A.N. Sehgal
& Ors Vs. Raje Ram Sheoran & Ors [1991] INSC 94 (5 April 1991)
Ramaswamy,
K. Ramaswamy, K. Singh, K.N. (J)
CITATION:
1991 AIR 1406 1991 SCR (2) 198 1992 SCC Supl. (1) 304 JT 1991 (2) 123 1991
SCALE (1)601
ACT:
Civil
Service - Haryana Public Service of Engineers Class I PWD (Roads and Buildings
Branch) Rules, 1966-Rules 2(1), (7), (10), (12), 5,6,7,8,9,11,12 - Post of
Asst. Executive Engineer, Executive engineer and Superintending Engineer -
Direct recruits and promotees - Inter se fixation of seniority - Year of
allotment - Alterability of.
Constitution
of India, 1950-Articles 14 and 16-Direct recruit Assistant Executive Engineer
to cadre post and ex cadre post - Treatment at par as member of
service-Validity of-Rule 2(12)(a), Haryana Public Service of Engineer Class I
PWD (Roads and Buildings Branch) Rules, 1966-Whether discriminatory.
Interpretation
of Statutes-Proviso of particular provision of a statue-Construction of-Whether
carves out an exception to the main provision (Haryana Public Service of
Engineers, Class 1, PWD (Roads and Building Branch) Rules, 1966-Rule 5(2)(a).
Haryana
Service of Engineers, Class I, PWD (Road and Buildings Branch) Rules, 1966-Rule
2(1), (3), (7), (12)(a), 5(2)(a), 8, 9, (2), 11, 12, (3), (5), (6), (7) - Harmonious
construction-Reasons indicated.
HEAD NOTE:
The
appellants, `the promotees' from Class II service were promoted as Executive
Engineers by relaxing five years length of service as Class II Engineers in
officiating capacity on various dates between January 6, 1969 to May 29, 1971.
Only the appellant no. 1 and two other were confirmed as Executive Engineers w.e.f.
July 11, 1973, December 11, 1974 and December
9, 1975 respectively.
The
respondent No.1 was recruited and appointed directly as Asstt. Executive
Engineer w.e.f. October
25,1971. he was also
given relaxation of the length of service of five years as Asstt. Executive
Engineer and was promoted as Executive Engineer on October 8, 1973 and was confirmed w.e.f. December 22, 1976.
199
All the appellants except one M.R. Gupta were further promoted as
Superintending Engineers on different dates between 1980 to 1984 whereas the
respondent no. 1 was promoted as Superintending Engineer on March 4, 1987.
The
applicant no. 1 was further promoted as Chief Engineer The validity of the
promotion of respondent no. 1 to the post of Chief Engineer was challenged.
The
respondent no. 1 who was shown junior to the appellants, field Writ Petition
seeking a writ of mandamus directing the second respondent, State Government to
consider his case for promotion as Superintending Engineer from the date on
which the respondents were promoted assigning the seniority over the appellants
and the consequential reliefs.
On
reference, a Division Bench of the High Court held that respondent no. 1 was a
member of the service from the date of his initial appointment as Asstt.
Executive Engineer and the appellants and the proforma respondents were not
members of the service and directed the Single Judge to dispose of the matter
on merit, against which, this appeal on leave was filed.
The
appellants contended that the appellants being promoted as Executive Engineers
against regular vacancies, which were neither a stop-gap arrangement nor
fortuitous, and being continued in service without any break from the
respective dates o their promotion, they were members of the service in a
substantive capacity as Executive Engineers from the respective dates of
promotion; that since the respondent no. 1 was recruited as Asstt. Executive
Engineer w.e.f. August 30, 1971 long after the promotion of the appellants, the
appellants were seniors to the respondent no. 1 as Executive Engineers, as
Proviso to Rule (5)2 entitles them to remain in a substantive capacity as
Executive Engineer since requisite number of qualified Asst. Executive
Engineers were not available for promotion;
that
in view of their continous officiation as Executive Engineers in terms of Rule
2(12)(a) of the rules, they must be deemed to be the members of the service
from the dates of promotion and, therefore, they were seniors to the respondent
no.1.
The
respondents contended that unless the appellants were appointed substantively
to the cadre posts they could not be members of the service. The respondent no.
1 became a member of the service 200 from the date of his initial appointment
as Asstt. Executive Engineer, therefore, he was senior to the appellants and proforma
respondents.
As
agreed by the parties, this Court declare the law on the interpretation of the
rules and leave the matter for the State Govt. to decide the inter seniority on
merits.
Disposing
the appeal, it is.
HELD:
1. Appointment to a post in accordance with the rules is a condition precedent
and no one can claim appointment to a post or promotion, as of right, but has a
right to be considered in accordance with the rules, Appointment by promotion
or direct recruitment, therefore, must be in accordance with the rules so as to
become a member of the service in a substantive capacity. Seniority is to be
fixed in accordance with the principle laid down in the rules. [213G-214A]
2. The
promotee has right to confirmation in the cadre post as per Rule 11(4) if a
post is available to him within his quota or at a later date under rule 5(2)
read with rule 11(4) and gets appointment under rule 8(11). His seniority would
be reckoned only from the date of the availability of the post and the year of
allotment, he shall be next below to his immediate senior promotee of that year
or the junior most of the previous year of allotment whether officiating or
permanent occupying the post within 50% quota. [214G- 215A]
3. A
direct recruit on promotion within his quota, though later to the promotee is
interposed in between the periods and interject the promotee's seniority; snaps
the links in the chain of continuity and steals a march over the approved promotee
probationer.[215B]
4.
Mere officiating appointment by promotion to a cadre post outside the quota;
continuous efficiation therein and declaration of probation would not clothe the
promotee with any right to claim seniority over the direct recruits. The
necessary conclusion would, therefore, be that the direct recruit shall get his
seniority with effect from the date of the year of the allotment as Asstt. Executive
Engineer which is not alterable. Where the promotee would get his seniority w.e.f.
the date of the availability of the posts within 50% quota of the promotees.
[215D]
5. The
seniority of the promotee from Class II service Executive Engineer shall be
determined with effect from the date on which the cadre post was available to
him and the seniority shall be determined accordingly.[215F] 201
6.
