K.K. Khosla & Anr Vs. State of Haryana & Ors [1990] INSC 52 (20 February 1990)

Kuldip Singh (J) Kuldip Singh (J) Thommen, T.K. (J) Kasliwal, N.M. (J)

CITATION: 1990 AIR 1069 1990 SCR (1) 464 1990 SCC (2) 199 JT 1990 (1) 290 1990 SCALE (1)234

CITATOR INFO : RF 1991 SC1406 (4)

ACT:

Haryana Service of Engineers Class I PWD (Public Health Branch) Rules, 1961: Rules 5, 9, 11, 15 & 22--Promotion to the post of Executive Engineer Class I--Relaxation of Rules in favour of an Assistant Executive Engineer--Validity of.

HEAD NOTE:

Rule 5 of the Haryana Service of Engineers Class I PWD (Public Health Branch) Rules 1961 requires 50 per cent of the posts of Executive Engineers to be filled by promotion from m.tubers of Class II Service. Rule .9(3) renders a member of service ineligible for promotion to the rank of Executive Engineer unless he renders five years' service as an Assistant Executive Engineer, and has passed the depart- mental examination. The first proviso thereto grants pre- fernce to an Assistant Executive Engineer over an eligible Class II Officer in the matter of promotion. The second proviso empowers the Government to reduce the period of five years' service as an Assistant Executive Engineer. Rule II prescribes two years' probation case of direct recruits to the Service. Rule 15 requires officers appointed to the Service to pass departmental examination within such period as may be prescribed unless they have already done so. Rule 22 empowers Government to relax the requirement of Rules In cases of undue hardship.

Respondent No. 3, a direct recruit to the post of As- sistant Executive Engineer in the Public Health Branch, was promoted to the post of Executive Engineer, Class I Service, defeating the claim of the appellants, members of Class II Service of Engineers In the said Department. They assailed his appointment by means of a writ petition under Article of the Constitution on the ground that the respondent was not eligible for promotion as he had not rendered five years' service as an Assistant Executive Engineer and further he had not passed the departmental examination which was the minimum requisite qualification for promotion to the post of Executive Engineer. Before the High Court the State Govern- ment's plea was that it had relaxed the requirement of Rule 9(3)(a) not only to respondent No. 3 but to other officers also. The High Court dismissed the writ petition on the view that there was no infirmity in the Government's order grant- ing exemption to respondent 465 In appeal, in addition to the pleas raised before the High Court, it was further submitted that respondent No. 3 was not eligible for promotion as he had not completed two years' probationary period as Assistant Executive Engineer on the date of his promotion.

Dismissing the appeal, the Court,

HELD: 1. There was no legal infirmity in the promotion of respondent No. 3. The State Government had granted relax- ation to him by reducing the period of service under clause (a) to Rule 9(3) in exercise of its power under the second proviso to the said Rule. This relaxation was granted as he was the only officer in the department who was a direct recruit to Class I Service. In addition to that, Rule 22 further confers power on the State Government to grant relaxation with regard to the operation of the Rules. The Government's order granting relaxation in favour of respond- ent No. 3 was sustainable under Rule 22 also. [468B-D] J.C. Yadav & Ors. v. State of Haryana & Ors., [1990] 1 SCR470, referred to.

2. The respondent's promotion to the post of Executive Engineer was not rendered illegal merely because he had not undergone departmental examination in the Public Health Branch. He had been working as Sub-Divisional Engineer in the Public Works Department (Buildings and Roads Branch) for a period of 6-1/2 years prior to his recruitment to the post of Assistant Executive Engineer in the Public Health Branch and during that period he had passed departmental examina- tion. The syllabus prescribed for the departmental examina- tion in the Buildings and Roads Branch as well as in the Public Health Branch was almost the same. The Government was satisfied that there was no necessity for him to pass the examination again. [469B; 468E~G; 469A]

3. Non-completion of probationary period of two years on the post of Assistant Executive Engineer by respondent No. 3 did not affect the validity of his promotion to the post of Executive Engineer under the Rules. There is no specific provision in the Rules requiring completion of probationary period for the purposes of promotion within the Service. It was relevant only for the purpose of confirmation in Class I Service. [469E; C-D]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 653 of 1981.

