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A. 8. PARMAR & OTHERS ““STATE OF HARYANA & OTHERS i ; - January 24,1984... | ;
[E- S. VENKATARAMIAH AND R. B. Misra, JJ.J
Constitution of India, Article 311 and 309 proviso thereto—Promation of empolyees from Class HI service to éluss I service in the P.W.D. (Irrigation branch),
Punjab—Possession of a degree ig not a pre-requisite for pormotion from class If to class I Services—Punjab service of Engineer Class I, P.W.D. (lerigation Branch) : Rules, 1964 Rule 6{a), interpretation of. eg OUR
Promotion of Assistant Engineers in class I service, not pussessing degree ta, the cadre of Executive Engineers Class f, but satisfying the requirements uf clause (6) of Rule & of class I Rules— Whether ta order or whether Rule &(a) will be applicuble— Compariosn between Punjab Service of Engineers class 1 P.W.D, (Buildings and)
Roads Branch) Rules 1965, Rules 6 & 7 with Punjab Service of Engineers class 1P.
WD, (Buildings and Roads Branch) Rules 6 {a) and 6 (6).
Eight Officers including the appellants entered the class II service in accor:
dance with the Punjab Service of Engiacers class U, P.W.D. (Buildings and Roads Branch) Rules, 1965, They are all holders of diplomas in Engineering. They were
’ promoted alongwith nine others from the class IE service to the cluss I service by an order dated May 7, 1981, passed by the Haryana State Government oma tear * porary basis subject ip approval of the Haryana Public Service Commission. In the case of these officers, the Government of Haryana passed an order relasing the ‘condition of degree qualification in public interest. The above orders of promotion in so fur as these persons were concemed were questioned by eleven officers in the.
class If service, who were below them in the gradation list of the class [I service having catered that service in 1972 in the writ petition out of which these appeals.”
arise. The officers who filod th: sald petition wore all hulders of degroes in Eng neering, Their principal contention was that un officer in the? class II service coul wot be promoted to the class I service unless ho possessed a degree in Engineer08 as prescribed by Rule 6(0 of the Punjab Service of Enginsers, class I, P.W.D. Built ings and Roads Branch} Rules, 1960 which governed the recruitment to the T service in the State of Haryana and the relaxu,on of that requirement alleged . have been ordered by the Stute Government In exercise of the power under ‘ the proviso to Rule 6 (4) in the case of the officers whose pro otions had beet . lenged was Illegu! and void. The Punjab & Haryana High Court accepted the el contention and dismissed the petitiun. Hence the appeals after obtaining SP" Ieave of the Court, = - .
Allowing the aspeals the Court,
HELD : 1.1. A degree is not a prerequisite for being promoted clase IT servics to the class I service, [493 D}
.
from we
_A. S PARMAR ¥. HARYANA Fe 477,
- "1.2. A comparison between the 1956 Rules and the. 1964 Rules makes ‘it _ that there was no insistance upon the qualification of a degree in the said 1956. Rules in the case of the promotees from the class II service.. When the 1964 Rules of the Irrigation Bratich, class I were promulgated, the ‘pattern of the Rules
* was changed. While doing so, in the new Rule 6, the word “directly” which was in the old Rule 7 was no doubt omitted but the new Rule 6 referred to both kinds of appointment namely direct recruitment and promotion,froni the class IL. service, It was not a case of just reproducing the old Rule 7 and omitting one word © therefrom, ‘but the introduction of a new Rule 6 with a different structure. [493A-B]
OP. "Bhatia & Anr, v. State of Haryana & Ors., TERE Punjab & Haryana
470. overruled.
1.3. - In these cases, tb State Ganermins having first —— Rule 6 of © the class [ Rules required that a promotee should also have a degree, tried to relax that condition by making orders relaxing as it found that its construction had led
» to-injust results. In view of the fact that the quéstion of interpretation of New Rule’ : Gof the class I Rules was raised, and service Rule 6 (a) of the class I Rules is not applicable to the class II officers who are to be promoted tothe class I service, the. question whether the order of relaxation made in the case of promotees is validly Passed or not.becomes non-est. [493.E; 494B] :
“on Itis indisputable that if the Government : wishes to appoint only hol-
‘ders of degrees fo the class I service, it may do so by promulgating’ appropriate .
rules, That power is beyond question, and classification on the basis of educational
_ qQuatifications of officers belonging toa cadre for purposes of promotion to a higher.
cadre is permissible. But, the class T Rules as they now exist do not debar the pro-' motion of an Assistant Engineer in the class II service who does not possess a degree
‘. — to the cadre of Executive: Engineers éven when he satisfies the requirements of clause. | .
(b) of Rulé 6 of thé. class I Rules and is selected by the mek Service Commission. ye . [493 G-H]
2.2. Rule 6 of the class I Rules treats the. “possession of a degree plus the’
. Selection at the competitive examination and‘ the passing of the departmental examination after appointment as sufficient for getting into the cadre of Assistant Exe-" * cutive Engineers or to the cadre of Executive , Engineers when, direct recruitment is made to’ those posts and the experience in the class II Servicé for a minimum period of eight years plus the passing of the departmental exaniinations before promotion
: of an Assistant Engineer in the Class {I Service as sufficient qualification for promo- “ry to the cadre of Executive Engineers. [487 E-F) | ;
:2.3. The distinction between the two methods of filling the oad of Executive hey by promotion‘is clear. If that post is to be filled up by.promoting an Assis-
_ ’ tant Executive Engineer, the Assistant Executive Engineer, concerned should poss-' — ‘ess five years expesience and should have passed the Departmental . Examination prescribed by Rule 15 of the Class I Rules. If that post is.to be filled up by promotion of an Assistant Engineer in the class II Service, the Assistant Engineer to be promoted should possess sight years experience in the Class HI Service and should have passed the Departmental Examination prescribed by Rule 15. That means
' . that whereas an Assistant Executive Engineer.who is a holder of a dégree needs have - only five years’ experience in the Public Works Department, an Assistant Engineer. * in the’ Class II Service who may or may not possess a degree should have eight years’ _ experience in ‘the appa Works Department for hele promoted to the enaty ‘of.