Under the Rules `determination of seniority would be made only after the promotee
becomes a member of the service'. Therefore the year of allotment must be
determined having regard to (i) availability of the cadre post within quota;
(ii) satisfactory completion of the probation, and (iii) appointment to the
post in the substantive capacity in term of Rules 12(6) and (7) read with Rule
11(4) and Rule 8(12). Any other construction would be contrary to the avowed
object of the rules as a whole.[218B-C]
7.
There is neither invidious discrimination nor arbitrariness in Rule 2(12)(a)
offending Arts. 14 & 16. The differentiation drawn between direct recruit
and the promotee bears rational relation to the object of Rule 2(12). [219H]
8. The
Government of Haryana to determine the cadre posts, if not already done,
regularly from time to time including the post created due to exigencies of service
in terms of Rule 3(2) read with appendix `A' and allot the post in each year of
allotment as contemplated under rule 12 read with Rule 5(2)(a) and issue orders
appointing substantively to the respective posts within the quota and determine
the inter se seniority between the appellants promotees and the direct recruit
in the respective quota cadre posts of Executive Engineers etc. within four
months from the date of receipt of this judgment. The inter se seniority of promotees
and direct recruits shall be determined accordingly. [220D-E] M.S. Mighlani v.
State of Haryana & Anr. [1983] 1 SLR 421; J.C. Yadav v. State of Haryana, [1990] 2 SCC 189; K.K. Khosla v.
State of haryana, [1990] 2 SCC 199; V.B. Badami, etc. v. Stat of Mysore [1976]
1 SCR 815; K.C. Joshi & Ors. etc. v. Union of India & Ors., [1990] 29
Scale 951-referred to. R.P. Khanna v. S.A.F. Abbas & Ors, [1973] 3 SCR 548
at 557 C-J; Baleshwar Dass & Ors. v. State of U.P. & Ors. etc., [1981] 1 SCR 449 at 463; B.S. Yadav
v. State of Haryana, [1980] 1 SCr 1024; The Direct
Recruit, Clall II Engineering Officers' Association v. State of Maharasthra
& Ors., [1990} 2 SCC 715 at 745-Distinguished.
9. It
is a cardinal rule of interpretation that a proviso to a particular provision
of a stature only embraces the field which is covered by the main provision. It
carves out an exception to the main provision to which it has been enacted by
the proviso and to no other. The proper function of proviso is to except and
deal with a case which would otherwise fall within the general language o the
main enactment, 202 and its effect to confine to that case. Where the language
of the main enactment is explicit and unambiguous, the proviso can have no
repercussion on the interpretation of the main enactment, so as to exclude from
it, by implication what clearly falls within its express terms. [211E-F]
10.
The scope of the proviso is to carve out an exception to the main enactment and
it excludes something which otherwise would have been within the rule. It has
to operate in the same field and if the language of the main enactment is
clear, the proviso cannot be torn apart from the main enactment nor can it be
used to nullify by implication what the enactment clearly says nor set a naught
the real object of the main enactment, unless the words of the proviso are such
that it is its necessary effect [211G- H]
11. In
interpreting the rule, effect must be given to allow everyone drawn from the
sources to have their due share in the service and chances of involvement to
effectively discharge the duties of the posts honestly and efficiently with
dedication. Any wanton or deliberate deviation in the implementation of the
rules should be curbed and snubbed and the rules must be strictly implemented
to achieve the above purpose. If wanton doviations are allowed to be repeated,
it would breed indiscipline among the services and amounts to undue favour to
some and denial of equity for many for reasons known or unknown subverting the
purpose of the rules.{213F]
12.
Rules 2(1), 2(3), 2(7), 2(10), 2(12)(a) 5(2)(a) 8, 9(2) 11, 12(3) 12(5) to
12(7) to be construed harmoniously. lest the legislative animation would be
defeated and the rules would be rendered otiose and surpluses. It would also
adversely effect the morale and efficiency of the service.[215C]
13.
With a view to have efficient and dedicated services accountable to proper
implementation of Govt. policies, it is open and is constitutionally
permissible for the State, to infuse into the services, both talented fresh
blood imbued with constitutional commitments, enthusiasm, drive and initiative
by direct recuritment, blended with matured wealth of experience from the
subordinate services.[212G]
14. It
is permissible to constitute an integrated service of persons recruited from two
or more sources, namely, direct recruitment, promotion from subordinate service
or transfer from other services. Promotee from subordinate service generally
would get few chances of 203 promotion to higher echolans of services. [212H]
15.
Avenues and facilities for promotion to the higher services to the less
privileged member of the subordinate service would inculcate in them dedication
to excel their latent capabilities to man to cadre posts {213A]
16.
Talent is not the privilege of few but equal avenues made available would
explore common man's capabilities overcoming environmental adversity and open
up full opportunities to develop one's capabilities to shoulder higher
responsibilities without succumbing to despondence.
Equity
talented young men/women of great promise would enter into service by direct
recruitment when chances of promotions are attractive. [213B]
17.
The chance of promotion would also enable a promotee to imbue involvement in
the performance of the duties, obviate frustration and eliminate proclivity to
corrupt practices, lest one would tend to become corrupt, sloven and mediocre
and a dead wood. In other words, equal opportunity would harness the human
resources to augment the efficiency of the service and undue emphasis on either
would upset the scale of equality germinating the seeds of degeneration. {213D]
CIVIL
APPELLATE JURISDICTION: Civil Appeal No.4094 of 1984.
From
the Judgment and order dated 9.7.1984 of the Punjab & Haryana High Court in
Civil Writ Petition No.5371 of 1981.
P.P. Rao,
Sr. Adv. and Janendra lal for the appellants.
S.C.
Gupta, Rajinder Sachhar, Sudarshan Goyal, Vivek Bhandari, S.C.Patel, mahabir
Singh and C.M. Nayar (NP) for the Respondents.
The
Judgment of the Court was delivered by K.RAMASWAMY, J. The appellants and the proforma
respondents, thirty in number are employed in the Punjab Service of Engineers,
Class II. The Governor, in exercise of the power under proviso to Art. 309 of
the Constitution of India framed the Punjab Service of Engineers, Class I,
P.W.D. (Road and Buildings) Rules. 1960 for short the Rules constituting the
Punjab Service of 204 Engineers, Class I, P.W.D. (Roads and Buildings Branch),
After the formation of State of Haryana w.e.f. November 1, 1966, the rules are
called Haryana Service of Engineers, Class I, P.W.D. (Roads and Buildings
Branch). The services consist of Asstt. Executive Engineers, Executive
Engineers, Superintending Engineers, and Chief Engineers, as may be specified
by the Government of Haryana from time to time (Rule 3(1). The recruitment to
the service is made by the government as per Rule 5(1);
(a) by
direct recruitment;
(b) by
transfer from any other services of the State Govt. or of the Union of India; and
(c) by
promotion from Haryana Engineers, Class II Service.
