Full Judgment Text
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PETITIONER:
D.K. SAHNI
Vs.
RESPONDENT:
MANAGING DIRECTOR, MANGANESE ORE INDIA LTD.AND ORS.
DATE OF JUDGMENT12/08/1992
BENCH:
AHMADI, A.M. (J)
BENCH:
AHMADI, A.M. (J)
REDDY, K. JAYACHANDRA (J)
CITATION:
1993 AIR 258 1992 SCR (3) 800
1992 SCC (4) 201 JT 1992 (4) 509
1992 SCALE (2)186
ACT:
Manganese Ore (India) Recruitment and Promotion Rules,
1977:
Rules 4 and 7-Mining Engineering Cadre-Promotion to the
post of Chief Mining Engineer-Eligibility criteria-
Qualifications prescribed for direct recruitment applicable,
failing which double the experience specified to be
fulfilled-Chief Mining Engineer not satisfying the
requirement prior to promotion,but becoming eligible on
modification of the relevant entry in the Rules-Whether
should be reverted-Whether should seek re-entry into the
cadre of Chief Engineer on the acquisition of eligibility on
modification of the relevant entry in the Rules.
HEADNOTE:
The appellant joined the respondent-company in 1966 as
Assistant Mining Manager and rose to the position of Chief
Mining Engineer in 1980. Subsequently, pursuant to the
selection made by the Departmental Promotion Committee,
after interviewing the Chief Mining Engineers, the appellant
who ranked fifth in seniority, was promoted as Deputy
General Manager, in preference to his seniors.
The superseded officers represented to the authorities
that since the appellant did not possess the requisite
educational qualifications prescribed for appointment as
Chief Mining Engineer he could not be promoted to the next
higher post of Deputy General Manager. The representation
was rejected on the ground that the post of Deputy General
Manager, being an ex-cadre post, the question of the
appellant possessing the requisite qualifications did not
arise. Thereupon, one of the superseded officers filed a
writ petition before the High Court challenging the
appellant’s appointment.
During the pendency of the petition the company decided
to restructure the Personnel and Technical Department and on
the basis of the recommendations of a sub-committee, the
appellant was appointed as
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General Manager (T).
Thereafter, the High Court allowed the Writ Petition
filed by one of the superseded Chief Mining Engineers,
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holding that the post of Chief Mining Engineer was a
promotional post and since the appellant did not possess the
educational qualifications prescribed for the post of Chief
Mining Engineer, his entry into that cadre was not legal and
consequently, his further promotion to the post of Deputy
General Manager and later as General Manager (T) were
legally unsustainable. Accordingly, it quashed the
appointment of the appellant as Deputy General Manager and
also General Manager (T) and directed the authorities to
pursue a fresh process of selection in accordance with the
rules framed on 6/12th October, 1983.
In the appeal before this Court on behalf of the
appellant it was contended that under Rule 7 of the
Recruitment and Promotion Rules, 1977 it had been made clear
that the educational qualification would not be insisted
upon in deciding the promotion of a departmental candidate,
that according to the said rule, the appellant was only
required to show that he had the requisite experience for
entry by promotion into the higher post, and so when the
appellant was promoted as Chief Mining Engineer he was
merely required to possess the requisite qualification for
qualified candidates and nothing more and, similarly, for
entry to the cadre of Deputy General Manager also he had
merely to show that he had satisfied the experience
criterion and was not required to show that he possessed
the educational qualification prescribed for direct
recruitment, that by subsequent office orders dated 22nd
January 1982 and 1/12th October, 1983 certain modifications
were made in the Annexure to the Recruitment and Promotion
Rules, 1977 pertaining to the qualifications and experience
in respect of the posts of Chief Mining Engineer
(Production/Planning) and Deputy General Manager (T), that
once the appellant was shown to possess the first class Mine
Manager’s Certificate and the prescribed experience he was
eligible to be considered for promotion as Deputy General
Manager regardless of whether or not he held the position of
Chief Mining Engineer and that in any case the appellant
could not be asked to revert since he had held the post
since quite some time, that since the appellant had secured
the First Class Mine Manager’s Certificate, he possessed the
requisite educational qualification and, therefore, it was
not necessary for him to possess double the experience
prescribed for those
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without the required educational qualification; that even if
it was assumed that the appellant was not qualified to be
promoted to the post of the Chief Mining Engineer in April,
1980, he, at any rate, became eligible for promotion on the
modification of the relevant entry in the Annexure with
effect from 17th October, 1981 and even if his promotion was
regularised or deemed to have been regularised by the
company from the said date, he was entitled to be considered
for further promotion in the cadre of Deputy General Manager
and later General Manager (TO) of the company.