AIR SUPREME COURT reports, [1984] 25.c.R.
Executive Engineers, This extra experience of aie years appears to have been treated as being sufficient to make good the deficiency, if any,.that may arise by , Teason of the Assistant -Bngincer in the Class 11 Service possessing only a diploma and nota degree. [487 Hi; 488 A-C]
2.4.. In the circunistances it could not — been the imdution. of the rule
" - making authotity that no person without a degree should be allowed to enter the
Class I Service. If the construction placed by the petitioners in the writ petition and the Government is accepted every diploma holder who is an Assistant Engi-
- Neer. would have to retire only as a Class II Officer and cannot hope to become an Executive Engineer till his retirement. If that was the intentiof, Rule 6 (b) of the . Class I Rules would have contained necessary words conveying that meaning. Clause
_ (b) of Rule 6 appears to “be exhaustive of the qualifications of the Assistarit Engi-
" neers who can seek promotion from the Class II Service to the Class ] Service: So
Rute 6 of the Class I Rules will readin so faras.the promotees are concerned - as ‘no person shall be appointed to the Service unless in the case of an appointment by promotion has eight years completed servicein Class II and has passed the professional Examination of the department as provided in Rule 15” and clause (a) of Rule
6 should be read as being applicable to the other mode of recruitment. [490 B-D]-
3. Insucha case, it cannot be said that the expertness of the Class 1 Service would very much suffer if persons without degrees but with only diplomas are allowed to get into it. In administrative and professional services a combination of high educational qualifications and long experience is always preferred so that the setvices may be efficient by each of them supplementing the other. Experienced , administrators haye opined that in the higher’ cadres of services high educational qualifications alone‘or long experience alone would not be in the’ interests of the public. In order to see that there is no ‘lack of proficiency in the higher post in . the Class I Service, Rule 5(2) of the Class I Rules expressly: provides that recruitment to the Service shall be so regulated that the number of posts filled by promotion from the Class II Service shall not exceed fifty per cent of the number of posts in the Class I Service excluding the posts of Assistant Executive Engineers. It provides ° fot a healthy blend of the two classes. The effect of Rule 5(2) is that more-than fifty per cent of the Class I Service posts would always be held by direct recruits because the strength of promotees from . the Class II Service cannot be more than fiffty per cent of the total strength of the Class 1 Service minus the number of Assistant Executive Engineers, . The promotees from the Class IT Service will, therefore, always be less than fifty-per cent of the total strength of the Class I Service. Even amongst them 26 oui of 40 are graduates because of Rule 6 of the Class J] Rules which prescribes the quota of direct recruits who should always be the holders of degrees. So diploma holders who may get into the Class I Service by promotion will _ be only 14 out of 40 promotees. Therefore it cannot be said that the 28 diploma holders with the minimum length of experience prescribed by clause (b) of Rule § of the Class I Rules who are selected by the Public Service Commission on the basis of merit and suitabulity (see Rule 8 (4) of the Class I Rules) and with the educational qualifications they may possess as prescribed by the Class ‘I Rules would dilute the Class I Service so much that the efficiency of the Class I Service would go down to, such an extent that the Class I Service will become . unequal to the tasks to be petformed collectively by the entire service. Further, if a Cless I] officer is found wanting in merit andis otherwise unsuitable, he would not be selected by the Public
. Service Commission. This is not like a nurse in an operation the atre carrying out, surgery. Nor is it like. a laboratory assistant teaching stro-physics. eaeahiads 489A-B;F-G] _
.
As.$. PARMAR ¥, HARYANA (Venkataramiah, J.) | 479. CrvIL —e JurIspICTION : .Civil Appeal Mos. 10585 &. {A- 10586 of 1983 . &, - Appeals by . Special — from the Judgment and Order dated the 3rd March, -1983 of the Punjab & age High Court in’ Writ _ Petition No, 2018 of 1981. SB #8. Nariman and P. C. Bhartari for the Appetticatd in CA iia
PP. Rao and Prem Malhotra for the Appellant i in CA. ioseejs3,
KG. " Bhagat, “Addl. Solicitor General aiid R. N. 'Poddar for the State of Haryana. <C
" S.K. Mehta, P.N. Purl, M.K. Dua and EMS Anam for Respondents in Both the Appeals. ,
The" Judgment of the Court was delivered by
- VENKATARAMIAH, §. These appeals are filed against the judeeiint dated Match 3, 1983 in Civil Writ Petition No. 2018 of 1981 on the file of the Punjab and Haryana High Court quashing the promotion of eight officers of the Class II Engineering Service of the Haryana Public Works Department (Buildings and Roads Branch) (hereinafter. referred to as ‘the Class II Service’) as Executive Engineers‘in the E _ Haryana Service of Engineers, Class I, Public Works Department.