The
appellants for short 'the promotees" from Class II Service were promoted
as Executive Engineers by relaxing five years length of service as Class II
Engineers in officiating capacity on various dates between January 6, 1969 to
May 29, 1971, There of them, namely, A.N. Sehgal, Raj Kumar and H.C. Sethi were
confirmed as Executive Engineers w.e.f. July 11, 1973, December 11, 1974 and
December 9, 1975 respectively. The rest are yet to be confirmed. Raje Ram Sheoran
was recruited and appointed directly as Asstt. Executive Engineer w.e.f October
25, 1971. He too was given relaxation of the length of service of five years as
Asstt. Executive Engineer and was promoted as Executive Engineer on October 8,
1973. He was confirmed w.e.f. December 22, 1976. All the appellants except M.R.
Gupta were further promoted as Superintending Engineers on different dates between
1980 to 1984 and Mr. Sheoran was promoted as Superintending Engineer on March
4, 1987 A.N. Sehgal was further promoted as Chief Engineer, Equally Mr. Sheoran
was also promoted as Chief Engineer but the validity was challenged and it is
not necessary to refer any further as it is subject matter of proceedings in
the High Court.
R.R. Sheoran
who was shown junior to the appellants, field Writ Petition No. 5371/81 and
sought a writ of mandamus directing the second respondent, State Government to
consider his case for promotion as Superintending Engineer from the date on
which the respondents were promoted; to quash the gradation list; to assign the
seniority over the appellants and the consequential reliefs.
On
reference, a Division Bench of the High Court by its judgement dated July 9,
1984 agreed with the ratio laid down in M.S. Mighlani v. State of haryana &
Anr., [1983] 1 S.L.R. 421 and held that R.R. Sheoran was a member of the
service from the date of his initial appointment as Asstt. Executive Engineer
and the appellants and the proforma respondents are not members of the service
and directed the learned Single Judge to dispose of th matter on merit. This
appeal on leave arises against the judgement of the Division Bench.
205
The controversy centres round the inter se seniority of the appellants and R.R.
Sheoran. For its determination the Rules need interpretation. The counsel for
parties agreed that we should decide the principles on consideration of the
Rules and leave the matter for the State Govt. to determine the inter se
seniority by applying the law, so for as the controversy relating to relaxation
of the length of service is concerned it is set at rest by this Court in J.C. Yadav
v. State of Haryana, [1990] 2 SCC 189 and K.K. Khosla V. State of Haryana, [1990] 2 SCC 199 by a bench of
three Judges to which one of us (K.N. Singh, J.) was a member. The only
question which survives is as to when `the appellants' and `R.R. sheoran'
become members of the respective services.
Shri P.P.Rao,
learned Senior Counsel for the appellants contends that the appellants were
promoted as Executive Engineers against regular vacancies, which were neither a
stop-gap arrangement nor fortuitous, and they continued in service without any
break from the respective dates of their promotion, therefore, they are members
of the service in a substantive capacity as Executive Engineers from the
respective dates of promotion. He further argued that since Raje Ram Sheoran
was recruited as Asstt. Executive Engineer w.e.f. August 30, 1971 along after
the promotion of the appellants upto B.L. Goyal, the appellants are senior to
R.R. Sheoran as Executive Engineers. Proviso to Rule 5(2) entitles them to
remain in a substantive capacity as Executive Engineers since requisite number
of qualified Asstt. Executive Engineers were not available for promotion.
In
view of their continous officiation as Executive Engineers in terms of Rule 2(12)(a)
of the rules, they must be deemed to be the members of the service from the
dates of promotion and, therefore, they are seniors to R.R.Sheoran .
M/s. Sachhar,
learned counsel for the State and Gupta for R.R. Sheoran on the other hand
contended that unless the appellants were appointed substantively to the cadre
posts they could not be members of the service. R.R. Sheoran became member of
the service from the date of his initial appointment as Asstt. Executive
Engineer, therefore, he is senior to the appellants and proforma respondents
and the High Court rightly interpreted rule 5(2). Since the High Court did not
enter into the merits of the respective claims of the appellants and Sheoran,
we express no opinion on merits except, as agreed by the parties, we declare
the law on the interpretation of the rules and leave it to the State Govt. to
decide the inter se seniority on merits.
It is
necessary to have a look into the Rules regulating the 206 service. Rule 3(1)
postulates that the service shall comprise of Assistant Executive Engineers,
Executive Engineers, Superintending Engineers and Chief Engineers.
Rule
3(2) read with appendix `A' enjoins the State of Haryana to determine the cadre
strength of service each year. Appendix `A' lays down procedure to determine
the cadre strength of service. The senior posts include Executive Engineers and
above while junior scale posts include Asst. Executive Engineers . Ex-cadre
posts also are contemplated in the respective senior posts and junior scale
posts. Rule 5(1)(a) posits recruitment to the service: (a) by direct
recruitment; (b) by transfer and (c) by promotion from Class II service.
Sub-rule (4) of Rule 5 says that all direct appointments to the service shall
be to the post of Asstt. Executive Engineer. Proviso therein gives power to the
government to appoint by direct recruitment as Executive Engineers, in
exceptional circumstances, for reasons to be recorded in writing. Rules 6 and 7
prescribe qualifications and method of appointment by direct recruitment . Subrule
(3) of Rule 7 states that appointment to the service shall be made according to
the number of vacancies to be filled by direct recruitment strictly in the
order of merit as indicated by the Public Service Commission. As per Rule 11(1)
and direct recruit shall remain on probation for a period of two years or
extended period upto maximum of three years. On satisfactory completion of
probation, the government may confirm under clause (a) of sub-rule (3) of Rule
11 or to discharge him from service otherwise. The post of Asstt. Executive
Engineer is a junior scale post. Under rule 12(3), they year of allotment of an
Asstt. Executive Engineer shall be the calendar year in which the order of
appointment is issued by the government.
