Full Judgment Text
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PETITIONER:
SUBHASH CHANDER SHARMA & ANR, STATE OF PUNJAB & ORS.
Vs.
RESPONDENT:
HARI KRISHAN & ORS.
DATE OF JUDGMENT: 14/05/1999
BENCH:
G.T.Nanavati, S.N.Phukan
JUDGMENT:
NANAVATI. J.
Leave granted. Heard learned counsel for the parties.
The appellants are working as Junior
Engineers/Overseers in the Punjab Overseers Service,
Irrigation Branch, P.W.D. since about 1962. They hold
diploma in engineering. For Junior Engineers/Overseers the
next post of promotion is the post of Assistant Engineer.
Infact, the Assistant Engineer constitute Punjab Service of
Engineers, Class II (irrigation Branch). The recruitment to
the post of Assistant Engineer is governed by the Punjab
Service of Engineers, Class II, (Irrigation Branch) Rules,
1941.
On August 20, 1957 the Secretary to the Government of
Punjab, P.W.D. (Irrigation Branch) issued a letter
regarding recruitment to PSE Class II. It was stated
therein that in view of large number of temporary engineers
being in employment in irrigation branch due to heavy
expansion of Bhakra Nangal and other projects, the
Government has decided that till further orders no officer
shall be appointed by direct recruitment to P.S.E. Class !l
and henceforth the same shall be filled by promotion from
amongst temporary engineers and section officers and head
draftsman in the ratio mentioned in the letter. Later on
the said percentage was revised in October 1969, May 1972
and February 1974 but it is not necessary to go into those
details. Again by a notification dated April 23, 1992 the
percentage was fixed as under:
"1. Direct recruitment: Temporary Engineers. 55%
II. By promotion
i) from Junior Engineers (Civil) 20% ii) from Junior
Engineer (Mech.) 5% iii) from members of Drawing staff 6%
iv) From A.M.I.E. qualified
Junior Engineers 11% Drawing statf 3 % 14%"
This notification was challenged by those Junior
Engineers who are graduates in engineering by filing writ
petitions in the Punjab & Haryana High Court on the ground
that no promotion can be made of those Junior Engineers who
do not have the requisite educational qualifications
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prescribed by Rule 3 and, therefore, no quota could have
been legally fixed for their promotion. The Division Bench
of the High Court agreeing with the reasoning of the Single
Judge of the High Court in R.C. Tondon vs. State of Punjab
1995 (6) Services Law Reporter 307 held that the Junior
Engineers who do not possess university degree or other
qualifications prescribed in Appendix A to the Rules are not
eligible for promotion under Rule 5 except in cases where
relaxation in that behalf is made by the Government in
exercise of its power under the last proviso to Rule 5 read
with Note 2 to Rule 3 of the Rules. Taking this view the
High Court dismissed both the writ petitions.
Mr. Tulsi, learned Senior counsel appearing for the
appellants submitted that the High Court has not only
over-looked the fact that if Junior Engineers, who do not
possess graduate degree or an equivalent question is held
ineligible for promotion then they will not have even one
chance of promotion thorughout their career but has
also-mis-intorpreted Rule 5. He submitted that the second
proviso to Rule 5 which is in respect of promotion of
temporary engineers, is an independent provision and keeping
the object of the provision in mind it ought to have been
held that for promotion of a temporary engineer to the post
of Assistant Engineer the eligibility criteria is (1) he has
been declared by the Commission on the report of the Chief
Engineer to be fit for the service; (2) has held
anappointment for not less than two years continuously
before the date of entry into the service; (3) is not less
than 26 years or more than 50 years of age on the first day
of June, immediately preceding the date on which taken into
the service and (4) in case of promotion of a member of the
Overseers Engineering Service or Draftsmen Service unless he
has passed both the departmental professional and revenue
examinations of irrigation Branch. He also submitted that
third or the last proviso to Rule 5 is again an independent
provision made in respect of Junior Engineers possessing
outstanding merit. He also submitted that it could not have
been intended by the rule making authority that temporary
junior engineers apart from the qualification of a degree in
engineering should satisfy the other conditions also
mentioned in the second proviso to Rule 5. On the other
hand, Mr. P.P. Rao, learned Senior counsel appearing for
the respondents submitted that on correct interpretation of
Rule 5 it should he held that the qualification of a degree
in engineering is a must for an appointment as Assistant
Engineer and unless that condition is relaxed either by
exercising the power available under the third or the last
proviso to Rule 5 or the general power of relaxation under
Rule 19 Junior Engineer, who is a diploma holder, cannot be
promoted to the post of an Assistant Engineer.