(Buildings and Roads Branch) (hereinafter referred to as ‘the Class I ‘ Service’). The said officers are S.L, Gupta, .C. Dewan, S.K. Chopra, Bodh Raj, A.S. Parmar, O.P. Gupta, -Sumair Chand Jain-and. G.L. Sharma. They entered the Class II Service in. accordance with the’. Punjab Service of Engineers, Class II, P.W.D. (Buildings and Roads <= F. Branch) Rules, 1965 (hereinafter referred to as ‘the Class II Rules’) on the dates mentioned aganst their names in the following. table:
o
. Name ' ‘Date of entry S. No.in the ‘ : ‘into Class IT gradation list of * G Service . Class H Service |
1. SL. Gupta _ 19.8.1969 54 |
2. IC, Dewan + 29.1.1970 - 68 . *
3. S.K. Chopra *° °———s«29,1,.1970 “+ 63 a * | 4, Bodh Raj 14,8,1969 6
Cimon yt”
480 SUPREME COURT REPORTS’ - [1984] 2 s.c.R.
AS. Parmar - o . MOZIITO ¢ — - 66
O.P. Gupta - + + 14,8.1969 70
Sumait Chand Jain | - 104.1970 >. °° TL. ; GL, Sharma te 94.1970 ' a
They are all holders of diplomas i in Ragiceestie: They do not possess a degree in Engineering. ‘They were promoted alongwith ‘nine
_ others from the Class II Service to the Class I Service by an: order - dated May 7, 1981 passed by the Haryana State ‘Government ona temporary basis subject to. approval of the Haryana Public Service
“ Commission.. In the case of these officers, the Government of Haryana _ . .
passed an order relaxing the condition of degree qualification in public x interest. The above order of promotion in so far as.these persons. . were concerned was questioned, by eleven officers in the Class I
Service, ‘having entered that service in 1972 in the writ petition out of | which these.appeals arise, The officers who filed the said petition were - that an officer in the Class IT Service could not. bé promoted to the Class I Service unless he possessed a degree in Engineering as. pres- cribed by Rule 6(a) of ithe Punjab Service of Engineers, Class I, P.W.D.. -
(Buildings and Roads Branch): ‘Rules, 1960 (hereinafter referred to as
~. “the Class I Rules’) which govern the recruitment to the Class I Service in the State of Haryana and the rélaxation of that requirement allegéd to have been ordered by the State Government in exercise of the
_ power under the proviso to. Rule 6(a) of the Class I Rules in the cases of the officers whose promotion had been challenged’ was illegal and void: [t .was, therefore, urged’ that the promotions of the said
. persons should be quashed. The State Government and the-officerswhose promotions had been challenged ‘stated. that the order of relaxa- _ .
tion was justified in the circumstances. of the case ‘and the promotions
~ were not liable to be annulled. The question, whether the qualifica- tion of a degree in Engineering was necessary or not in the case of officers i in the Class II Service for promoting them to the Class I Service
_was; however, not raised before the High Court. ‘After hearing the parties, the High Court held that the order of relaxation passed by the ©
State Government was unsustainable and hence the impugned promotions were liable to be set aside, Accordingly the writ’ petition ‘was allowed -quashing the impugned promotions. Aggrieved by’ the: judgment of the-High Court, these appeals have ‘been filed by special leave of his, Court. .
‘Civil | Apgtal No. 10585 of 1983 is filed ty AS. Parma, LC.
' Service, who were’ below them in the gradation list of the Class II .
> all holders of degrees in Engineering. Their principal contention was
é @
é e ao
-
A. §, PARMAR ’Y- HARYANA ws (Venkataramiah, 4) 481
Dewan and S.K. —— Civil Abpea’ No. 10586 of 1983 is ‘filed by: S.L. Gupta, O.P; Gupta and Symair Chand Jain. Bodh Raj and G.L. Sharma’ have already retired from service. Sumair Chand Jain is stated to have died in May, 1983 after the special Leave Petition was filed.. -When the Special Leave Petitions out of which these appeals arise came up for orders on March 23, 1983, a Bench of this Court consisting of three Jearned Judges (A.P. Sen, Venkataramiah and . RB, Misra, JJ) felt-that Rule 6(a) of the Class I Rules was prima facie not applicable to promotions made from the Class JI Service to the _
Class I Service and, therefore, specifically raised the said question. and directed ‘the parties including the State Government to address the:
_ Court: -on it. Then on November 25, 1983, a Bench of two Judges
(A. P. Sen and Venkataramiah, JJ) after hearing all the parties granted , ~ special leave to appeal to this Court limited to the question | whether .
~ this was a case of direct recruitment to the Class 1 Service and therefore,
- Whether Rule 6(a)'of the Class I Rules was applicable, on.the assump-' tion that if it was a promotion from the. Class IT Service ‘to- the Class 1 _ Service, Rule 6(a) would not be applicable. It should be* mentioned here that this question was not argued before the High Court. appa- rently because of the decision in O.P. Bhatia & Anr. v. State of Haryana & Ors. “Din which a ‘similar question had arisen under the Rules applicable to the Irrigation Branch of the Harya a Public Works Depart- mient. The only point now argued before us relates to the applicability .
of Rule 6(a) of the Class I Rules to the promotions referred to above. In oder to determine the said question it is necessary to refer briefly
_ to some of the provisions of the Class U Rules and ‘of the Class I Rules.
Rule 6 of the Class II’ Rules provides that. recruitment to the Class IL Service for cadre and ex-cadre posis should be made against a lot of 40 posts in the following proportions : (i) direct recruitment-~ -
. 26-posts, (ii) promotion from the members of Punjab P.W.D. (B & R) _ Sectional Officers (Engineering) Service—8. posts, (iii) promotion from draftsmen membets of thé Draftsmen and Tracers Service—2
*y posts, (iv) promotion from members of the Punjab P.W.D. (B&R).
