ivil Appeal No 653 of 1981
466 From the Judgment and Order dated 11880 of the Punjab and Haryana High Court in CWP No 1192 of 1980
MK Ramamurthy and Jitender Sharma for the Appellants
Rajinder Sachar Govind Mukhoty Dr Shankar Ghosh Mahabir Singh SC Patel TC Sharma CV Subba Rao CM Nayyar PP Singh and SK Verma for the Respondents
The Judgment of the Court was delivered by SINGH J
This appeal is directed against the judgment and order of a Division Bench of the Punjab and Haryana High Court dated 11th August 1980 dismissing the appellants  writ petition under Article 226 of the Constitution chal lenging validity of the appointment of Bhagwan Das Sardana respondent No 3 to the post of Executive Engineer in Public Works Department Public Health Branch
The post of Executive Engineer in Public Works Depart ment Public Health Branch in the State of Haryana is borne on Class I Engineering Service recruitment to which is made by direct recruitment and promotion under the provisions of the Haryana Service of Engineers Class I PWD Public Health Branch Rules 1961 hereinafter referred to as the Rules 
Under Rule 5 50 of the posts of Executive Engi neers in Class I are required to be filled by direct re cruits while the remaining 50 posts are to be filled by promotion from members belonging to Class II service
Rule 8 provides for constitution of a Committee for making selec tion for promotion to the post of Executive Engineer
The list so prepared is forwarded to the State Public Service Commission and on its approval the State Government is required to make the appointments
Rule 9 lays down that promotion shall be made by selection on the basis of merit and suitability in all respects
Rule 93 lays down that a member shall not be eligible for promotion to the rank of Executive Engineer unless he has rendered five years  service as an Assistant Executive Engineer and has passed the departmental examination as provided in Rule 15
The first proviso to the Rule lays down that an Assistant Execu tive Engineer found suitable for promotion shall be given preference over an eligible Class II officer
The second proviso to Rule 93 confers power on the Government to reduce the period of five years  service as an Assistant Executive Engineer
Rule 11 lays down that an officer ap pointed to the service shall remain on probation for a period of two years in case of direct recruitment
Rule 15 lays down that officers 467 appointed to the service unless they have already done so shall pass departmental examination and within such period as may be prescribed by the Government
Under the proviso to Rule 151 the Government is empowered to extend the period within which an officer may pass the departmental examina tion
Rule 22 confers power on the Government to relax the requirements of Rules if it is satisfied that the operation of any of these Rules causes undue hardship in any particu lar case
The appellants SShri KK Khosla and LC Goyal were holding the post of Sub Divisional Engineers PWD Public Health Branch in the State of Haryana in Class II Service of Engineers
They were considered for promotion to the post of Executive Engineer Class I Service
The Selection Com mittee on scrutiny of cases of eligible Class II officers prepared a select list for promotion
The list so prepared contained the names of nine officers including the two appellants but ultimately the appellants were not appointed by promotion to the post of Executive Engineer instead other seven officers belonging to Class II Service were promoted and in addition to that Bhagwan Das Sardana respondent No 3 a direct recruit was also appointed on the recommendation or  the Public Service Commission
Aggrieved the appellants filed a writ petition in the High Court challenging the validity of the appointment of respondent No 3 on the ground that he had not rendered five years  service as an Assistant Executive Engineer and had not passed the depart mental examination which was the minimum requisite qualifi cation for promotion to the post of Executive Engineer in Class I Service
On behalf of the State Government it was pleaded that the State Government had relaxed the require ment of Rule 93a with regard to five years  period of service not only to respondent No 3 but to other officers also
The High Court dismissed the writ petition on the finding that there was no infirmity in the Government s order granting exemption to respondent No 3 and his promo tion and appointment to the post of Executive Engineer did not suffer from any legal infirmity
The appellants have challenged the view taken by the High Court in the instant appeal
On behalf of the appellants it was urged that the promo tion and appointment of respondent No 3 to the post of Executive Engineer was made in utter disregard of the Rules as he had not rendered five years  service as an Assistant Executive Engineer as required by Rule 93a and he had not passed the departmental examination as contemplated by Rule 15 and lastly he was not eligible for promotion as he had not completed two years  probationary period as Assist ant Execu 468 tive Engineer on the date of his promotion
On a careful scrutiny of the Rules and the material on record we do not find any merit in the submission made on behalf of the appellants
No doubt respondent No 3 had not rendered five years  service as an Assistant Executive Engineer but the State Government had granted relaxation to the respondent No 3 by reducing the period of service under Clause a to Rule 93 in exercise of its power under the proviso to the said Rule
This relaxation was granted as the respondent No 3 was the only officer in the Department who was a direct recruit to Class I Service
