i~ - '

453 A

ANOOP JAISWAL

v. ...

GOVERNMENT OF INDIA & ANR .

Jani; pry 24, 1984 ·

{ E. S. VBNKATARAMIAR AND R .. B. MISRA, .JJ)

Constitution of India-Art. 311 (2)-.-Applicability of. Protectton . under Art. 311 (2) available if the order of dischcirge is JOund to be by way of .1untshment.

To. see whether an "order of discharge is, by way of pllnishment, form oftheorde; ti irot decisil'~. Court must g~ behilid the form and ascertain the tru~ character of

the order.

The appellant who had been selected for appOintment in the"' Indian Police Service was undergoing training'lfis probationer in the National __ Police Acdemy.

On June 22, 1981 due. to rain the appellant as well .other probationers reached late by a few minutes 3.t the _changed venue for conducting :P. T. For this delay explantion was cal.led from all the probationers. In his explanation the appellant sincerely regretted the lapse. The ap~lant was" considered to beone ofthe ring-leaders. who was resonsible for the delay. The Director of the Ac3.derny wiihout holding an enquiry into the alleged misconduct recommended to the Government that the appellant should be discharged from service. On the basis of that iecommendation the- Government by its order dated November Q, 1981 discharged the appellant from service. The Government rejeCted the appellant's

repiesenttion against the order discharging him. The appellant challenged the vaiidity of the order under Aft. 226 of the Constitution.

The High Court dismissed the petiti0n at theadmis.sion sta_gc. Hence this appeal. The appeUat contend.ed that the order discharging him wa~ in reality an' order terminating "his

services on the ground of rilisconduct and f'S415uch could not have been passed without Holding an enquiry as contemplated under Art 311 (2) of the Constitution and. the relevant rules governing such an enquiry. ' .

Allowing the appeal ..

HELD : The impllgned order of discharge is set aside .

Where uie form of the order i_s mere_Iy a cam<; iufiage for an order of dismissal for misco_nduct t is always _open to the Court before which the order js challenged to go behind the fo~ and_ascertain t_he true character of the order .. If the Court G . holds. tat the .order -though in_ the_ form is merely a determination of employ~

ment is in reality a cloak for an order of punishment, the Court would not be debarred, merely bause of the formof the order, in giving effect to the rights' <Wnferred by law upon the employee. [563 E-F]

Parshotam Lai Dhingra v. Union of India, [1958] S. C. R. 828; Shl/msher ff .Singh & Anr. v. State oj'Punjab, [1975] I S. C, R. 814; State of Punjab & Anr.

. E

. SUPREME COURT REPORTS f!984] 2 S.C.R .. . . .

v. Shri Silkh Raj Bahadur, (1969] 3 S.C.C:. 603;· Stale of Bihar & Ors. 'v. Shiva .· Bhikshuk Mishra, (1971] 2 S. C.R. 191; R.S. Sia/ v . .The.State of U. p, & Ors.,

. [197.4p S. C. R. 754; State .of U.P. v; Ram Chandra Trivedi, [1977] 1 s. C. R ..

462; and I. N. Sakseno v.

State of Madhya Pradesh; [1967] 2 S. C. R. 496;. referred to. , .

In the instarit case, on. gOing through the rccQrd and taking. intojaccount all the attendant 'circumstances the Court, "is_ satisfied that the __ alleged l'ct of mis-. condl.!:ct On JunC 22, 1981 Was t.he : real f0und-ation for the action taken. against the aPPellant.-:lnd _that the otheiiristances stated .in the course of the conter '' affl.9.avit re mere allegations which ar~ put forward orily for purposes of 1

strengttining the defcllce which is otheiwise ve'rY weak.· The case is one which attracted ArtiC1e311 (2) of the.Constitution as ·the. iffipugnCd order amounts tp a tefmination of se.rvice by. way Of punish1nent anctan eilquiry should have been -~\ held in accordariCe with-the -said Constitutional provision.

That admittt:dlY. havirtg hot ~n.d.one, tfie .impgned. o.rd_er is liable. to _be Struck dowq. ,[4~5 BC]

C1VIL APPELLATE Jrni.iS; ICTION : Civil Appeal No. 3040 of 1982 .

. . . ·. . .•.... Appoal by Spo.cia] leave from the Judgtnent and Order dated the 30th August, 1982 of the Delhi High Court in Writ Petition No. 1580 of l 982j. . ·

K.N. Bbatt for the Appellant. . .....

• M.S. Gujra/ and G.S. Narain for the Respondent .

.The Judgment of the Court was delivered by :

VENKATARAMIAH, J.

June 22, 1981 was really a bad day f°' the . appllant A1ioop JaiswaJ w))n having .. been selecied by the Union

Public Service Commission for appointment in the Indian Police Service was. undergoing training as a proba.tioner at the Sardar Vallabhbhai Patel National Police Academy, Hyderabad alongwitk ofoer probationers, On that day all the probatio.riers were expected to. be present at 5.50 A.M. at the field where the ceremonial ilrill practice was to be conducted.· Sinceit as raining at that time it appears thar the. venue was shifted to the Gymnasium .Hall wtete it was proposed. to cond.uct P.T./unartned combat practice. and intimation was sent ta the .trainees at the: Mess. When .the Assistant Director (Outdoor

Traiing) reached the Gymnasium at S.50 A.M. none of the prba: tion.ers had ·.reached there. They ali reached the place 22 minutes late i.e. by 6.15 A.M. when the rains had abated ad the parade cm~ menced at 6.15 A.M .. It appears that earlier when a.messenger sent . by the Assistant Director had gone to rnll the probationers tl1ey had

. ,

ANOOP. JA!SWAL v. oovr: OF INDIA (Venkataramiah J.) . 455

asked for a vehicle to go to tile place as it was. rining. This , delay . was considered as an inddent which called for an enquiry. Explapa- .+ tion was called from all 'the probationers. The appellant was coy- sidered to be one of the ring leaders who:was responsible for the delay. • When t.he appellant was asked lfbout ihe incident, he gave his explana, t1on to the Director of the National Police Academy which read thus:

J, The .Director, National Police Academy, • Hyd.erabad.

