REGULAR SECOND APPEAL NO.3639 OF 1986 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: APRIL 08, 2010 Sham Lal Aggarwal .....Appellant VERSUS State of Punjab ....Respondent CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Sukhbir Singh, Advocate, for the appellant. Ms. Ambika Luthra, AAG, Punjab, for the State. **** RANJIT SINGH, J. The issue under consideration is whether the condition imposed while granting promotion could be said to be legally valid or could be so imposed only on the basis of provisions made in the draft rules. Though no substantial question of law was formulated earlier but the counsel representing the appellant has placed before me the questions of law that would arise in this case. As per the counsel, the following substantial questions of law are involved in this case:- a. Whether the Draft Rules have any applicability in the present case especially when prior to the framing of draft REGULAR SECOND APPEAL NO.3639 OF 1986 :{ 2 }: rules, the promotions are being made as per the then existing instructions providing no stipulation regarding the passing of AIME? b. Whether the Draft Rules can supersede the earlier instructions issued and being followed regarding the same subject i.e. regarding the promotion to the post of XEN? c. Whether the condition put regarding the passing of AMIE and reversion is discriminatory and is violative of the provision of Article 14 and 16 of Constitution of India especially when no condition was put in cases of Balbir Singh, M.P.Singh, Surat Singh Rattan, Pritam Singh and Ved Parkash? d. Whether the exemption granted from passing the AMIE in case of PWD and B&R by the State Govt. are applicable in the present case?” The issue under consideration and the substantial questions of law as framed arise in the following factual matrix in the present case:- Appellant, Sham Lal is a holder of diploma in Civil Engineering. He was working in the Panchayati Raj Department. On 16.2.1979, he was promoted as Executive Engineer and he joined the post on 28.2.1979. The order of promotion was conditional and this condition was to the following effect:- “He will have to clear AMIE Examination within a period of two years, otherwise he shall be reverted.” Concededly, the appellant did not contest the action of REGULAR SECOND APPEAL NO.3639 OF 1986 :{ 3 }: the Government in imposing this condition and had joined on the promoted post. On 22.9.1980, the Government enquired from the appellant if he had made any effort to pass AMIE Examination. In response, the appellant filed a representation, praying that this condition be waived. The Government, in turn, wrote another letter dated 5.11.1980, repeating earlier query. The appellant responded by way of another representation dated 28.11.1980. Fearing his reversion, the appellant had filed a suit, seeking declaration that though he was temporarily promoted but had right to be regularised after three years satisfactory service and also would have a right to be confirmed against the said post. The appellant had also pleaded that his reversion, as a sequel to the query, would be arbitrary, malafide, prejudicial, illegal and unconstitutional. The appellant would plead that there are no statutory rules governing the promotion to Class I Service of the Panchayati Raj Department and in the absence of the provisions, the Rules applicable to the Department of Public Health, PWD (B&R) were being applied to consider the cases of promotion in the Department of Panchayati Raj. The appellant would also point out that the condition, requiring diploma holder to pass the AMIE Examination, had been waived off by the Government in regard to PWD (B&R) Public Health Department and accordingly case was made out for waiving this condition for promotion imposed in the case of the appellant who was so promoted as Executive Engineer in the Panchayati Raj Department. It is mentioned that other officers namely, Surat Singh REGULAR SECOND APPEAL NO.3639 OF 1986 :{ 4 }: Ratta, Pritam Singh, Ved Parkash, Surjit Singh, Halbir Singh and M.R.Sharma were promoted on various occasions and some different conditions were imposed while promoting them and as such, the condition of passing of the AMIE Test could not be imposed in his case and since imposed, it should not be taken as binding. The respondent had contested the suit by controverting the pleas raised in the plaint. It was emphasized that promotion of the appellant was conditional and he was required to pass AMIE Examination within two years. Failure on his part was to lead to his reversion and this was also so stated in the conditional order of promotion. The respondent would urge that the condition as imposed is not discriminatory and the reliance on the Rules of PWD (B&R) would not be appropriate, these rules being inapplicable to the Panchayati Raj Department. It is then pointed out that the draft rules were framed in the year 1974 and these have since been followed as these would atleast be taken as executive instructions. It is, thus, asserted that all promotions from Sub Divisional Officer to the post of Executive Engineer were made on the condition of requiring the employees to pass AMIE Examination and this condition was imposed in almost all the cases of those employees who were diploma holders. It is disclosed that this condition could not be imposed in the case of one Ved Parkash Takyar due to some mistake and but the said employee was reverted when this fact came to the notice of the respondent. On the basis of pleadings, the suit was tried on following issues:- “1. Whether the plaintiff is entitled to the declaration and REGULAR SECOND APPEAL NO.3639 OF 1986 :{ 5 }: perpetual injunction prayed for? 2. Whether the defendants are estopped from disowning PWD B&R rules which were earlier relied upon by the defendants in the case of other officers of the department and whether rules being framed can have no bearing on the cause of the plaintiff? (OPP) 3. Whether Govt. orders regarding regularisation of adhoc employees are applicable only in case of direct recruitment as alleged in Para 19 of written statement? (OPD) 4. Whether the suit is not maintainable in the present form? (OPD) 5. Whether the suit could not be entertained without notice under Section 80 CPC (OPD)? 