Sectional Officers (Engineering) Service.and the Draftsmen members of the Draftsmen and Tracers Setvice and possessing qualifications
- prescribed in Appendix ‘B’ of the Class II Rules—4 posts. Rule.7 of the Class II Rules prescribes the qualifications for entry. into Class Il 7 Service. . ‘It reads ;
@ ie 1980 (1) Punjab and Haryana 470; . 7
482000 SUPREME COURT t REPORTS . 11984] 2 scr. “ Qualifications : No person shall be appointed to ‘the c Service unless he :— ft we mee) in the case of- person appointed by direct appointment.
_ (a): possesses one of the degrees of a recognised university
_ or. other ication presctibed-in x Appendix ‘B’.,
(b) obtains from. the Standing Medical — a certificate of mental. and physical fitness after being examined in accordance with the regulations prescribed in Appendix ‘C’ and is ©
- considered by the Medical Authority to be’ fit in al] respects “for active outdoor -duties; . » 2? a (c) is a person. with a satisfactory character and antece- - _ dents, verification in respect of which shall be arranged. ~ ’ through appropriate Government agency except in case where . such verification may have already ‘been made at the time of ‘his entry into Government service. ee
(2).In the case of appointment by promotion from sources 2 and 3 under rule 6(1) is a member of the Punjab PWD (B&R) Sectional Officers .(Engineering) Service, or a Draftsman member .of the B&R Branch Drafismen and
’ Tracers Service and has put in a service of ten years;
(3)(i) In case of the ‘appointment by promotion from’ source 4 under rule 6(1) is a member of the Punjab PWD (B&R) Branch Draftsmen & Tracers’ Sectional Officers Engineering Service or a Draftsman member of the BER Branch
» Draftsmen and Tracers Service,
(ii) pameuees any of thz qualifications included in
. Appendix ‘B’ and has put in five years service in case he possesses A.M.LS. qualifications and two years service in case he is a degree holder.
(4) In case of appointment by transfer, possesses the qualifications prescribed for the members of the service. (5) Has not more than one wife living or in the case of _ woman, is not married to a person already having a wife living.
+
_—
A. S* PARMAR ¥. HARYANA (Venkataramiah, J.) 483
‘Provided that the Government may if satisfied that there ‘are special grounds for doing so, exempt any person from the operation of this clause.” ae
-It is thus seen that in the Class II Service 26 out of 40 vacancies are filled up by direct recruits who are holders of degrees in Engineering of recognised universities or other equivalent qualifications. 10 vacancies are filled up by promotion from sources (2) and (3) of Rule 6(1) of the Class II Rules of members who have put jn ten years of service and the remaining 4 vacancies are to be filled up by promotions from the fourth source referred to in Rule 6(1) of the Class II Rules of persons who possess the prescribed qualifications and have put in five years or two years service, aS the case may be. The, direct recruitment is made on the basis of a competitive examination held by , the State Public Service Commison and promotions are-made on the basis of recommendations made ‘by a Sclection Committee presided over by the Chairman or a Member of the Public Service Commission on the basis of merit and suitability with due regard to scnicrity.
The members of the Class If Service are designated as Assistant Engi- neers (See Rule 4 of the Class I Rules) and they are officers incharge of sub divisions or incharge of pdsts of equal responsibility in the
.Public Works Department (Building and Roads Branch). They are
Gazetted Officers.
We shall now proceed to deal with the Class | Rules. The Class 1 Service comprises of four cadres—Assistant Executive Engineers,
Executive Engineers, Superintending Engineers and Chief Engineers:
(Rule 3). A ‘member of service’. means an: officer appointed substantively to a cadre post and includes (a) in the case of direct appointment an officer on probation or such an officer who having successfully completed his probation awaits appointment to a cadre post and in the case of appointment by transfer an officer who is on probation or who having successfully complcted his probation awaits appointment toa cadre post provided such officer does not have a lien on a substantive post in any Government Department (Rule 2(12)). “Assistant
- Executive Engineer’ means a metiber of the service in the junior scale of pay. (Rule 2(2)). A!l others in the Class I Seryice are in the - senior scale or in a higher scale, Rule 5 of the Class 1 Rules. provi- des that the recruitment to Class J Service shall be made by the —
Goverment in any one or more of the following methods (i) by, direct appbintment, (ii) by transfer of an officer already in the service of a
State Government or of he Union or (iii) by promotio® from Class 1
Service. All first direct appointments to the Class I Service can be
. only to the posts of Assistant Executive Engineer (Rule 5(4)). Au
484 + SUPREME COURT REPORTS ft [1984] 2 s.cr.