Rule
2(1) defines appointment to the service which includes an appointment made
according to the terms and provisions of the rules to an officiating vacancy or
to an ex-cadre post provided that an officer so appointed shall not be deemed
to have become a member of the service as defined in Clause (12) of Rule 2. The
Asstt. Executive Engineer means a member of the service in the junior scale of
pay, (Rule 2(2)).
Cadre
post means permanent post in the service as per Rule 2(3). `Class II Service'
means the Punjab Service of Engineers, Class II, in the Buildings and Roads
Branch and includes, for purposes of promotion to and fixation of seniority in
the Class I Service, Temporary Asstt. engineers when a suitable Class II
Officer is not available vide Rule 2(5). Direct appointment means an
appointment by open competition but does not include-(a) an appointment made by
promotion; (b) an appointment by transfer of an officer from the service of the
State Government or of the Union, (Rule 2(7). Ex-cadre 207 post means a
temporary post of the same rank as a cadre post vide Rule 2(10). A member of
the service means an officer appointed sub-stantively to a cadre post and
includes (a) in the case of a direct appointment an officer on probation, or
such an officer who, having successfully completed his probation, awaits
appointment to a cadre post vide Rule 2(12)(a).
A
reading of the rules clearly indicates that an Asstt. Executive Engineer
appointment by open competition to a substantive vacancy in a cadre post and
put on probation is a member of the service. Equally such Asstt. Executive
Engineer recruited by open competition and appointment to an ex cadre post and
put on probation and who having successfully completed his probation and awaits
appointment to a cadre post would also become a member of the service.
The
contention of Shri P.P.Rao is that an officer appointed substantively to a
cadre post is a direct recruit and the inclusive definition encompasses within
its ambit the promotee and the phase ``such an officer who having successfully
completed his probation and awaits appointment to the cadre post'' is only
referable to a promotee. So promotee is also a member of the service from the
date of initial promotion. We may make it clear at this juncture that in normal
service jurisprudence a direct recruit would always be recruited and appointed
to a substantive vacancy and from the date he starts discharging the duty
attached to the post he is a member of the service subject to his successfully
completing the probation and declaration thereof at a later date and his
appointment relates back to the date of initial appointment, subject to his
being discharge from service on failure to complete the probation within or
extended period or termination of the service according to rules. Equally it is
settle law that a promotee would have initial officiating promotion to a
temporary vacancy or substantive vacancy and on successful completion and
declaration of the probation, unless reverted to lower posts, he awaits
appointment to a substantive vacancy. Only on appointment to a substantive
vacancy he become a member of the service. But confirmation and appointment to
a substantive vacancy always an inglorious uncertainty and would take unduly
long time. Therefore, the confirmation or appointment to a substantive capacity
would not normally be a condition precedent to reckon the continuous length of
service for the purpose of seniority. On the facts of the case and the settled
legal position, at first blush the argument of Shri P.P. Rao carried weight
that the appellants would get their seniority from the respective dates of the
initial promotion as Executive Engineers. But we find that in the instant case
the rules have made departure from the normal service jurisprudence as would
208 appear from the scheme under the rules.
Para
11(b) of appendix `A' read with Rule 3(2), while determining the cadre strength
of the service, adumbrates creation and appointment of Asstt. Executive
Engineers (direct recruit) to an ex-cadre junior scale post in each year.
Therefore in a given situation, a direct recruit appointed to an ex-cadre post,
cannot be kept in lurch until he is appointed to a cadre post so as to become a
member of the service. Obviously to avoid such a hiatus, Rule 2(12)(a) was
introduced. The main part o Rule 2(12)(a) declares that an appointee
substantively to a cadre post i.e., permanent post is a member of the service.
The inclusive definition brings an officer `by direct appointment on probation'
who having successfully completed probation and awaits appointment to a cadre
post is also a member of the service.
Take
for instance if direct recruitment is made to fill in five posts of Asstt.
Executive Engineers of which four are cadre posts and one ex-cadre post and
four persons are appointed to cadre posts in the order of merit and the last
one to the ex-cadre post. The first four officers appointed on probation to the
substantive vacancies and they are covered by the main part of Rule 2(12)(a).
The fifth one intended to cover the field of operation of the inclusive
definition which says that `and also includes an officer directly appointed on
probation ' `and such an officer who having successfully completed his
probation, awaits appointment to a cadre post'. The words `and such an officer'
`directly appointed' would obviously referable to an Asstt. Executive Engineer
directly appointed to an ex- cadre post; who may be placed on probation and
awaits appointment to a cadre post. By operation of the definition clause he
also becomes the member of the service from the date of initial appointment.
This view is further fortified by the definition the `appointment to the
service' in Rule 2(1) which says that appointment to the service includes an
appointment made according to the terms and provisions of these rules to an
officiating vacancy or to an ex-cadre post. Rule 2(7) says that direct
appointment means appointment by open competition but excludes `promotee' or
`transferee'. So a promotee promoted to an officiating vacancy or on ex-cadre
post does not become member of the service unless he is appointed substantively
to a cadre post. We, therefore, hold that a direct recruit appointed to an
ex-cadre post alone is a member of the service even while on probation and Rule
2(12)(a) applies to them and it does not apply to promotee from Class II
service.
An Asstt.
Executive Engineer, on putting five years of service under rule 9(3)(a) and
passing the department examination as 209 required under rule (15), (unless the
qualifications are relaxed in exercise of the power under rule (22) of the
rules) becomes eligible for promotion as Executive Engineer.
The
State Govt. had relaxed the required length of five years service of the promotees
as well as direct recruits.
R.R. Sheoran
therefor became eligible to be considered for promotion. As per the procedure
prescribed in this regard under rule 9(2), he was found fit and suitable and
was promoted as an Executive Engineer w.e.f. October 8, 1973.
Though
M/s. Sachhar and Gupta contended that the direct recruit need not undergo the
required probation ad Executive Engineer, we find no force in the contention.
