Full Judgment Text
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CASE NO.:
Appeal (civil) 4341-42 of 2000
Appeal (civil) 1014 of 2001
PETITIONER:
O.P. LATHER & ORS., ETC.
Vs.
RESPONDENT:
SATISH KUMAR KAKKAR & ORS.
DATE OF JUDGMENT: 02/02/2001
BENCH:
S. Rajendra Babu & K.G. Balakrishnan.
JUDGMENT:
K.G. BALAKRISHNAN, J.
Leave granted.
L...I...T.......T.......T.......T.......T.......T.......T..J
Aggrieved by the judgment of the Division Bench of
Punjab & Haryana High Court at Chandigarh in C.W.P. No.
9655 of 1999 and C.W.P. No. 15317 of 1999, the present
appeals are filed by the party respondents and the State of
Haryana respectively. By the impugned judgment, the
Division Bench held that the contesting party respondents
[appellants in the civil appeals arising from S.L.P.(Civil)
Nos. 4341-42 of 2000] were not entitled to be promoted as
Executive Engineers and that the claim of the petitioner in
the writ petitions shall be considered.
Initially, Satish Kumar Kakkar, the first respondent in
these appeals, filed a writ petition [C.W.P. No. 9655 of
1999] claiming that he alone was entitled to be promoted as
Executive Engineer and contended that the third respondent
therein, namely, O.P. Lather, then working as Asstt.
Engineer, lacked the requisite educational qualification for
promotion as Executive Engineer. The Division Bench held
that the said third respondent did not have the requisite
qualification for promotion to the post of Executive
Engineer and directed that the post of Executive Engineer be
filled up in accordance with the Rules. Subsequent to this
judgment, the Govt. of Haryana issued an executive order on
7th October, 1999 whereby it was clarified that the Three
Years’ Diploma in Electrical Engineering, awarded by the
State Board of Technical Education, Haryana, would be
treated as equivalent to Diploma in Electrical Engineering
from a recognised university. Consequently, the appellants
herein, namely, O.P. Lather, P.D. Sharma and Daya Nand
were promoted to the posts of Executive Engineer by
proceedings dated 26th October, 1999. The order passed by
the Govt. of Haryana on 26th October, 1999, was challenged
by Satish Kumar Kakkar in a writ petition [C.W.P. No.
15317 of 1999] contending that none of them possessed the
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requisite qualification for being promoted as Executive
Engineer and the Division Bench of the High Court accepted
his contention and quashed the promotions. The Division
Bench also directed to consider the claim of the first
respondent herein for promotion to the post of Executive
Engineer. Judgments in these two writ petitions are
challenged before us.
As per Rules framed by the State of Haryana under
Proviso to Article 309 of the Consititution, the post of
Executive Engineer would be filled up by direct recruitment
as well as by promotion. The relevant portion of the
"Haryana Electrical Inspectorate (Group-A) Service Rules,
1997" is column 3 of Appendix B of the said Rules. The same
is to the following effect :
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S. Designation Academic qualifications Academic qualifications
No. of posts & experience, if any, & experience, if any,
for direct recruitment for
appointment
other than by direct@@
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recruit-
ment
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2. Executive 1. Degree in Electrical 1. Degree or Diploma
Engineer Engineering from a recog- in
Electrical from
a
nised University or its Engineering
equivalent recognised
Univer-
equiva-
sity or
lent.
[emphasis supplied]
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-------
S. Designation Academic qualifications Academic qualifications
No. of posts & experience, if any, & experience, if any,
for direct recruitment for
appointment other
than by direct recruit-
ment
--------------------------------------------------------------------------------------------
-------
2. Should have been regularly 2. Eight years experi-
engaged for a period of at
ence as Asstt.
least eight years in the
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Engineer.
practice of electrical engineer-
Ing of which not less than two
years should have been spent
in an electrical or mechanical
engineering workshop or in
generation, transmission or
distribution of electricity or in
the administration of Indian
Electricity Act, 1910, and the
Rules made thereunder in a
position of responsibility.
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As per the above Rules, the requisite academic
qualification for promotion to the post of Executive
Engineer is Degree or Diploma in Electrical Engineering from
a recognised university or its equivalent. The appellants
have passed Diploma in Electrical Engineering from an
institution affiliated to the State Board of Technical
Education, Haryana, but the Diploma acquired by them is not
from a recognised university. Therefore, the first
respondent contended that they were not entitled to be
promoted to the posts of Executive Engineer.