While supporting the appellant’s contentions, on behalf
of the management it was submitted that under Rules 7 (c)
and (d), the power to relax the minimum experience or to
resort to direct recruitment was reserved to the management
and hence if the experience requirement fell short, it must
be deemed to have been relaxed, and that it always treated
the appellant as eligible for being promoted to the higher
posts of Deputy General Manager and General Manager (T).
On behalf of the superseded officers it was contended
that the appellant did not answer the requirement of both
the educational qualification and experience to be promoted
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as Chief Mining Engineer as well as Deputy General Manager
and later General Manager (T) and hence he was a usurper and
was not entitled to the protection of this Court, and that
once the Court held that the initial entry of the candidate
was in violation of the promotional criteria, his entry must
be treated as void and unless the DPC reconsidered his case
for promotion along with others his entry in the cadre could
not be regularised on a deeming fiction; that no such case
was put up before the High Court and, therefore, this Court
should not permit it to be placed for the first time in
proceedings under Article 136 of the Constitution and that
Article 136 jurisdiction must be exercised sparingly.
Disposing of the appeals, this Court,
HELD : 1.1 Under the rule position as it existed at the
date of the appellant’s promotion to the post of Chief
Mining Engineer, i.e. on 19/21st April, 1980, the appellant
was not eligible for appointment to the said post by
promotion. However, on the change brought about in the
relevant entry by the order of 22nd January, 1982 with
effect from 17th October, 1981, the appellant became
eligible for promotion and even if his placement in the
cadre of Chief Engineer is reckoned from that date he was
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clearly eligible for upward promotion. [815 E]
1.2 The appellant’s promotion made under the order of
19th April, 1980 was sought to be undone only after his
promotion to the higher post. There is no charm in
directing the reversion of the appellant for a short period
from 21st April, 1980 to 16th October, 1981 when it is found
that under the revised or modified criteria he was eligible
for appointment as Chief Mining Engineer on 17th October,
1981. He was placed junior to others and even if he is
considered as promoted with effect from 17th October, 1981,
he would continue to rank junior. He was selected for the
higher post on merit though he was junior to others.
Therefore, it is not a case where he had received weightage
because he was shown senior when the DPC selected him for
the higher post. He has served on the promotion post of
Deputy General Manager (T) since July, 1983. In the
circumstances, it would be harsh and shocking to revert him
after so many years only on the ground that he must seek re-
entry in the cadre of Chief Mining Engineer with effect from
17th October, 1981, when he acquired eligibility on the
modification of the relevant entry in the annexure to the
Rules.
[816A-D]
2.1 Schedule I appended to the Recruitment and
Promotion Rules, 1977 of the Manganese Ore (India) Ltd.
indicates the posts in the Mining Engineering Cadre of the
company carrying a scale of pay of Rs. 500-800 and above.
The post of Chief Mining Engineer in the pay scale of Rs.
1800-2500 is a cent per cent promotion post and is to be
filled in by selection. The educational qualifications and
experience set out in Column7, which is meant for direct
recruitment are (1) degree or equivalent diploma in Mining
from a recognised University or Institute, (2) Ist Class
Mine Manager’s Certificate of competency under Metalliferous
Mines Regulations, and (3) at least 15 year’s experience of
which 7 years in a responsible position in an underground
Mine such as Senior Mining Engineer or Deputy Planning and
Design Engineer. In Column 8 meant for indicating the grade
from which promotion will be made it is stated "Senior
Mining Engineer." Thus, a Senior Mining Engineer or a Mine
Engineer could be promoted as Chief Mining Engineer. [811D,
F-H, 812A]
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2.2 The qualification and experience set out in Column
7 being for direct recruitment would not ordinarily, apply
where the post is required to be filled by promotion by
selection. Rule 7 makes this position clear. It
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in no uncertain terms says that educational qualifications
should not be insisted upon in deciding the promotion of a
departmental candidate provided he possesses twice the
experience stipulated for a qualified candidate. [812B]
2.3 On a plain reading of Rule 7 with the instance
quoted therein it is clear that if a Senior Mining Engineer
or a Mine Managers does not possess the educational
qualifications set out in Column 7 for direct recruitment as
Chief Mining Engineer, he must have double the experience
requirement set out in that column to be eligible for
promotion to the higher post. In other words, going by
direction in Rule 7, a Senior Mining Engineer/Mine Manager,
who does not possess the educational qualification for entry
into the Chief Mining Engineer’s Cadre, must show that he
possessed experience of thirty years in the department.