The normal channel of appointment to the post of Executive Engineer, a senior
post, is by way of promotion to which a direct recruit Asstt. Executive
Engineer is entitled to be considered. On promotion he shall be on probation
for a period of one year as per Rule 11(1)(a), but the period spent on officiation
as Executive Engineer shall be taken into account for purposes of completing
the period of probation and on its successful completion, he shall remain in
service As Executive Engineer. On a conjoint reading of Rule 12(3) and 12(5) it
is clear that the year of allotment of the Asstt. Executive engineer in the
post of Executive Engineer, shall be the calendar year in which th order of
appointment as Asstt. Executive Engineer had been made. Thus his seniority as
Executive engineer, by fiction of law, would relate back to his date of initial
appointment as Asstt. Executive Engineer and in Juxta position to Class II
officers' seniority as Executive Engineer is unalterable.
The
date of the seniority of Mr. R.R.Sheoran 1971.
The
question then is what is the date from which the seniority of a promotee as
Executive Engineer shall be reckoned? The contention of Shri P.P. Rao is that
Rule 5(2) reserve 50% of the posts to the direct recruits but the proviso
thereto makes a built in relaxation, namely, so long as the required number of
direct recruits are not available to occupy those posts, the promotees are
entitled to hold those posts also. Admittedly except R.R. Sheoran no other
direct recruit was available. The promotees are eligible to occupy all the
cadre posts even in excess of their quota.
The
seniority has to be determined from the respective dates of initial officiating
promotion. Shri Rao' further contention that the phrase `such an officer
appointed to an officiating post' has reference only to promotees cannot be
accepted for the reasons given earlier. The officer appointed directly is
referable only to Asstt. Executive Engineer and a promotee by operation of
Rules 2(7) stands excluded until he is appointed substantively to a cadre post.
210
When an officer is appointed substantively to a cadre post, is the next
question. It is settled law that all the rules should be harmoniously construed
giving life, force and effect to every part of the rule of clause or word so
that no part would be rendered redundant, ineffectual, nugatory or otiose. Rule
5(1) regulates recruitment to the service from three sources, namely, direct
recruitment; by transfer and by promotion from Class II service. Sub-rule (2)
thereof prescribes the ratio between the promotees and others. It says that,
"recruitment to the service shall be so regulated that the number of posts
so filled by promotion from Class II service shall not exceed 50%" of the
number of posts in the service excluding the posts of Asstt. Executive
Engineers; provided that till such time the adequate number of Asstt. Executive
Engineers who ar eligible and considered fit for promotion are available, the
actual percentage of officers promoted from Class II service `may be larger
than 50%. A reading thereof clearly manifests the legislative animation,
namely, that the promotees from Class II service shall not exceed 50% of the
posts in the service. The word `shall' indicates that it is mandatory that the
remaining 50% shall be kept open only to the Asstt. Executive Engineers who
were directly recruited but later were found eligible and fit for promotion as
Executive Engineers. Therefore, unless the government resorts exceptionally
with prior permission of Public Service Commission, vide Rule 10 to recruitment
by transfer of an officer from other service of the State Govt. or of the
Union, the remaining 50% of the posts as Executive Engineers, Superintending
Engineers and Chief Engineers shall be occupied only by the direct recruit Asstt.
Executive Engineers. It is settled law that prescription of quota for
recruitment from different sources is constitutionally a valid rule.
Rule
5(2) limits 50% posts to the promotees from Class II Service and no further,
but the proviso to the Rule lays down that till adequate number of Asstt.
Executive Engineers are available, the rigour of 50% quota may be relaxed and
Class II officers may be promoted in excess of their quota.
What
is the intendment of the class `the actual percentage of officers promoted from
Class II service may be larger than 50% is the question. The mandate of Rule
5(2) is that the officers promoted from Class II service shall in no case
exceed 50% of the number of posts in the service. Unless it is relaxed, the
appointment and occupation of the posts by promotee in excess thereof is
irregular or illegal and the government have no power to promote persons from
Class II service to fill in such posts of Executive Engineers Superintending
Engineers and Chief Engineers. It is common knowledge that direct recruitment
as Asstt. Executive Engineers 211 or Executive Engineer; in exceptional
circumstances is a tardy process and even after appointment they have to put in
five years service. The balance 50% of the posts cannot be kept vacant. With a
view to allow the wheels of the administration moving, the proviso carves out
an exception and allows the promotees to occupy temporarily the posts in excess
of their quota. In this view the contention of Shri Rao that the seniority as
Executive Engineer is to be counted from the date of initial temporary
promotion cannot be accepted as it would allow the promotees to occupy 100%
posts of Executive Engineers, Superintending Engineers and Chief Engineers
leaving little room for Rule 5(2) (a) to operate in full force. The exception
would eat away the flesh and blood of Rule 5(2)(a) freezing the channel of
promotion to the direct recruits to senior posts for a very long time to come.
In the absence of rule of rotation there may be no chance to a direct recruits
to occupy the senior posts. That does not appear to be the intendment, scope
and operation of the proviso. The intendment appears to be that so long as the
direct recruit Asstt. Executive Engineer, eligible and considered fit for
promotion is not available, the promotee from Class II service in excess of the
quota is eligible to occupy on officiating capacity the senior posts, i.e.,
Executive Engineers and above. The moment direct recruits are available, they
alone are entitled to occupy 50% of their quota and the promotees shall give
place to the direct recruits.
It is
a cardinal rule of interpretation that a proviso to a particular provision of a
statute only embraces the field which is covered by the main provision. It
carves out an exception to the main provision to which it has been enacted by
the proviso and to no other. The proper function of a proviso is to except and
deal with a cause which would otherwise fall within the general language of the
main enactment, and its effect is to confine to that case. Where the language
of the main enactment is explicit and unambiguous, the proviso can have no
repercussion on the interpretation of the main enactment, so as to exclude from
it, by implication what clearly falls within its express terms.
The
scope of the proviso, therefore, is to carve out an exception to the main
enactment and it excludes something which otherwise would have been within the
rule. It has to operate in the same field and if the language of the main
enactment is clear, the proviso cannot be torn apart from the main enactment
nor can it he used to nullify by implication what the enactment clearly says
nor set at naught the real object of the main enactment, unless the words of
the proviso are such 212 that it is its necessary effect.
In
V.B. Badami, etc. v. State of Mysore, [1976] 1SCR 815 dealing with the problem
arising out of quota rule between promotees, this Court observed that:
"In
working out the quota rule, these principles are generally followed. First,
where rules prescribe quota between direct recruits and promotees, confirmation
or substantive appointment can only be in respect of clear vacancies in the
permanent strength of the cadre. Second, confirmed persons are senior to those
who are officiating. Third, as between persons appointed in officiating
capacity, seniority is to be counted on the length of continuous service.
