A. S. Parmar & Ors Vs. State of
Haryana & Ors [1984] INSC 17 (24 January 1984)
VENKATARAMIAH, E.S. (J) VENKATARAMIAH, E.S.
(J) MISRA, R.B. (J)
CITATION: 1984 AIR 643 1984 SCR (2) 476 1984
SCALE (1)113
CITATOR INFO :
E&R 1987 SC 415 (1,2,3,8,9,14,15) E&R
1987 SC 424 (11) R 1989 SC2082 (3,4,6,11,12,15)
ACT:
Constitution of India, Article 311 and 305
proviso thereto-Promotion employees from Class 11 service to class I service in
the P.W.D. (Irrigation branch Punjab-Possession of a degree is not a pre-requisite
for promotion from class 11 . class I Service-Punjab service of Engineer Class
1, P.W.D. (Irrigation Branch Rules, 1964 Rule 6(a), interpretation of Promotion
of Assistant Engineers in class ll service, not possessing degree to the cadre
of Executive Engineers Class 1, but satisfying the requirements of clause (b)
of Rule 6 of class I Rules-Whether in order or whether Rule 6 (a) will be
applicable- Comparison between Punjab Service of Engineers class 11 P.W.D,
(Buildings and) Roads Branch) Rules 1965, Rules 6 & 7 with Punjab Service
of Engineers class I.P. W.D. (Buildings and Roads Branch) Rules 6 (a) and 6
(b).
HEADNOTE:
Eight officers including the appellants
entered the class II service in accordance with tho Punjab Service of Engineers
class II, 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 II service to the class I service by an order dated May 7, 1981, passed
by the Haryana State Government on a 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 interest. The above orders of promotion in so far as
these persons were concerned were questioned by eleven officers in the class II
service, who were below them in the gradation list of the class II 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 all holders of
degrees in Engineering. Their principal contention was that an officer in the
class II service could not be promoted to the class I service unless he
possessed a degree in Engineering as prescribed by Rule 6(a) of the Punjab
Service of Engineers, class I, P.W.D, (Buildings and Roads Branch) Rules, 1960
which governed the recruitment to the class I service in the State of Haryana
and the relaxation of that requirement alleged to have been ordered by the
State Government in exercise of the power under the provision to Rule 6 (a) in
the case of the officers whose promotions had been challenged was illegal and
void. The Punjab & Haryana High Court accepted the said contention and
dismissed the petition. Hence the appeals after obtaining special leave of the
Court, Allowing the appeals the Court,
HELD: 1.1. A degree is not a pre-requisite
for being promoted from the class II service to the class I service.
[493 D] 477 1.2. A comparison between the
1956 Rules and the 1964 Rules makes it A clear that there was no insistence
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
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 promotion from the class II service.
It was not a case of just reproducing the old Rule 7 and omitting one word
there from, but the introduction of a new Rule 6 with a different structure.
[493A-B] O.P. Bhatia & Anr. v. State of Haryana & Ors., ILR[1980]1
Punjab & Haryana 470. Overruled.
1.3. In these cases, the State Government
having first consumed 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 as it found that its construction had led to in just results. In view
of the fact that the question of interpretation of New Rule 6 of 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 to the 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] 2.1. It is indisputable that if the
Government wishes to appoint only holders or degrees to the class I service, it
may do so by promulgating appropriate rules. That power is beyond question, and
classification on the basis of educational qualifications of officers belonging
to a cadre for purposes of promotion to a higher cadre is permissible.
But, the class I Rules as they now exist do
not debar the promotion of an Assistant Engineer in the class II service who
does not possess a degree to the cadre of Executive Engineers even when he
satisfies the requirements of clause (b) of Rule 6 of the class I Rules and is
selected by the Public Service Commission. [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 Executive Engineers or to
the cadre of Executive Engineers when direct recruitment is made to those posts
and the experience in the class II Service for a minimum period of eight years
plus the passing of the departmental examinations before promotion of an
Assistant Engineer in the Class II Service as sufficient qualification for
promotion to the cadre of Executive Engineers. [487 E-F]
2.3 The distinction between the two methods
of filling the posts of Executive Engineer by promotion is clear. If that post
is to be filled up by promoting an Assistant Executive Engineer, the 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 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 degree needs have only five years'
experience in the Public Works Department, an Assistant Engineer in the Class [
[ 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
478 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 possessing
only a. diploma and nota degree. [487 H; 488 A-C] 2.4. In the circumstances it
could 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. If that was the intention, 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
Assistant Engineers who can seek promotion from the Class II Service to the
Class I Service So Rule 6 of the Class I 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 II and has passed the professional Examination of the department as
provided in Rule 1 S" and clause (a) of Rule 6 should be read as being
applicable to the other mode of recruitment. [490 B-D]
3. In such a case, it cannot be said 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. In administrative
and professional services a combination of high educational qualifications and
long experience is always preferred so that the services may be efficient by
each of them supplementing 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. In order to see
that there is no lack of proficiency in the higher post in the Class I Service,
Rule S(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 IT 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 for a healthy blend of the two classes. The effect of Rule S(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 fifty per cent of the total strength of the class I Service
minus the number of Assistant Executive Engineers. The promotees from the Class
II 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 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 6 of the Class I Rules who are
selected by the Public Service commission on the basis of merit and suitability
(see Rule 8 (43 of the Class 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
performed collectively by the entire service.