The Rules relevant for consideration of the rival
contentions are as under:
"(2) In these rules, unless there is anything
repugnant in the subject or the context -
(a) xxx xxx xxx xxx (b) xxx xxx xxx xxx (C) xxx xxx
xxx xxx (d) xxx xxx xxx xxx (e) xxx xxx xxx xxx
(f) "Temporary Engineer" means an Engineer in the
service of the Public Works Department, Punjab, whose
appointment is temporary within the meaning of the
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Fundamental Rules, is nonpensionable and who is not a member
of any regular service.
(g)"the service" means the Punjab Service of
Engineers. Class II (Irrigation Branch)
(h) "Assistant Engineer" means a member of Punjab
Service of Engineers, Class II (irrigation Branch)
(3) No Person shall be appointed to service unless he
(a) xxx xxx xxx xxx (b) xxx xxx xxx xxx
(C) possesses one of the university degrees or other
qualifications prescribed in Appendix ’A’ to these Rules;
(d) xxx xxx xxx xxx
NOTE : Clause ( c ) may be waived in the case of
members of the Oversear Engineering Service, Irrigation
Branch, Punjab to be promoted to the Service, under the
proviso at end of Rule 5 of Part II, appointment rules.
4. Constitution of the Service. The Service shall
consist of -
(a) existing members of the Service, (b) Officers
transferred or promoted from another State Service, whether
in the same or another State, or promoted from the Overseers
Engineering Service, Irrigation Branch, Punjab, or
Irrigation Branch (Provincial Draftsman and Tracers) Service
or temporary engineers taken into the service..
(c) Officers directly appointed by Government
NOTE: xxx xxx xxx xxx
5. Appointment to the Service: Government may make
appointments to the service from the classes mentioned in
rule 4, provided that no person shall be appointed unless
the possesses the qualifications specified in Rule 3, and
provided further, that no temporary Engineer shall be taken
into and no member of the Overseers Engineering Service or
Draftsman service shall be promoted to the service unless he
has been declared by the Commission on the report of the
Chief Engineer to be fit for the service, is serving in the
Department, and has held an appointment for not less than 2
year" continuously before the date of entry into the
service, and is not less than 26 years or more than 50 years
of ago on the first day of June. immediately preceding the
date on which taken into the service and in the case of
promotion of a member of the Overseers Engineering Service
or Draftsmen Service unless he has passed both the
Departmental Professional and Revenue Examinations of
Irrigation Branch;
Provided that this rule may be relaxed by Government
on the recommendations of Chief Engineers in order to admit
the promotion of a member of the Overseers Engineering
Service or Draftsmen Service unless he has passed both the
Departmental Professional and Revenue Examinations of
irrigation Branch.
Provided that this rule may be relaxed by Government
on the recommendations of Chief Engineers in order to admit
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the promotion of a member of the overseer Engineering
Service of irrigation Branch, Punjab or Irrigation Branch
(Provincial Draftsmen and Tracers) Service of outstanding
merit, who may not possess the qualifications specified in
rule 3.
NOTE: xxx xxx xxx xxx
19. Relaxation: Where the Government is satisfied
that the operation of any of these rules causes undue
hardship in any particular case, it may by order dispense
with or relax the requirements of that rule to such extent
and subject to such condition as it may consider necessary
for dealing with the case in a just and equitable manner."
A reading of the above rules discusses that Rule 3
provides for qualification of a candidate, Rule 4 specifies
the feeder category or the source of recruitment and Rule 5
provides tor appointments out of those who are otherwise
eligible for appointment including promotion to the post of
an Assistant Engineer. Rule 3 in categorical terms provides
that no person shall be appointed to the service unless he
possesses one of the university’s degrees or relevant
qualification prescribed by the Rules. The only relaxation
contemplated by the Rules in this behalf is to be found in
Note to Rule 3 and the proviso at the end of Rule 5 and that
relaxation is in respect of certain Oversears and Junior
Engineers possessing outstanding merit. Only other rule
left for consideration is Rule 5 and what is required to be
considered is whether Rule 5 dispenses with the requirement
of a degree or an equivalent qualification in the matter of
promotion of temporary junior engineers.