466 From the Judgment and Order dated 11.8.80 of the Punjab and Haryana High Court in C.W.P. No. 1192 of 1980.

M.K. Ramamurthy and Jitender Sharma for the Appellants..

Rajinder Sachar, Govind Mukhoty Dr. Shankar Ghosh, Mahabir Singh, S.C. Patel, T.C. Sharma, C.V. Subba Rao, C.M. Nayyar, P.P. Singh and S.K. Verma for the Respondents.

The Judgment of the Court was delivered by SINGH, J. This appeal is directed against the judgment and order of a Division Bench of the Punjab and Haryana High Court dated 11th August, 1980 dismissing the appellants' writ petition under Article 226 of the Constitution chal- lenging validity of the appointment of Bhagwan Das Sardana, respondent No. 3 to the post of Executive Engineer in Public Works Department (Public Health Branch).

The post of Executive Engineer in Public Works Depart- ment (Public Health Branch) in the State of Haryana is borne on Class I Engineering Service, recruitment to which is made by direct recruitment and promotion under the provisions of the Haryana Service of Engineers Class I PWD (Public Health Branch) Rules, 1961 (hereinafter referred to as 'the Rules'). Under Rule 5, 50% of the posts of Executive Engi- neers in Class I are required to be filled by direct re- cruits while the remaining 50% posts are to be filled by promotion from members belonging to Class II service. Rule 8 provides for constitution of a Committee for making selec- tion for promotion to the post of Executive Engineer. The list so prepared is forwarded to the State Public Service Commission and on its approval the State Government is required to make the appointments. Rule 9 lays down that promotion shall be made by selection on the basis of merit and suitability in all respects. Rule 9(3) lays down that a member shall not be eligible for promotion to the rank of Executive Engineer, unless he has rendered five years' service as an Assistant Executive Engineer, and has passed the departmental examination as provided in Rule 15. The first proviso to the Rule lays down that an Assistant Execu- tive Engineer found suitable for promotion shall be given preference over an eligible Class II officer. The second proviso to Rule 9(3) confers power on the Government to reduce the period of five years' service as an Assistant Executive Engineer. Rule 11 lays down that an officer ap- pointed to the service shall remain on probation for a period of two years in case of direct recruitment. Rule 15 lays down that officers 467 appointed to the service unless they have already done so, shall pass departmental examination and within such period as may be prescribed by the Government. Under the proviso to Rule 15(1) the Government is empowered to extend the period within which an officer may pass the departmental examina- tion. Rule 22 confers power on the Government to relax the requirements of Rules if it is satisfied that the operation of any of these Rules causes undue hardship in any particu- lar case.

The appellants S/Shri K.K. Khosla and L.C. Goyal were holding the post of Sub-Divisional Engineers PWD (Public Health Branch) in the State of Haryana in Class II Service of Engineers. They were considered for promotion to the post of Executive Engineer, Class I Service. The Selection Com- mittee, on scrutiny of cases of eligible Class II officers prepared a select list for promotion. The list so prepared contained the names of nine officers including the two appellants but ultimately the appellants were not appointed by promotion to the post of Executive Engineer instead other seven officers belonging to Class II Service were promoted and in addition to that Bhagwan Das Sardana, respondent No. 3 a direct recruit was also appointed on the recommendation or' the Public Service Commission. Aggrieved, the appellants filed a writ petition in the High Court challenging the validity of the appointment of respondent No. 3 on the ground that he had not rendered five years' service as an Assistant Executive Engineer and had not passed the depart- mental examination which was the minimum requisite qualifi- cation for promotion to the post of Executive Engineer in Class I Service. On behalf of the State Government, it was pleaded that the State Government had relaxed the require- ment of Rule 9(3)(a) with regard to five years' period of service not only to respondent No. 3 but to other officers also. The High Court dismissed the writ petition on the finding that there was no infirmity in the Government's order granting exemption to respondent No. 3 and his promo- tion and appointment to the post of Executive Engineer did not suffer from any legal infirmity. The appellants have challenged the view taken by the High Court in the instant appeal.