Further, 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 the atre
carrying out surgery. Nor is it like a laboratory assistant teaching
stro-physics. [488D-H; 489A- B;F-G] 479
CIVIL APPELLATE JURISDICTION: Civil Appeal
Nos. 10585 & 10586 of 1983 Appeals by Special leave from the Judgment and
order dated the 3rd March, 1983 of the Punjab & Haryana High Court in Writ
Petition No. 2018 of 1981 F.S. Nariman and P.C. Bhartari for the Appellant in
CA.10585/83 P.P. Rao and Prem Malhotra for the Appellant in CA.10586/83.
K.G. Bhagat, Addl. Solicitor General and R.
N. Poddar for the State of Haryana.
S.K. Mehta, P.N. Puri, M.K. Dua and EMS Anam
for Respondents in Both the Appeals.
The Judgment of the Court was delivered by
VENKATARAMIAH, J. These appeals are filed against the judgment dated March 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 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, I.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 Branch) Rules, 1965 (hereinafter referred to as
'the Class II Rules') on the dates mentioned against their names in the
following table:
...........................................................
Name Date of entry S. No. in the into Class
II gradation list of Service Class II Service
............................................................
1. S.L. Gupta 19.8.1969 54
2. I.C. Dewan 29.1.1970 68
3. S.K. Chopra 29.1.1970 63
4. Bodh Raj 14.8.1969 65 480 5 A S Parmar
20.2.1970 66 6 O.P. Gupta 14.8.1969 70
7. Sumair Chand Jain 10.4.1970 71
8. G.L. Sharma 9.4. 1970 72 They are all
holders of diplomats in Engineering. 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 on a 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 'C
interest The above order of promotion in so far as these persons were concerned
was questioned by eleven officers in the Class II. Service, who were below them
in the gradation list of the Class. II 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 all holders of degrees in Engineering. Their
principal contention was that an officer in the Class II Service could not be
promoted to the Class I Service unless he possessed a degree in Engineering as
prescribed by Rule 6(a) of the Punjab Service of Engineers, Class 1, P.W.D.
(Buildings and Roads Branch) Rules, 1960 (hereinafter referred to as 'the Class
[ Rules') which govern the recruitment to the Class I Service in the State of
Haryana and the relaxation of that requirement alleged 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. It was, therefore, urged that the promotions
of the said persons should be quashed. The State Government and- the officers
whose promotions had been challenged stated that the order of relaxation was
justified in the circumstances of the case and the promotions were not liable
to be annulled. The question whether the qualification of a degree in
Engineering was necessary or not in the case of officers 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 this Court.
Civil Appeal No. 10585 of 1983 is filed by
A.S. Parmar, I.C.
481 Dewan and S.K. Chopra. Civil Appeal No.
10586 of 1983 is filed by S.L. Gupta, O.P. Gupta and Sumair 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 learned Judges (A.P. Sen,
Venkataramiah and R.B.
Misra, JJ) felt that Rule 6(1) of the Class 1
Rules was prima facie not applicable to promotions made from the Class II
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 I Service and therefore, whether Rule 6(a) of the
Class I Rules was applicable, on the assumption that if it was a promotion from
the Class II Service to the Class I Service, Rule 6(a) would not be applicable
It should be mentioned here that this question was not argued before the High
Court apparently because of the decision in O.P. Bhatia & Anr. v. state of
Haryana & ors.(1) in which a similar question had arisen under the rules
applicable to the Irrigation Branch of the Haryana Public Works Department. 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 older to determine
the said question it is necessary to refer briefly to some of the provisions of
the Class II Rules and of the Class I Rules.