Fourth,
direct recruitment is possible only by competitive examination which is
prescribed procedure under the rules. In promotional vacancies, the promotion
is either by selection or on the principle of seniority-cum-merit, a promotion
could be made in respect of a temporary post or for a specified period but a
direct recruitment has generally to be made only in respect of clear permanent
vacancy either existing or anticipated to arise at or about the period of
probation is expected to be completed. Fifth, if promotions ar made to
vacancies in excess of the promotional quota, the promotions may not be totally
illegal but would be irregular. The promotees cannot claim any right to hold
the promotional posts unless the vacancies fall within their quota. If the promotees
occupy any vacancies which are within the quota of direct recruits, when direct
recruitment takes place the direct recruits will occupy vacancies within their
quota. Promotees who were occupying the vacancies within the quota of direct
recruits will either be reverted or they will be absorbed in the vacancies
within their quota in the facts and circumstances of a case".
With a
view to have efficient and dedicated services accountable to proper
implementation of Govt. policies, it is open, and is constitutionally
permissible for the State, to infuse into the services, both talented fresh
blood imbued with constitutional commitments, enthusiasm, drive and initiative
by direct recruitment, blended with matured wealth of experience from the
subordinate services. It is permissible to constitute an integrated service of
persons recruited from two or more sources, namely, direct recruitment,
promotion from subordinate 213 service or transfer from other services, Promotee
from subordinate generally would get few chances of promotion to higher echolans
of services. Avenues and facilities for promotion to the higher services to the
less privileged members of the subordinate service would inculcate in them
dedication to excel their latent capabilities to man the cadre posts. Talent is
not the privilege of few but equal avenues made available would explore common
man's capabilities overcoming environmental adversity and open up full
opportunities to develop one's capabilities to shoulder higher responsibilities
without succumbing to despondence.
Equally
talented young men/women of great promise would enter into service by direct
recruitment when chances of promotions are attractive. The aspiration to reach
higher echolans of service would thus enthuse a member to dedicate honestly and
diligently to exhibit competence, straightforwardness with missionary zeal
exercising effective control and supervision in the implementation of the programmes.
The chances of promotion would also enable a promotee to imbue involvement in
the performance of the duties; obviate frustration and eliminate proclivity to
corrupt practices, lest one would tend to become corrupt, sloven and mediocre
and a dead wood. In other words, equal opportunity would harness the human
resources to augment the efficiency of the service and under emphasis on either
would upset the scales of equality germinating the seeds of degeneration.
With a
view to achieve this objective, the rule making authority envisaged to appoint
direct recruits as well as by promotion from Class II Service, otherwise by
transfer from other services. In interpreting the rules, effect must be given
to allow everyone drawn from these sources to have their due share in the
service and chances of involvement of effectively discharge the duties of the
posts honestly and efficiently with dedication. Any wanton or deliberate
deviation in the implementation of the rules should be curbed and snubbed and
the rules must be strictly implemented to achieve the above purpose. If wanton
deviations are allowed to be repeated, it would breed indiscipline among the
service and amounts to undue favour to some and denial of equality for many for
reasons known or unknown subverting the purpose of the rules.
It is
settled law that appointment to a post in accordance with the rules is condition
precedent and no one can claim appointment to a post or promotion, as of right,
but has a right to be considered in accordance with the rules. Appointment by
promotion or direct recruitment, therefore, must be in accordance with the
rules so as to 214 become a member of the service in a substantive capacity.
Seniority
is to be fixed in accordance with the principles laid down in the rules.
Rule 8
prescribes procedure for appointment by promotion from Class II services. Rule
9(2) states that promotion would be made by selection on the basis of merit and
suitability in all respect and no member of the service shall have any claim,
to such promotion as a matter of right by mere seniority. The committee as
constituted under Rule 8 shall prepare the list of officers considered fit for
promotion in the order of merit and on approval by the public Service
Commission, the State Govt. shall appoint the persons from the list in the
order in which the names have been placed by the Commission, Appointment by promotion
may be made under Rule 8(12) to an excadre post or to any post in the cadre in
an officiating capacity from the list prepared as aforesaid. On promotion, as
per Rule 11(1), officer shall be on probation for a period of one year, but if
the officer had been officiating as an Executive Engineer the period of officiation
would be counted towards probation. Rule 11(4) provides the on satisfactory
completion of the probationary period, the Govt. confirms the officiating promotee
and "appoint him in a substantive capacity on a cadre post provided the
post is available to him". If no cadre post is available, the officer has
to wait for an appointment to the cadre post.
A promotee
within quota under rule 5(2) gets his seniority from the initial date of his promotion
and the year of allotment, as contemplated in Rule 12(6) shall be the next
below "the junior most officer in the service whether officiating or
confirmed as Executive Engineer before the former's appointment' counting the
entire officiating period towards seniority, unless there is break in the
service or from the date of later promotion. Such promotee, by necessary
implication, would normally become senior to the direct recruit promoted later.
Combined operation of sub-rules (3) to (5) of Rule 12 makes the direct recruit a member of the service of
Executive Engineer from the date of year of allotment as an Asstt. Executive
Engineer. The result is that the promotee occupying the posts within 50% quota
of the direct recruits, acquired no right to the post and should yield to
direct recruit though promoted later to him, to the senior scale posts i.e.,
Executive Engineer, Superintending Engineer and Chief Engineer. The promotee
has right to confirmation in the cadre post as per Rule 11(4) if a post is available
to him within his quota or at a later date under rule 5(2) read with 11(4) and
gets appointment under s. 8(11). His seniority would be reckoned only from the
date of the date of the availability of the post and the year of allotment, he
shall be next below to his immediate 215 senior promotee of that year or the
junior most of the previous year of allotment whether officiating or permanent
occupying the post within 50% quota. The officiating period of the promotee
between the dates of initial promotion and the date of the availability of the
cadre post would thus be rendered fortuitous and stands excluded. A direct
recruit on promotion within his quota, though later to the promotee is
interposed in between the periods and interjects the promotee's seniority; shaps
the links in the chain of continuity and steals a march over the approved promotee
probationer. Harmonious construction of rule 2(1), 2(3), 2(7), 2(10), 2(12),(a)
5(2)(a), 8,9(2), 11, 12(3), 12(5) to 12(7) would yield to the above result, lest
the legislative animation would be defeated and the rules would be rendered
otiose and surpluses. It would also adversely effect the morale and efficiency
of the service. Mere officiating appointment by promotion to a cadre post
outside the quota;
continuous
officiation therein and declaration of probation would not clothe the promotee
with any right to claim seniority over the direct recruits. The necessary
conclusion would, therefore, be that the direct recruit shall get his seniority
with effect from the date of the year of the allotment as Asstt. Executive
Engineer which is not alterable. Whereas the promotee would get his seniority w.e.f.
the date of the availability of the posts within 50% quota of the promotees.
