PETITIONER:
A. S. PARMAR & OTHERS
Vs.
RESPONDENT:
STATE OF HARYANA & OTHERS
DATE OF JUDGMENT24/01/1984
BENCH:
VENKATARAMIAH, E.S. (J)
BENCH:
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 tho proviso 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 therefrom,
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 injust 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
af ter 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
JUDGMENT:
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
themselves 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
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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
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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-gazetted)
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 therefrom but the introduction of a
new Rule 6 with a different structure. The High Court also
appears to have overlooked while relying upon Rule 9 of the
Irrigation Branch Rules of 1964 that the proviso to Rule
6(a) of the said Rules was applicable only to a Class II
officer who wanted to get into the Class I Service by direct
recruitment as provided in the Explanation to Rule 2(7) of
the Irrigation Branch Rules which corresponded to the
Explanation to Rule 2(7) of the Class I Rules with which we
are concerned. The High Court has not examined the
Irrigation Branch Rules as fully as we have examined the
Class I Rules. The judgment of the High Court is very
cryptic. We do not agree with its conclusion that a degree
is a pre-requisite for being promoted from the Class II
Service to the Class I Service for the reasons we have
already given above.
In these cases the State Government having first
construed that Rule 6 of the Class I Rules required that a
promotee should also have a degree, tried to relax that
condition by making orders relaxing it as it found that its
construction had led to unjust results. It did not make any
attempt to reconsider its interpretation of Rule 6 even when
the matter came up before the High Court. It only tried to
justify the order of relaxation but ultimately failed in its
attempt. It is only in this Court that the question of
interpretation of Rule 6 of the Class I Rules was raised.
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 a egree 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.
495