.. ..B

. A. S. PARMAR & OTHERS

.-sTATE OF HARYANA & OTHERS

''January 24, 1984

[E. s. V~NKATARt\MfAH AND R. B. MlsM.'JJ.]

Constitution of .lndfa, Artie/~ 3 I l a11d )09 proviso thcrtl<>-Prumation of (mpolyeufrom Class 11 service to i:asst surkt In the P.W.D.(Irrlgotiun hranth~

Pun}ab-Poss .. sion of a •lt•cree Is noJ a pre-.requlslte fur pvrmotion fiom doss lito class I itnlct!t-P/If!]ab sen•lce of Englnetr Cluss I, P. W.O. (lrr/gillian Branth) Ralu, 1964 Rule 6(a), lnterpretalion of

Promot/Qn of Assistant Enxlnnrs In claM II •crvkt, nut pusscssiltlf Ut!lfT" to til# cadu of Eucutive Elrg/Jrccrs Cla.u I, but S<Jtlsf)'lng the requiremtll/s ufclause(b) ·· •f Rule 6 of class I Rule.t-Wlr<th; r In onid or whrther Rule 6 (u) will be llpp/icubk- Compor/om betwwt P"n]ab Stnic11 of Enginursc/uss /{ P.W.D. (Bui/JilflJ an<!) Roods Brandt) Rules 1965, Rule.r 6 & 7 wtrll Punjab Sen•fre of Elf[llneeTJ dos./.P.

W.D. (Bui/Jin¥s' and Roods OrOII<h) Rules 6 J.a) and 6 (6).. ·

Eil; bt Officers including the appcllanlS cntt:rcd th.e class II scrvkc in &<.'CUr• danc:ewitb the Punjab Service of Engiac.:rs class U, P.W.D. (Building$ and !Wad!

Branch) Rules, 196$. They ora all holden of diplomas in Enainccriog. TheY fitn ' promott:d •longwith nino others from 'the cla:.s I( scri.e to the class l seoi•-e by

an ordor da!ed May 7, 1981, passed by tho Haryna State Government on at~

pornry basis aubject IP approval of the Haryana Public Service Comnthsioo. ln tho case of these officers, the GoverllJllent of llaryuna pusSc:d an onlcr rda!in& !be 'condition of dcan:c q.ulifw:atlon in public interest. The above orders of protoolioo

in so far as lhc>e persons were c.onocmed were qucstloncd by eleven oflktrs in ~. class ll service, who were below th= in the gradation list uf lho class 1,1 bavina eott:red that service In 1972 In tho writ petition out of which lhcsc appe:l~ arise. Tho officers who lilo<l th.o uid plltion wom all huh.k'rs of degr~ in E11$1

noerin~. Their principal c.ontt:ntioo w; u tl>at an ofliccr in tho? cfilM II se.rvicc co~J 1101 be promottJ tu the cla.n J ""rvice unl011s bo po=sed 11 degrco In Enainct:n,; J as prcri)led by Rule 6(a.l o r tho Punjab ScrviC<~ of I!nghers, cW.. J, P.W.D. (ll"""' illl' and Roads Hrancbl ftula, 1960 whil:h • ovcrncd the rcc:cuitn..:nt to tbecld • . • n~· to r service In the State or llaryana and the n:luxu, jOII of that requirement a \llO bavo been ordered by the Statt:· Governtrk!nt In exercl$0 of the p<.>l''tl undtt ch 1 the proviso to R ulc 6 (b) in the c..<;<: of tho ufiiccrs whose pro otl ans had beeP ~~ lcnatd 'IW\ lllc&nland .void. The l'unjab & Hnryana Hi~:h Court acceP_red the al

ntention and di.mi,..-J tbe pctitiun. Hence the appeals after obtaulfDI IPI"' . f:c*vc of the Court,

Allowla tho a:>peals the .Court,

H!!LD : 1.1. A 4:sroe is not a po-rcquisitc for beloa promoted from the dut II aervk:o t.o the eta.. 1 scrvico:. [493 01

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A. s. PARMAR. v. HARYANA 477 .

 1.2. A comparison between the 1956. Rules and tho. 1964 Rules makes it' clear that there was no insistance upon the qualification of a degree in the said 1956.

Rules in th.e case of the promoteedrom the class II service . . When the 1964 Rules of the Irrigation Branch; class i were promulgated, the pattern of the Rides

A ..

.was changed. While doing so, in the new Rule 6, the word ''directly" which was in the old Rule 7 was no doubt omitted but the new Rule 6 referred to both .

kinds of appointment namely direct .. recruitment and. promotiofroni the cla.ss II. serviee. It was not a case of just repwducing the old Rule 7 and omitting one word

theefrom, : but the introd~tion of a new Rule 6 with a different st; ucture. [ 493A-Bl

' . ' O.P: Bhatia & Anr. v. siate of Haryalla & Ors .• .ILR£1980]1 Punjab & Haryana

470. overruled.

1.3. In these cases, the State Government having first consumed Rule 6 of the class I Rufes reqUired that a promotee should also have a degree, tried to relax that condition by making orders relaxing as it found that' its construction had led to injust results: In view of the.fact that the question of interpretation of New Rule (>of the clasS I Rules was raised, @hd serv:ice Rule 6. (a) of the class I Rules is ; not applicable to the class II officers who are to be promote.d to the class I service, the .

question wheter the order of relaxation made in the case of promotees is validly passed or not. becomes twllesi. [493.E; 494~]

2. ( It is indisputble that if .the Govrnment' wishes to appoint i:>nly hoi del'S of degrees fo the class I service •. it QtaY do so by proulgating appropriate rules. That power is beyond question, and classification on the bas.is of' educational qualifications of officers belong\ng to'a cadre for purposes of promotion to a higher. cadre is permissible. But, the. class I Rules as they now exist do .not debar the pr~-· motion of an Assistant Engineer in the class II service who does not possess a degee to the cadre of ExecutiveEngineers even when he.satistles the requirements of clause.