[812F-G]
2.4 Indisputably, the appellant who had joined the
service in 1966 had not put in thirty years of service when
he was promoted as Chief Mining Engineer. However, certain
modification were made in the Annexure attached to the
Recruitment and Promotion Rules, with effect from 17th
October, 1981 vide office order of 22.1.1982. Column 8 of
the modified entry reads as Senior Mining Engineer with (a)
Degree in Mining of a recognised University/Institute or
equivalent, (b) Ist Class Mine Manager’s Certificate of
competency under Metalliferous Mines Regulations (UR) and
(c) 3 years service in company in the scale of Rs. 1500-
2000. Thus, under the modified entry the eligibility
criteria for direct recruits remains the same except for a
slight change in the experience criterion, viz., the
requirement of experience of 7 years in a responsible
position in an underground mine has been dispensed with.
The significant change, however, brought about in Column 8
is to state the educational/experience qualifications for
promotion separately. The experience criterion for
promotion under the modified entry is reduced to three years
service in the company in a post carrying a scale of Rs.
1500-2000. Therefore, under the revised entry a Senior
Mining Engineer possessing the educational qualification at
(a) and (b) and experience of three years service in the
company on a post carrying a scale of Rs. 1500-2000 became
eligible for promotion to the post of Chief Mining Engineer.
Under Rule 7 (a) of the Recruitment and Promotion Rules a
Senior Mining Engineer who does not possess the requisite
educational qualification,but possesses double the
prescribed experience, i.e. experience of six years service
in the company
805
on a post carrying a pay scale of Rs. 1500-2000, would be
eligible for promotion to the post of Chief Mining Engineer.
[812G, 814D-H,815A-B]
Narender Chadha & Ors. v. Union of India & Ors., [1986]
2 SCC 157 and Ujagar Singh & Anr. etc.etc. v. State (Delhi
Administration) etc. etc., [1979] 4 SCC 530, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 2933-
34 and 2942-43 of 1992.
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From the Judgment and Order dated 18.7.89 & 30.1.90 of
the Bombay High Court in W.P.No. 2681/84 & C.A.No. 2259 of
1989.
K.K. Venugopal, Ashok H Desai, V.A. Bobde and R.K.
Jain, P. Sreedhran Nair, T.G.N. Nair, S Sukumaran and P.N.
Misra for the appearing parties.
The Judgment of the Court was delivered by
AHMADI, J. Special leave in all the matters granted.
The appellant, D.K. Sahni, began his service career in
1966 as an Assistant Mining Engineer and rose to the
position of Chief Mining Engineer on his promotion to that
post in 1980. The Board of Directors of the Company at its
143rd meeting on 22nd March, 1983 resolved to upgrade three
posts of Chief Mining Engineers to the level of Deputy
General Managers. At that point of time amongst the Chief
Mining Engineers of the Company, the appellant in the order
of seniority ranked after (1) A.H. Dharmadhikari (2) S.
Kumar (3) G.N. Misra and (4) T.N. Prasad. A high powered
Departmental Promotion Committee (DPC) was appointed to
select candidates from amongst Chief Mining Engineers for
placement in the upgraded posts of Deputy General Managers.
This Committee interviewed candidates and made its
selection. Meanwhile A.H. Dharmadhikari was promoted to the
post of Deputy General Manager in the vacancy arising on the
demise of K.V.P. Singh. Pursuant to the selection made by
the DPC the appellant was promoted and appointed as Deputy
General Manager in preference to his seniors. S.Kumar and
others, therefore, filed a Writ Petition No. 2533 of 1983
challenging the appointment of the appellant. However, in
the meantime S.Kumar was promoted in due course as Deputy
General Manager whereupon he withdrew the Writ Petition.
The other two, G.N. Misra and T.N. Prasad represented to the
806
Board pointing out that the appellant did not possess the
requisite educational qualification for appointment as Chief
Mining Engineer and consequently he could not be promoted to
the next higher post of Deputy General Manager. That
representation was rejected on the ground that the post of
the Deputy General Manager being an ex-cadre post, the
question of the appellant possessing the requisite
educational qualification did not arise. Thereupon G.N.