Dear Sir, . fn reply to your Momo. dated 22nd June,.1981 I.humbly

sbmit that as for iny being late in P, T. by IO mts,, I sincerely regret the lapse: But the second charge that I instigated

oihes to do 'so is totally baseless and without a single iota of truth. . I request you .Sir to make a thorough enquiry foo.

such an allegation.

I never had nor have such plebian . mentallv. .

J ••

 Thanking you,

~ 'j)

Yours'sincerely,

sd/- Anoop Jaiswal'~

. E

. ·• ..

It would appearthat .the Director without holding an enquiry \ into the alleged misconduct recommended to the. Qovernment of India that the appellant should be discharged from the service. On •ihe .basis of the above report, the G'overnment of India passed the order of discharge dated November 5, 19Sland 'communicated it .to

_.., the , appellant. The material part of the order.reads thus.:

''No. Ic220l 1/9/81 Pers. HI Government of India/Bharat. Sarkar

M nistry of Home Arfairs/Grih Mantralaya

Nw Delhi-110001, the 9 Nov. 1981

' ·•

ORDER

Whereas the Central Government is satisfied that Shri H Anoop Jai3wal, appoiti; ci to the lndi.an Police Service on pro- •

' 456,

SUPRE'J:E COURT REPORTS

(1984] 2 S.C.R. . ' bation on the result of the c; vil Service Eamination held in

the year 1979, is unsuitable for bein, g a membr of the said service, he is hereby discharged under clause (b) of Rule 12 of the Indian Police Service (P•cbation) Rules, 1954.

. The order\ of discharge. will take dfect from the date on which it is served on the said Shri Anoop Jaiswal. ' .

In the name of and on behalf of the President of India .

. , sd/-

(NARENDRA PRASA~ . ,

D'IR.ECTOR" ; •

On, receipt of the above order of discharge, the app€llant made a representation on November 14, 1981 to the Government of India .

.. :· to reconsider the ma tier. It appears that the Director of the jlational

Police Academy on this occasion recommended that the appellant may be rei11stated. That representation was rejected by the Government of India 'On April° 8, 1982. Thereafter,. he filed a petition under Art.icle 226 of the Constitution before the High Court of Delhi

contending that the.order of discharge was violative of Article 311(2)

a1d Article 1.4 of the Constitution. That petition was dismissed by . •the High Court at the stage of admission on August 30,1982 after hearing the counsel for the .Union of India. Against the judgment of the High C:ourt.-ihe appe:lant has filed this appeal with special. leave under Article 136 of the Constitution. ' . " :r The main contention of the appellant before us is that the order ' djscharging the petitioner though on the face of it appears to carry• . .no stigmais in reality an order terminating his service on the ground of misconduct alleged to have been committed by him on June: 22, 1981 in acting as one of the ring leaders who were responsible for tlie delay of about twenty-two minutes in the arrival of the probationers at the Gymnasium and that such an order could not have been passed without holding an enquiry as contemplate51 under Article 311(2) of " the Constitution and ihe relevant rules governing such an enquiry.

• He has also contended that the m•tler is based on conjunctures and surm.ises and by way of illustration he has referred us to paragraph , , 13 of the counter affidavit which reads thus ; ~

"P.ara 13 ;

( . -

(.'

\,_

l \ i

...

ANOOP JAiSWAL v. GOVT .. OF INDIA (Venkataramiah, J.) 457

The petitioner did not conduct himself fully in accordance with the pesotibed rules and regulations during his training

period. On one. occasion"when he was sanctioned '!eave for

16 days in the month Qf May, 1981, he did not report himself for duty in time. He absented himself wilfully o.n !.6.1981 without applying for. leave for the day. For this action, he was warned by the Director against recurrence of such conquct The period of his wilful absence fof one day was treated as leave without pay. On two earlier occasions; the petitioner's conduct ws found prejudicial to good order • and discipline, on the first occsion lie was verbally counselled by the Chief. Drill Instruc_tor and.on the.second occasion a • Memo mas issued to him. ·

There was no gradation maintained Jn tile Atademy · about the aitendauce, in terms of which the petitioner had the record of being second (or may be third) highest in the Academy. However, -thisrecord in this respect was other.wise satisfactory,"

 The reply of the appellant to the above allegation is found in paragraph 6 of the rojoinder.affidavit filed by the appellant which reads : ·

"Re: Paral3: The avermentsma de in; iara 13 of the petition are reiterated and the contentions of, the respondent to the contrary are denied as incorrect. It is reiterated that the petitioner conducted himsel( full f in accordance with rules and regulations. The allegatiol). made by the respondent that I absented myself wilfully on 1.6.1981 without applying for leave for. the day is highly misleading.· The correct fact is that J was sanctioned my Earned Leave on 1s:s.81 for a period o( 16days, and I was to report back for duty on 1.6.81 before 12.00 noon. I made arrangemen_t .to reach Hyderabad l:iefore 8.00 a.m. on 1.6.1981. However' en account.of late running of train in which I wµs travelling and C<rn1; equently missing the connecting train, I could reach Hyderabad only around noon and I report 'lt 1.00 p.m. .AU-these facts were duly.explained to the Asstt. Director, Outdoor Training; and he permitted. to attend the afternoon classes on 1.6.81 which J did. (However, at this sugg<slion, !applied f6r leave for the day and the leave was sanctioned without pay). It is

F .