‘officer promoted from the Class II Service has to be reertited to the cadre of Executive Engineers (Rule 5(5)).° The posts of Executive : Engineers can be filled up by promotion of Assistant Executive Engi- - neers also (Rule 9).’ ‘Direct appointment’ means an appointment by ‘. open competition but does not include'(a) an appointment by promo- tion and (b) an appointment by t transfer of an officer already. in’ the.
service of: a State Government or of the Union (Rule .2(7)). The -Explanation.to Rule 2(7) provides that a Class II officer. who enters of. Class I Rules, ‘be deemed to-have entered the Class I Service by
- direct ‘appointment. This means that a member of the Class ‘II: ' Service can either be recruited directly to the cadre of Assistant Execu-* ative Engincers (vide Rule 5(4)) or promoted to the cadre of Executive Engincers (vide Rule 5(5)).. Now we set out below Rule 6 of. the Class I Rules which lays « down the ualiphations for entering the Class I - Service. Rule 6 reads :
” es. :
“6: Qualifications. No person snall be snp ied” to the |
' . Service, unless. he—
@ possesses one of the University. Degrees or other _ qualifications prescribed-in Appendix B of these rules : Provided that Government may waive this qualification. in the case of a | pertigulos officer belonging tos ‘Class Tl SaEvieti
; (b) in. the case of an appointment by promotion | from
Class-IT Service has eight years completed service in Class IT;
‘and has passed the Professional Examination of the Department as provided in rule 15 infra;
(c) being’ a person to ‘be appointed to — service by ditect recruitment, obtains from the Standing Medica! Board a certificationof mental and.physical fitness after being examined’ in accordance with.the regulations prescribed in
~ Appendix C and is considered by the Medical Authority to Be fits in all i for active cutdcor duties;
(Ad isa “person with’ a satisfactory character and, anteccdents, verification in respect of which shall. be frranged : through appropriate Government Agency, except in cascs* where such. verification may have already been: mace at the
. time of his entry into Gov ernmic mit service;
__ the Class I Service-by open competitive selection shall,-for the purposes - mn”
A.S. PARMAR V. ‘HARYANA \veaiatanaiaah. J.) . 485
@) has not more than-one wife living or, in the case of. a mpnen, is not married to a pesian already having'a wife living;
« ‘
Provided that Government may, if satisfied that there are ‘special grounds for doing so, exempt any person from the.” cpemgural this condition.”
Clause (a) of Rule 6 of the’ ‘Class I Rules says that no person shall be appointed to the Service unless he possesses one of the Univer- waive this qualification in the case of a. particular officer belonging to the Class II Service, Clause (a) of Rule 6 nd doubt applies to all
. direct recruitments. If a Class II Officer seeks to enter the Class I i}
‘sity degrees or other qualifications prescribed in Appendix ‘B’ of the - Class I Rules. It is further provided therein that Government may -
Service by direct ‘recruitment, ie. by. recruitment by open competition .
as provided by the Explanation to Rule 2(7), he should possess a
"| degre. as provides in Rule 6(a) unless under the proviso to. Rule 6(a)
4 . wath 5 ) * “¢
Government. waives the said qualification: in his case. A direct recruit has also to satisfy the condition in clause (c) of Rule 6 which deals with the production of a medical certificate as provided therein and the condition in clause (d) of Rule 6 which provides for the verification of his character and antecedents except where such verification may tioned in clause (e) of Rule’6, A direct.recruit shall also have “to he has not already done so, he should pass such departmental examination and within such pevor as may be Brespbed by the Government.
Rule 6(b) of the Class I Rules provides that “Tn the casé af aa an appointment by promotion from Class IT Service (the officer) has eight years. completed service in Class II and has passed the professional examination of the Department. as provided in Rule 15”. -The question is whether an officer in the Class II Service should. satisfy both the | . qualification mentioned in clause (a) and the qualifications mentioned ‘in clause (b) of Rule 6 of the Class I Rules or he shcu'd satisfy only ‘the qualifications under ¢lause (b) for purposes of promotion to the
Class T Service. If clause (b) of Rule 6 had contained the words ‘also’ or ‘in addition to what is contained in clause (a) or any other word or words conveying that meaning, there: would have: been no
_. difficulty in construing that clause as then it would have Clearly meant that an officer -in the Class II Service who seeks promoticn to, the cadre of. Exeoutive Engineers should possess a degree as provided. in:
~ e
‘have already ‘been smade at the time of his entry into ‘Government .. “service.” He should -also not suffer from .the disqualification men-.
‘comply with Rule 15 of the Class I Rules which provides that ‘unless -
. aepet nh ‘ ee 8% as it EE 5 a 1 = nnn N a tata CIRO A ti I BR ERG ar A le ee a pr “SUPREME COURT REPORTS ‘982 4 : . at oy 5 . tes CR
A- clause (a) unless it has been waived by the Government and sh also ‘satisfy the conditions mentioned in clause (b), But we Ould ‘* Gnd any such words in clause (b) of Rule 6 of the Class T Rules (b) of Rule 6 of the Class [ Rules opens with the words tin of an appointment by promotion from Class IT Service’, -with a separate and distinct class of persons who are to be B by. promotion from the Class II Service to the cadre of Executive _. Engineers. The question whether all the clauses in Rule 6 should bs “read cumulatively or separately depends upon the structure of the sentences and the conten's of the. different clauses. In Rule 6, ye dn _ not have the word ‘and’ used at the end of any of the clauses (a) to ®. ° ‘ _clause (¢} being the last one, Clause (c) of Rule 6 deals with only Cc direct recruits and does not apply to promotecs and that is clear by i its language. Clause (d) of Rule 6~applies only to direct recruits _ who enter the .service for the first time and those persons who are = already in’ Government service and in whose case tht verification of * character and antecedents bas not already been done: Clause (e) of Rule 6 can apply only to those who eater the service for the first time D and cannot apply to those who are already in the Class IT Service before appointment to the Class [ Service because there is a corres- ‘ponding provision-even in the Class 