Misra filed another Writ Petition No. 2681 of 1984 under
Article 226 of the Constitution challenging the appellant’s
appointment. In that petition although the appellant was
impleaded as a co-respondent along with the Managing
Director and Chairman of the company he did not choose to
enter an appearance, presumably because the company was
expected to defend its action. Pending the hearing and
disposal of the petition the company decided to restructure
the Personal & Technical department of the company. A sub-
committee was entrusted the task to undertake this exercise
and select candidates from amongst the officers of the
company to occupy higher posts that may be created.
Accordingly one Pillai was appointed as General Manager (P)
while the appellant was selected and appointed as General
Manager (T). The Writ Petition No. 2681 of 1984 was
allowed by a Division Bench of the High Court on 18th July,
1989.
The High Court in its impugned judgment points out that
the post of the Chief Mining Engineer was a promotion post
to be filled in by selection. The minimum educational
qualification for entry into the said promotional post was
(i) a degree or equivalent diploma in mining from a
recognised university or institute and (ii) First Class Mine
Manager’s certificate of competency under Metalliferous
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Mines Regulations. In addition the candidate was required
to have at least 15 years experience of which 7 years in a
responsible position in an underground mine e.g. Senior
Mining Engineer, Deputy Production Manager of Deputy
Planning and Designing Engineer. The High Court found that
the appellant possessed the required certificate as well as
experience but did not possess the educational qualification
for entry into the promotional cadre of Chief Mining
Engineers. The High Court rejected the management’s
contention that the appellant was qualified to be appointed
the Deputy General Manager because the only requirement for
that post was three years experience as Chief Mining
Engineer which the appellant undoubtedly possessed. The
High court held:
"If person to be considered held a particular post,
his entit
807
lement to hold that post would also have to be
considered if holding that post made him eligible
for being considered to the promotional post of the
Deputy General Manager."
The High Court, therefore, held that since the
appellant did not possess the educational qualification
prescribed for the post of Chief Mining Engineer his entry
into that cadre was not legal and consequently his further
promotions to the post of Deputy General Manager and later
General Manager (T) were legally unsustainable. The High
Court also brushed aside the submission that since the
appellant’s appointment as Chief Mining Engineer had never
been challenged during the entire tenure in that office it
should not be permitted to be challenged belatedly by
pointing out that in the cadre of Chief Mining Engineers the
appellant was junior to Mr. G.N.Misra and others and,
therefore, there was no need for them to challenge his
appointment as such but now that their seniority and career
advancement stand jeopardised, they have a cause of action
and are, therefore, entitled to challenge the same. Lastly
the High Court held that since the appellant did not hold a
diploma in Mining with a pass which was equivalent to a
degree as per Schedule I he was not eligible for the post of
Chief Mining Engineer and hence the exemption stated to have
been granted by the Institute of Engineers (India) is of no
consequence what so ever. On this line of reasoning the High
Court allowed the Writ Petition and quashed the appointment
of the appellant before us as Deputy General Manager and
General Manager (T) and directed the authorities to pursue a
fresh process of selection in accordance with the rules
framed on 6/12th October, 1983. The rule was made absolute
accordingly.
When the appellant before us learnt of the adverse
order against him, he filed a Civil Application No. 2259 of
1989 in the said proceedings praying for a re-hearing on the
ground that he had not been served with the notice of the
Writ Petition and, therefore, had no opportunity to defend
himself. The notice of the Writ Petition had been
admittedly served on the Despatch Clerk in the Office of
Manganese Ore (India) Ltd. The appellant contended (i) the
said Despatch Clerk had no authority to accept the notice on
his behalf and (ii) he had in any case failed to forward it
to him. The High Court rejected this stand taken by the
present appellant and held that the appellant was aware of
the service of the notice to the Despatch Clerk and was in
full know of the pendency of the Writ Petition and had in
fact spoken about it to his colleagues. We have perused the
order of the
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High Court on the said application and we are in complete
agreement with the High Court on the view it had taken and
the consequential order it passed rejecting the application.
It is unfortunate that the present appellant made certain
inaccurate and untenable averments in the application to
secure a rehearing.