. G.

SUPREME COURT REPORTS

(1984] 2 S.C.R.

incorrect to say that I was warned for'this. AU that the Director said was that o.n suc.h situations, the proper course was to .apply for a day's leavt which I did as stated earlier.

It is, therefore, very unreasonable to characterise the said incident as wilful absence:.

The further allegation. that . on the earlier occasions, the petitioner's cnduct was found

prej"dioial to good crrder and disoipline, is very vague and without any . particulars. Counselling by the Instructor . concerned i; a routine affair and, in fact, the Instructors are - . .. . \ meant. to counsel.· Even rega, rding the second occasion, wlien a memo was said to. have issued, it is not stated as to. what the offence was. His significarti to note that ·the. respondent has not denied tl\e allegation made by me that J ' . ' . . was not the only one who received such memos and that without exception all the probationary officers had at some time or the other received such me;,., os. J de11y tlie rest of the .allegations an<>l reiterate the. averments made in para l3 of tlie petition.'.'

The .. Jearned counsei for the parties have cited a number of. decisions before us in support oftheir respective cases. On going 'through theh1 we are of the view that there is not much divergence in them as to the true Jega./ principles to be follo;,, ed in ma!ters of this nature but the real proble~ appears to be one of applicati_on

of thpse pricipl's iri a given case in determining whether the parti- . cular action taken amounts to a punishment attracting Article 311(2} of the Constitutin or a mere discharge s; mPJiciter not requiring the holding of .an: enquiry as contemplated under Article 311(2). .We shall now deal with two leading cases having a bearing on the question before us. In Parshotam• Lal Dhingta. v. Uni~1i of India<" this Court after. a.n elaborate consideration of the relevant provisions of the \:onstitution and judicial decisins cited before them observed.: . . . ' ' . ... . . - .

:'The net 1; esu!t is-that "it.iS cnly iri thcsc_ C-asrs l.cre 11.e . Govcr,)Jnnt intends to inflict those_ three fcnns of punis)1ments .tl1at the Govern1nent S:'!Jva'nt must be give"n a reasonable opp0rtunity:ofsho\Ying caue against the actibn proposed fo be taken ill regard to them. It fol!O\vs, therefore, that ff the termin.c1tfon of nvice is sought to be brougU about otherwise than by way of punishment then the Gove.rnment _servant \Yhose service IS so terminated Cannot claim the

I .

. (I) [1958] S.C.R. 828 .

 ....

' ,

'\. '

.. +

'°' ,.

1 • \

~.

ANOOP JAIS~AL v. GOVT. OF INDIA.(Ve11kataramiah, J.) 459

protection of Art: 3 I I (2) and the decisions cited before us and refetre.d to above, in so fa

0 r as they lay.down that principle, must be held to be rightly decided,

The rofegoing conclusion, however, does not .sol.ve the .. entire problem, for it lias yet to be ascertained as to when

an order for the termination of service is inflicted .as and by

 B way of punishment and when it is not" .. "" " ......... .

. Wliere a person is appointed' to a permanent post in a

Governmnt service on probation, the terminati.on of his service during or at the end' of the period of probation will not ordinarily and by itself be a punishment, for the Governme.nt servant, so appointed; has no right to continue to

hold such a post any more:thaq the servant employed on pw-. batio.n by a private empl0yer is entitled to do. Such a termination does not operate as a forfeiture ·.of any right of the servant to. hold th.e post, for he has no such right and obviously cannot. be a dismissal, removal or reduction in. rank by way of punishment .. ... _ ...................... .

ft does not~ however, follow that;.exceptin the three cases . mentioned .above, in. all" other cases, fer1niii.ation of service of a Government servant who has no right to h{s post, e.g., where he was appointed to a post, temporary or permanent, either on probation or on an officiating basis and had not acquired a quasi-permanent status, the termination cannot, in any circumstances, be a dismissal or removal from service by way of punishmet. , ....... : ' , ................ : ..... .

Jn short, if the termination of service is founded on the right flowing from contract or the service rules then, prima facie, the termination is not a punishment and carries with it no evil .consequences and so Art. .311 is not attracted .

But even if the Govermpeni has, by contract. or .under the rules, the .right to terminate the empioyment without going thro\Ighthe procedure prescribed for inflictihg the punish1'1ent

of dismissal or remo.val or reduction in rank, .the .Govern' m>:nt may, nevertheless, choo.se to punish the se.rva1\t and if the temination of servite is sought to be founded on miscond net, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of Art. 311 must be complied with."

' • 464

'SUPREME COURT RNPORT.S

[1984] 2 S.C.R.

A fate at the G¥mnasium and acting as oile of !he ring leaders on the occasion and his explanation was obtained. Similar explanations we.re called for from other probationers and. enquiries were made

. behind the back of the appellant, . only the .case of the appellant was dealt with severely in the end. The cases Of other probationers who were also considered to. be ring leaders were not seriously_taken note of. Even though the order of discharge may be non-committal, it .cannot stand alone. Though the notfog in the file of the Government . may be irrelevant, thecause for the order cannot be ignored. The recommendation of the Director which is the basis or foundation for the order should be read alongwith the order for the purpose of determining its true character. Jf on reading the two together the Court . teacll!'s the .conclusion that the alleged act of misconduct was the cause of the order and that but for that incident it would not have been passed then it is inevitable that the order of discharge should fall to the ground as the appellant has not been afforded a reasonable opportunity to defend himself as provided m Article 311(2) of the Constitution.

