Somnath Ayyar, J.
1. On 8 August, 1961 respondent 2 who was a chief reporter in the Department of Publicity and Information was promoted by Government temporarily as Assistant Director of Publicity and Information. The petitioner was then a superintendent in that department. He contends that he should have been promoted in preference to respondent 2, and so, he asks us to issue a writ of mandamus directing his promotion with effect from the date on which respondent 2 was promoted. There is also a prayer that we should strike down as amendment made to the cadre and recruitment rules regulating recruitment to posts in the Department of Publicity and Information under the proviso to Art. 309 of the Constitution. But Sri Ullal, very properly, does not press that prayer. There is a third prayer for the removal of respondent 2 by quo warranto from the post of an Assistant Director of Publicity and Information. In the counter-affidavit produced on behalf of Government of which the deponent is an Under Secretary, it is asserted that the petitioner was act qualified for promotion to the post of an Assistant Director and that on a consideration qualifications of the petitioner and respondent 2 the latter was preferred for promotion. It is emphasized in Para. 6 of the counter-affidavit that since the petitioner was not duly qualified for promotion, his claim for promotion was 'found to be untenable.'
2. The counter-affidavit explains why the petitioner was not qualified for promotion, and that explanation is that whereas the rules made by the Governor prescribe experience in the post of a superintendent during a period of five years as the minimum qualification for promotion to the post of as Assistant Director, the petitioner was a superintendent only for a period of three years, and so, was not qualified. On behalf of the petitioner a reply-affidavit is produced with which we find an extract from the relevant service register recording the service put in by the petitioner in the erstwhile State of Hyderabad from which he was allotted for service to the new State of Mysore under the provisions of the States Reorganization Act. The extract so produced the correctness of which is not controverted, shows that in the State of Hyderabad the petitioner was in the post of a Superintendent from 9 October, 1946 to 28 February, 1949 continuously; he was a permanent superintendent during that period. But on 28 February, 1949 the post of the superintendent was abolished when there was a reorganization of the Department of Publicity and Information in the Hyderabad State, and so; the petitioner was thereafter, until 30 April, 1949, either a clerk or a publicity assistant.
3. He was again appointed as a superintendent in the Department of Publicity and Information in the new State of Mysore on 6 August, 1958, and he is still there. So by the time respondent 2 was promoted, the petitioner had put in more than three years of service as a Superintendent in the new State of Mysore and more than two years as such Superintendent in the erstwhile State of Hyderabad in the Department of Publicity and Information.
4. The rule made by the Governor which regulates promotions to the post of an Assistant Director of Publicity and Information provides that 50 per cent of the vacancies should be filled up by direct recruitment and the remaining 50 per cent by promotion. It further directs that one post shall be filed up by promotion from the cadre of Superintendent and chief reporter who should have put is at least five years' experience in the specific cadre of Superintendent or chief reporter on the basis of seniority-cum-efficiency. Since the method of recruitment prescribed by Col. (2) of the rule does not require continuous experience during a period of five years either in the cadre of a Superintendent or in the cadre of a chief reporter, the interruption in the case of the petitioner in his career as a Superintendent between 28 February, 1949 and 6 August, 1958 could have no relevance, if, in the aggregate, the period during which he served as a Superintendent was not less than five years.
5. Sri Ullal says that the Superintendent's post in the erstwhile State of Hyderabad has been equated to the post of a Superintendent in the new State of Mysore in the Department of Publicity and Information. We have, however, no material on the basis of which we can say that there is such equation, although it is very probable that that equation was made.
6. The five years' experience which is prescribed by the Governor's rule has for its purpose the acquisition of eligibility emanating from the opportunity to work as a Superintendent during an aggregate period of five years which need not, according to the language of the Governor's rule, be continuous. If the equation, as submitted by Sri Ullal, of the post of a Superintendent in the Hyderabad State to the post of a Superintendent in the new State of Mysore; has been made, it is clear that the petitioner possessed the eligibility prescribed by the Governor's rule.
7. It will, however, be seen that the only ground on which the petitioner's case was excluded from consideration for promotion to the post of an Assistant Director was the belief that he did not possess the prescribed qualification. This belief is plainly attributable to the fact that the experience of the petitioner in the post of a Superintendent in the erstwhile State of Hyderabad was not taken into consideration or was overlooked when respondent 2 was promoted.
8. That being so, this is a case in which we should make a direction that Government shall, within three months from the date of this order, consider the case of the petitioner for promotion on the basis of the observations contained in this order. In the consideration of this question, Government will also proceed to ascertain whether the post of a Superintendent in the Hyderabad State have been equated to the post of a Superintendent in the new State of Mysore. It should also be observed that the promotion to the post of an Assistant Director to which we refer has to be made on the basis of seniority-cum-efficiency. But, since respondent 2 was a chief reporter and the petitioner was a Superintendent, the question as to who was senior to whom, if such seniority is capable of ascertainment, has to be taken into consideration. Similarly, since efficiency is one of the factors to be taken into consideration, that factor also has to be considered. It is on the basis of all the relevant factors, including those to which we have referred in the course of this order, that Government should now proceed to decide whether the petitioner is entitled to be preferred for promotion to the exclusion of respondent 2.
9. Since respondent 2 has already been promoted as long ago as in the year 1961, we make a direction that until the determination directed by this order is made, he shall be continued in the post which he is holding today subject to the eventual determination to be made as directed by this order.