(b) o'f Rule 6 of the. 9lass I Rules and is selected by the Public Service Co~Ssioo. ·

[493GH] . . 2:2. Rule 6 of the class J Rules treats the. possession of a degree plus the selection at the competitive examination and t.he passing of the departmental examination after appointment as sufficient for gettihg into the cadre of Assistant Exe cutive Enginc<,:rs or to thG, cadre of Executive Engineers when. direct recruitment is made to . those posts and the experience . in the class rr Servic.C for a .mipimum period

of eight years plus the passing of the departmental examinations before promotion

 F of an Assistant Engineer in the Class 1I Service as sufficint qualification for promotio}l.to the cadre or Executive Engineers. [487 E-FJ '

 • 2.3 . The distinctio~ between t)le two mthods of filling the posts of Executive Engineer by p(omoticinis clear: Tf that post is to. be filled up by. promoting a~ Assis:. . tant Executive Engineer; the Assistant Executive Engineer, concerned should poss .

ess five years expel'iencc and should have PasSed the Departmclital.Examination prescribed by Rule 15 of the Class I RUles. If that ))Ost'is.to be filled up by p'romo-

G . tion Qf an Assistnt Engineer in the cia~ II Service, th~ A?sista.nt Engineer to be promoted should possess eight years experience in the Class 11 Service and should have passed the Departmental Examination prescribed by Ruie 15, :rhat means . that whereas an stant Executive Engineer .who is a holder of a degree needs have . only ~e years' experience in the .Public Works Department, an Assistant Engineer. • in the <:lass II Service who m;:y or may not possess a degree should have eight years' H e;'tpcrience. in the P!!blic Works Dep!lrtmont for being proofed to the cadre ·f . , . . . ..

• . . 478

SUPREME•. COURT REPORTS

[1984} 2 S.C.R.

A Executive. Engineers.'This extra expenence of three years appears to have been treated as being sufficient to make good the deficiency, if any,. that may a rise by .reason of the Assistant. Engineer in the Class II Service possessing only a diploma • and not a degree. [487 l:t; 488 A-C1 ·

.~.4. In the circumstances it could not have been the intention of the rule

B.

 making authority tha~ no person without a degree should be allowed to enter the Class 1 service_ If the construction placed by the petitioners in the writ petition and tlie Government is accepted every diploma holder who is an Assistant Engineer. would have to retire only as a Class II Officer and cannot hope to become an Executive Engineer till his retirement." If that was the intentiofi, Rule 6 (b) of th'e Class I Rles would have contained necessary words conveying that meaning. Clause

. (b) of Rule 6 appears to be exhaustive of the qualifications of the Assistarit Engineers .who can seek promotion from the Class II Service to the Class 1 Servic~; So Rule 6 of the Class I Rules will re<~.d in so far as .the promotees are concerned as nq person shall be appointed to the Service unless in the case of an appointment by promotion has elght years completed service)n Class II and ha.s passed the PrC!fes- .sional Examination of the department as provided in Rule 15" andclause (a) of Rule 6 sbuld be read as being applicable to the other mode o.f recruitment. [490 B.Dl'

3. In such a case, it cannot _be said that the exPtirtncss of the Class 1 Service would very much suffer if persons without degr"s .but with only diplomas are alloWed to get into it. In administrative an~ professional services a combination of. high ed1,1cational qualifications and long experience is always preferred so that the

srvices may be efficient by each of them supplementing the other. Experienced administrators have opined that in the higher cadres of services high educational ' .qualifications alo~eor long experience alone would not be in the' interests of the public. In order to see that there is no lack of proficiency in the hight; r post in the Class I Service, Rule 5(2) of the Class I Rules expresslyprovides thavecruitment to the Service shall be so regulated that the number of posts filled by promo~ tion from the Chiss IT Service. shall not exceed fifty per cent of the nwnber of posts in the Class 'I Serv.ice excluding the posts of Assistant Executive Engineers. It provides fot a healthy blend of.the two classes. The effect of Rule 5(2) is that more th.an fifty per cent of the Class I Srvice posts would always be held by direct recruits because the strength of promotees from . the Class II Service cannot be more than fiffty per cent of the total strength of the Class I Service minus the number ot'Assistant Eecutive Engineers .. The promo tees from the Class II Service will, therefore, always be less than fifty per cent of the total strength of the Class I Service. Even amongst them 26 out of.40 are graduates because of Rule 6 of the Clas!; Il Rules which prescribes the quota of direct recruits who should always be the holders of degrees. So diploma holders who may get into the cliss I Service by promotion will be only 14 out of 40 promotees. Therefore it cannot be said that the 28 diploma holders with the minimum length of experience prescribed by clause (b) fRule <i of the aass I Rules who are selecteu by the Public Service Commission on the basis of merit and suitabulity (see Rule 8 (4) of the Class I Rles) and with the educational qualifications they may possess as prescribed by the Class -u Rules would dilute the Class I Service so much that the efficiency of the Class I Service would go down to. such an extent that the Class I Service will become unequal to the tasks to be performed collectively by the entire service. Further, if a ClP.ss II.officer js found wanting in merit and is othei:wjse unsuitable, he would not be selected by the Public . Service Commission. This is not like a nurse in an operation theatre carrying out. surry. Nor is it like a laboratory assistant teaching stro-physics. [488D-Ii;489A-B; F-G] . . .

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A• S. PARMAR v. HA.RYANA (Venkataramiah, J.) 479 ·

CIVIL APPELLATE JURISDICTION :.Civil Appeal Nos. 10585 &·. ift.. 10586 of 1983

1t... . •

Appeals by. SpeCial leave from the Judgment and Order dated the )rd Match, 1983 of the Punjab & Haryana High Court hf Writ Petition No. 2018 of 1981.

. .

F.S. Nariman anq P.C. Bhartari for the Appellant in CA.1058.5/83 ).

. , . .. . .

P.p. Rao ad Prem Malhotra f0rthe Appellant inCA.i0586(83.

' • I '• y-- _.. \ . . K.G. Bhagat, Add!. Solh; itor General and R. N.'Poddar for the State of Haryana.