Rule 6 of the Class II Rules provides that
recruitment to the Class II Service for cadre and ex-cadre posts 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 members of the Draftsmen and Tracers Service-2 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 Service 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 II Service. It reads:
482 "(7) Qualifications: No person shall
be appointed to the service unless he:- (1) in the case of person appointed by
direct appointment.
(a) possesses one of the degrees of a
recognised university or other qualification prescribed in Appendix 'B'.
(b) obtains from the Standing Medical Board 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 all respects for active outdoor duties;
(c) is a person with a satisfactory character
and antecedents, 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.
(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 Draftsmen 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 B & R Branch Draftsmen and Tracers Service.
(ii) Possesses any of the qualifications
included in Appendix 'B' and has put in five years service in case he possesses
A.M.I.S. 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.
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." 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 in 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 commission and
promotions are made on the basis of recommendations made by a Selection
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 seniority.
The members of the Class II Service are designated as Assistant Engineers (See
Rule 4 of the Class II Rules) and they are officers incharge of sub divisions
or incharge of posts 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 I
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 cr 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 completed his probation awaits appointment to a 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
member of the service in the junior scale of pay. (Rule 2(2)). All others in
the Class I Service are in the senior scale or in a higher scale. Rule 5 of the
Class 1 Rules provides that the recruitment to Class I Service shall be made by
the Government in any one or more of the following methods (i) by direct
appointment, (ii) by transfer of an officer already in the service of a State
Government or of he Union or (iii) by promotion from Class 11 Service. All
first direct appointments to the Class I Service can be only to the posts of Assistant
Executive Engineer (Rule 5(4)). An 484 officer promoted from the Class II
Service has to be recruited to the cadre of Executive Engineers (Rule 5(5)).
The posts of Executive Engineers can be
filled up by promotion of Assistant Executive Engineers also (Rule 9).
'Direct appointment' means an appointment by
open competition but does not include (a) an appointment by promotion and (b)
an appointment by 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 the Class l Service by open competitive
selection shall, for the purposes of Class I Rules, he 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
Executive Engineers (vide Rule 5(4)) or promoted to the cadre or Executive
Engineers. (vide Rule S(S)). Now we set out below Rule 6 of the Class T Rules
which lays down the qualifications for entering the Class I Service. Rule 6
reads:
"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 a
particular officer belonging to Class 11 Service, (b) in the case of an
appointment by promotion from Class II 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
the service by direct recruitment, obtains from the Standing Medical Board a
certification of mental and physical fitness after being examined in accordance
with the regulations prescribed in Appendix and is considered by the Medical
Authority to be lit in all respects r.. , active outdoor duties:
(d) is a person with a satisfactory character
and antecedents, verification in respect of which shall be arranged through
appropriate Government Agency except in cases where such verification may have
already been made at the time of his entry into Government service;
485 (e) has not more than one wife living or,
in the case of a woman is not married to a person already having a wife living;
Provided that Government may, if satisfied
that there are special grounds for doing so, exempt any person from the
operation of 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 University degrees or other qualifications prescribed in Appendix 'B' of
the Class I Rules. It is further provided therein that Government may waive
this qualification in the case of a particular officer belonging to the Class
II Service Clause (a) of Rule 6 no doubt applies to all direct recruitments. If
a Class II officer seeks-to enter the Class T Service by direct recruitment
i.e. by recruitment by open competition as provided by the Explanation to Rule
2(7), he should possess a degree as provided in Rule 6(a) unless under the
proviso to Rule 6(a) 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 have already been
made at the time of his entry into Government service. He should also not
suffer from the disqualification mentioned in clause (e) of Rule 6. A direct
recruit shall also have to comply with Rule 15 of the Class I Rules which
provides that unless he has not already done so, he should pass such departmental
examination and within such period as may be prescribed by the Government Rule
6(b) of the Class I Rules provides that ''in the case of an appointment by
promotion from Class II 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
should satisfy only the qualifications under clause (b) for purposes of
promotion to the Class I 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
cr 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 promotion to the cadre of Executive Engineers
should possess a degree as provided in 486 clause (a) unless it has been waived
by the Government and should also satisfy the conditions mentioned in clause
(b).