Mr. K.K. Venugopal, while assailing the High Court’s
order dated 18th July, 1989, submitted that under Rule 7 of
the Recruitment and Promotion Rules, 1977, it is made clear
that the educational qualifications shall not be insisted
upon in deciding the promotion of a departmental candidate
if he possesses twice the experience stipulated for a
qualified candidate. According to the said rule, counsel
submitted, all that the appellant was required to show was
that he had the requisite experience for entry by promotion
into the higher post. So when the appellant was promoted as
Chief Mining Engineer, he had merely to possess ‘twice the
experience stipulated for a qualified candidate’ and nothing
more. Similarly for entry into the cadre of Deputy General
Manager also he had merely to show that he satisfied the
experience criterion and was not required to show that he
possessed the educational qualification prescribed for
direct recruits. These rules were brought into force w.e.f.
5th June, 1978. In the alternative he invited our attention
to a letter dated 26/27 November, 1976 of the Institution of
Engineers (India), Calcutta, wherein it is stated that the
Council of the Institution had decided that persons who have
passed First Class Mine Manager’s Certificate Examination
and possess atleast five years experience in a responsible
position as an Engineer after passing the certificate
examination shall be eligible to apply for admission to
corporate Membership of the Institution. It further states
that after assessment of the qualification and experience of
Shri D.K. Sahni (the appellant before us) by the Equivalence
Committee of the Institution, Shri Sahni was elected as
Associate Member of the Institution by granting him
exemption from passing Sections A and B examinations which
was otherwise essential to secure such membership. The
letter then states that passing of Sections A and B
examinations of the Institution in any branch of engineering
is recognised by the Govt. of India as equivalent to passing
a degree examination in engineering in that branch for the
purposes of recruitment to superior posts and services.
This letter which was received by the Chief Personnel
Manager of the Company was forwarded to the appellant by the
letter dated 6/7th December, 1976. While forwarding the
same Shri A.P. Pillai stated:
809
"In view of what has been stated in this letter, we
shall be treating your certificate as equivalent to
degree."
and advised the appellant to submit a formal
application to the Ministry of Education, Govt. of India,
New Delhi, requesting to extend recognition to the said
equivalence. The Ministry of Education and Social Welfare
by their communication No. F.RED.O.- 11023/4/77/7-7 dated
9th June, 1977 clarified that equivalence was granted to
only those who had actually passed Sections A and B
examination and not to those who had secured the Association
Membership by securing exemption from passing the said
examination. But by a subsequent office order No. 6(1)
dated 22nd January, 1982 the Board of Directors made certain
modifications in the Annexure to the Recruitment and
Promotion Rules pertaining to qualification/experience
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prescribed for various posts in Mining and Geological cadres
which were brought into force from 17th October, 1981.
According to the said order the qualification for the post
of Chief Mining Engineer (Production/Planning) was modified
to include First Class Mine Manager’s certificate as
sufficient educational qualification and the experience
requirement was specified as three years service in the
company in the scale of Rs. 1500-2000. By a further Office
Order No.20/OFFR/CPM/83-84 dated 1/12th October, 1983 the
Board of Directors approved the qualifications/experience
for the post of Deputy General Manager (T) as annexure to
the Recruitment and Promotion Rules of the company. The
minimum educational qualification and experience prescribed
hereunder is (i) Degree/equivalent Diploma in Mining
Discipline from a recognised Institute/University (ii) First
Class Mine Manager’s certificate of competence under
M.M.R.(U/R) and (iii) 18 years experience. Mr. Venugopal,
therefore, submitted that once the appellant was shown to
possess the certificate and the prescribed experience he was
eligible to be considered for promotion as Deputy General
Manager regardless of whether or not he held the position of
a Chief Mining Engineer. Lastly he submitted that in any
case the appellant cannot be asked to revert since he had
held the post since quite some time now. In support of this
contention he invited our attention to the observation in
paragraph 26 of the decision in Narender Chadha & Ors. v.
Union of India & Ors., [1986] 2 SCC 157 which reads as
under:
"We are informed that some of the promotees and
direct recruits who are governed by this decision
have been promoted to higher grades. If as a
result of the preparation of the seniority
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list in accordance with the decision and the review
of the promotions made to higher grades any of them
is likely to be reverted such officer shall not be
reverted. He shall be continued in the higher post
which he is now holding by creating a supernumerary
post, if necessary to accommodate him. His further
promotion shall however be given to him when it be
comes due as per the new seniority list to be
prepared pursuant to this decision."