The State Govern ment had power to grant relaxation under the second proviso to Rule 93 therefore we find no legal infirmity in the respondent s promotion
In addition to that Rule 22 further confers power on the State Government to grant relaxation with regard to the operation of the Rule
The Government s order granting relaxation in favour of respondent No 3 is sustainable under Rule 22 also
The scope of State Govern ment s power to relax operation of Rules has been discussed by us in JC Yadav  Ors
vs State of Haryana  Ors
 On the application of those principles we find no illegality in the order of the Government granting relaxation to respondent No 3 in respect of operation of Rule 93a
As regards the departmental examination is concerned it is true that the respondent No 3 did not pass the depart mental examination afresh in the Public Health Branch
On behalf of the State Government it is pointed out that prior to his recruitment to the post of Assistant Executive Engi neer in the Public Health Branch respondent No 3 had been working as Sub Divisional Engineer SDE in the Public Works Department Building and Road Branch for a period of 6 12 years and during that period he had passed departmental examination
In this view the Government did not consider it necessary to require the respondent No 3 to pass the de partmental examination once again
The Public Health Branch as well as the Building and Road Branch both belong to the Public Works Department
The syllabus prescribed for the departmental examination in the Building and Road Branch as well as in the Public Health Branch is almost the same as except one all other subjects are common to both the Branches
The State Government s opinion that since the respondent No 3 had already passed a departmental examina tion while working in the Building and Road Branch it was not necessary for him to have passed the departmental exami nation again was justified though it had at an earlier stage directed the respondent No 3 to pass the depart 469 mental examination again
Later on the Government was satis fied that since the respondent had already passed the de partmental examination in Building and Road Branch there was no necessity for the respondent to pass the examination again
In these circumstances we hold that respondent s promotion to the post of Executive Engineer was not rendered illegal merely because he had not undergone departmental examination in the Public Health Branch afresh
Respondent No 3 had been appointed as a direct recruit to the post of Assistant Executive Engineer on 712
1977 on probation for a period of two years
Before the expiry of the probation period he was selected for promotion to the post of Executive Engineer
The appellants  contention that unless the respondent had satisfactorily completed the probation period he could not be promoted to the post of Executive Engineer is misconceived
There is no specific provision in the Rules requiring completion of probationary period for the purposes of promotion within the service
Under Rule 11 an officer is required to be appointed on probation if during the period of probation his work is not found satisfactory his services are to be dispensed with and in the event of his services being found satisfactory he is entitled to confirmation on the post
It is thus clear that the completion of the probationary period of respondent was relevant only for the purpose of confirmation in Class I Service and Same was not a precondition for the purpose of promotion within the service
Moreover the Government issued an order waiving the probationary period of one year in the respondent s case
Non completion of probationary period of two years on the post of Assistant Executive Engineer did not affect the validity of the respondent s promotion to the post of the Executive Engineer under the Rules
In view of the above discussion we find no merit in the appeal and it is accordingly dismissed
There will be no order as to costs
PSS Appeal dismissed


Summary:
In this appeal by special leave brought by the auction purchaser against the Judgment of the Madras High Court the sole question for consideration is as regards the period of limitation for making a deposit to make an application under Rule 89 of Order XXI of the Civil Procedure Code 1908 to set aside the sale of immovable property sold in execution of a decree
Whether the deposit is to be made within 30 days from the date of the sale as required by sub rule 2 of Rule 92 of Order XXI or within 60 days from the date of sale as provided in Article 127 of the  Following its earlier decision in Thangammal  Ors vs VK Dhanalakshmi  Anr
and the decision of this Court in Basavantappa vs Gangadhar Narayan Dharwadkar  Anr the High Court had held that Article 127 governed the period of limitation to make a deposit in terms of Rule 89
Setting aside the judgment of the High Court on the question of limitation this Court in allowing the appeal HELD The correct construction of Rule 922 of Order XXI of the Civil Procedure Code 1908 leads to the irresist ible conclusion that the time for making a deposit in terms of Rule 89 of Order XXI is 30 days and Article 127 of the prescribing the period for making an application under Rule 89 has no relevance to the prescribed time for making the deposit
Neither provision has any effect on the other as to time
489G H 490A Basavantappa vs Gandadhar Narayan Dharwadkar  Anr   over ruled
Nalinakaya Bysack vs Shyam Sunder Haldar  Ors
  at 545 Mersey Docks vs Henderson 1988 13 App
595602 484 SUPREME COURT REPORTS 1990 1 SCR Crawford vs Spooner 1846 6 Morre PC 1 8 9 Seaford Court Estates vs Asher All ER 1949 2155 at 164 M Pentiah  Ors
vs Muddala Veeramallappa  Ors  at 314 Heydon s case  76 ER 637 Dakshayini  Ors
vs Madhavan AIR 1982 Kerala 126 referred to