C "'

S.K. Mehta, P.N. Puri, M.K. Dua and EMS Anam for Respondents in Both the Appeals.

The Judgment of the Court was delive, red by

VENKA.rARAMIAH, J.

These appeals are filed against the judgment • dated March, 3, 1983 in Civil Writ Petition No. 2018 of 1981 on the file of the P_unjab and Haryana Hig~ Court quashing the prootion of eight officers of the Class II Engineering ervice of the Haryana

Public Works Department (Buildings and Roas Branch) (hereinafter. referred to as 'the Class II Service') as Executive Engineers in the "' .. Haryana Service of Engineers, Class I, Public y.rorks Department.

\ ·(Buildings and Roads Branch) (ereinafter referrd to as 'the Class I Service'). The said officers are S.L. Gupta, I.C. Dewan, S.K. Chopra,

Bodh Raj, A.S. Parmar, O.P. Gupta,. Sumair Chand Jain and G.L.

Sharma. They entered the Class II Service in. accordanc~ with the .

Punjab Service of Engineers, Class II, P.W.D. (Buildings and Roads

' F.

Branch) Rules, 1965 (hereinafter referred to as 'the Class II Rules')

( . on the dates mentioned aganst their names in the following. table:"

Name

1. S.L. Gupta

2. I.e. Dewan

3 .. S.K. Chopra '

4~ Bodh Raj

Date of entry "int9 Class II Service

19.8.1969 29.1.1970 29.1.1970. 14.8.1969

; .

S. No. tn the gradation list of' .G Clas-s II Service

54 68 63 "H 65

480 SUP~BME COn, T REPORtS ·

' . !

A s. A.S. Pamar

6. O.P. Gupta

7. Sumair Chand Jain 8.. o.L. Sharma

20.2.1970. 14.8.19()9 10.4.1970

9.4.1970

66 70 71 72

They are all holders of diplomas in Engineering. They do not . u possess a degree in Engineering. They were promoted alongwith nine -.others from the Class II Service to the Class l Service by an order

... dated May 7, 1981 pass~~ by the Haryana State ~Government on a . "'-

temporary basis subject .to .approval of the Haryana Public Service Commission .. In the case of these officers, the Government of Haryan~ -· . passed an order relaxing the condition of degree qualific_at'iot1 in public .~ .

. C interest. The .abo,.ve .order of promotion !rtso far as .these persons. ._ were concerned was questione<i by eleven officers in the Class II Service, who were below them in the gradation list of the Class II Service, having entered that service in 1972 in the writ peition out of which these appeals arise, The officers \YhO filed the said petition' were .. )- all holders of degrees in Engineering: Their principal contention was D that an officer in .the Class n Service could _not. be promoted to the .

Class I Service unless he possessed a degree in Engineering as prescibed by Rule 6(a) of the Punjab Service of Engineers: Class I, P.W.D .• (Buildings and Roa9s Branc.h) :Rules, 1960 (herei'!af\er referred to as . 'the Class I Rules') which gover~ the recruitment to the Class I Service

in the State of Haryana and the relaxation of that .requirement alleged

 E to have been ordered by the State Government in exerCise of the power under the. proviso to Rule 6(a) . of the Class I Rules in the cases of the _officers whose promotion lia_d been challenged was illegal f and void:. [t was, therefore, urged that the promotions of the said persons should be quashed. The State Goverrunent and the offiters .

 whose promotions had been callenged stated that the order of relaxa- tion was jutified in the circumstances of the case artd the promotions were not liable .to be annulled.. .The question: whether the qualifica- . t tion of a degree in Engineering was necessar; y or not in the case of officer.s iti-the Cla, ss II Service for promoting them to the Glass I Service • . was; however, not raised before .. the High. Court.. After hearing the parties, the High Cout held that the order of relaxation' passed by the .. G . State Government was unsustainable and hence the impugned pro- 1 motions were liabie to be. set a_side. Accordingly the writ petition t • was allowedquashing the impugned promotions. Aggrieved by: the J judgment of the High Couit;. these appeals have 'been filed by special

leave of this. Court. . il ... ..

Civil Appeal No. 1058.5 of 1983 is filed by A; S. Parmar, I.C ..

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As. PARMAv . - HARYANA (Venkataramiah, J.) 481 \.

 •Dewan and S.K. Chopra. Civll Appeal No. 10586 .Of 1983 is filed by S.L. Gupta-, O.H:Gupta and'Svmail Chand Jain. Bodh Raj and G.L. Sharma h~.e already retired from snvice. Sumair Chand Jain . is stated to have died in May, 1_983 after the_ special Leave Petition \\:as

filed.· When the spe<; ial Leave Petitons out of. which these appeals arise came up for orders on Marc}l 23, 1983;. a Bench of this Court consisting of .three -learned Judges (A.P. Sen, Venkataramiah and _ R.B. Misra, JJ) TeJt.that:Ru!_e 6(a) of the Class I Rules was prima facie

-B

not applicable to promotions made 'from the Class .n Service to the Class I service and, therefore, specifically. raised the .said question. and

directed -the parties inch1ding t.he State Government to address the Court on it.. Then on November 25, 1983, a Bench of two Judges. ..., . (A .. P. Sen and vnkatarmiah, JJ) _after hell-ring all the parties granted . C special leave to appeal to this Court limited t(i the qustion , whether -...this was a case of direct recruitment to tl-ie Class! Service and therefore,

 whether Rule 6(a); of the Class I. R!Jies ws a-pplicable,_ on-the assump~ : tion that if it was a promotion from the. Class II Service to tb.e Clas 1

Service, Ru.le -~(a)· would not be applicale. It should be mentione~ .• here .that this. q_Llestion was not argued .before the High Court. apparently because of the decision-in O.P. J3hatiu & Anr. y. State of Hatyana

&' Ors: <I lin whicf1 a similar qtiestim1 had arisen under lhe Rules appli~ cab!{ to the , Irrigation Banch of the Harya Public Works Dpart~

rrient. The only point now argued before us relates to the applicability of Rtile 6(a) ofthe Class I Rules to the pt:-omotions referred to above.