1] Rules creating a similar disqualification for being appointed to the: Government service in “* Rule 7(5) of the Class If Rulss. Now we are left with clauses (a) and i * “(b) of Rule 6 of the Class 1 Rules. In Rule 7 of the Class 1l Rules . E © (which is extracted in. the earlier part of this judgment) which are analogous Rules dealing with the qualifications for entry into the Class If Service there is no room for doubt for clause (1) begins with ; the’ words ‘in the case of person appointed by direct recruitment, ‘; clause (2) begins with ghe words ‘in the case ofappuintment.by preme- F si from sources (2) and (3) under Rule 6(1)’; clause (3) begins with : -the words ‘in the Sise of the appointment by promotion from ar ; 4 under Rule 6(5)" and clause (4) begins with the words ‘in the cast : appointment by transfer, Each of the above clauses is ppparently an independent clause, It means that persons falling -under Fa clause do aot full under any of the other elauses and they stand excluded G from the other clauses. Each clause deals with a specific cls. aes thaugh the opening word; of Rule 7 of the Class Il Rules are 4 person shall be appointed to the Service unless pe” as Uney are foun’ in Rule 6 of the Class I Rules also these words have,to be read with each of the clauses (1) to (4) of Rule 7 of the Clauss I Rules, if the FY baie method is adopted in the case of chiuses (a) und (b) of REE of the Class } Rules, then there weuld be ne room for ansbigully- Clause (a) of Rule 6 seems to apply to direct appointments te ! fc int
» Clauce the Cage Tt deals Rented
PISS OER KY is BS nee Deahonenls YSS LD Sea RRS te RS eS PTH
A. S. PARMAR v. HARYANA (Venkataramiah, J.) 487
Class I Service which ordinarily can be to the posts of Assistant Executive Engincers in view of clause (4) of Rule 5 of the Class I Rules and only in exceptional circumstances for reasons to be recorded in writing to the posts of Executive Engineers. Clause (b) of Rule 6 which specially deals with appointments by promotion from the Class II Service to the posts of Executive Engineers exhaustively deals with the qualifications of officers to be promoted from the Class II Service.
The special clause excludes the application of the general. That appears to-be the intention of the rule making authority because clause (a) of Rule 6 deals with educational qualifications and clause (b) deals with the qualification of experience for eight years in the Class II Service and the passing of the departmental examination. So far as direct recruitment through competitive examination is concerned the minimum educational qualification has to be prescribed in the Class I Rules themselves and it is accordingly prescribed by clause (a) of Rule 6. So far as recruitment by promotion from the Class IJ Service: to the post of Executive Engineer is concerned it is seen that as regards Class HW officers the minimum cducational qualifications which they should possess have been fixed in the Class II Rules where 26 out of 40 vacancies are to be filled up by the holders of degrees in engineering of recognised universities and the remaining are to be filled up by promotion from amongst persons with certain educational qualifications and experience of ten years in the: lower cadre or such other experience as stated in the Class JI Rules. Rule 6 of the Class T Rule treats the possession of a degree plus the selection at the competitive examination and the passing of the departmental examination after appoiniment as sufficient for getting into the cadre of Assistant Execptive Engineers or to the cadre of Executive Engineers when direct. Tecruitment is made to those posts and the experience in the Class IE Service for a minimum period of eight years plus the passing of the departmental examinations before promotion of an Assistant Engineer in the Class [f Service a sufficient qualification for promotion to the cadre of Executive Engineers. We may here note that under Rule 9(3) of the Class I Rules an Assistant Executive Engineer who is recruited directly to the Class I Service would not be eligible for promotion to the post of Executive Engineer unless he has rendered five years service as an Assistant Executive Engineer and has passed the Depart- mental Professional: Examination as provided in Rule 15 of the Class I Rules. . ‘
The distinction between the two methods of filling the posts of Executive Engineers by promotion is now apparent. If that post is to be filled up by promoting an Assistant Executive Engineer, the
ABS SUPREME COURT REPORTS — [1984] 2 s.c..
Assistant Executive Engineer concerned should possess five years.
experience and should have passed the’ Departmental Examination prescribed by Rule 15 of the Class I Rules, If that post is to be filled up by promotion of an Assistant Engineer in the Class II Service, the Assistant Engineer to be promoted should possess eight years” - experience in the Class II Servjce and should have passed the Departental Examination prescribed by Rule 15, That means that whereaS
‘ .an Assistant Executive Engineer who is a holder of a degree need ° have only five years’ experience in the Public Works Department, an Assistant Engineer in the Class II Service who may or .may not possess a degree should have eight years’ experience in the Public Works Department for being promoted to the cadre of Executive
Engineers. . This extra experience of three years appears to have been - treated as being sufficient to make good the deficiency, if any, that may arise by reason of the Assistant Engineer in the Class II Service posses- sing only a diploma and not a degree,
It is seriously urged that the expertness of the Class I Service would very much suffer if persons without degrees but with only diplomas are allowed to get into it. It is not, however, suggested that no diploma holder has ever been promoted to the Class I Service in out country. While we are aware of the difference between the proficiency of a person with a degree who enters service by direct recruitment and of a person’ who is promoted after he has acquired certain experience in the same kind of work in a lower cadre, we should State that in administrative and professional services a combination of high educational qualifications and long experiencé is always preferred so that the services may be efficient by each of them supple- menting the other. Experienced administrators have opined that in - the higher cadres of services high educational qualifications alone or long experience alone would not be in the interests of the public. .