Mr. Ashok Desai for the management generally supported
the sub-missions of Mr. Venugopal and said that under Rule
7(c) and (d) the power to relax the minimum experience or to
resort to direct recruitment was reserved to the management
and hence if the experience requirement falls short it must
be deemed to have been relaxed.
Mr. R.K. Jain, the learned counsel for respondents Nos.
3 and 4 i.e. G.N. Misra and A.H. Dharmadhikari, submitted
that this was not a fit case for exercise of power under
Article 136 of the Constitution and in any case the High
Court had, in the facts and circumstances of the case, taken
a correct view on a proper appreciation of the relevant
rules and hence no interference was called for. In support
of this contention he placed reliance on the observations of
this Court in Ujagar Singh & Anr. etc v. State (Delhi
Administration), etc. etc., (1979] 4 SCC 530 which run thus:
"It is time that it was realised that the
jurisdiction of this Court to grant special leave
to appeal can be invoked in very exceptional
circumstances. A question of law of general public
importance or a decision which shocks the
conscience of the Court are some of the prime
requisites for the grant of special leave."
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On the merits of the case he supported the view of the
High Court and submitted that the appellant did not answer
the requirement of both the educational qualification and
experience to be promoted as Chief Mining Engineer as well
as Deputy General Manager and later General Manager (T) and
hence he was a usurper and was, therefore, not entitled to
the protection of this Court. Mr. Jain, therefore,
submitted that there is no merit in the present proceedings
and the same deserves to the dismissed with costs.
811
From the narration of the facts it becomes clear that
the appellant joined service as an Assistant Mining Engineer
in 1966 and was appointed Mine Manager in 1970. A decade
later on 21st April, 1980 he was promoted as Chief Mining
Engineer. The Recruitment and Promotion Rules, 1977 had
come into force with effect from 1978. These rules were
made applicable to all posts in the company except those to
be filled in by the Central Government. The mode of
recruitment provided in Rule 4 was (a) direct recruitment
from (i) open market (ii) from amongst persons in the employ
of the Central/State Governments, Government Industrial
undertakings, local and other authorities and (iii) from
deputationists serving the company (b) promotion of
employees at the Head Office/Projects of the company and (c)
by borrowing from pool officers from the CSIR and Ministry
of Labour and Employment. Rule 5 provides the procedure for
direct recruitment and Rule 6 provides the procedure to fill
in the vacancy by deputation/appointment of employees of
government and public sector undertakings. Rule 7 deals
with the mode of appointment by promotion. Schedule I
appended to the Rules indicates the posts in the Mining
Engineering cadre of the company carrying a scale of pay of
Rs.500-800 and above. Against each post shown in column 2
the method of recruitment is indicated in column 4. Where
the recruitment is by direct selection as well as promotion,
the percentages have been indicated therein, the criterion
is set out in the next column 5 and the age limit is stated
in column 6. Then comes column 7 which prescribes the
‘minimum educational qualification and experience required
for direct recruitment’. Column 8 indicates the grades from
which promotion will be made. Column 9 provides for the
composition of the D.P.C. The post of Chief Mining Engineer
is shown at serial No. 4 in the pay-scale of Rs. 1800-2250.
It is a cent percent promotion post and is to be filled in
by selection. The educational qualifications and experience
set out in column 7 which is meant for direct recruitment is
as under:
"1. Degree or equivalent Diploma in Mining from a
recognised University or Institute.
2. 1st Class Mine Manager’s Certificate of
Competency under Metalliferous Mines Regulations.
3. Atleast 15 years experience of which 7 years in
a responsible position in an Underground Mine such
as Sr. Mining Engineer
812
or Deputy Planning and Design Engineer."
In column 8 meant for indicating the grade from which
promotion will be made it is stated "Sr. Mining
Engineer/Mine Manager". It will thus be seen that a Senior
Mining Engineer or a Mine Manager could be promoted as Chief
Mining Engineer. The qualification and experience set out
in column 7 being for direct recruitment would not
ordinarily apply where the post is required to be filled by
promotion by selection. Rule 7 of the 1977 Rules makes the
position clear. It in no uncertain terms says ‘educational
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qualifications shall not be insisted upon in deciding the
promotion of a department candidate provided he possess
twice the experience stipulated for a qualified candidate.’
And illustration is then provided as under:
"For instance an Office Superintendent who is not a
graduate nor he has a diploma in Personnel
Management shall be considered for promotion as
Asstt. Personnel Officer only if he has worked for
6 years as Office Superintendent."