In ottler to determine the said question it is necessary t~ refer bri.efly to some of the provisions of the Class II Rules and of the Class !- Rules. · .. ·

-'D

Rule 6 of the Cl<iss II Rules provides that recruitment to the Class II Service for cadre and ex•cadre posts should be made against F a lot of 40posts in the following proportions : 0) d(ret recruitment-'- . 26-posts, (ii) promotion from the me.I?J.bers of Punjab P.W.D. (B & R)

Sectional Officers (Engineering) Service:-8 posts,· (iii) promotion from draftsmen member.s of the Draftsmen and Tracers Service-2 . pots, (iv) promotion from members of the Punjab P. W.D. (B & R) . ·

Sectional Officers (Engineering) Service. and the Draftsmen members G of the Draftsmen and Tracers Service and possessing qualificatins . • prescribed in Appendix 'B' -of the Cl, ass II Ri.lles;-4 posts. Rule 7 of the Class II Rules prescribes the qualifications for entry .into Class" II Serv_ice. -It .reads: · · H

(1) LLJ.ll980 (I) Ptinjab.and Haryana 47o: , .... ·

SUPREME COURT REPORTS [1984]2 s.c.R.

"(7) Qualifications : No person shall be appointed. to the 4 iervice unless he :- "' . -

(I) in the case of person appointed by di.rect appointment.

(a) possesses. one of the degnies of a recognised u_niversity .or. other qualification prescribed in Appndix '.B'. . . .

(b) obtains from the Standing Medical Board a certificate of mental and physical fitness after being examined in accor-" dance with the regulations prescribed in Appendix 'C' and is ·

considered by the Medical. Authority to be' fit in all respects for active outdoor .duties; • . . . .

(c) is a person with a satisfactory character and antece- - dents, verification . in respect of which shall be arranged. ·· through appropriate Government agency except in case where . such verification may have already been made at the time of

his entry into Government service.

(2) . In the case of appointment y promotion from sources 2 aud 3 under rule 6(1) is a member of the Punjab . PWD (B&R) Sectional Offices .(Engineering) Serv1ce, or a Draftsman member of the B&R Branch Draftsmen and

Tracrs Service and hs put in a service of ten years; •

(3)(i) In case of the appointment by. promotion from source 4 under nle 6(1) is a member of the Punjab PWD (B&R) Branch Draftsmen & Tracers' Sectional Officers Engineering Service or a Draftsman member of the B&R Branch Draftsmen and Tracers Service.

(ii) Possesses any of th~ quaiifi.cations included m Appendix 'B' and has put in five years service tn case he possesses , A.M.I.S. qualifications and two years service in case he is. a degree holder.

(4) In case of appointment by transfer, possesses the qualifications prescribed for the members of the service.

(5) Hs not more than one wife iivi~~ or in. the case of womu, isat married to a person already having a wife living .

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A. S• PARMAR v. :HARYANA (Yenkataramiah, J.) 483

'Provided that the Government may if satisfied .that there

.'re special grounds for doing so, exempt aJ; ly person from the ·

operatiov of this clause." .

If is thus seen that in the Class II Service 26 out of 40 vacancies are filled up by direct recruits who are holders of degrees in Engineering of recognised unive-rsities or o'ther .equivalent qualifications. 10 vacancies are filled up by promotion from soures (2) a'nd (3) ?f Rule 6(1) ofthe Class II Rules 6f members who have put in ten years of service and the remaii1ing 4 vacancies are to be filkd up by promotions-from the fourth source referred to in Rule 6(1) of jhe Class II 'Rules of persons who possess the prescribed qualifications and'have

put in five years or two years service, as the ca'se my be. The. direct recrujtment is made on the basis of a competitive_ examination held by • tlie State Public Service (:ommison and promotions are-made on the basis of recommendations made by a Selection c ommittee presided

over by the Chairman or a Member o(the Public Sen ie Commission

01~ the basis of merit and suitability withdue regard 1.o sciority. ·The members of the Class II Service are designated as Assistant Engineers (See Rule 4 of the Class II Rules) and they are officers. incharge of sub divisions or incharge of po'sts of equal responsibility in the . Public Works Department (Building and Roads Branch). They are

Gazetted 0 meers.

W; shall now proceed to deal with the .Class I Rules. The Ciass l Service comprises of four cadres.:_Asslstant Executive Engineers, Executive Engineers, Superintending Egineers and Chief Engineers (Rule 3). A 'member of service' . means an officer appointed sub- stantiveJy .to a cadre post and includes (a) in the cas~ of direct app.oint- ·· ment an officer on probation or sucli an officer .whO having successfully_ • completed his. probll-tion .awaits appointment to a cadre post and in the case of appointment by transfer an officer who is _on probation or who having successfully completed his probation awaits appointment to a cadre post provided such officer does not have a liep. on a substantive p::lstin any Gov~:rnmcnt Department (Rule- 2(12)). 'Assistant'

Executive Engineer' mfans a methber of the service in the junior scale of pay. (Rule 2(2}). All thers in the Class I Seryice are in the senior scale 'or in a higher scle. Rule 5 of the~ Class l- Rules provides that the recruitment to' Class J Service ohall be. m de by the

Gov~men' in any one or more of the f9Iiowing methcds (i) ~Ydirect appbmtment, (ii) by transfer of an <;>fficer already in_the serv1ce. of a

_Stat~ Government or of he U niori or (iii) by pl;'omotion from . Class li

SrvJce. All first direct ppointments to the Class I Service can be only to the posts of Assistant xecutive Engineer (Rule 5(4))..

AJJ.

. A .

SUPR!!ME COURT REPORTS lJ984] 2 S.C.R.

