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PETITIONER:

A.N.SEHGAL AND ORS.

Vs.

RESPONDENT:

RAJE RAM SHEORAN AND ORS.

DATE OF JUDGMENT05/04/1991

BENCH:

RAMASWAMY, K.

BENCH:

RAMASWAMY, K.

SINGH, K.N. (J)

CITATION:

1991 AIR 1406 1991 SCR (2) 198

1992 SCC Supl. (1) 304 JT 1991 (2) 123

1991 SCALE (1)601

ACT:

Civil Service - Haryana Public Service of Engineers

Class I PWD (Roads and Buildings Branch) Rules, 1966-Rules

2(1), (7), (10), (12), 5,6,7,8,9,11,12 - Post of Asst.

Executive Engineer, Executive engineer and Superintending

Engineer - Direct recruits and promotees - Inter se fixation

of seniority - Year of allotment - Alterability of.

Constitution of India, 1950-Articles 14 and 16-Direct

recruit Assistant Executive Engineer to cadre post and ex

cadre post - Treatment at par as member of service-Validity

of-Rule 2(12)(a), Haryana Public Service of Engineer Class I

PWD (Roads and Buildings Branch) Rules, 1966-Whether

discriminatory.

Interpretation of Statutes-Proviso of particular

provision of a statue-Construction of-Whether carves out an

exception to the main provision (Haryana Public Service of

Engineers, Class 1, PWD (Roads and Building Branch) Rules,

1966-Rule 5(2)(a).

Haryana Service of Engineers, Class I, PWD (Road and

Buildings Branch) Rules, 1966-Rule 2(1), (3), (7), (12)(a),

5(2)(a), 8, 9, (2), 11, 12, (3), (5), (6), (7) - Harmonious

construction-Reasons indicated.

HEADNOTE:

The appellants, `the promotees' from Class II service

were promoted as Executive Engineers by relaxing five years

length of service as Class II Engineers in officiating

capacity on various dates between January 6, 1969 to May 29,

1971. Only the appellant no. 1 and two other were confirmed

as Executive Engineers w.e.f. July 11, 1973, December 11,

1974 and December 9, 1975 respectively.

The respondent No.1 was recruited and appointed

directly as Asstt. Executive Engineer w.e.f. October

25,1971. he was also given relaxation of the length of

service of five years as Asstt. Executive Engineer and was

promoted as Executive Engineer on October 8, 1973 and was

confirmed w.e.f. December 22, 1976.

199

All the appellants except one M.R. Gupta were further

promoted as Superintending Engineers on different dates

between 1980 to 1984 whereas the respondent no. 1 was

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promoted as Superintending Engineer on March 4, 1987.

The applicant no. 1 was further promoted as Chief

Engineer The validity of the promotion of respondent no. 1

to the post of Chief Engineer was challenged.

The respondent no. 1 who was shown junior to the

appellants, field Writ Petition seeking a writ of mandamus

directing the second respondent, State Government to

consider his case for promotion as Superintending Engineer

from the date on which the respondents were promoted

assigning the seniority over the appellants and the

consequential reliefs.

On reference, a Division Bench of the High Court held

that respondent no. 1 was a member of the service from the

date of his initial appointment as Asstt. Executive Engineer

and the appellants and the proforma respondents were not

members of the service and directed the Single Judge to

dispose of the matter on merit, against which, this appeal

on leave was filed.

The appellants contended that the appellants being

promoted as Executive Engineers against regular vacancies,

which were neither a stop-gap arrangement nor fortuitous,

and being continued in service without any break from the

respective dates o their promotion, they were members of the

service in a substantive capacity as Executive Engineers

from the respective dates of promotion; that since the

respondent no. 1 was recruited as Asstt. Executive Engineer

w.e.f. August 30, 1971 long after the promotion of the

appellants, the appellants were seniors to the respondent

no. 1 as Executive Engineers, as Proviso to Rule (5)2

entitles them to remain in a substantive capacity as

Executive Engineer since requisite number of qualified

Asst. Executive Engineers were not available for promotion;

that in view of their continous officiation as Executive

Engineers in terms of Rule 2(12)(a) of the rules, they must

be deemed to be the members of the service from the dates of

promotion and, therefore, they were seniors to the

respondent no.1.