The Union of India has placed before us.all the relevant material including the recommendation of the Directo~ of the National Police Academy that the appellant may be reinstated.· In this ca; e, as stated above, explanation was called for form the appellant and. other probationers: Bx, planations were received and an the probationers , Including the aJ?pellant were individually interviewed in order to ascertain' facts. Explanation submitted by him .and the answers given by others had weighed with the Director before making the recci1l!men- dation to the Government of India on the basis of which action was

takn. The only ground which ultimately prevailed upon the Director was that the appellant had not shqwn any sign u( repentance without informing him that his case would be dealt with leniently if he showed anv sign of repentance. In fact in the very. first reply he gave to the Director on being asked about the incident which took place on June 22, 1981, the ppelhnt stated '.I sincer.elv regret ti1e lapse,' Neither in theletter which the Director first wrote to the Central Government, nor in the counter affidavit filed fo. this Court, due importance has been given to the said expression of regret and it is further seen that no additional lapse on the part of the appellant between June 22, 1981 and the date on which the Director wrote the letter to the central Government, which would show that the apP"llant had not shown any sign of repentance is pointed out, although thre is a reference to his reporting to duty late on an earlier date oil June !, 1981. On . goihg .through. the above record before the' Court and .taking into

I A

·~

 .•.

ANOOP JAISWAL v. GOVT. OF INDIA (Ven, kataramiah, J.) . 465 '

account all the attendant circumstances we are satisfied. that the Director wished to make the case of the appellaµt an example for others including those other probationers who were similarly situated so that they may learn a. Jesson therefrom.

A narration Of the facts of the case leaves. no doubt that the alleged act of misconduct on June 22, 1981 was the real foundation for the action taken against the appellant and that the other instances 'stated in the course of the counter affidavit are mere allegations which are put forward on!)' for purposes of strengthenipg the defence which is otherwise ver 1 weak. The case is one which attrac.ted Article 311(2) '(. .. of the Constitu'tion as the impugned order amounts tb a termination • ' of service by way of punishment and an enquiry.should have been held in accordance with the said' constitutional provision. That admittedly having not been done, the impugned order is liable to be struck down. We accordingly set aside the judgment of the High Court and the impugned order dated November 5, 1981 discharging

the appellant from service. The appellant should no\\ be re-· instated in service with the sa.me rank and seniority he was entitled to

before the impugned order was passed as if it had not been passed at all. He is also entitled to all consequentiai benefits including the appropriate year.of allotment and the arrears of salary and allowances upto the 'date of his reinstatement. The appeaHs accofdingly allowed.

The appellant had to face this case just at the ommencement of his career. We ha, ve allowed his claim in the name of the Constitution. This should help him to regain his spirit and also encourage him to turn out to be a public servant in the true sense of that expression.

Having regard to the facts and circumstances of the case we 'feel that the parties should be directed to bear their own costs. '

H.S.K.

A.ppea/ allowed.

A

ANOOP JAISWAL

GOVERNMENT OF INDIA & ANR

R .. B. MISRA

Constitution of India

Art. 311

Art. 311

Art 311

Silkh Raj Bahadur, (1969] 3 S.C.C:. 603

(1971] 2 S. C.R. 191

[1967] 2 S. C. R. 496

C1VIL APPELLATE

K.N. Bbatt

M.S. Gujra/

G.S. Narain

VENKATARAMIAH

A1ioop JaiswaJ

Venkataramiah

H Anoop Jai3wal

Government of India

High Court of Delhi

Article 311(2)

Article 1

August 30,1982 after

Article 136

Article 311(2)

Hyderabad

Art. 311

SUPREME COURT RNPORT.S

[1984] 2 S.C.R.

Article 311(2)

Union of India

National Police Academy

June 22, 1981

Central Government

Article 311(2)

November 5, 1981

H.S.K.

A.ppea/


A 466 .

J. D. SHRIVASTAVA

V •

. . STATE OF M. P. & OTHERS

January 24, 1984

[O. CmNNAPPA REDDY, E. S. VBNKATARAMIAHAND R. B. MISRA, JJ.]

• ·. Fundan1ental,, Rules, Rule 56(3)(a) _Compulsory Ret(rement.::,..;-Adverse entries_. in c?nfidentia/ rePorts relating to a re1n<?te pe_t'.io.d-Reliance. on-Whethf:r v(llid.

. . .

The appellant" was a State Judicial Service Officerin the grade of Additional District& s~'>sions J11dgc. Qonsequent up0n the .. decision of the Stat.e Government to reorg\}nise the Higher Judicial Srvice it was decided that a number of pOs_ts of the cadre of Additional District & Sessiolls Judges be abolished and the incumbents . of those posts be absorbed as District & Sessions Judge"s. The High Coµrt' at one of the Full. Court meetings held, to screen the Officers in the cadre of Additional District & Sessions Judges, deCidcd to retire the appellant compulsorily on his at taining the age .of 55 years under Rule 56(3)(a) . of the Fundamental Rules. It was also decided not tO recommend him for promotion .. to the cadre Of District and

Sessions Judges. the appellant was served With an order of ompu_lsory retirement ·

dated August. 28, 1981.

The Division' Bench or the High Court dimissed the .appellant:s. wdt petition

iinpuging-,_hi~· compulsofy retirement.

In the appeal to this Court, it was contended that the High Court had n1ad~

- the recOmmendatloii to retire the appellant compulsorily withoUt applying its mind

and thit the decison was based on collateral considerations and was arbitrary. On behalf of-the High Cort it Was contended that" the personal confidential reCords of the appellant wer~ co'ns!derOO by the Full Court MOOting and the d&:isicin to retire the appllarit under Fundamental Rule 56(3)(a) - was taken after due conside ration of the entire record .

