E.S.VENKATARAMIAH - (1.) THESE appeals are filed against the judgment dated 3/03/1983 in Civil Writ Petition No. 2018 of 1981 on the file of the Punjab and Haryana High Court quashing the promotion of eight officers-of the Class II Engineering Service of the Haryana Public Works Department (Building and Roads Branch) (hereinafter referred to as 'the Class II Service) as Executive Engineers in the Haryana Service of Engineers, Class I, Public Works Department (Buildings and Roads Branch) (hereinafter referred 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 accordance with the Punjab Service of Engineers, Class II, Prosecution witness D. (Buildings and Roads Branch) Rules, 1965 (hereinafter referred to as 'the Class II Rules') on the dates mentioned against their names in the following table : JUDGEMENT_1_SUPP1_1984Html1.htm
(2.) THEY are all holders of diploma in Engineering. THEY do not possess a degree in Engineering. THEY were promoted along with nine others from the Class II Service to the Class I Service by an order dated 7/05/1981 passed 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 Haryana passed an order relaxing the condition of degree qualification in public interest. The above order of promotion in so far as these persons were concerned was questioned 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 petition out of which these appeals arise. The officers who filed the said petition were all holders of degrees in Engineering. Their principal contention was that an officer in the Class II Service could not be promoted to the Class I Service unless he possessed a degree in Engineering as prescribed by R. 6 (a) of the Punjab Service of Engineers, Class I, P.W.D. (Buildings and Roads Branch) Rules, 1960 (hereinafter referred to as 'the Class 1 Rules) which govern the recruitment to the Class I Service in the State of Haryana and the relaxation of that requirement alleged to have been ordered by the State Government in exercise of the power under the proviso to R. 6 (a) of the Class I Rules in the cases of the officers whose promotion had been challenged was illegal and void. It was, therefore, urged that the promotions of the said persons should be quashed. The State Government and the officers whose promotions had been challenged stated that the order of relaxation was 'justified in the circumstances of the case and the promotions were not liable to be annulled. The question whether the qualification of a degree in Engineering was necessary or not in the case of officers in the Class II Service for promoting them to the Class I Service was, however, not raised before the High Court. After hearing the parties, the High Court held that the order of relaxation passed by the State Government was unsustainable and hence the impugned promotions were liable to be set aside. Accordingly the writ petition was allowed quashing the impugned promotions. Aggrieved by the judgment of the High Court, these appeals have been filed by special leave of this Court. Civil Appeal No. 10585 of 1983 is filed by A. S. Parmar, I. C. Dewan and S. K. Chopra. Civil Appeal No. 10586 of 1983 is filed by S. L. Gupta, O. P. Gupta and Sumair Chand Jain. Bodh Raj and G. L. Sharma have already retired from service. Sumair Chand Jain is stated to have died in May, 1983 after the special leave petition was filed. When the special leave petitions out of which these appeals arise came up for orders on 23/03/1983, a Bench of this Court consisting of three learned Judges (A. P. Sen, Venkataramiah and R. B. Misra, JJ.) felt that R. 6 (a) of the Class I Rules was prima facie not applicable to promotions made from the Class II Service to the Class I service and, therefore, specifically raised the said question and directed the parties including the State Government to address the Court on it. Then on 25/11/1983, a Bench of two judges, (A. P. Sen and Venkataramiah, JJ) after hearing all the parties granted special leave to appeal to this Court limited to the question whether this was a case of direct recruitment to the Class I Service. and, therefore, whether R. 6 (a) of the Class I Rules was applicable on the assumption that if it was a promotion from the Class II Service to the Class I Service, R. 6 (a) would not be applicable. It should be mentioned here that this question was not argued before the High Court apparently because of the decision in O. P. Bhatia v. State of Haryana, ILR (1980) 1 Punj & Har 470 : (1980 Lab IC 504) in which a similar question had arisen under the Rules applicable to the Irrigation Branch of the Haryana Public Works Department. The only point now argued before us relates to the applicability of R. 6 (a) of the Class I Rules to the promotions referred to above. In order to determine the said question it is necessary to refer briefly to some of the Provisions of the Class II Rules and of the Class I Rules. Rule 6 of the Class II Rules provides that recruitment to the Class II 'Service for cadre and ex-cadre posts should be made against a lot of 40 posts in the following proportions : (i) direct recruitment - 26 posts, (ii) promotion from the members of Punjab Prosecution witness D. (B & R) Sectional Officers (Engineering) Service - 8 posts, (iii) promotion from draftsmen members of the Draftsmen and Tracers Service - 2 posts, (iv) promotion from members of the Punjab Prosecution witness D. (B & R) Sectional Officers (Engineering) Service and the Draftsmen members of the Draftsmen and Tracers Service and possessing qualifications prescribed in Appendix 'B' of the Class II Rules - 4 Posts. Rule 7 of the Class II Rules prescribes the qualifications for entry into Class II Service. It reads : "(7) Qualifications : No person shall be appointed to the Service unless he:- (1) in the case of person appointed by direct appointment. (a) possesses one of the degrees of a recognised university or other qualification prescribed in Appendix 'B'. (b) obtains from the Standing Medical Board a certificate of mental and physical fitness after being examined in accordance 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 antecedents, 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 by promotion from sources 2 and 3 under R. 6 (1) is a member of the Punjab P. W., D. (B & R) Sectional Officers (Engineering) Service, or a Draftsman member of the B&R Branch Draftsmen and Tracers Service and has put in a service of ten years; (3) (i) In the case of appointment by promotion from source 4 under R. 6 (1) is a member of the Punjab P W D (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 the qualifications included in Appendix 'B' and has put in five years service in case he possesses A.M.I.S. qualifications and two years service in case he is a degree holder. (4) In the case of appointment by transfer possesses the qualifications prescribed for the members of the service. (5) Has not more than one wife living or in the case of woman, is not married to a person already having a wife, living. Provided that the Government may if satisfied that there are special grounds for doing so, exempt any person from the operation of this clause."