_Itis true that it is not wise to have only persons with diplomas in all the posts in the Class I Service. In order to see that there is no lack of proficiency in the higher posts in the Class I Service, Rule 5(2) of the Class I Rules expressly provides that recruitment to the Service shall. be-so regulated that the number of posts filled by protmotion from the Class II Service shall not excced fifty per cent of the number of posts in the Class I Service excluding the posts of Assistant Executive
_Engineers, It provides for a healthy blend of the two classes. What is the effect of this clause 2? More than fifty per cent of the Class I Service posts would always be held by direct recruits because the strength of promotees from the Class II Service cannot be more than fifty per cent of the total strength of the Class I Service minus the os y- io
A, 8. PARMAR ¥. HARYANA (Venkataramiah, J.) 489 numb2r of Assistant Executive Engineers. The promotees from the
' Class Il Service will, therefore, always be less than fifty per cent of the ”
total strength of the Class I Service. Even amongst them 26 out of 40 are graduates because of Rule 6 of the Class II Rules which pres-
“*gribes the quota of direct recruits who should always be the holders of degrees. §5 diploma holders who may get into the Class-I Service by promotion will be only 14 out of 40 promotees. It would be easier to ascertaih now Many non- degree holders can get into the Class I Service by the following illustration. (Note: This illustration is adopted without reference to the actual strength in the Class I Service).
Let us assume that there are 240 Class I posts and out of them 40 are posts of Assistant Executive Engineers. Then there will be in the Class I Service :
40 Assistant Executive Engineers who ate ‘geatules (pecauee of Rule 6(a) of the Class I Rules).
80 Being 50%— of 200-40—160 degree holders (because : of Rule 5(2) of the Class I Rules),
52 Degree holders at the rate of 26 out of 40 from amongst 80 promotees (because of Rule 6 of the Class IT Rules).
Total : 172 ne
* The balance of 28 posts-alone will be available for diploma holders, Can it be said that the 28 diploma holders with the minimum length of experience prescribed by clause (b) of Rule 6 of the Class I
Rules who are selected by the Public Service Commission on the basis of merit and suitability (see Rule 8(4) of the Cjass I Rules) and with the educational qualifications they may possess as prescribed by the Class II Rules would dilute the Class I Service so much that the efficiency of the Class I Service would.go down to such an extent that the Class I Service will become unequal to the tasks to be per-
-formed collectively by the entire Service ? It has also to be noted that if a Class II officer is found wanting in merit and is otherwise unsuitable, he would not be selected by the Public Service Commission. *
This is not like’a nurse in an operation theatre carrying out surgery.
‘Nor is it like a laboratory assistant teaching astro-physics. Who are ‘after all these members of the Class II Service who seek promotion wh, to the cadre of Executive Engineers ? They are all Assistant Engineers H who have held the office of a Sub-Division for eight years. Even ' ay
490 SUPREME COURT REPORTS {1984] 2 s.c.r.
amongst these ‘Sotoma holders who are so selected by the Public Service Commission how many can possibly reach even the cadre of Superintending Engineers, let alone the cadre of Chief Engineers in view of their entering the Government service earlier than the direct recruits? We are of the view that in the circumstances it coutd not have been the intention of the rule making authority that no person without a degree should be allowed to enter the Class I Service. If the construction placed by the petitioners in the writ petition and the Government is accepted every diploma holder who is an Assistant Engineer would have to retire only as a Class II officer and cannot hope to become an Executive Engineer till his retirement. Jf that was the intention, Rule 6(b) of the Class I Rules would have contained necessary words conveying that meaning as it 1s pointed out earlier. We feel that clause (b) of Rule 6 appears to be exhaustive of the qualifications of the Assistant Engineers who can seek promotion from the Class II Service to the Class I Service. So read Rule 6 of the Class J Rules will read in so far as the promotees are concerned as ‘no person shall be appointed to the Service unless in the case of an appointment by promotion has eight years completed service in Class HW and has passed, the professional Examination of the Department as provided in Rule 15’ and clause (a) of Rule 6 should be read as being applicable to the other mode of recruitment.
Our attention is drawn by the learned counsel for the petitioners in the writ petition out of which these appeals arise to the decision in O.P. Bhatia’s case (supra) in which a rule similar to Rule 6 of y the Class T Rules arose for consideration. That Rule is Rule 6 of the Punjab Service of Engineers, Class I, P.W.D. (Irrigation Branch) Rules, 1964. The relevant part of Rule 6 of the said Irrigation Branch Rules reads as follows :
«
“6. Qualifications —No person shall be appointed to the Service unless he—
(a) possesses one of the University Degrees or other qualifications prescribed in Appendix B of these rules;
‘ Provided that Government may waive this qualification in the case of 2 particular officer belonging to Class II Service;
(b) in'case of an appointment by promotion from Class II Service, has co mpleted in that class of Service, for a-period
A. S. PARMAR y. HARYANA (Venkataramiah, J.) . 491 of ten years from the commencement of these rules, six years service and after that period cight years service;
Provided that. if it appears to be necessary to promote an Officer in the public interest, the Governmént may for reasons to be recorded in writing, either generally or in any individual case reduce the period of six or eight years to such ; extent as it may deem proper in consultation with the Finance Department.