Al_lowing .the appeal:

HEt.D~-: 1. it ;~ld-~ ari act borderiOg on peersity, to dig out old files o find out some matirial to make.all ordciagainst an officer. _Dependen"ce on entries abOut 20 year~ before the date on which the_decisi.on Of ·,; ompulsory retirement Was takeQ. cannot b~~ Placed ror retiring a person compulsorily, par'ticularly whe~ such persOn .concerned has bOOn prof!lotecl subs.equent tosuch_ entries. [474I:J; 47~A}

D.Ramaswami v. State of Tamil Nadu, {1981] 2 S.C.R. 75 referred to.· ' . ff

2. The"PoWer to retire a.G.Oveffi.ment servant compulsorily in pllblic. inte reSt in tcfms qf a servi~ r.ule is, absolute provided the authority concerned forms

) .

r I

J. D. SHRIYASTAVA v. M. P. STATE (Venkatai'amiah, J.) . 467

ah opinion bona fide that it was necessary to pass such an Orderin public interest.

But if such decision was based on collaterel grounds or if the dcision ,; as ~.rbltr<lry, it.is liable to be interfered with by Courts. [469 B-C] ' . . -.

• ·, , '. • I '. ·_ • Union of India v. Col. J.N'. Sinha & Anr., i-1971] 1 S.C.R. 791; Union of India

v. M.E. Reddy & Anr., [1980] I S.C.R. 736; Swami Saran Saksentfv. State of U.P., (1980] 1 S.C.R. f2~ Baldev Raj Chadha v. Union of India & Ors. [1981] 1 S.C.R. 430; and Brij Bihari Lal , Agarwf v. High Court Of Madhya Pradesh & Ors. [1981] 2 S. C.R. 297; referred to. . ' ' .

In the instant case the High Court relied on some adVerse reffiarks relating to 1959-60 or: .tlieK:abbuts. I twas true that in the early part of the appellant's" career the .entries did not appear to be quite .satifactory. Some were "good, some were

'I, . ......._, _nOt good and some wCre of a mixed kind. But being rePortS relating to a remote

period, they are not quite relevant for the purpose of. determining whether he should ' be retired complllsofily or not in 1981. The scrutiny should have. bCen Confined to ·

the reports for about ten years 'prior to ihe dafe on which action wits Proposed to be taken. All the reports except for 1972-73 and 1973-74 were good and. quite satisfactry. Even i_n the cports. of the said years there .was nothing to doubt his inte~ grity. He was punctual. in attending to his oi-k. The reports'for the years 1976-77 .'to 1980-81 speak in, favour Of the appellant a_nd not against him. A perusal of'the said reports showed _that there was nqthing ._against him .. In these circumstances it waS imposib!e to tae the view that the appellant was liable to be compulsorily retired. [470 I;-H] ..

_3.

Thq. resolution of 'the High Cqurt recommending tO the Government . that the. appellant should be cotnpulsOfily_ retited, and the in1pugned order passed ui:i..der. Fllndamental_ Rule_ .56(~)(a) are qU!she~. The rsqlution of the High_-Court . that the appellan~ was not fit fo.r promotion to the cadre of .District and Sessions iudges is also qashed .. [ 474 E] ·

CIVIL APPELLATE JuruSDJCT!ON ; Civil Appeal No. 3429 of 1982

Appeal by Special leave froni the Judgment and orde~ dated ·. the 29th July, l 982 of the M1dhya Pradesh. High Court in Misc.

Petition No; I )69 ... of 1981. ' , . · ·

G.L. Sooghi a.ncl Aihok Srivastava for the Appellant.

I Di., Y.S. Chitale, Mrs. AK. Verma, D.N. Misra, AM. Dittia and A.K. Sanghi for the Rspondents.

'The Judgment of the Court was delivered by

VENKATARAMJAH," J.

The i\ppellani is a judic'al cfficercf'the ·• Stac of Madiiya Prndesh, , who •. would have ordinarily rnir(d on January 31, 1984 on attaining 58 years of age.

He was appintcd

. t .

" A

SUPREME COURT REPORTS

as a. Munsiff-Magistrate in the erstwhile State of Bhopal 'in 1953.

On roorganisation of States on November I, 1956, he became a

meml'ler of the Judicial .Service of the Staie of Madhya Pradesh.. He

was promoted as an Additi.onal District& Sessions Judge on January

8, 197?1 and was confirmed in that post with effect from Noveber 25, 1974. Consequent upon the decision of the State Government . to reorganise the Jiigher Judicial Service of the State of Madhya

Pradesh in acco.rdance with the advice of the High Curt of Madhya Pradesh; WI posts of the cadre of Additional District & Sessions

Judges came to be abolished and the incumbents of those posts were . to be absorbed as District & Sessions Judges as per. Government

M:emoraildum dated February 24, 1981. On the issue of the said " ·• Memorandum, the High Court of Madhya Pradesh decided to. screen the officers in the cadre of Additiopal Dislrict & Sessions Judge.s for the purpose of making recommendation to the State Government about the promotion of selected officers to the cadre of District & Sessions Judges, For this plirpose, Full Court Meetings of the Madhya Pradesh High Court were held on February 27 and 28,

1981 and March 1,.1981. The case of.the appellant was also.considered in that connection. It is stated that .at those meetings, the High Court first resolve.d to scrutinise the cases of all the judicial officers .who were to attain the age of 55 years in the year, 1981. fo the course of such scrutiny the High Comt decid.ed on February 27, 1981 to retire the appellant copulsorily on his attaining .the age of 55 years under Rule 56(3) of the Fu.ndamentaLRules. On March J, 1981 it decided not to recommend him for promotion to. the cadre of District & Sessions Judges. Accordingly, the State Government was addressed by the High Court to retire the appellat compulsoriiy.