In Schedule I appended to the Rules the post of
Assistant Personnel Officer is shown at serial No.18. In
column 7 the educational qualification set out is a degree
of a recognised university or a diploma in one of the
disciplines indicated therein. So far as the experience
criterion is concerned it is stated as three years. Now an
office Superintendent who does not possess the educational
qualification of a degree or diploma must have atleast six
years experience to qualify for promotion as Assistant
Personnel Officer. This much seems to be clear on a plain
reading of Rule 7 with the instance quoted therein.
Therefore, if a Senior Mining Engineer or a Mine Manager
does not possess the educational qualifications set out in
column 7 for direct recruitment as Chief Mining Engineer, he
must have double the experience requirement set out in that
column to be eligible for promotion to the higher post. In
other words going by the illustration in Rule 7 extracted
earlier a Senior Mining Engineer/Mine Manager who does not
possess the educational qualification for entry into the
Chief Mining Engineer’s cadre must show that he possessed
experience of thirty years in the department. Indisputably
the appellant who had joined service in 1966 had not put in
thirty years of service when he was promoted as Chief Mining
Engineer in 1980.
Realising this difficulty Mr. Venugopal fell back on
Rule 7(c) which
813
reads as under:
"No employee shall ordinarily be promoted from a
lower post to higher post unless he has served in
the lower post for minimum period of three years.
The appropriate Departmental Promotion Committee,
may, however, in special cases and for reasons to
be recorded in writing, reduce the period of three
years mentioned above."
In our view this rule has no application. It lays down
a rule of general application that an employee seeking
promotion to the next higher grade must have served for
atleast three years at the lower level unless the D.P.C.
reduces the said period. This sub-rule has to be read in
conjunction with sub-rule (a) of Rule 7. Read together they
convey that ordinarily employees who have not served in the
lower level for atleast three years will not be considered
for promotion to the higher level unless the D.P.C. reduces
the requirement. This rule applies to cases where no
experience criterion is prescribed or the criterion
prescribed is for less than three years but cannot apply to
cases where the criterion prescribed is higher. Much less
would it apply to cases covered by sub-rule (a) which deals
with specific cases where the incumbent does not possess the
prescribed qualifications. Where educational qualification
is to be waived altogether, Rule 7(a) expects that the
incumbent must possess twice the experience prescibed for
those with the required educational qualification.
Therefore, reliance on Rule 7(c) is of no avail.
It was, however, submitted that since the appellant had
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secured the First Class Mine Manager’s Certificate, he
possessed the requisite educational qualification and,
therefore, it was not necessary to possess double the
experience prescribed for those without the required
educational qualification. We have already pointed out
earlier that by the letter of 26/27th November, 1976 the
Institution of Engineers (India) Calcutta had conveyed that
persons possessing such a certificate and having five years
experience in a responsible position as an engineer after
acquiring the certificate shall be eligible for admissions
to Membership of the Institution. The Equivalence Committee
of the Institution had after evaluating the qualification
and experience of the appellant admitted him as Associate
Member after exempting him from passing the A & B
examinations. True it is that on receipt of the said letter
it was communicated to the appellant
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that his certificate will be treated as equivalent to a
degree. But at the same time the appellant was advised to
obtain a formal clearance from the Ministry of Education
extending recognition to the said equivalence.
Unfortunately for the appellant the Ministry clarified that
equivalence could be granted only to those who had secured
the certificate after passing the A & B examinations and not
if exempted from passing the same. Therefore, the
recognition for equivalence proposed to be granted by the
company could not ultimately be granted. The Tribunal
rightly points out that ‘the equivalence which was good for
the purpose of Institution of Engineers (India) was not one
which was recognised by the Central Government’ and hence
the appellant could not be said to be possessing a Diploma
equivalent to a degree to answer the educational
qualifications prescribed by the Rules. This approach of
the Tribunal is, therefore, unassailable.
We may now turn to office order No. 6(1) dated 22nd
January, 1982 whereby the Board of Directors approved
certain modifications in the Annexure attached to the
Recruitment and Promotion Rules. These changes were made
effective from 17th October, 1981. Column 8 of the modified
entry reads as under:
"Sr. Mining Engineer with
(a) Degree in Mining of a recognised
University/Institute or equivalent.
(b) Ist Class Mine Manager’s Certificate of
competency under Metalliferous Mines Regulations
(UR).
(c) 3 years service in the company in the scale of
Rs. 1500-2000.