The year of allotment is variable and the seniority shall be reckoned
accordingly.
Appointment
to the cadre post substantively and confirmation thereof shall be made under
rule 8(11) read with Rule 11(4) of the rules. A promotee Executive Engineer
would only then become member of the service, `Appointed substantively' within
the meaning of Rule 2(12) (a) shall be construed accordingly. We, further hold
that the seniority of the promotee from Class II service as Executive Engineer
shall be determined with effect from the date of which the cadre post was
available to him and the seniority shall be determined accordingly.
In K.C.Joshi
& Ors. etc. v. Union of India & Ors., [1990]2 Scale 951 a Bench of
three Judges to which one of us (K. Ramaswamy, J.) was a member, considered
similar question. In that case U.P. Forest Service Rules, 1952 provides, two
sources of recruitment to the post of Asstt. Conservators of Forest. The petitioners therein were
Forest Range Officers in U.P. Forest Subordinate Service. The respondents were direct recruits
as Asstt. Conservators of Forest. The
rules prescribed ratio between direct recruits and promotees. Due to delay in
recruitment as Asstt. Conservators of Forest, the Forest Rangers were promoted in excess of their quota as Asstt. Conservators
of Forest temporarily and continued in
service without any break for 5 to 12 216 years. The promotees claimed
seniority from the date of their initial promotion. Considering the scope of
the rules and rights acquired by the petitioners therein and the direct
recruits, the Court held that:
"When
promotion was outside the quota, the seniority would be reckoned from the date
of the vacancy within the quota, rendering the pervious service fortuitous. The
previous promotion would be regular only from the date of the vacancy within
the quota and seniority shall be counted from that date and not from the date
of his earlier promotion or subsequent confirmation. In order to do justice to
the promotees it would not be proper to do injustice to the direct recruits.
The
rule of quota being a statutory one must be strictly implemented and it is
impermissible for the authorities concerned to deviate from the rule due to
administrative exigencies of expediency.
The
result of punishing down the promotees appointed in excess of the quota may
work hardship but it is unavoidable and any construction otherwise would be
illegal, nullifying the force of statutory rules and would offend Arts. 14
& 16(1). Therefore, the rules must be carefully applied in such a manner as
not to violate the rules or equality assured under Art. 14 of the Constitution.
This Court interpreted that equity is an integral part of Art. 14. So every
attempt would be made to minimise, as far as possible inequity. Disparity is
inherent in the system of working out integration of the employees drawn from
different sources, who have legitimate aspiration to reach higher echolans of
service. A feeling of hardship to one, or heart burning to either would be
avoided. At the same time equality is accorded to all the employees".
Shri
P.P. Rao urged that the cadre posts in Rule 2(12) must include not only the
permanent posts but also temporary posts continued for more than three years
and notional posts which may have existed for short spells during preceding
three years taking into account the number of months and days for which each
post had existed as per the formula prescribed in appendix `A' read with Rule 3
of the rules.
He
further urged that the promotees appointed to such posts should be treated to
be `members of the service' interms of Rule 2(12)(a) and that their promotion
should be retrospectively declared to have been promoted w.e.f. the dates on
which the posts were created. We are unable to accept this contention. Rule 3
read with 217 appendix `A' confers power and also imposes duty on the State
Govt. to determine the cadre posts from time to time and in the first five
years on the first day of each year.
This
exercise should be done in the light of the criteria prescribed in appendix
`A'. The present controversy does not concern itself with the method and manner
of determination of th cadre posts, though determination of seniority hinge
upon it. Therefore, for determining seniority, the State Govt. should undertake
the exercise interms of Rule 3 read with appendix `A'. The rules postulate that
substantive appointment to a cadre post is a condition precedent to become a
member of the service. A class II officer shall be promoted to a temporary post
or in an officiating capacity to a cadre post if vacancy exist' when he occupies
a vacancy in a substantive post and continued uninterruptedly it would be open
to the appointing authority to put the promotee Executive Engineer on
probation. Though confirmation is an inglorious uncertainty depending neither
on the efficiency of the officer nor generally on the availability of the post,
the mandate of Quota of 50% in Rule 5(2) should be adhered to. Declaration of
probation and confirmation to a cadre post, if available, under Rule 11(4)
shall be made.
Seniority
of such approved or confirmed promotee should be counted from the date of
either initial officiating promotion of continous later officiation from the
date of availability of the cadre post, however, should be next below his
senior promotee or the junior most of the preceding year of allotment within
the quota. If no post is available till such date of the availability, the
entire period of continuous officiation would be rendered fortuitous. The
contention, therefore, that the promotion would relate back retrospectively to
the date of creation of the post and the appointment to the vacancy shall be
with reference to the date of the creation of the post, would result anomalies
and render Rule 5(2) to the direct recruits surplusage.
Shri
P.P. Rao's further contention that the de facto promotion and the retrospective
declaration of cadre post would make the Class II officers as de jure members
of the service from the very date of temporary appointment w.e.f. the date of
initial appointment also lacks force for the same reasons. The principles laid
down in R.P. Khanna v. S.A.F. Abbas & Ors., [1973]3 SCR. 548 at 557 C-J . is
not applicable to the facts of this case. In that case the certain posts in
State services were required to be declared as senior cadre posts in the All
India Service, but before such declaration could be made some of the promotee
officers officiated in the senior cadre post. In that context the Court
observed that 1the promotee could not get the benefit of officiation unless the
post was declared a equivalent to a senior cadre 218 post before the promotee
was appointed; to officiate him would defeat the policy of the government' and
held that they are entitled to the benefit of the retrospective declaration `in
the absence of things practical as well as reasonable. The scheme of the rules
made a definite departure to the normal service jurisprudence and the operation
of the scheme in the rules must be given full effect. In the instant case under
the Rules `determination of seniority would be' made only after the promotee
becomes a member of the service. Therefore, the year of allotment must be
determined having regard to (i) availability of the cadre post within quota;
(ii) satisfactory completion of the probation; and (iii) appointment to the
post in the substantive capacity in term of Rules 12(6) and (7) read with 11(4)
and Rule 8(12). Any other construction would be contrary to the avowed object
of the rules as a whole.