But we do not find any such words in clause
(b) of Rule 6 of the Class I Rules. Clause (b) of Rule 6 of the Class I Rules opens
with the words 'in the case of an appointment by promotion from Class II
Service'. It deals with a separate and distinct class of persons who are to be
recruited by promotion from the Class II Service to the cadre of Executive
Engineers. The question whether all the clauses in Rule 6 should be read
cumulatively or separately depends upon the structure of the sentences and the
contents of the different clauses. In Rule 6, we do not have the word 'and'
used at the end of any of the clauses (a) to (d), clause (e) being the last
one. Clause (c) of Rule 6 deals with only .
direct recruits and does not apply to
promotees and that is clear by 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 the verification of
character and antecedents has not already been done. Clause (e) of Rule 6 can
apply only to those who enter the service for the first time and cannot apply
to those who are already in the Class II Service before appointment to the
Class I Service because there is a corresponding provision even in the Class II
Rules creating a similar disqualification for being appointed to the Government
service in Rule 7(5) of the Class II Rules. Now we are left with clauses (a)
and (b) of Rule 6 of the Class I Rules. In Rule 7 of the Class II Rules (which
is extracted in the earlier part of this judgment) which are analogous Rules
dealing with the qualifications for entry into the Class II 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 the words 'in the case
of appointment by promotion from sources (2) and (3) under Rule 6(1) clause (3)
begins with the words 'in the case of the appointment by promotion from source
4 under Rule 6(1) and clause (4) begins with the words 'in the case of
appointment by transfer'. Each of the above clauses is apparently an
independent clause. It means that persons falling under one clause do not fail
under any of the other clauses and they start excluded from the other clauses.
Each clause deals with a specific class. Even though the opening words of Rule
7 cf the Class II Rules are "No person shall be appointed to the Service
unless he" as they are found in Rule 6 of the Class I Rules also these
words have to be read with each of the clauses (I) to (1) of Rule 7 of the
Class II Rules If the same method is adopted in the case of clauses (a) and (b)
of Rule 6 of the Class I Rules, then there would be no room for ambiguity.
Clause (a) of Rule 6 seems to apply to direct appointments to the 487 Class I
Service which ordinarily can be to the posts of Assistant Executive Engineers
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 them and it is accordingly prescribed by
clause (a) of Rule 6. So far as recruitment by promotion from the Class II
Service to the post of Executive Engineer is concerned it is seen that as
regards Class II officers the minimum educational 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 II
Rules. Rule 6 of the Class I Rule 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 Executive Engineers or to the cadre of Executive Engineers when
direct recruitment is made to those posts and the experience in the Class II
Service for a minimum period of eight years plus the passing of the
departmental examinations before promotion of an Assistant Engineer in the
Class ll 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 was rendered five years service as an Assistant Executive Engineer
and has passed the Departmental 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 488 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 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 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 possessing 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 our 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 experience is always
preferred so that the services may be efficient by each of them supplementing
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. It is 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 promotion from the Class II Service shall not exceed fifty percent 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 ? More than fifty percent 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 1 Service minus the 489 number of Assistant Executive
Engineers. The promotees from the A Class II 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 prescribes the quota of direct
recruits who should always be the holders of degrees.
S..) 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 ascertain 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 are
graduates (because of Rule 6(a) of the Class I Rules).
80 Being 50%-of 200-40-160 degree holders
(because of Rule S(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 II Rules).
............................................................
Total: 172
...........................................................
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 Class 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 performed 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 astrophysics. Who are
after all these members of the Class II Service who seek promotion to the cadre
of Executive Engineers ? They are all Assistant Engineers who have held the
office of a Sub-Division for eight years, Even 490 amongst these diploma
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
could 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. If that was the intention, Rule 6(b) of the Class
I Rules would have contained necessary words conveying that meaning as it is
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 1
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 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.
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
the Class I 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 of these rules;
Provided that Government may waive this
qualification in the case of a particular officer belonging to Class II
Service;
(b) in case of an appointment by promotion
from Class II Service, has completed in that class of Service, for a period 491
of ten years from the commencement of these rules, six years service and after
that period eight years services Provided that if it appears to be necessary to
promote an Officer in the public interest, the Government 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..... " 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 the 1956 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 It 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 to
these rules;
(b) has in the case of a candidate for
appointment on the advice of the Commission passed such competitive examination
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;
492 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 out standing 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 II. 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 II, 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-gazette) 0.4" 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 promotion from
the Class II Service. It was not a case of just reproducing the old Rule 7 and
omitting one word there from 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.
It is indisputable that if the Government
wishes to appoint only holders of degrees to the Class I Service, it may do so
by promulgating 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 II Service who
does not possess agree to the cadre. Of Executive Engineers even when he
satisfies the requirements of clause (b) of Rule 6 of the Class I Rules and is
selected by the Public 494 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
promotes 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 to costs.
S. R. Appeals allowed.
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