Under the modified entry the eligibility criteria for
direct recruits remains the same except for a slight change
in the experience criterion, viz., the requirement of
experience of 7 years in a responsible position in an
underground mine has been dispensed with. The significant
change, however brought about in column 8 is to state the
educational/experience qualifications for promotion
separately. The experience criteria for promotion under the
modified entry is reduced to three years service in the
company in a post carrying a scale of Rs. 1500-2000.
Therefore, under the revised entry a Senior Mining Engineer
possessing the educational qualification at (a) and (b) and
experience of three years service in the
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company on a post carrying a scale of Rs. 1500-2000 became
eligible for promotion to the post of Chief Mining Engineer.
Now, if Rule 7(a) of the Recruitment and Promotion Rules is
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invoked a Senior Mining Engineer who does not possess the
requisite educational qualification but possesses double the
prescribed experience, i.e. experience of six years service
in the company on a post carrying a pay scale of Rs. 1500-
2000, would be eligible for promotion to the post of Chief
Mining Engineer. The submission of Mr. Venugopal was that
even if it is assumed that the appellant was not qualified
to be promoted to the post of the Chief Mining Engineer on
19/21st April 1980, he at any rate became eligible for
promotion on the modification of the relevant entry in the
Annexure extracted earlier with effect from 17th October,
1981 and even if his promotion is regularised or deemed to
have been regularised by the company from the said date, he
was entitled to be considered for further promotion in the
cadre of Deputy General Manager and later General manager
(T) of the company. Mr. Ashok Desai for the company
supported this line of reasoning and contended that as far
as the company is concerned, it always treated the appellant
as eligible for being promoted to the higher posts of Deputy
General Manager and General Manager (T). There is
considerable force in this submission. The Tribunal’s order
does not deal with this aspect of the matter. We have
agreed with the Tribunal that under the rule position as it
existed at the date of the appellant’s promotion to the post
of Chief Mining Engineer, i.e. on 19/21st April, 1980, the
appellant was not eligible for appointment to the said post
by promotion. However, on the change brought about in the
relevant entry by the order of 22nd January, 1981 with
effect from 17th October, 1981, the appellant became
eligible for promotion and even if his placement in the
cadre of Chief Mining Engineer is reckoned from the date he
was clearly eligible for upward promotion. But, submitted
Mr. Jain, once the Court holds that the initial entry of the
candidate was in violation of the promotional criteria, his
entry must be treated as void and unless the DPC reconsiders
his case for promotion along with others his entry in the
cadre cannot be regularised on a deeming fiction. He also
submitted that no such case was put up before the High Court
and, therefore, this Court should not permit it to be placed
for the first time in proceedings under Article 136 of the
Constitution. According to him the Article 136 jurisdiction
must be exercised sparingly and in support he invited our
attention the observations (extracted earlier) from this
Court’s decision in Ujagar Singh’s case. We are not
impressed by this
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approach. In the first place it must be remembered that the
appellant’s promotion made under the order of 19th April,
1980 was sought to be undone only after his promotion to the
higher post. Secondly there is no charm in directing the
reversion of the appellant for a short period from 21st
April, 1980 to 16th October, 1981 when we find that under
the revised or modified criteria he was eligible for
appointment as Chief Mining Engineer on 17th October, 1981.
He was placed junior to others and even if he is considered
as promoted with effect from 17th October, 1981 he would
continue to rank junior. He was selected for the higher
post on merit though he was junior to others. Therefore, it
is not a case where he had received weightage because he was
shown senior when the DPC selected him for the higher post.
He has served on the promotion post of Deputy General
Manager (T) since July, 1983. Would it not be harsh and
shocking to revert him after so many years only on the
ground that he must seek re-entry in the cadre of Chief
Mining Engineers with effect from 17th October, 1981 when he
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acquired eligibility on the modification of the relevant
entry in the annexure to the Rules. We think it would
result in gross injustice to the appellant. We are,
therefore, not impressed by the technical objection raised
by Mr. Jain.
In the result the appeals insofar as they relate to the
impugned order of the High Court dated 18th July, 1989 are
allowed and the said order is hereby set aside and the
petition which gave rise to the same will stand dismissed.
The appeals insofar as they are directed against the order
passed by the High Court in review dated 30th January, 1990
shall stand dismissed on the setting aside of the order
dated 18th July, 1989. There will be no order as to costs
throughout.
N.P.V. Appeals disposed of.
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