M.M. Kumar, J. - (1.) THIS Letters Patent Appeal filed under Clause X of Letters Patent is directed against the judgment of the learned Single Judge dated 26th August, 1999 allowing the writ petition of the Respondents being Civil Writ Petition No. 9162 of 1994.
(2.) BRIEF facts of the case are that the petitioner was appointed as Draftsman in the Irrigation Department of the Punjab Government on 7th June, 1951. On the strength of his good record of service, he was promoted as Divisional Head Draftsman on 28th February, 1957 and as such his services were transferred to the Bhakra Beas Management Board (for short 'the B.B.M.B.') which is an inter state body and he continuously worked with the B.B.M.B. On 28th January, 1963, he was promoted as Circle Head Draftsman. It is pertinent to mention that the Petitioner had passed the Departmental Professional Examination on 29th July, 1962 and also passed the Departmental Revenue Accounts Examination on 21st October, 1963. The passing of the afore mentioned examinations is a necessary qualification for promotion to the post of SDO/ADE. For further promotion to Class -II service there are statutory rules which are known as Punjab Service of Engineers (Irrigation Branch) Class -II Rules, 1941, (for brevity the 1941 Rules). Rules 3, 4, 5 and 19 of the 1941 Rules are relevant and are reproduced hereunder: 3 No person shall be appointed to the Service unless he - - (a) (i) is a British subject as defined in Section 1 of the British Nationality and Status of Aliens Act, 1914, and is domiciled in the Punjab or Delhi. The condition regarding a Punjab or Delhi domicile may be waived in the case of a European or an Anglo -Indian candidate if it is satisfactorily proved that such candidate was born of parents habitually resident in India and not established there for temporary purposes only; or (ii) is a person who is eligible under the provisions of Section 262 of the Government of India Act, 1935; (b) has satisfied the Commission, whose decision in the matter shall be final, that his 'character and antecedents are such as to qualify him for appointment to the Service; and (c) possesses one of the University degrees or other qualifications prescribed in Appendix A to these Rules; (d) (i) (in the case of persons to be appointed to the Service by direct recruitment) has obtained from the Standing Medical Board at Lahore or from such Medical authority in England as the High Commissioner for India may deem expedient, a certificate of mental and physical fitness as prescribed by the regulations in Appendix B and is considered by the Medical authority to be fit in all respects for active outdoor duty; (ii) has obtained from the Standing Medical Board at Lahore, or from such Medical authority in England as the High Commissioner may deem expedient, a certificate that he has been vaccinated or re -vaccinated for smallpox not earlier than one year previous to the first day of January of the year in which he is appointed or has had smallpox and shows obvious scars thereof. 4. Constitution of the Service - -The Service shall consist of - - (a) existing members of the Service, (b) officers transferred or promoted from another State Service, whether in the same or another State, or promoted from the Overseers Engineering Service, Irrigation Branch, Punjab, or Irrigation Branch (Provincial Draftsmen and Tracers) Service, or temporary engineers take into the service. (c) officers directly appointed by Government. Note: -Direct appointment means that only persons not already in pensionable service under Government are eligible for consideration under this category. 5. Appointment to the Service, Government may make appointment to the Service from the Classes mentioned in Rule 4, provided that no person shall be appointed unless he possesses the qualification specified in Rule 3, and provided further, that no Temporary Engineer shall be taken into and no member of the Overseers Engineering Service or Draftsmen Service shall be promoted to the Service unless he has been declared by the Commission on the report of the Chief Engineer to be fit for the service, is serving in the Department, has held an appointment for not less than 2 years continuously before the date of entry into the service, and is not less than 26 years or more than 50 years of age on the first day of June immediately proceeding the date on which taken into the service and the case of promotion of a member of the Overseers Engineering Service or Draftsmen Service unless he has passed both the Departmental professional and Revenue Examinations of Irrigation Branch: Provided that this rule may be relaxed by Government on the recommendations of Chief Engineers in order to admit the promotion of a member of the Overseer Engineering Service, of Irrigation Branch , Punjab or Irrigation Branch (Provincial Draftsmen and Tracer Service of outstanding merit, who may not possess the qualification specified in Rule 3. Note. - -A temporary Engineer whose age is within the limits fixed in Rule 6 may be permitted by Chief Engineer to apply for an appointment under Rule 4(c). 19. Relaxation. Where the Government is satisfied that the operation of any of these rules causes undue hardship in any particular case, it may by order dispense with or relax the requirements of that rule to such extent and subject to such condition as it may consider necessary for dealing with the case in a just and equitable manner. A co -joint perusal of the above rules show that a member belonging to the Draftsman and Tracer service and possessing qualifications prescribed in Appendix 'B' is eligible to be considered for promotion. There is further provision in Rule 19 for relaxation of the rules requiring the possession of qualification. The Petitioner was promoted to the post of SDO/ADE from Draftsmen and Tracers service on 25th August, 1971 on officiating basis. His regular promotion order was issued on 8th September, 1982 w.e.f. 1st May, 1979. His name in the order appears at serial No. 64. Note 2 at the end of the order specifically deals with the relaxation of qualification of degree in respect of diploma holders enabling them to become eligible for appointment to Class II posts. Note 2 is reproduced hereunder: Qualification of Degree in Engineering as required under Rule 3(c) of the Punjab Service of Engineers (Irrigation Branch) Class II Rules 1941 has been relaxed under the provision (proviso ?) to Rule 5 ibid in respect of Diploma holders for making them eligible for appointment to Punjab Service of Engineers (Irrigation Branch) Class -II.
(3.) THE Petitioner worked on this post till his superannuation on attaining the age of 58 years on 30th November, 1990.;