(3.) IT 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 universities or other equivalent qualifications, 10 vacancies are filled up by promotion from sources (2) and (3) of R. 6 (1) of the Class II Rules of members who have put in ten years of service and the remaining 4 vacancies are to be filled up by promotions from the fourth source referred to in R. 6 (1) of the Class II Rules of persons who possess the prescribed qualifications and have put in five years or two years service, as the case may be. The direct recruitment is made on the basis of a competitive examination held by the State Public Service Commission and promotions are made on the basis of recommendations made by a Selection Committee presided over by the Chairman or a Member of the Public Service Commission on the basis of merit and suitability with due regard to seniority. The members of the Class II Service are designated as Assistant Engineers (See R. 4 of the Class II Rules) and they are officers-in-charge of sub-divisions or in charge of posts of equal responsibility in the Public Works Department (building and Roads Branch). They are Gazetted officers. We shall now proceed to deal with the Class I Rules. The Class I Service comprises of four cadres - Assistant Executive Engineers, Executive Engineers, Superintending Engineers and Chief Engineers (Rule 3). A 'member of service' means an officer appointed substantively to a cadre post and includes (a) in the case of direct appointment an officer on probation or such an officer who having successfully completed his probation awaits appointment to a cadre post and in the cage 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 lien on a substantive post in any Government Department (R. 2 (12)). 'Assistant Executive Engineer' means a member of the service in the junior scale of pay. (R. 2 (2)). All others in the Class I Service are in the senior scale or in a higher scale. R. 5 of the Class I Rules provides that the recruitment to the Class I Service shall be made by the Government in any one or more of the following methods - (i) by direct appointment, (ii) by transfer of an officer already in the service of a State Government or of the Union or (iii) by promotion from Class II Service. All first direct appointments to the Class I Service can be only to the posts of Assistant Executive Engineer (R. 5 (4)). An officer promoted from the Class II Service has to be recruited to the cadre of Executive Engineers (R. 5 (5)). The posts of Executive Engineers can be filled up by promotion of Assistant Executive Engineers also (R. 9). 'Direct appointment' means an appointment by open competition but does not include (a) an appointment by promotion and (b) an appointment by transfer of an officer already in the service of a State Government or of the Union (R. 2 (7)). The Explanation to R. 2 (7) provides that a Class II officer who enters the Class I Service by open competitive selection shall, for the purposes of Class I Rules, be deemed to have entered the Class I Service by direct appointment. This means that a member of the Class II Service can either be recruited directly to the cadre of Assistant Executive Engineers (vide R. 5 (4)) or promoted to the cadre of Executive Engineers (vide R. 5 (5)). Now we set out below R. 6 of the Class I Rules which lays down the qualifications for entering the Class I Service. Rule 6 reads : "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 Class II Service; (b) in the case of an appointment by promotion from Class II Service has eight years completed service in Class II; and has passed the Professional Examination of the Department as provided in R. 15 infra; (c) being a person to be appointed to the service by direct recruitment, obtains from the Standing Medical Board a certification of mental and physical fitness after being examined in accordance with the regulations prescribed in Appendix C and is considered by the Medical Authority to be fit in all respects for active outdoor duties; (d) is a person with a satisfactory character and antecedents, verification in respect of which shall be arranged through appropriate Government Agency except in cases where such verification may have already been made at the time of his entry into Government service; (e) has not more than one wife living or, in the case of a woman, is not married to a person already having a wife living; Provided that Government may, if satisfied that there are special grounds for doing so exempt any person from the operation of this condition." ;