The first respondent had joined service in the Haryana
Govt. as Junior Engineer in 1981 and he too is a holder of
Diploma in Electrical Engineering from Haryana Polytechnic,
Nilokheri, which is affiliated to the State Board of
Technical Education, Haryana. He was promoted to the post
of Asstt. Engineer on 2.4.1985 whereas the appellants were
promoted during the period 1984-85 to the cadre of Asstt.
Engineer. Three vacancies of Executive Engineer arose on
29.12.1998. The first respondent claimed that he had passed
A.M.I.E. Examination in 1995 and was thus entitled to be
promoted to the post of Executive Engineer. In the earlier
writ petition, viz. C.W.P. No. 9655 of 1999, the Division
Bench had held that as the third respondent therein, viz.,
appellant-O.P. Lather was only a Diploma-holder, and as the
Diploma Certificate obtained by him was not from a
recognised university, he was disqualified to be promoted to
the cadre of Executive Engineer. Subsequent to this, the
Govt. of Haryana issued a clarificatory order on 7th
October, 1999 whereby it was held that the Diploma in
Electrical Engineering awarded by the State Board of
Technical Education, Haryana, and approved by the All India
Council for Technical Education be treated as equivalent to
Diploma in Electrical Engineering from a recognised
university. The Division Bench, in its subsequent judgment
in C.W.P. No. 15317 of 1999, held that the vacancies arose
prior to the issue of the said clarificatory order by the
Govt. of Haryana and, therefore, the promotion to those
posts should have been made in accordance with the then
existing rules as the order passed by the Govt. on 7th
October, 1999 cannot have retrospective effect. It was held
that by virtue of the amendment of Rules, no retrospective
effect could be given to the said order and as the vacancies
had occurred prior to the coming into force of the amended
rules, the appellants herein were not entitled to be
promoted to the posts of Executive Engineer.
We heard the learned counsel on either side. It is true
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that as per the special rules framed under Proviso to
Article 309 of the Constitution, the requisite qualification
for the purpose of promotion to the cadre of Executive
Engineer is Degree or Diploma in Electrical Engineering from
a recognised university or its equivalent. The learned
counsel for the State of Haryana submitted that there is no
university in the State of Haryana which awards Diploma in
Electrical Engineering and that such Diplomas are awarded by
various recognised institutions which are affiliated to and
approved by the State Board of Technical Education in
Haryana. It is argued that the first respondent had also
acquired a three years’ Diploma in Electrical Engineering
granted by the State Board of Technical Education, though he
has passed A.M.I.E. Examination, which is also not issued
from a recognised university. It was submitted that
realising this position, the Govt. of Haryana issued an
executive order on 7th October, 1999 by way of clarification
wherein it is stated that no university situated in the
State of Haryana awards Diploma in Electrical Engineering
and that the Diploma in Electrical Engineering is awarded
only by the State Board of Technical Education, Haryana, and
no requirement of equivalent qualification has been
prescribed for such a course (Diploma) in the State of
Haryana; the three years’ Diplomas awarded by the State
Board of Technical Education, Haryana, are duly approved by
the All India Council for Technical Education also.
The question that arises for our consideration is
whether the clarification issued by the Govt. of Haryana by
an executive order is proper and valid and whether it
amounts to amendment of the Rules made under Article 309 of
the Constitution. If it is an amendment to the Rules made
under Article 309, a further question arises whether by an
executive order, can such rules be amended.
Normally, the Rules framed under the proviso to Article
309, cannot be amended except in accordance with procedure
laid down therein. But in the instant case, the question is
whether a clarification issued by the Govt. could be
construed as an amendment to the rules. Even under the
rules, it is specifically stated that a Degree or Diploma in
Electrical Engineering from a recognised university or its
equivalent would be the requisite qualification for
promotion to the cadre of Executive Engineer. In the Rules,
some of the recognised universities are also mentioned and
admittedly, these institutions are not awarding any Diploma.
The rules say that equivalent qualification also would be
considered. There is nothing wrong in the appointing
authority issuing a clarification as to what would be the
equivalent qualification for the purpose of appointment.