Explanation —For the purposes of this clause in computing the period of six or eight years any service rendered as a temporary Engineer shall be taken into account. ........ 8
- The High ‘Court held in that case that a member of the Class II Service in the Irrigation Branch of the P.W.D. should possess a degree to be eligible to be promoted as an Executive Engineer in the Class I Service in the Irrigation Branch of the P.W.D.. The High Court was of the view that the omission of the word ‘directly’ which was in Rule 7 of th2 1955 Rules which were replaced by the Irrigation Branch Rules of 1964 led to the inference that Rule 6(a) of the 1964 Rules was applicable both to the direct recruitment and promotions from the Class Ii Service. In order to understand the above reason, we have’ ourselves looked into the said 1956 Rules. Rule 7 of the said 1956 Rules which dealt with only direct appointments to the posts of Assistant Executive Engineers read as follows :
“7, Qualifications for appointment.—No person shall be appointed directly to the Service unless he—
(a) possesses one of the university degrees or other ' qualifications prescribed in Appendix B to these rules;
(b) has.in the case of a candidate for appointment on the advice of the Commission passed such competitive exminanation or such other test as the Commission may prescribe for appointment to the Service; and
(c) has obtained from a Standing Medical Board in the State of Punjab, a certificate of mental and physical fitness as prescribed by the regulations in Appendix C and is considered by the Board to be fit in all respects for active outdoor duty
4920 SUPREME COURT REPORTS [1984] 2s.c.R.
Provided that in the case of officers belonging to the Class II Service the State Government may, after consultation with the Commission, waive the qualifications required
” by clause (a): . .
Provided further that other things being equal, preference will be given to a candidate who has himself worked for the cause of national independence or has rendered some outstanding social or public service.”
The above Rule did not contain any reference to recruitment— by promotion from the Class II Service to the ‘post of Executive Engineer. The promotion to the cadre of Executive Engineers was dealt with by Rule 15 of the said 1956 Rules. Sub-rule (7) of Rule 15 of the said 1956 Rules read as under : : .
“15. (7) A member recruited by promotion from Class JI Service, who is reported to be fully qualified to hold charge of a Division will be promoted as Executive Engineer on completing 10 years qualifying service as in sub-rule 4 above, but such promotion shall not establish the right to be placed
' in charge of a Division or draw. pay in the senior scale of pay unless a Divisional charge is available.”
Clause (4) of Rule 15 of the said 1956 Rules laid down the method of determining ten years of service in the Class II Service as follows:
“15. (4) In the case of members promoted from the Punjab Service of Engineers, Class IT, the equivalent length of service shall determine the seniority. This will be worked out as under :-— ,
‘(a) Service in the Punjab Service of Engineers,
Class I Full (b) Service in the Punjab Service of Engineers," :
Class II ; 0.8 (c) Service as Temporary Engineer 0.64
(d) Service as officiating Sub-Divisional Officer or Assistant Design Engineer (Non-gazetted) 0.4”
vi a
| m4
*
‘a
-
A. $, PARMAR ¥. HARYANA (Venkataramiah, J.) 493.
_ There was no insistence upon the qualification of a degree in the said 1956. Rules in the case of promotees from the Class II Service.when the 1964 rules of the Irrigation Branch, Class I were promulgated, the pattern of the Rules was changed. While doing so, in the new Rule 6, the word ‘directly’ which was in the old Rule 7 was no doubt omitted but the new Rule 6 referred to both kinds of appointment, namely, direct recruitment and proniotion from the Class II Service, It was not a case of just reproducing the old Rule 7 and © omitting one word therefrom but the introduction of a new Rule 6 with a different structure. ‘The High Court also appears to have overlooked while relying upon Rule 9 of the Irrigation Branch Rules of 1964 that the proviso to Rule 6(a) of the said Rules was applicable
“only to a Class II officer who wanted. to get‘into the Class I Service by direct recruitment as provided in the Explanation to Rule 2(7) of the Irrigation Branch Rules which corresponded to the Explanation to Rule 2(7) of the Class I Rules with which we are concerned. The. High Court has not examined the Irrigation Branch Rules as fully as we have examined the Class I Rules. The judgment of the High Court is very cryptic. We do not agree with its conclusion that a degree _is a pre-requisite for being promoted from the Class II Service to the Class I Service for the reasons we have already given above.
In these cases the State Government having first construed
. that Rule 6 of the Class I Rules required that a promotee should also have a degree, tried to relax that condition by making orders relaxing it as it found that its construction had led to unjust results. It did not make any attempt to reconsider its interpretation of Rule 6 even when
- the matter came up before the High Court. It only tried to justify the order of relaxation but ultimately failed in its attempt. It, is only in this Court that the question of interpretation of Rule 6 of the Class I Rules was raised.
Tt is indisputable that if the Government wishes to appoint only holders of degrees to the Class I Service, it may do so by promul-
"gating appropriate Rules. That power is beyond, question and it is not, therefore, necessary to refer to those decisions which lay down that classification on the basis of educational qualifications of officers belonging*to a cadre for purposes of promotion to a higher cadre is permissible, The question, however, in these cases is whether the” Class I Rules as they now exist debar the promotion of an Assistant Engineer in the Class If Service who does not possess a egree to the cadre of Executive Engineers even when he satisfies the requiremei.ts of clause (b) of Rule 6 of the Class I Rules and is selected by the Public
A;
494 SUPREME COURT REPORTS {1984} 2 s.c.R, Service Commission. Our answer is in the negative, Since Rule 6(a) of the Class I Rules is not applicable to the
Class II officers who are to be promoted to the Class I Service, the question whether the order of relaxation made in the case of the promotees is validly passed or not becomes immaterial. We, therefore, set aside the judgment of the High Court and dismiss the writ petition filed before the High Court. Since we have disposed of these appeals on a ground different from the ground urged before the High Court, we express no opinion on the validity of the order of relaxation.
For the foregoing reasons, the appeals are allowed but in the circumstances of the cases without any order as te costs.
S.R. : Appeals allowed.
Ne