A . officer promoted from the.Ciass II Service has to be ren)ited to the

cadre of Executive Engineers (Rule 5(S)). • The po.sts of Executive

:. Engineers a.n .be filled up by promotio.n or Assistant Executive Engi- . neers also (Rule 9). 'Direct appointment' means an appointment by

' open competiionbut does not i.Jiclude:(a) an appointment by promotion and (b) an appointnl.ent y ransfer of an officer already. in the 8 service of a State .1Jovernment or~ ot the Union (Rule. 2(7)). The Explamition.to Rule 2(7) provides that a Class U officer. who enters the Class I Service by open wmpctitive selection shalJ,.fot th<; purposes ·

of. Class I Rl; lles, 'be deemed to have entered tl1e Class I Service by direct appointment. This :means that a membr of the Class II' Sendee can either be recruited directly to the cadre of Assis.tant Execu-·· C . tive .ngineers . Cvidc. Rule 5(4)) or proino.ted .to the cadre of Bxecutiv.e

Engineers (vide Rule 5(5)). : Now we set out below Rule 6 of. the Class I Rules \vhich lays ow~ ttl~ qu'llifitations for enterfng tl1e Cfass 1

• F

-Service. Rule .6 reads : . . ..

;,6: Qualifica.tions .. .-:.Noperon siHill be appoi, Jted tl) the Service, unless . he- .

(a) possesses one of the Unive(sity. Degrees or other qualifications prescrjbedin 'Appendix B of these rules : Provided thai Government may waive this qualification. in the case of a particular officer belonging to• Class TJ Service:, .

. (b) iri. the cas~ of an appoi.ntment by promotion from ClasslT Set vice has eight jears completed service in Class IT; :and has passed the Profssional Examination of the Dcpar~- ment as provided in rule 15 infra; . . .

(c) beinga person to. be appoi.nted to the service by direct recruitment, ob.tains from the Standing Medic~ I Board acertificatin of mental and ·. physical fitness after being examined in aco rdance with . the regulations. prescribed in

App~ nCl.ix C and i's consiered hy the Medical Athority to b:: fit in all respects for active out(loor cl.uties; ·

 (d) is a _person \jtha sa•isfnctory character and antec dents, verification in r_espcct or which . shall. be l?rranged :· .through appropriate Government Agency, except in cases.

whre sucli. verificatiGn ll1CJY have alr\'acl.y been made at the tim\; of his entry into Govc.rni.,:r.t servie ;

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A. :S PARMAR V. HARYANA (Venkataramiah,. J.) 485

(e) has not more than one wife living or, in .the case of a woman, is not ma:rried to a person already.havinga wife living;

"· ' .

Provided that Government may, if satisfied that there are special grounds for doig so, exempt any person fro in the .

operation ... of this condition." ·

Clause (a) of Rule 6 ot the 'Cias_s I Rules says that no person

; . shall be appointed to the Service unless he possesses one o~ the University degrees or other qualifications prescribed in Appendix ·of the Class I Rules. It is further provided therein that Government may ·

waive this qualification in the case of a particular officer belonging . rto the. €lass II Service .. Clause (a) of Rule 6 no doubt applis t9 all , . ~\ .· direct recruitments. If a Class II Officer ee'ks to enter tb.e Class I' • .

Service by direct 'n!crifment i.e. by recruitment by open competitiQn as providd by the Explanation to Rule 2(7), he should possess a degretis provide!i in Rule 6(a) unless under the proviso to. Rule 6(a) Government waives the aid qualification in his case~ A direct recruit has also t_o satisfy the condition in clause (c) of Rule 6 which deals with the product!on. of a l)lCdtca] certificate aS provided there_in and the condition in clause (d) of Rule 6 which provides for the verification of , his charater. and antecedents except where uch verjficatin may have already J)een made at the time of his' entry into Government

-t 8

 service: He should alsb ot suifer from . the disqualification men,· -

-+- tioned in clause (e) ofRuJe6. A direct.recruit shall also have'to comply with Rule 15 of the. Class I Rules .which provides that unless he has not already done so, he should pass such departmental examina~ tion nnd within such period as .may be prescribed_by the Go:vernment.

. .

Rule 6(b) of the Class I Rules provides that "in the case of an appointment by promotion/ram Class II Service (the officer) has eight

-~ . _years completed service in Class Jl and has passed the professional

examination of the /Jepartment .as proyided ili Rul~ 15"~ The question is whether an officer in the . Cias~ II Service should Satisfy both the qualification mntioned in clause (a) and the qttalific.itions mentioned

'in clause (b) of'Rule 6 ofthe Class I Rules or he shcu\\ satisfy oniy 'the qualificc; tions under ylause (b) for purposes of promotion tQ the

Class I Service. If clause {b) of Rule 6 .had contained tl1c words 'also' or 'in addition to what is contained in clause (a)' or ny other word or wo.rds c'onveying tl}at meanit)g, there. would have: been no difficulty in construing that clause as'then it woulct have c!carly .meant that an officer in the Class II Sericc who seeks promotic'n tq,· the cadre of. Executive Engineers should, possess a degree as provided in

. I

.. , fl

.:: ... ~~--=-- ·~~:"'- ~:...·:.. ~- 486

. . SUPREME COURT RIJPORTS

(19S4

.l

A laue (a) .unless it has peen waivcd hy' the Government a;,~

::c.a. 1

alo 'sati,; fy the .:onditions mentioned in clause (b). But we oQ~Id · find any such words in clause (b) o.f Rule 6 o! the Class~ Rule~. Cia t {b) of Rule 6 of the Class I Rules opens W!th the words 'in th u .. ~

. .

II S • h ntlt(d B by pr,, m:Jtwn. f rom he Class . erw; c to t c. cadre of E., cuti~

o~ an appointmcndt ~~ ?romo1tion .ffrom ClasshJT Service'. !ted~~ . {I with a separate an utsl!net c ass o persons w o :rrc to be rcc .