6. Relief.” The Trial Court decided issue No.1 and 2 against the appellant and ultimately came to conclude that there was no material before the Court to decide the prayer of regularisation of service of an adhoc employee. Resultantly, the suit was dismissed. The appellant thereafter filed an appeal before the first Appellate Court and raised almost the similar arguments as are being pleaded before this Court in the present Regular Second Appeal. The first appeal filed by the appellant was dismissed. The same is now challenged on the ground that the condition of passing AMIE Examination could not be enforced against the appellant as that would amount to making the draft rules to operate retrospectively. It is also stated that some of the similarly situated persons were REGULAR SECOND APPEAL NO.3639 OF 1986 :{ 6 }: promoted where such condition was not imposed and this action would be discriminatory and, thus, liable to be set-aside. State counsel would submit that the Rules applicable to PWD (B&R) can not be relevant and may have been taken as a guide but can not be held applicable to the case of the appellant who was an employee of the Panchayati Raj Department. Counsel would rather say that the draft rules which were prepared in 1974 could be treated as executive instructions and in the absence of any statutory rules, could regulate the condition of appointment and promotion etc. It is also asserted that the drafts rules were uniformly made applicable to all the employees and where any employee was promoted without this condition, the same was rectified by directing reversion in such cases. Accordingly, the plea of discrimination is stated to be mis-founded and baseless and, as per the counsel, was rightly rejected by the courts below. The first question requiring consideration before the Court is whether the rules, which were applicable to PWD (B&R) Department, could be held applicable to the case of the appellant or not. The learned counsel appearing for the appellant has drawn my attention to the evidence given by DW1 where the witness has stated that the Rule applicable to PWD (B&R) Department were being followed. Even if the Rules which were applicable to PWD (B&R) were being followed, it can not be said that these rules were applicable to the Department of Panchayati Raj Department. These Rules may have been taken as a guide but to apply these rules to an employee of another department, there had to be a conscious REGULAR SECOND APPEAL NO.3639 OF 1986 :{ 7 }: decision taken by any competent authority. These could be applied through an order of the competent authority. No such decision has been brought to my notice or pointed out. Merely, a deposition by an individual that these rules were being followed, would not make them applicable to the department of the appellant. Even if for the sake of arguments, it is accepted that these rules were being followed, though not applicable, yet after 1974, once the draft rules in the Department were formulated, these atleast can take the shape of executive instructions. It is not disputed before me that as per the draft rules, the condition of passing AMIE Examination was provided in respect of those employees who were the diploma holders. Initially, when the appellant was granted this conditional promotion, he did not make even a murmur against the condition so imposed. Subsequently, he represented against the same, when a query was made to find if he had made an attempt to qualify this examination. At that stage also, the prayer was made to waive the condition and not that this condition had been imposed in any unauthorised or illegal manner. This plea, in my view, may not be available to the appellant that this condition was suffering from any legal infirmity. The learned counsel for the appellant has himself drawn my attention to an order passed by the Governor where this condition was waived off in respect of employees of PWD (B&R) Department. This would, thus, clearly indicate that requirement of passing this examination was even available in the Rules applicable to PWD (B&R) Department. If, the argument of the counsel for the appellant is accepted at face value that these rules would apply, then there was REGULAR SECOND APPEAL NO.3639 OF 1986 :{ 8 }: need to grant exemption as was done in the case of PWD (B&R) employees. There is nothing on record to indicate that appellant was granted any exemption. The draft rules also have made a provision for passing of this examination by an employee for his promotion to the post of Executive Engineer. The condition was indeed so imposed. The waiver was sought only when the appellant was asked to clarify if he had cleared this examination or had made any attempt to pass the same. It was for the respondent to consider this request and either accept the same or reject the prayer for waiving the condition. This representation filed by the appellant was rejected. The submission that there was no authority to impose this condition while promoting the appellant obviously can not be accepted as it was so provided in the draft rules as well as in the rules which were applicable to the PWD (B&R). There is no executive instructions or administrative instructions brought to my notice making any provision contrary to the position in the draft rules to consider the submissions made by the counsel for the appellant in regard to the value to be attached to the draft rules vis-a-vis the executive instructions as such. The view taken by both the courts is legally justified. The substantial question of law arising in this case has rightly been considered and decided. The Regular Second Appeal is, therefore, dismissed. April 08, 2010 ( RANJIT SINGH ) khurmi JUDGE