The appellant thereafter continued as an Additional District & Sessions Judge until he was served wjth the order of compulsory retireJY.ent dated August 28, 1981. Aggrieved by that order;' the appellant filed

; writ petition before the High Court. The petition was dismiss<d by a Division Bench of the High Court on July 29, 1982. This appeal is preferred by special_ leave against the judgment of the High Court.

Clau; e (a) of the Fundamental Rule 56(3) as amended in 1976 \ which governs.the ca:sc of the appellan~ reads thus:

• "F.R.56(3)(a) A. doverrunent servant may, in ihe publi~ interest, be retired at any time after he attains the age of fiftyfive years without. assigning aDY reason by giving him a notice in writing."

J. D SHRIVASTAVA v. M. P. STATE (Venkatrnmiah, J.) 469

It is contended that the. ord.er of compulsory retirement is A unsu; tainable on various grounds and the principal ground urged is that the High Court had made the recommendation to: retire the appellant compulsorily without appl1ing its mind to the case as required by law; that it was a decision .based on collateral considerations and that it was arbitrary. • ·

It is DO\; firmly sottied that the power to retire a Government servant "compulsorily in pub.lie interest in terms Of a scrvie rule is abso.lute providi:-d the authority concerned. for1ns 1.n opinion bol1(l_fide that it is necessary to pass such an order in public interest. . It is

. equally well settled that if &uch decision is based on collateral grounds

0r if the decisio;'l is arbitrarv, it is liable to he interfeied with by courts.

C (See Union of India v. Col. J, N. Sinha & Anr.)1' 1 We have also gone through the following decisions, namely, U1iio11 f India ~- M.E.

Reddy & Anr.,''> Swami Saran Saksenil v. State of U.P.,'31 Baldev Raj Chadha v. Union of India & Ors.,'41 Brij Bihari Lal Agarwal v. High Court of Madhya Pradesh & Ors., '"and J).Ramaswami v.State of Tamii NaJu'" which have a bearing on the question before us. We shall D no\v proceed to deal with the facts of the case ih the light of the principles enunciatedin te .above_ decisions.

In Para JO of the counter.affidavit o[ Shri A".K. Pandey, Addi- . tional Registrar of the High Court of Madhya "Pradesh filed before

thi.s Court, it is stated as follows :

"It is not disputed that Full Court Meeting was held bn._

27th/28t~ February, as well as ht March; 1981 to consider the cases of Additional District & Sessions Judges for promotiti0n in the Higher Judici.al Service. It .is also not disputed that the petitioner stood at serial No. IO in the seniority list of Additional District & Sessions Judges. It is also not disputed that he was confirmed as Additina 1 District & Sessions .Tuige in August," 1976. The personal corifidetial record of the petitioner iS placed before this Hon'ble Court and (it) speaks for itself . (Annexure' R-Xl fo XXXVITI).

(1) [1"971] I S.C.R. 79L

.(2) [1980] I S.C.R, 736.

~3) [1980] I S.C.R. 921.

"(4) [1981[ 1 S.C.R. 430.

- ..

c .

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

. It is wrong to say that any extraneous consideration operated in .the Full Cour\ fyleeting against the. petitioner and it is wrong t.b say that the resolutions in the Court Meeting were unjust, arbitrary or malafide. ............ : . .. As already pointed out, the deci9ion was taken in Full Coui't Meeting - after consideation of the entire. re.cord of the petitioneL The decision to retire the petitioner under Fundamentai Rule 56(3) was after due consideratiqn of the entire record . of the petitioner" (Confidential entries are Annexures R-XT

to XXXVlll).'1 , _,

Oq gdlrig through_ the' said counter affidavit we are satisfied that apart from the confidential records, nothing else appears to havi;

been relied on by the High Court to reach the decision that the

ppellant si10uld be c6mpulsorily retired. We shall now. proceed-to examine the confidential rolls maintained in respct of the appellant.

 The Confidential Reports in respect of the appellant are placed before .µs.

Tt is sta!ed by the Registrar of the High Court in Para 13 of the col\nter affidavit that-the appeliant's performance.for 28 years was takeninto consideration for .screening under ::Fundamental .Rule 56(3), . The High Court has relied ;; n some :adverse remarks relating to 1959-60 or theieabouts, It is true that in the. early part of bis .. car, eer, the entries made 'do not appear to be quite satisfactory. They are of varied i<inds .• Some are good: some are not gocd arid some ., are of a mixed kind. But being reports rela.ting to a remote period,

they are not quite relevant for the puivose o.f determining whether he . should 'be retired compulsorily or not. in th•' year 1981/ as it would l:ie an act bordering on perversit')'to dig out old files to' find ouf so_me material to make an order against an officer. We, therefore; confined our scrutiny to the reports.made in respect of the appellai>t for about . ten years prior to the date on which .action was taken against him lo retire hi in compulsorily. We find that all of the.m except for J 972: 73 and 1973-'74 are goo and quite , satisfactory. Even in 1972-73 and 1973-74 it is stated that there was notl\ing.to d0Ubt his integrily and .that he was punctual iq ttcndiii-g lt tO Ji5 w_ork.

It may be noted that the app.illani was.promoted ,\s a a:n Additional District & Sessions Juige on fanuary 8, 1974 and was ,; Jso confi'rrnced wilh effoct from

NJvembor 25, 1974 by an order passed in 1976. Any adverse report in respect of .an eri.rlie_r .p.ericd uniess it had sonie connectio_n w.ith any event which too_kplace subsequently cannot, therefore, reasonably · form a basis for forming an opini.on about the work of the appellant. - ' ' . . .

i ..