Engineers. The questton whether aU the clauses In Rule 6 .hould b: read cumulatively or sparately d~?end~ upon the structure r.f the sentences and the contcn1s of the.ddfcrcnt clauses. Ttl Rule 6. l\1: <!-> not have the word 'and' used at the end of any of the clauses (a) to (d) . . clause (e). being the last one. Clause (c) of Rule 6 d•!als with only C dii!ct recruits and d'JCS not apply to promotccs and that is cle5r by its languigc. Clause (d) of Rule. G-app!ies only to direct recruits

who enter the . service for the first time nnd those pcrons who are :- a!re:dy in Govrnmcnt service and in whoe cac th~ vcrific?.tion of

. character and a!llcccdnts ha~ ndt already_ been done, Clause (e) or Rule 6 can apply only to those who colter the service for the first tim~ D and cannot apply to. thoc who arc nlrcady in the Class II Scrkc before appointment to the Cla~~ l Service because there is a corr<"S ponding provision even in the Cbs 11 Rules creating similar disqualification for being appointed to thu Governmcl)t sc1vice in .' ulc 7($) of the Clas 11 Rul!s.

N<lW wr: are left with clau1cs (a) and ·(b) of Rule 6 of the Class 1 Rules. In Rule 7 of the Class Il Raks E (which is .extracted in. the earlier part of this judgment) which nrc analogous Rules d•:aling with the qualifications for entry into the Class H Service there is no room for d'JUbt for cbu,; e (I) b<gins with

the wonk 'in the case of pcrsnn appointed by ctin!d sccruitnwnt; c.lause (2) begins with:Jne word~ 'in the cnsc ofappuintmcnt.by promo " twn from sources (2} and (3) undr Rule 6(1)'; clue (3) begins w•th F the words 'in the case of th1 appointment by promotion from sourL"C 4 un~r H.ulc 6(1)' and clau~.: (4) begin; with the words 'in the cu~-c.of appoJntmcnt by tran, fcr'. Each of the abow clauses is ppurently an independent claue. It tnfan~ tht pcrons fallinl1 unMr one

clauc do nut r., n Und.!rany of the other l•t uses and they stand eciijdld G from the other clauses.

Ech claue d.~· a is with a $p<!cific c!a~' E'"n though the opning word; of Rul~ 7 of tl1e Class II Rule; are~~

pcron hall be appointed to th\! Service unlc; s )1c" as ilwY are f>~U~' in Rule 6 of the Cla\s I Rules ulso thce words have t>~ be rcd 1' 1th ' each of the du"s (I) to.(~) of Rule 7 of the Cl; s~ it Rules. lf.h: 11 >:unc methu'l 1~ ud0ptcd m the c; tse of clau; cs (u) und (b) >f Ru. of the Cl:t'1 J Rules, then there wculd be nf• .room for ambiru•t)'.

Clau>c (a) of Ruk 6 5ecm~ to upply 'to direct upp<'lnlmtnts lo the

, . . .... - .. .

A. S. PARMAR v. HARYANA (Venkataramiah, J.) 487

Class I Service which ordinarily can be to the posts of Assistant Executive Engineers in view of clause (4) of Rule 5 of the Class I Rules and only in exceptional circumstances for reasons to be recorded in writing to the posts of Executive Engineers. Clause (b) of. Rule 6 which specially deals with appointments by promotion from the Class II

Service to the posts of Executive Engineers exhaustively deals with the qualifications of officers to be promoted from the Class II Service .•.

The special clause excludes the application of the general. That appears to be the intention of the rule making authority because

elause (a) of Rule 6 deals with educational qualifications and clause (b) deals with the qualification of experience for eight years in the Class II Service and the passing of the departmental examination. So far as direct recruitment through competitive examination is concerned the

. y minimum educational qualification has to be prescribed in the Class I Rules themselves and it is accordingly prescribed by clause (a) of Rule 6.

So far as recruitment by promotion from the Class II Service to the post of Executive Engineer is concerned it is seen that as regards Class II officers the minimum educational qualifications which they should possess have been fixed in the Class li Rules where 26 out of

40 vacancies are to be filled up by the holders of degrees in engineering of recognised universities and the remaining are to be filled up by promotion from amongst persons with certain educational qualifications and experience of ten years in the lower cadr'e or such other

experien~ as stated in the Class H Rules.

Rule 6. of the Class T Rule treats the possession of a degree pi Lis the. selection at the competitive examination and the passing of the departmental examination after app:>intment as sufficient for getting into the cadre of Assistant Execlltive Engineers or to the cadre nf Executive Engineers when direct recruitment is made to those posts and the experience in the Class II \ Service for a minimum period of eight years plus the passing of the

departmntal examinations bE/ore promotion of an Assistant Engineer in the Class H Serdce a sufficient qualification for promotion to the cadre of Executive Engineers. We may here note that under Rule 9(3) of the Class I Rules an Assistant Executive Engineer who i~ recruited directly to the Crass I Service would not be eligible for promotion t0 the post of Executive Engineer unless he has rendered five years service as an Assistant Executive Engineer and has passfd the Departmental Professional Examination as provided in Rule 15 of the Class I Rules.

The distinction between the two methods of fllling the posts of Executive Engineers by promotion is now apparent.

Tf that post

i~ to b~ filled up by promoting an Assistant Executive Engineer, the

A .

SUPREME COURT REPORTS

[1984] 2 S.C ..

Assistant Executive Engineer concerned should possess five years. experience and should have passed the Departmental Examintion

prescribed by Rule 15 of the Class I Rules. If_ that post is to be filled up by. promotion of an Assistant Engineer in the Class II Service, the Assistant Engineer to be promoted should possess eight years" experience in the Class II Servjce and should have passed the Departt mental Examination prescribed by Rule 15. That means that whereas . an Assistant Executive Engineer who is a holder of a degree need have onli five years' experience in the Public Works Department, an Assistant Engineer in the Class II Service who may or .may not possess a degree should have eight years' experience in the Public Works Department for being promoted to the cadre Ol Executive Engineers .. This extra experience of three years appears to have been treated as being sufficient to make good the deficiency, if anv, that may arise by reason of the Assistant Engineer in the Class II Service possessi!lg only a diploma and not a degree. .