Rule 5 first provides that the Government may make
appointments to the service from the feeder cadre mentioned
in Rule 4. Having thus positively provided generally both
in respect of direct recruitment and promotion or transfer,
it further provides that even out of the persons from those
feeder cadre no person shall be appointed unless he
possesses the qualifications specified in Rule 3 meaning
thereby a degree or an equivalent qual;ification. This
proviso to the general provision making all persons in the
feeder cadre eligible for appointment including promotion
has restricted the power of the Government by confining it
to only those persons who possess the required educational
qualification. Having provided like this it further
provides by slating "and provided further" that no temporary
engineer shall be taken into and no member of the Oversear
Engineering Service or Draftsmen and Tracers Service shall
be permitted to the service unless he satisfies the four
conditions which we have referred to above. It was
submitted by Mr. Tulsi that this proviso is a different
proviso and should not be read as a proviso to the earlier
proviso and has an additional condition of eligibility. On
the other hand, Mr. Rao emphasised the words "and provided
further" and submitted that they clearly indicate the
intention of the rule making authority and leave no doubt
that they are additional conditions of eligibility in
respect of a certain category of persons in Class III
service, namely, temporary engineers and overseers. He also
submitted that in case of direct recruitment there is heavy
competition but in case of promotion it is comparatively
less and it was , therefore, thought fit by the rule making
authority to impose those four additional conditions for
persons like temporary engineers and overseers for their
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promotion. In support of his submissions Mr. Tuisi relied
upon A.S. Parmar vs. State of Haryana 1984 (Supp) SCC 1,
In that case, this Court was called upon to examine Punjab
Service of Engineers, Class I P.W.D. (Buildings and Roads
Branch) Rules, 1960. This Court was also required for the
purpose to consider the Punjab Service of Engineers Class II
P.W.D. (Building and Roads Branch) Rules, 1965. After
taking into consideration Rule 7 of Class II Rules and Rule
6 of Class I Rules this Court observed as under:
"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 ft 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 bypromotion from amongst persons which certain
educational qualifications and experience of ten years in
the lower cadre or such other experience as stated in the
Class il Rules. Rule 6 of the Class I Rules treats the
possession of a degree plus the selection at the competitive
examination and the passing of the departmental examination
after appointment as sufficient for getting into the cadre
of Assistant Exacutive 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."
The Court further observed that:
"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 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
I Rules will read insofar as the promotees are concerned as
"no person shall be appointed to the Service unless in the
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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."
Relying upon these observations it was submitted by
Mr. Tulsi that Rule 5 of the Rules with which we are
concerned is substantially the same, that it is similarly
worded except that different categories of persons have been
referred to for appointed in Class I service. Rule 5 of the
Rules with which we are concerned provides for the same
thing by adopting the method of including in a proviso an
independent clause. We do not think that Mr. Tulsi is
right in his submission that Rule 5 is substantially the
same as Rule 6 of Class I rules dealt by this Court in A.S.
Parmar’s case (supra). As this Court found that each of
those clauses was dealing with the persons failing under
those clauses independently, in other words each clause was
dealing with a specific class, they deserved to be
considered as independent clauses. The appellants in that
case were the members of Haryana Public Works. Department.
It was under those circumstances that this Court held in
that case that the High Court was not right in holding that
degree is a pre-requisite for being promoted to class III,
class II and class I service.