On behalf of the appellants it was urged that the promo- tion and appointment of respondent No. 3 to the post of Executive Engineer was made in utter disregard of the Rules as he had not rendered five years' service as an Assistant Executive Engineer as required by Rule 9(3)(a) and he had not passed the departmental examination as contemplated by Rule 15 and lastly he was not eligible for promotion as he had not completed two years' probationary period as Assist- ant Execu- 468 tive Engineer on the date of his promotion.

On a careful scrutiny of the Rules and the material on record we do not find any merit in the submission made on behalf of the appellants. No doubt respondent No. 3 had not rendered five years' service as an Assistant Executive Engineer but the State Government had granted relaxation to the respondent No. 3 by reducing the period of service under Clause (a) to Rule 9(3) in exercise of its power under the proviso to the said Rule. This relaxation was granted as the respondent No. 3 was the only officer in the Department who was a direct recruit to Class I Service. The State Govern- ment had power to grant relaxation under the second proviso to Rule 9(3) therefore we find no legal infirmity in the respondent's promotion. In addition to that Rule 22 further confers power on the State Government to grant relaxation with regard to the operation of the Rule. The Government's order granting relaxation in favour of respondent No. 3 is sustainable under Rule 22 also. The scope of State Govern- ment's power to relax operation of Rules has been discussed by us in J.C. Yadav & Ors. v. State of Haryana & Ors., [1990] 1 SCR 470. On the application of those principles we find no illegality in the order of the Government granting relaxation to respondent No. 3, in respect of operation of Rule 9(3)(a).

As regards the departmental examination is concerned, it is true that the respondent No. 3 did not pass the depart- mental examination afresh in the Public Health Branch. On behalf of the State Government it is pointed out that prior to his recruitment to the post of Assistant Executive Engi- neer in the Public Health Branch respondent No. 3 had been working as Sub-Divisional Engineer (SDE) in the Public Works Department (Building and Road Branch) for a period of 6-1/2 years and during that period he had passed departmental examination. In this view the Government did not consider it necessary to require the respondent No. 3 to pass the de- partmental examination once again. The Public Health Branch as well as the Building and Road Branch both belong to the Public Works Department. The syllabus prescribed for the departmental examination in the Building and Road Branch as well as in the Public Health Branch is almost the same, as except one, all other subjects are common to both the Branches. The State Government's opinion that since the respondent No. 3 had already passed a departmental examina- tion while working in the Building and Road Branch, it was not necessary for him to have passed the departmental exami- nation again was justified though it had at an earlier stage directed the respondent No. 3 to pass the depart- 469 mental examination again. Later on the Government was satis- fied that since the respondent had already passed the de- partmental examination in Building and Road Branch, there was no necessity for the respondent to pass the examination again. In these circumstances we hold that respondent's promotion to the post of Executive Engineer was not rendered illegal merely because he had not undergone departmental examination in the Public Health Branch afresh.

Respondent No. 3 had been appointed as a direct recruit to the post of Assistant Executive Engineer on 7.12. 1977 on probation for a period of two years. Before the expiry of the probation period he was selected for promotion to the post of Executive Engineer. The appellants' contention that unless the respondent had satisfactorily completed the probation period, he could not be promoted to the post of Executive Engineer, is misconceived. There is no specific provision in the Rules requiring completion of probationary period for the purposes of promotion within the service.

Under Rule 11 an officer is required to be appointed on probation, if during the period of probation his work is not found satisfactory his services are to be dispensed with and in the event of his services being found satisfactory he is entitled to confirmation on the post. It is thus clear that the completion of the probationary period of respondent was relevant only for the purpose of confirmation in Class I Service and Same was not a precondition for the purpose of promotion within the service. Moreover, the Government issued an order waiving the probationary period of one year in the respondent's case. Non-completion of probationary period of two years on the post of Assistant Executive Engineer did not affect the validity of the respondent's promotion to the post of the Executive Engineer under the Rules.

In view of the above discussion, we find no merit in the appeal and it is accordingly dismissed. There will be no order as to costs.

P.S.S. Appeal dismissed.

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