Full Judgment
Pandey, J.
1. This petition under Article 226 of the Constitution is mainly directed against the promotion of R. K. Subramaniam (respondent 2) and K. B. Shah (respondent 3) as Superintending Engineers. Accordingly, the petitioners have prayed for a writ of mandamus requiring the State Government (i) to revise the aforesaid orders of promotion of respondents 2 and 3; (ii) to deal with the appointments and promotions of those two respondents and all other members of the technical personnel of the Chambal Project so as not to assign to them in the gradation list any place above the last confirmed Assistant Engineer in the Public Works Department (Irrigation Branch) and (iii) to conduct itself in accordance with the rules and principles of justice and fair-play in the matter of promotions in that Department.
2. The material facts giving rise to this petition may be shortly stated. In the new State of Madhya Pradesh formed in accordance with the provisions of the States Reorganization Act, 1956, there was a branch o the State services called the Madhya PradeshState Engineering Service made up of two parts, (i) Irrigation and (ii) Building and Roads. It was constituted by integrating the corresponding services of the integrating units, namely, a part of old Madhya Pradesh, Madhya Bharat, Vindhya Pradesh and Bhopal in accordance with the provisions of Section 115 (5) of the States Reorganization Act, 1956. The provisional gradation list dated September 12, 1959 is Annexure B-1 and the final gradation list dated April 6, 1962 is Annexure B-2. Although a part of the final gradation list was quashed by the Supreme Court by its decision reported in Union of India v. P. K. Roy, AIR 1968 SC 850, that has no bearing on the present controversy and it would not hereafter be necessary to refer to it.
3. In one of the integrating units, namely, Madhya Bharat, there was a project called Chambal Project, for executing which the State of Madhya Bharat had set up a temporary organization. The engineering personnel required and recruited for the purpose formed a part of that temporary organization. They did not belong to the cadres of the regularly constituted engineering service of that State. For that reason, they were not included in the two gradation lists prepared under Section 115 (5) of the States Reorganization Act, 1956. However, by an order dated January 6, 1959, the new State of Madhya Pradesh, which had come into existence on November 1, 1956, decided to absorb the technical personnel of the Chambal Project on certain terms and conditions contained in Annexure C. Thereafter, by orders dated July 16, 1965 and September 3, 1966 (Annexures D and E), the respondents 2 and 3, who had been so absorbed, were promoted as Superintending Engineers. The petitioners, who are executive Engineers of the regularly constituted cadres of the State Engineering Service, have called in question not only the promotions of the respondents 2 and 3 as Superintending Engineers but also the action of the State Government in absorbing the technical personnel of the Chambal Project in so far as it was prejudicial to the members of the regularly constituted cadres of the State Engineering Service.
4. One of the grounds urged in support of this petition is that the absorption of the technical personnel of the Chambal Project in the manner effected in this case amounted to disturbing the seniority in the various cadres of the Madhya Pradesh Engineering Service, as fixed by the final gradation list dated April 6, 1962. We are unable to accept this contention. The final gradation list prepared by the Central Government under Section 115 (5) of the States Reorganization Act, 1956, related back to November 1, 1956 when the new State of Madhya Pradesh came into existence. Subject to the integration of services thus effected by the Central Government, the State Government has, under Articles 162 and 246(3) read with Entry 41 of List II of the Constitution, full power to deal with its services. The exercise of this power is, however, subject to the provisions of the Constitution, any statute bearing on the point and rules framed either under such statute or under Article 309 of the Constitution.
5. Another ground is that the absorption of the technical personnel of the Chambal Project, who were persons employed outside the regular cadres of the Madhya Pradesh Engineering Service, constituted an infraction of the provisions of Article 309 of the Constitution and the rules framed thereunder. In our opinion, even this contention is not well founded. On January 6, 1959 when those persons were absorbed by the order Annexure G, there were no rules under Article 309 of the Constitution which governed the new State of Madhya Pradesh. No doubt there were such rules that were formerly in force in the integrating units, but they continued to operate only in those units as provided by Section 119 of the States Reorganisation Act, 1956, which reads:
'The provisions of Part II shall not be deemed to have effected any change in the territories to which any law in force immediately before the appointed day extends or applies, and territorial references in any such law to an existing State shall, until otherwise provided by a competent legislation or other competent authority, be construed as meaning the territories within that State immediately before the appointed day.'
The Madhya Pradesh Civil Services (General Conditions of Services) Rules, 1961, framed under Article 309 of the Constitution came into force on August 4, 1961. Further, the Madhya Pradesh Irrigation Engineering Service (Gazetted) Recruitment Rules came into force on June 8, 1968. It follows that, at the material time, there were no rules which fettered the power of the State Government to act in the matter in the manner it did.
6. The further contention based on the same ground to the effect that rules should have been framed under Article 309 of the Constitution before absorbing the technical personnel of the Chambal Project is also unsound. The provisions of Article 309 are merely enabling provisions and they do not impose any duty to legislate or make rules nor, in the absence of such legislation or rules, do they fetter the power of any State Government to exercise its executive power in the matter of its services.
7. In the course of arguments, a reference was made to Article 320 of the Constitution, but it is now well settled that Clause (3) thereof is not mandatory and any non-compliance with the provisions thereof does not afford to the civil servants any cause of action; State of U. P. v. Manbodhan Lal, AIR 1957 SC 912.
8. It is next urged that, even under the impugned order dated January 6, 1959 contained in Annexure C, the entire technicalpersonnel of the Chambal Project was directed, upon absorption, to be placed below the last confirmed Assistant Engineer of the Public Works Department. In this connection, our attention is drawn to condition (in) of the conditions therein specified on which they were absorbed which is reproduced;
'(iii) Fixation of Seniority - For the purpose of absorption and of filling up permanent posts in the Public Works Department, preferably the Irrigation Branch (the B & R Branch not totally excluded) relative claims to confirmation of Chambal employees and temporary Public Works Department employees of corresponding categories be adjusted in a manner just and fair to both categories of employees, Chambal employees on their absorption, being placed below the last confirmed employee of the Public Works Department for the purpose of seniority.'
In our opinion, the language employed there does not support the contention raised before us, for it is obvious that it provides for a just and fair treatment to both classes of employees of 'corresponding categories'. We think that this condition envisaged absorption of the Chambal Project employees in the appropriate corresponding categories with the rider that, for future claims for confirmation in a particular category, all those employees, who were absorbed in that category, would be treated as taking place below the last confirmed employee of the regular cadre in the category. It would thus appear that there is no substance in the contention that the actual absorption of these employees was made in disregard of the order contained in Annexure C.
9. The last ground urged before us Is that even if there be no specific rules governing the matter, the State Government should have acted in the matter of promotions in conformity with principles of 'fair-play and natural justice and not arbitrarily. The order dated January 6, 1959 is an executive order which cannot be challenged in these proceedings on that ground. However, it is open to the affected civil servants to make representations to the State Government. As a matter of fact, some representations were made in the past and we now understand that some of the petitioners have obtained some relief. We hope that the State Government would not allow the civil servants of this department any ground for thinking that they have been treated unfairly.
10. In the result, this petition fails and is dismissed but, in the circumstances of the case, we leave the parties to bear their own costs. The outstanding amount of security shall be refunded.