48) Writ petitions dismissed.