Tt is seriously urged that the expertness of the Class I Service would very much suffer if persons without degrees but with only' diplomas are allowed to get into it. It is not, however, suggested that no diploma holder has ever been promoted to the Class I Service in our country. While we are aware of the difference between the proficiency of person with a degree who enters service by direct recruitment and of a person who is promoted after he has acquired certain experience in the same kind of work in a lower cadre, we should state that in administrative and professional services a combination of high educational qualifications and long experience is always preferred so that the services may be efficient by each of them supple- ,· menting the other. Experienced administrators have opine~ that in the higher cadres of services high educational qualifications alone or long experience alone would not be in the interests of the public. _It is true that it is not wise to have only persons with diplomas in all the posts in the Class I Service. In order to see that there is no lack of proficiency in the higher posts in the Class I Service, Rule 5(2) of the.

Class I Rules expressly provides that recruitment to the Service shan ·

be so regulated that the number of posts filled by protmotion from the Class II Service shall not exceed fiftv p('r cmt of the number of posts in the Class I Service excluding the posts of Assistant Executive Engineers. It provides for a healthy blend of the two classes. What is the effect of this clause ? More than fifty per cent o( the Class I Service posts would always be held by direct recruits because. the strength of promotees from the Class II Service cannot be more than

fifty per cent of the total strength of the Class I Service rriinus the

+ ·! .1.

( \

A. S. PARMAR V. liAR:YANA (Venkataramiah, J.) . 489

numbr of Asistant Executive Engineers. The promotees from the Class II Service will, therefore, always be less than fifty per cent of the total strength of the Class I Service.

Even amongst them 26 out of 40 are graduates because of Rule 6 of the Class II Rules which pres- . cribes the quota of 'direct recruits who should always be the holders of degrees. SJ diploma holders who may get into the Class I Service

by prom.:>tion will be only 14 out of 40 promotees. It would be easier to ascrtaih llJW tm.ny non-degree holders can get into the Class. I

Service by th~ following illustration. (Note : This illustration is adopted without reference to the actual strength in the Class I Service). ·.Let us assume that there are 240 Class I posts and out of them 40 are posts of Assistant Executive Engineers. Then there will be In the Class I Service :

Assistant Executive Engineers who a're graduates (because of Rule. 6(a) of the Class I Rules).

Being 50%- of 200~0-.--160 degree holders (because of Rule 5(2) of the Class I Rules).

52' Degree holders at the rate of 26 but of 40 from amongst 80 promotees (because of Rule 6 of the Class II Rules). . -

Total : 172

D "' ~

E \ '. • The balance of 28 posts alone will be available for diploma holders. , Can it be said that the 28 -diploma holders with the minimum

q. length of experience prescribed by clause (b) of Rule 6 of the Class I Rules who are selected by the Public Service Commission on the basis of merit and suitability (see Rule 8(4) of the Class I Rules) and with the edtlcational qualifications they may possess as prescribed by the

Class II Rules would dilute the Class I Service so much that the efficiency of the Class I Service would. go down to such an extent that the Class I Service will become unequal to the tasks to be per- . formed collectively by the entire Service? It has also to be noted

that if a Class II officer is found wanting in merit and is otherwse G unsuitaOle, he would not be selected by the Public Service Commission. •

This is not like a nurse in an operation thea!re carrying out surgery. :Nor is it like a laboratory assistant teaching astro-physics. Who, are after all these members of the Class II Service who seek promotion to the cadre of Executive Engineers ? They are all Assistant Engineers H who have held the office of a Sub-Division for eight years.

Even' 1

w c

490 SUPREMll COURT REPORTS

{1984] 2 S.C.R.

amongst these diploma holders who are so selected by the Public Service Commission how many can possibly teach even the cadre of Superintending Engineers, let alone the cadre of Chief Engineers in view of their entering the Government service earlier than the direct recruits ? We are of the view that in the circumstances it coutd not have been the intention of the rule making authority that no person without a degree should b~ allowed to enter the Class I Service. If the construction placed by the petitioners in the writ petition and the Government is accepted every diploma holder who is an Assistant Engineer would have to retire only as a Class II officer and cannot hope to become an Executive Engineer till his retirement.

If that ' was the intention, Rule 6(b) of the Class I Rules would have ontained ,.._ necessary words conveying that meaning as it .is pointed out earlier.

We feel that clause_ (b) of Rule 6 appears to be exhaustive of the qualifications of the Assistant Engineers who can seek promotion from the Class II Service to the Class I Service. So read Rule 6 of the Class I Rules will read in so far as the promotees are concerned as 'no person shall be appointed to the Service unless in the case of an appointment by promotion has eight years completed service in Class II and has passed the professional Examination of the Department as provided in Rule 15" and clause (a) of Rule 6 should be read as being applicable to the other mode of recruitment.

Our attention is drawn by the learned counsel for the petitioners

n the writ petition out of whi.ch thse appeals ais~ to the decision _1 lll O.P. Bhatia's case (supra) m which a rule similar to Rule 6 of the Class I Rules arose for consideration. That Rule is Rule 6 of the

Punjb Service of Engineers, Class I, -P.W.D. (Irrigation Branch) ' Rules, 1964. The relevant part of Rule 6 of the said Irrigation Branch Rules reads as follows : .~

"6. Qualifications.-No person shall be appointed to the Service unless he-

(a) possesses one of the University Degrees or other qualifications prescribed in Appendix B of these rules;

Provided' that Government may waive this qualification in the case of a particular officer belonging to Cla~; s II Service;

(b) in' case of an appointment by promotion from Class II Service, has co mpleted in that class of Service, for a-period

; \_

:.t

A. S. PARMAR v. HARYANA (Venkataramiah, J.) 491

of ten years from the commencement of these rules, six years service and after that period ciht years service; .

Provided that. if it appears to be necessary to promote an Officer in th~ public interest, the Governmentmay for reasons to be recorded in writing, either generally or in any individual case reduce the period of six or eight years to such extent as it may deem proper in consultation with the Finance

Dpartment.