Mr. Tulsi next relied upon T.R.Kapur vs. State of
Haryana 1986 (Supp) SCC 584. In that case the petitioners
were diploma holders in engineering who were in due course
promoted to Class II service. The question which had arisen
in that case was whether such diploma holders in Class II
service could be promoted to Class I service in the absence
of a university degree. This Court after referring to its
earlier decision in A.S.Parmar’s case (supra) observed as
under:
"One should have thought that the controversy whether
a degree in Engineering was an essential qualification for
promotion of Sub-Divisional Officers in Class II Service to
the post of Executive Engineer in Class I service under Rule
6(b) of the Class I Rules had ended with the decision of
this Court in A. S. Parmar case. Curiously enough,
learned counsel for the respondents strenuously contends
that the decision of this Court in A.S. Parmar case was
incorrect. He presses into service for our acceptanes the
decision of the High Court in O.P. Bhatia v. State of
Punjab taking a view to the contrary. It is urged that in
the erstwhile State of Punjab 3 degree in Engineering was
essential for recruitmant of Assistant Engineers in Class II
service under Rule 3(c) of the 1941 Rules as held by the
High Court in O.P. Bhatia case and that view was in
consonance with the departmental instructions of the
relevant rules in the State of Punjab and the State of
Hsryana as also in the erstwhile State of Punjab that Rule
6(b) required the promotees to have the essential
qualification of a degree in Engineering. We do not think
that it is open to question the correctness of the decision
in A.S. Parmar case which . expressly overrules the view
taken by the High Court in O.P. Bhatia case. That apart,
the proviso to Rule 5 of the 1942 Rules conferred power on
the State Government to relax the requirement of Rule 3(c)
on the recommendation of the Chief Engineer in order to
admit the promotion of a member of the Overseers Engineering
Service (Irrigation Branch), Punjab if he was an officer of
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outstanding merit although he did not possess the
qualification prescribed in Rule 3(c) i.e. the educational
qualification of a degree in Engineering. The requirement
of a degree in Engineering for recruitment to the Class II
service was done away with in the 1370 Rules. Tho
contention also fails to take note of the fact that the
requirement of a degree in Engineering which was an
essential educational qualification for purposes of direct
recruitment of Assistant Executive Engineers in Class I
service under Rule 6(a) of the Class I Rules could not be
projected for promotion of Sub-Divisional Officers belonging
to Class II service to the posts of Executive Engineers in
Class I service under Rule 6(b) as they form two distinct
sources from which the appointments to the posts of
Executive Engineers could be made. As laid down in
A.S.Parmar case, what was of the essence for purpose of
promotion of Sub-Divisional Officers who were members of
Class II service to the post of Executive Engineer underrule
6(b) Class I Rules was not a degree in Engineering but 8
years’ experience in that class of service i.e. Class II
service."
Both the aforesaid decisions were not directly
concerned with the Rules with which we are concerned in
these appeals. Rule 5, as it is worded, leaves no doubt
that the rule making author intended by enacting the second
proviso that a temporary engineer/oversear referred to
therein should also satisfy other conditions before he can
be promoted to Class II service. If the intention of the
rule making authority was to do away with the requirement of
degree qualification then it was not at all necessary to
incorporate the last proviso in Rule 5. The second proviso
also deals with a member of the Oversears Engineering
Service or Draftsmen Service and the last proviso also deals
with promotion of a member of the Oversear Engineering
Service of irrigation Branch, Punjab or Irrigation Branch
(Provincial Draftsmen and Tracers) Service. If a member of
such a service without being a graduate was to be treated as
eligible for promotion as an Assistant Engineer then it is
difficult to appreciate how it became necessary to provide
for relaxation of educational qualification in his favour
again by enacting a separate proviso. Therefore, if we
interpret second proviso to Rule 5 as suggested by Mr.
Tulsi that would render the last proviso to Rule 5 otiose.
The test proviso could not have been intended to enable the
Government to relax the other conditions mentioned in the
second proviso in case of class of persons referred to in
the last proviso. Outstanding merit of a membar of the
Oversears Engneering Service or Draftsmen and Tracers
service obviously could not have been ascertained unless he
had completed at least his two years ccnt*riuous service.
Similarly a person having outstanding merit could have been
easily dedared by the Commission on the report of the Chief
Engineer to be fit for service and, therefore, there was
hardly any point in making a special provision for
relaxation of such conditions. It is also not possible to
believe that the said proviso was enacted for dispensing
with the requirement of age. It would not have been
difficult for a person having outstanding merit to have
passed a departmental test and, therefore, it is. not
possible to believe that the last proviso was enacted with a
view to dispense with the requirement of that condition.
Moreover if only the conditions specified in the second
proviso were intended to be relaxed then the last proviso
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would have been worded in a different manner. The important
words in this context in the last proviso are "this Rule may
be relaxed". The Rule which is obviously referred to is the
Rule .that no person shall be appointed unless he possesses
the qualification specified in Rules. The Note to Rule 3
also specifically refers to the last proviso of Rule 5 and
that is also indicative of the fact that educational
qualification is to be relaxed only in respect of persons
specified in the last proviso if they are of outstanding
merit.
In our opinion the High Court was right in holding
that a temporary Junior Engineer who does not possess a
degree qualification is not eligible for promotion to the
post of Assistant Engineer and, therefore, the impugned
notification fixing quote for promotion was bad to that
extent. These appeals are, therefore, dismissed with no
order as to costs.