The respondents contended that unless the appellants

were appointed substantively to the cadre posts they could

not be members of the service. The respondent no. 1 became a

member of the service

200

from the date of his initial appointment as Asstt. Executive

Engineer, therefore, he was senior to the appellants and

proforma respondents.

As agreed by the parties, this Court declare the law on

the interpretation of the rules and leave the matter for the

State Govt. to decide the inter seniority on merits.

Disposing the appeal, it is.

HELD: 1. Appointment to a post in accordance with the

rules is a condition precedent and no one can claim

appointment to a post or promotion, as of right, but has a

right to be considered in accordance with the rules,

Appointment by promotion or direct recruitment, therefore,

must be in accordance with the rules so as to become a

member of the service in a substantive capacity. Seniority

is to be fixed in accordance with the principle laid down in

the rules. [213G-214A]

2. The promotee has right to confirmation in the cadre

post as per Rule 11(4) if a post is available to him within

his quota or at a later date under rule 5(2) read with rule

11(4) and gets appointment under rule 8(11). His seniority

would be reckoned only from the date of the availability of

the post and the year of allotment, he shall be next below

to his immediate senior promotee of that year or the junior

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most of the previous year of allotment whether officiating

or permanent occupying the post within 50% quota. [214G-

215A]

3. A direct recruit on promotion within his quota,

though later to the promotee is interposed in between the

periods and interject the promotee's seniority; snaps the

links in the chain of continuity and steals a march over the

approved promotee probationer.[215B]

4. Mere officiating appointment by promotion to a cadre

post outside the quota; continuous efficiation therein and

declaration of probation would not clothe the promotee with

any right to claim seniority over the direct recruits. The

necessary conclusion would, therefore, be that the direct

recruit shall get his seniority with effect from the date of

the year of the allotment as Asstt. Executive Engineer which

is not alterable. Where the promotee would get his seniority

w.e.f. the date of the availability of the posts within 50%

quota of the promotees. [215D]

5. The seniority of the promotee from Class II service

Executive Engineer shall be determined with effect from the

date on which the cadre post was available to him and the

seniority shall be determined accordingly.[215F]

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6. Under the Rules `determination of seniority would be

made only after the promotee becomes a member of the

service'. Therefore the year of allotment must be determined

having regard to (i) availability of the cadre post within

quota; (ii) satisfactory completion of the probation, and

(iii) appointment to the post in the substantive capacity in

term of Rules 12(6) and (7) read with Rule 11(4) and Rule

8(12). Any other construction would be contrary to the

avowed object of the rules as a whole.[218B-C]

7. There is neither invidious discrimination nor

arbitrariness in Rule 2(12)(a) offending Arts. 14 & 16. The

differentiation drawn between direct recruit and the

promotee bears rational relation to the object of Rule

2(12). [219H]

8. The Government of Haryana to determine the cadre

posts, if not already done, regularly from time to time

including the post created due to exigencies of service in

terms of Rule 3(2) read with appendix `A' and allot the post

in each year of allotment as contemplated under rule 12 read

with Rule 5(2)(a) and issue orders appointing substantively

to the respective posts within the quota and determine the

inter se seniority between the appellants promotees and the

direct recruit in the respective quota cadre posts of

Executive Engineers etc. within four months from the date of

receipt of this judgment. The inter se seniority of

promotees and direct recruits shall be determined

accordingly. [220D-E]

M.S. Mighlani v. State of Haryana & Anr. [1983] 1 SLR

421; J.C. Yadav v. State of Haryana, [1990] 2 SCC 189; K.K.

Khosla v. State of haryana, [1990] 2 SCC 199; V.B. Badami,

etc. v. Stat of Mysore [1976] 1 SCR 815; K.C. Joshi & Ors.

etc. v. Union of India & Ors., [1990] 29 Scale 951-referred

to.

