CASE NO.: Special Leave Petition (civil) 1383-92 of 1995 PETITIONER: SALES TAX COMMISSIONER ETC. ETC. RESPONDENT: B.G. PATEL ETC. ETC. DATE OF JUDGMENT: 03/01/1995 BENCH: K. RAMASWAMY & N. VENKATACHALA JUDGMENT:
JUDGMENT
1995 (1) SCR 22
The following Order of the Court was delivered :
Delay condoned.
This petition for special leave arises from the order of the High Court of
Gujarat in Special Civil Application Nos. 12748 to 12757 of 1993.
The respondents-senior clerks who belonged to Scheduled Tribes represented
to the Government to accord them the benefit of the proviso to Rule 11A of
Gujarat Civil Services Classification and Recruitment (General) Rules, 1985
(for short, ‘the Rules’). On denial thereof, they approached the Gujarat
Civil Services Tribunal which by its order dated 5.2.1993 directed the
petitioner to consider their cases for promotion giving them the benefit of
the proviso. The Tribunal followed its earlier Full Bench Judgment and had
given direction accordingly. On revision, the High Court has confirmed the
same.
Shri Dave, the learned counsel appearing for the petitioner has contended
that the interpretation given by the Tribunal and the High Court, if found
acceptable, renders the main part of Rule 11-A redundant and the proviso
would become operative in every case. Therefore, the matter requires
consideration by this Court. We do not find force in the contention.
Sub-rule (1) of Rule 11-A(2) speaks of minimum service of different classes
of employees. It postulates that “where any rule or order relating to
recruitment of promotion to any service or post including the State Service
or subordinate service, possession of experience in a lower services or
post for a specified period is not prescribed as a condition precedent to
promotion to a Higher service or post, the provisions of sub-rule (2) shall
apply. Sub-rule (2) prescribed the procedure. In case of promotion from a
lower post in class III to a higher post in the same service a minimum of 5
years service has been prescribed in clause (a) to Rule 11-A (2).
Similarly, from class III to class II service, experience of 7 years has
been prescribed in clause (b). In clause (c) from a lower post in class II
service to a higher post in the same service, a minimum experience of 5
years in the post from which a person is to be promoted has been
prescribed. In clause (d) for promotion from Class II service to class I
service an experience of 8 years in class II service has been prescribed
unless he has experience of 8 years service in class II service from which
he is to be promoted. The proviso which is relevant for the purpose of this
case, reads thus :
“Provided that where an appointing authority is satisfied that a person
having an experience specified in clauses (a), (b), (c) or as the case may
be, (d) is not available for promotion and that it is in public interest to
fill up the post or service by promotion of a person having experience for
a lesser period. It may for the reasons to be recorded in writing promote
such person who has experience for a period not less than two thirds of the
period specified in clause (a), (b) (c) or (d) which applies to him”.
It would thus be clear that clauses (a) to (d) of Sub-rule (2) of Rule 11-A
prescribe a minimum experience in a lower post for promotion to a higher
post, but the proviso enables the appointing authority on its satisfaction
that the person required to have the previous experience prescribed under
clauses (a) to (d) is not available for promotion and that in the public
interest the post or service is required to be filled up by promotion, the
provision postulates that such person has to put in, not less than two
thirds of the period specified in either clauses (a) to (d), Then it
enables the appointing authority for reasons to be recorded in writing to
promote such person. It is settled law that the proviso and the main part
of the Act or Rule are to be harmoniously read together and interpreted to
give effect to the object of the provision. Rule 11A prescribes minimum
period of previous experience in lower post for promotion to a higher post.
It is normal rule. But, where the candidate is not available fulfilling the
mini-mum experience but the exigencies of the administration require
filling up the post or office by promotion and the appointing authority is
satisfied that such a person has already put in not less than 2/3rd of the
period specified in the relevant clause in sub-rule (2) to Rule 11-A and
the candidate is otherwise eligible for promotion, then power has been
given by the proviso to relax the balance period, for reasons to be
recorded and to consider the case for promotion according to rules. If the
contention of the State is accepted, the reverse would be the order, in
other words, the proviso would be rendered otiose and ineffective. On an
harmonious interpretation, as it was rightly done by the Tribunal and the
High Court that in an appropriate case where the appointing authority is
satisfied that a person having not less than 2/3rd of the period of
experience specified in the relevant clauses (a) to (d) of Rule 11-A(2) is
available and in the public interest it is necessary to appoint the person
by promotion, the proviso enables the appointing authority to relax the
balance l/3rd period prescribed by the relevant clauses and make necessary
appointment by promotion. It is seen, as fairly not disputed by Shri Dave,
that number of posts reserved for Scheduled Tribes remained unfilled due to
lack of persons possessed of minimum experience prescribed under sub-rule
(2) of Rule 11-A and the respondents have completed 2/3rd of the period
specified in the relevant clauses. Instead of dereserving the post for non-
availability, the proviso would enable the appointing authority to relax
the balance period of experience and consider their claims for appointment
by promotion. Instead, the petitioner has taken technical view of the
matter and committed illegality by failing to exercise the power under the
proviso to Rule 11-A of the Rules. The Tribunal and the High Court,
therefore, were right in holding that the cases of respondents require to
be considered for promotion in the light of the interpretation given by
them.
The SLP is accordingly dismissed.