Explanation.-For the purposes of this clause in computing the period of six or eight years any service rendered as a temporary Engineer shall be taken into account. ........ "

The High court held in that case that a member of the Class II Service in the Irrigation Branch of the P.W.D. should possess a degree to be eligible to be promoted as an Executive Engineer in the Class I Service in the Irrigation Branch of the P.W:D. _ The High Court was of the view that the omission of the word 'directly' which was in D Rule 7 vf tiD 1956 Rules which wer~ replaced by the Irrigation Branch Rules of 1964 led to the inference that Rule 6(a) of the 1964 Rules was applicable both to the direct recruitment and promotions from the Class ri Service. In order to understand the above reason, we have ourselves looked into the said 1956 !i-ules. Rule 7 of the said 1956 Rules which dealt wit~ only direct appointments to the posts E of Assistant Executive Engineers read as follows ~

"7. Qualific:;1tions for appointment-No person shall be appointed directly to the Service unless he-

(a) possesses one of the university degrees or other F qualifications prescribed in Appendi:v B to these rules;

(b) has iri the case of a candidate for appointment on the advice of the Commission passed such competitive exminanation or such other .test as the Commission may prescribe for appointment to the Service; and G

(c) has obtained from a Standing Medical Board in the State of Punjab, a certificate of mental and physical fitness as prescribed by the regulations in Appendix C and is considered by the Board to be fit in all respects for active outdoor H duty;

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SUPREME COURT REPORTS tl984l2 s.c.R.

Provided that in the case of officers belonging to the Class II Service the State Government may, after consultation with the Commission, waive the qualifications required by clause (a): •

Provided further that other things being equal, preference will be given to a candidate who has himself worked for the cause of national independence or has rendered some outstanding social or public service."

The above Rule did not contain any reference to recruitment--~ by promotion from the "Class II Service to the post of Executive Engilit neer. The promotion to the cadre of Executive Engineers was dealt ' with by Rule 15 of the said 1956 Rules. Sub-rule (7) of Rule 15 of the said 1956 Rules read as under :

"15. (7) A member recruited by promotion from Class II Service, who is reported to be fully qualified to l10ld charge of a Division will be promoted as Executive Enghi.eer on completing 10 years qualifying service as in sub-rule 4 at.ove, but such promotion shall not establish the right to be plaed in charge of a Division or draw pay in the senior scale of pay unless a Divisional charge is available." . -

Clause (4) ofRule 15 of the said 1956 Rules laid down the method of determining ten years of service in the Class II Service as follows;

"15. (4) In the case of members promoted from the Punjab Service of Engineers, Class II, the equivalent length of :1

F service shall determine the seniority. This will be worked out as under :- ~

(a) Service in the Punjab Service of Engineers, ~

f:-

Class I Full \.'

' G

(b) Service in the Punjab Service of Engineers, Class II 0.8

.• ..

(c) Service as Temporary Engineer 0.64 ;

(d) Service as officiating Sub-Divisional Officer or Assistant Design Engineer (Non-gazetted) 0.4"

A. S. PARMAR v, HARYANA (Venkataramiah, J.) 493.

There was no insistence upon the qualification of a degree in the A said 1956. Rules in the case of promotees from the Class II Service.:

when the 1964 rules of the Irrigation Branch, Class I were promulgated, the pattern of the Rules was changed. While doing so, in the new Rule 6, the word 'directly' which was in the old Rule 7 was no doubt omitted but the new Rule 6 referred to both kinds of appointment, namely, direct recruitment and promotion from the Class II Service. It was not a case of just reproducing the old Rule 7 and

omi_tting one word therefrom but the introduction of a m:w Rule 6 with a different structure. 'The High Court also appears to have overlooked while relying upon Rule 9 of the Irrigation Branch Rules

of 1964 that the proviso to Ru)e 6(a) 0f the said Rules was applicable ;-_T' :-onl:Y to a Class II officer who wanted. to get6jnto the Class I Service by direct recruitment as provided in the Explanation to Rule 2(7) of c

the Irrigation Branch Rules which cor!esponded to the Expianation to Rule 2(7) of the Class I Rules with which we are concerned. The .

High Court has not examined the Irrigation Branch Rules as fu11y as we have examined the Class I Rules. The judgment of the High Court is very cryptic. We do not agree with its conclusion that a degree is a pre-requisite for being promoted from the Class II Service to the Class I Service for the reasons we have already given above.

In these cases the State Government having first construed that Rule 6 of the Class I Rules required that a promotee should also have a degree, tried to relax that condition by making orders relaxing it as it found that its construction had led to unjust results. It did not make any attempt to reconsider its interpretation of Rule 6 even when the matter came up before the High Court. It only tried to justify the order of relaxation but ultimately failed in its attempt.

It~ is only in this Court that the question of interpretation of Rule 6 of the

Class I Rules was raised.

It is indisputable that if the Government wishes to appoint

only holders of degrees t.o the Class I Service, it may do so by promulgating ppropriate Rules. That power is beyond. question and it is not, therefore, ncessary to rder to those decisions which lay down that classification on the basis of educational qualifications of officers G belonging\to a cadre for purposes of promotion to a higher cadre i<:

permisible. The question, however, in these cases is whether th/ Class I Rules as they now exist debar the promotion of an Assistant Engineer in the Class II Service who does not possess a egree to the cadre of Ex ·cutive Engineers even when he satisfies the rcquiremeJ.ts H of clau-se (b) of Rule 6 of the Class I Rules and is selected by the Public

SUPRBMB COURT REPORTS

[1984}2 S.C.R.

A , Setvic~ Commission. Our answer is iri the negative.

Since Rule 6(a) of the Class I Rules is not applicable to the Class II officers who are to be promoted to the Class I Service, the

question whether the order of relaxation made in the case of the promotees is validly passed "Or not becomes immaterial. We, therefore, B set aside the judgment of he High Court and dismiss the writ petition filed before the High Court. Since we have disposed of these appeals on a ground different from the ground urged before the High Court, we express no opinion on the validity of the order of relaxation.

FJr the foregoing reasons,· the appeals are allowed but in the circumstances of the cases without any order as te costs.

S. R.

Appeals allowed.

. .