The
inclusive definition of Rule 2(12) (a) must be interpreted liberally and not
restrictively. Undoubtedly the inclusive definition always receives liberal
interpretation to bring within its ambit cognate but unforeseen similes. But
the rules envisage only three sources of recruitment, namely, direct
recruitment, appointment by promotion and in exceptional cases with prior
approval of the Public Service Commission as per Rule 10, the appointment by
transfer from other services of the State or Central Govt. Until the ex-cadre
posts are declared to be cadre posts they remain ex-cadre posts. The promotion
to the ex-cadre post is temporary or to a cadre post could be only on
officiating basis. It may be open to the government to abolish at any time the
ex-cadre posts. Determination of cadre strength is a condition precedent for
Rule 5(2)(a) to operate. Till a promotee is confirmed in a substantive capacity
as Executive Engineer, he continues to retain line in Class II service. The
interpretation that the promotion to the temporary post or ex-cadre post within
the meaning of Rule 2(10) should also be deemed to be an appointment to a
substantive post would do violence to the language of the relevant rules and
the scheme. It is true that this Court in Baleshwar Dass & Ors. v. State of
U.P. & Ors. etc., [1981] 1 SCR 449
at 463 held that there cannot be probation for a government servant who is not
to be absorbed substantively in the service on completion. The ratio therein
does not apply to the facts of this case for the reason that the Govt. itself
did not understand the scope and operation of the rules properly as is amply
demonstrated from their mutually irreconcilable inconsistent stand taken in the
counter-affidavits filed by the State Govt. in the High Court and in this
Court. That apart, it would appear that in the instant case after the formation
of the State of Haryana, adequate number of officers were
219 not available to hold the posts. The length of service and passing of
prescribed tests were relaxed enmass. In view of the above peculiar and special
facts merely because the promotee Class II Officers were put on probation and
the same was declared it does not clothe them with any right to deemed
appointment to substantive vacancies in excess of their quota with
retrospective effect from the date of initial promotion to the cadre posts. The
year of allotment of a direct recruit is always the year in which he is
appointed to the junior scale post of Asstt.Executive Engineer but the year of
allotment to the promotee is variable depending on the availability of the
cadre post within quota of 50% and subject to taking the seniority next below
the junior most promotee of the preceding year of allotment or immediate senior
of the same year. If the contention of Shri P.P. Rao is accepted is accepted it
would render Rule 8(11) mutually inconsistent with Rule 5(2w) read with Rules
2(7) and 2(12) and Rule 2(1). No countenance could be given to the contention
that the officers put on probation in terms of Rule 11(1) irrespective whether
they occupied declared posts, but also posts which ought to have been declared
as such from time to time and have continuously remained in service entitle
them to become member of service and that, as and when the posts occupied by
them are declared as cadre posts with retrospective effect, they are entitled
to be treated as members of the service w.e.f. the due dates. In other words it
amounts to put a premium on the inaction on the part of the State Govt. to
declare the cadre posts in terms of Rule 3(2) read with appendix `A' defeating
the scheme of the Rules.
The
contention that our interpretation renders Rule 2(12) arbitrary and
discriminatory violating Arts. 14 and 16 is also not tenable. A direct recruit,
by operation of Rule 2(12) (a) read with Rules 2(1) and 2(10), though appointed
to an ex-cadre post, by fiction of law, becomes a member of the service from
the date of his initial appointment since being a fresh recruit. On his
satisfactory completion of the prohibition and on availability of the cadre
post as Asstt. Executive Engineer, he becomes a confirmed Asstt. Executive
Engineer. While a promotee Executive Engineer continues to retain his line on
the posts as Class II officers still he is appointed substantively to Class I
service. There is reasonable classification and discernable distinction drawn
between the direct recruit and the promotee. The nexus is to treat direct
recruit Asstt. Executive Engineer appointed to the cadre posts as well as
ex-cadre post at par as members of the service and the deeming clause is to
serve this purpose. Thus, there is nether invidious discrimination nor
arbitrariness in Rule 2(12)(a) offending Arts. 12 & 16. The differentiation
drawn between direct recruit and the 220 promotee bears rational relation to
the object of Rule 2(12), the ratio of the Constitution Bench in B.S. Yadav v.
State of Haryana, [1980] 1 SCR 1024 and The Direct Recruit, Class II
Engineering Officers' Association v. State of Maharashtra & Ors., [1990] 2
SCC 715 at 745 cannot be imported bodily and applies to the ficts of the case
in the light of the operation of the rules in question.
The
further contention that Rule 12 adumbrates that not only a member of the
service, but even an officer officiating as an Executive Engineer before
becoming a member of the service is entitled to an year of allotment because
the rules nowhere say that only members of service are entitled to year of
allotment is devoid of substance.
As
already discussed a promotee cannot be given year of allotment, before he
becomes a member of the service and his seniority cannot be fixed arbitrarily
with reference to the date of his initial promotion to an ex-cadre post or
continuous officiating in a cadre post without break, as the case may be.
We
accordingly, direct the Government of Haryana to determine the cadre posts, if
not already done, regularly from time to time including the post created due to
exigencies of service in terms of Rule 3(2) read with appendix `A' and allot
the posts ineach year of allotment as contemplated under rule 12 read with Rule
5(2)(a) and issue orders appointing substantively to the respective posts
within the quota and determine the inter se seniority between the appellants promotees
and R.R. Sheoran, direct recruits in the respective quota cadre posts of
Executive Engineers etc. within four months from the date of receipt of this
judgment. The inter se seniority of promotees and direct recruits shall be
determined accordingly. All the inpugned promotions or those pending
proceedings in the High Court or in this Court shall be subject to the above
determination and the status quo would continue till the appointments according
to the rules are made and seniority is determined in the light of the law
declared inthis judgment. The appeals is disposed of accordingly. In the
circumstances parties are directed to bear their respective costs.
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