J. D. SHR.lVASTAVA r. M P. STATE (Venkqtaramiah, J.)

' ~7I

" We give below a few relevant extractsfrom the Confidential Reports A for the period subsequent to 'March. 31, 1974:

Year : 1975

On confidential enquiries from the members of the llar and from other sou.rces nothing was found against him in respect of his integrity. During surprise check he was found on the board.· in time.

Enquires from other sources also disdosed that he usually comes in time and does not rise early and engages himself in judicial work. This impressioi:i was ga1hered from judicial diary _also.

After scrutiny of the cases, the following impression . was gathered. Knowledgeabout rules and orders, law and procedure is adequate but the number of the interlocutory application is sometimes not entered in the margin of ihe connected•order-sheet in red ink. Judgments are good with proper discJJSSion of evidence. Interlocutory matters are not kept unduly pending for long time. Rules regarding pleadings, and evidence etc. are followed.

Punishments were adequate.

Examination of accused is proper. Charges fralT)ed are proper. .Record is egible. '

Control and supervision over the staff is satisfactory.

Judic.ial diary calls for no particular comments. His rela-- ti"ons with the Bar are cordial, with no complaints of any

misbehaviour with any litigants. His average disposal during. the period in question was of very good category.

There is nothing else to comment in particular..

Year : 1976

Knowledge of law and judicial capacity:

Remarks about his promptness in the disposal of cases :

'Remarks about ftputatio"n 0f integrity and impartiality : ·

Gocd

Promptness satisfactory

Nothing was found 'agains\ . his .integrity or impartiality ..

He was mostly punctual and

. E

SUPREME COUR'I' REP OR TS [1984] 2 s.c.R.

' t .4.

Net Result.:

' ., . (lid not rise early. Judgments were proper and.contained the required discussion of evidence Charges and examination of accused and issues were. proper. Prom.ptness in framing of ·

issues was marked in recent . months.

Control and super- . vision ove~ the staff was satis-· • factory. Settling dates should not normall 1 he of more than two weeks as was noticed in certain cases. interlocutor¥. matters . !Vere generally not kept 1induly pending.

Good

. Year 1976-77 ··

Knowle.ge of Law and Judicial Satisfactory capacity :

Remarks a bOut his promptness in the disposal of cases : .

Percentage of .average . monthly disposal :

Generally prompt

Be)1aviour towards members of the.· Cordial F Ba.r and Public:

General Remarks:

Net Result:

Sa\isfactrily managing heavy . and exclusive civil file. Mostl)' .punctual. .

Good

Year 1977-78 ,

: Knowledge of. Law and Judicial

<:apacity:

Gocd.

Entry against almost all the

• J .. D. SHRIVASTAVA v. M. P. STATE (Venkataramiah, J.) 473 -. . rnlum.ns in th~ Report-Good A

General Remark

Net Results

 Has good grasp -Of facts and . law. Judgments in proper form and well writteri. ..

Good .. •

Year 1979-80

(a) Shri ShJivastava begis his judicial work punctully. at !LOO.AM. and worksthroughout the Court hours. So far, it appears that he has arranged his Cause List judicious.l:t fixing civil work for the day.

This Judge . understands that there can be no subsequent pleadings ecept by way of amend ment of pleadings. fo other words, he understands the purport of Order 8 rule 9 ond Order 6 rule 7 of the Civil .Procedure Code. He .also understands what 'is pleading i.e.

Order 6 rule I of the Civil.· Procedure. Cod.e as compared with oral stateme'nt.

He sq far. appears to be equally conversant with Order 17 rule 1 of the Civil Procedure.

Code i.e .. adjournment is only granted for sufficient cuse ..

He does fi,,, find any difficulty in applying law relati-ng to pleadings and interlocutory matter>.

So far, his procedure co.nfornis to .rtiles of pleadings; filing,'tf documents, framing of issues. UnCr fecordlng of evidcnc~.

. .

(b) So far, on the criminal sir.le, he frmes charges with care, records evidence with such care an~ prepares examinaa lion of accused with equal care. . . .' ' . ' '

(c) .So far, he makes a neat .and legible record. He

gnerally su~'erv)ses the_ wofk o~ riiinisterial ta ff.

(d) His judgments, both on .civil and criminal, so far, appear to. be well written.

He is prompt in .his disposals l1h.Juding doing 1, vork herein: -His \vork, as a whole, so . far, has been found to be of high quality. He also takes up civil work.

His relations with the Ba" so far, app.ear to be cordia I. . .

' (e) The above remarks are subject to thc'O.O. No. 462/C.

R.s/1979 Jabalpur date.d 6.3 .. 80 of th'e High Court .

. .

• . • '

SUPRE\IE CO'. JTZT RBPORTS

(1984] 2 S.C.R.

(NJte : The Mmo. se:it to the appellant in M1rch, 1.980 only informed him of two remarks-,--(!) that the did not dispose of Sessions trials quickly and (2) that he did not follow the amended provisions µoder Order 39 rule 3 of the Civil Procedure Code. The Memo. also disclosed that the appellant di9 not write judgments iti civil appeals according to the pattern prescribed; that Sessions trials were not conducted

quick; ly ; nd that (he) granted unduly long adjournments of . about a month oi so for examination of accused and defence witnesses. The appeilant sent .a prompt reply to it .on March 28, 1980 refuting the correctness ofthe above remarks. We have gone through the said reply. On going through the facts mentioned therein, we foe! that the remarhagitinst him appear to be tgtally uncharitable.

