Case: D.K. Sahni Vs. Managing Director, Manganese Ore India Ltd

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.11. 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) 1st Class Mine Managers 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 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 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 Tribunals 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 appellants 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 that 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 Courts decision in Ujagar Singhs case. We are not impressed by this approach. In the first place it must be remembered that the appellants 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 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]9. Realising this difficulty Mr. Venugopal fell back on Rule 7(c) which reads as underemployee 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 Department Promotion Committee, may, however, in special cases and for reasons to be recorded in writing, reduce the period of three years mentionedour 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 prescribed for those with the required educational qualification. Therefore, reliance on Rule 7(c) is of no avail.10. It was, however, submitted that since the appellant had secured the First Class Mine Managers 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 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.11. 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) 1st Class Mine Managers Certificate of competency under Metalliferous Mines Regulations (UR).(c) 3 years service in the company in the scale of Rs.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 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 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 Tribunals 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 appellants 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 that 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 Courts decision in Ujagar Singhs case. We are not impressed by this approach. In the first place it must be remembered that the appellants 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 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.