When the universities do not offer the Diplomas prescribed
under the Rules, the rule itself becomes meaningless and
nugatory. Under the Rules, the candidates are asked to
produce a certificate which is neither in existence nor
awarded. It was at this juncture that the Govt. issued a
clarification that the Diploma awarded by recognised
institutions, which are affiliated to the State Board of
Technical Education in Haryana, would be considered as
equivalent.
A similar question came up for consideration in State of
Haryana vs. Shamsher Jang Bahadur (1972) 2 SCC 188. It was
held in paragraph 7 of the judgment as under :
"The first question arising for decision is whether the
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Government was competent to add by means of administrative
instructions to the qualifications prescribed under the
Rules framed under Article 309. The High Court and the
courts below have come to the conclusion that the Government
was incompetent to do so. This Court has ruled in Sant Ram
Sharma v. State of Rajasthan and Another that while the
Government cannot amend or supersede the statutory rules by
administrative instructions, if the rules are silent on any
particular point, the Government can fiill up the gaps and
supplement the rules and issue instructions not inconsistent
with the rules already framed."
In the instant case also, the Govt. Order passed on 7th
October, 1999 was only supplemental to the Rules already@@
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framed under the Proviso to Article 309 of the Constitution.@@
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It does not have the effect of altering the Rules nor is it
inconsistent therewith. The relevant rule in fact provides
that Diploma holders are entitled to be promoted to the
cadre of Executive Engineer. If this rule, without the
present clarification, is allowed to operate, no officers in
the cadre of Assistant Engineers would be entitled to get
promotion as they are not holders of Diploma from a
recognised university. That would be a virtual denial of
opportunity of promotion to these officers. The rule does
not intend that the Diploma holders shall not be promoted to
the cadre of Executive Engineer. To obviate this
difficulty, the clarification was issued. It is also
pertinent to note that even the 1997 Rules give the power to
Govt. to relax the Rules. Rules 17 and 18 of 1997 Rules
thus confer power of relaxation and for making special
provisions/special terms and conditions as may be deemed to
be expedient.
The next question that arises for our consideration is
whether the High Court was justified in holding that the
posts had to be filled up in accordance with the Rules that
were in existence at the time the vacancies arose. We do
not think that the stand taken by the High Court is correct.
The executive order issued by the Govt. was only
clarificatory in nature and the ’equivalent qualification’,
which formed part of the Rules was exaplained by that order.
It was argued that by amendment of Rules, benefits
acquired under the existing Rules cannot be taken away. It
is true that by retrospective amendment of rules, vested
rights cannot be taken away. This view was held by this
Court in T.R. Kapur vs. State of Haryana 1986 Supp. SCC
584 = AIR 1987 SC 415. This Court held in Para 16 of the
said judgment as follows :
"The rules defining qualifications and suitability for
promotion are conditions of service and they can be changed
retrospectively. This rule is however subject to a well
recognised principle that the benefits acquired under the
existing rules cannot be taken away by an amendment with
retrospective effect, that is to say, there is no power to
make such a rule under the proviso to Article 309 which
affects or impairs vested rights."
But in the present case, by issuing the clarification no
vested rights of any person were taken away or impaired,
much less that of the first respondent. By this
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clarification, it was made clear that Diploma issued by the
State Technical Education Department would be equivalent to
a Diploma issued from a recognised university. Even without
this explanation, both Diploma-holders and Degree-holders
having eight years’ service as Asstt. Engineer are entitled
to be promoted to the cadre of Executive Engineer. This
clarification has been issued by the State Govt. after
taking into consideration all relevant circumstances,
including the fact that no university in Haryana grants
Diploma in Electrical Engineering. When expert
qualification is fixed by competent authority, ordinarily
court shall not interfere with such matters. In University
of Mysore & Anr. vs. C.D. Govinda Rao & Anr. (1964) 4
SCR 575, it was observed that normally it is wise and safe
for the courts to leave the decision of academic matters to
experts who are more familiar with the problems they face
than the courts generally can be.
We do not find any illegality in the order passed by the
Govt. of Haryana promoting the appellants to the posts of@@
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Executive Engineer. They are admittedly senior to the first
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respondent in the cadre of Asstt. Engineer. We, therefore,
set aside the impugned judgments and hold that the
promotions of the appellants are made in accordance with the
Rules. All the appeals are allowed accordingly without,
however, any order as to costs.