It shows that the appellant has disposed of mor~ number at <:ases thc•1 what ordinarily could )le di.sposeci of during the relevant enod. We are not informed of what action was taken on his prayer for expungini the said remarks). ·

Year:. 1980-81

His out turn during the year was about 200 percent The quality of work may be cl1ssed as good. 'B' category. No specific coplaints we\e r:eceived aga; nst him about his behaviour or ; ntegri~."

The a hove reports no doupt speak' for themselves as stated in the counter affidavit of the Additional Registrar. But they all speak in j favour of the appellQnt and not against him. A persual of these~., reports shows. that there was nothing against the appellant which necessitated the action which was taken against him .. Jn the state of the above record it was impossible to take the view.that the appellant was liable to be cqmpulsorily retired, unless there was any other cir- ~\·. cuimtance which was adverse to him. We .have found it necessary to incorporate in this judgment the re!vant confidential remarks in Ii great dct1il only to show that the action of the High Court was not called for.

We may state here that the learned counsel for the High Court very fairly stated thai there was no other circurostancc again•t the appellant during the period subsequent to )-971' which wopld t support the order of compulsory retirement. 't'rom what has been

. L. stC1ted we find that the decision taken by the High Courf in respect of - the ,,"ppellant is arbitrary as it was mainly based on :he entries that were made about 20 years before the. date on which the decision was

1. D. SHRIYASTAVA v. M. P .. STATE (Venkatmmiah, J.) 475

~ taken. Dependence on such stale entries cannot be placed forretir, ;, A ing a person compulsorily, particularly when the officer .concerned has been promoted subsequent to such entries,. as held by this Court iu . D. Ramas1vamf's .case (supra). In that case one of us (Chinnappa

( -

Reddy, J.) observed thus at pages ~O:

''fn the face of the promotion of the appellant just a few months earlier. and nothing even niildiy suggestive of ineptitude or inefficiency thereafter,-it is impossible to sustain the order of the Government retiring the appellant from service. The iearned Counsel for the State of Tamil Nadu argued that. the. Government was entitled to li'ke intoc-; m:· si4eration the entire history of the appellant including that part of it which was prior to his promotion .. We do not say that the previous history of a Government' servant.should be compietely ignored, once he is promoted. Sometimes past events may help to assess present wnduct. But when there.is • nothing in the present conduct casting any doubt bn tlie wisdom of the promotion, we 0ee no justification for needless • digging into the past.''' · ·

Jn the result ihe judgment of the High Court i.s .reversed and the ,\-. res.olution of .the High Court recommending to the. Government . that the. appellant should be compulsorily retired and the impugned

order passed thereon under Fundamental Rule 56(3) are quashed.

• E -, The. res.olution of the High Cort that the appellant. was not fit for . \promotion to the cadre of D•stnct& Sessions Judges 1s also quashed.

 The High Co4rt should now considet in the light of this decision ·whether the appellant was entitled to be promoted as a District & Sessions Judge as on the date on whih his immediate junior was -j, promoted and make appropriate recommedafon to. the State Govyrn-' F ment.

The, appollai1t is entitled to all con.sequential financial .and I other henefits as if the order of compufsory retirement had not been passed. ' • ·

The appeaJ is accordingly allowed with costs.

~ N .. V.K.· Appeal allowed.

J. D. SHRIVASTAVA

STATE OF M. P. & OTHERS

O. CmNNAPPA REDDY

E. S. VBNKATARAMIAHAND R. B. MISRA, JJ.

1981] 2 S.C.R. 75

1971] 1 S.C.R. 791

[1981] 1 S.C.R. 430

[1981] 2 S. C.R. 297

G.L. Sooghi

Aihok Srivastava

Y.S. Chitale

AK. Verma

D.N. Misra

AM. Dittia

A.K. Sanghi

VENKATARAMJAH

High Court of Madhya Pradesh

July 29, 1982

Reddy

A".K. Pandey

J. D. SHR.lVASTAVA

Venkqtaramiah

Venkataramiah

ShJivastava

Order 8 rule 9

Order 6 rule 7

Order 17 rule 1

Order 39 rule 3

March 28, 1980

D. Ramas1vamf

Chinnappa

State of Tamil Nadu


.. ..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

~ --

....

) . . ~. ·

W"',

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] . . .

- . "

,. . . ..

r .,

. . ..

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.

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

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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.

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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

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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

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

54 68 63 "H 65

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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

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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. · .. ·

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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))..

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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;

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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

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 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.

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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

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

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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 .. ~

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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

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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

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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

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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

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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.

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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;

A .

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.

. .

A. S. PARMAR & OTHERS

sTATE OF HARYANA & OTHERS

Haryana Public Service Comnthsioo

Public . Service Commission

F.S. Nariman

P.p. Rao

Prem Malhotra

K.G. Bhagat

R. N.'Poddar

S.K. Mehta

P.N. Puri

M.K. Dua

EMS Anam

VENKA.rARAMIAH

S.L. Gupta

I.C. Dewan

S.K. Chopra

Bodh Raj

A.S. Parmar

O.P. Gupta

Sumair Chand Jain

G.L.

Sharma

S.L. Gupta

I.e. Dewan

S.K. Chopra

Bodh Raj

O.P. Gupta

Sumair Chand Jain

Haryana Public Service Commission

Government of Haryan~

Venkataramiah

•Dewan

S.L. Gupta-

G.L. Sharma

A.P. Sen

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.

R.B. Misra

November 25, 1983

A .. P. Sen

vnkatarmiah

O.P. J3hatiu

Yenkataramiah

Public Sen ie Commission

Class I Rules

PARMAR V. HARYANA

Class I Rules

SUPREME COURT RIJPORTS

Class II Rule

Class I Rules

Public Service Commission

O.P. Bhatia

Irrigation Branch Rules

Punjab

Class I Rules