R.P. Khanna v. S.A.F. Abbas & Ors, [1973] 3 SCR 548 at

557 C-J; Baleshwar Dass & Ors. v. State of U.P. & Ors. etc.,

[1981] 1 SCR 449 at 463; B.S. Yadav v. State of Haryana,

[1980] 1 SCr 1024; The Direct Recruit, Clall II Engineering

Officers' Association v. State of Maharasthra & Ors., [1990}

2 SCC 715 at 745-Distinguished.

9. It is a cardinal rule of interpretation that a

proviso to a particular provision of a stature only embraces

the field which is covered by the main provision. It carves

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out an exception to the main provision to which it has been

enacted by the proviso and to no other. The proper function

of proviso is to except and deal with a case which would

otherwise fall within the general language o the main

enactment,

202

and its effect to confine to that case. Where the language

of the main enactment is explicit and unambiguous, the

proviso can have no repercussion on the interpretation of

the main enactment, so as to exclude from it, by implication

what clearly falls within its express terms. [211E-F]

10. The scope of the proviso is to carve out an

exception to the main enactment and it excludes something

which otherwise would have been within the rule. It has to

operate in the same field and if the language of the main

enactment is clear, the proviso cannot be torn apart from

the main enactment nor can it be used to nullify by

implication what the enactment clearly says nor set a naught

the real object of the main enactment, unless the words of

the proviso are such that it is its necessary effect [211G-

H]

11. In interpreting the rule, effect must be given to

allow everyone drawn from the sources to have their due

share in the service and chances of involvement to

effectively discharge the duties of the posts honestly and

efficiently with dedication. Any wanton or deliberate

deviation in the implementation of the rules should be curbed

and snubbed and the rules must be strictly implemented to

achieve the above purpose. If wanton doviations are allowed

to be repeated, it would breed indiscipline among the

services and amounts to undue favour to some and denial of

equity for many for reasons known or unknown subverting the

purpose of the rules.{213F]

12. Rules 2(1), 2(3), 2(7), 2(10), 2(12)(a) 5(2)(a) 8,

9(2) 11, 12(3) 12(5) to 12(7) to be construed harmoniously.

lest the legislative animation would be defeated and the

rules would be rendered otiose and surpluses. It would also

adversely effect the morale and efficiency of the

service.[215C]

13. With a view to have efficient and dedicated

services accountable to proper implementation of Govt.

policies, it is open and is constitutionally permissible for

the State, to infuse into the services, both talented fresh

blood imbued with constitutional commitments,

enthusiasm,drive and initiative by direct recuritment,

blended with matured wealth of experience from the

subordinate services.[212G]

14. It is permissible to constitute an integrated

service of persons recruited from two or more sources,

namely, direct recruitment, promotion from subordinate

service or transfer from other services. Promotee from

subordinate service generally would get few chances of

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promotion to higher echolans of services. [212H]

15. Avenues and facilities for promotion to the higher

services to the less privileged member of the subordinate

service would inculcate in them dedication to excel their

latent capabilities to man to cadre posts {213A]

16. Talent is not the privilege of few but equal

avenues made available would explore common man's

capabilities overcoming environmental adversity and open up

full opportunities to develop one's capabilities to shoulder

higher responsibilities without succumbing to despondence.

Equity talented young men/women of great promise would enter

into service by direct recruitment when chances of

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promotions are attractive. [213B]

17. The chance of promotion would also enable a

promotee to imbue involvement in the performance of the

duties, obviate frustration and eliminate proclivity to

corrupt practices, lest one would tend to become corrupt,

sloven and mediocre and a dead wood. In other words, equal

opportunity would harness the human resources to augment the

efficiency of the service and undue emphasis on either would

upset the scale of equality germinating the seeds of

degeneration. {213D]

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No.4094 of

1984.

From the Judgment and order dated 9.7.1984 of the

Punjab & Haryana High Court in Civil Writ Petition No.5371

of 1981.

P.P. Rao, Sr. Adv. and Janendra lal for the appellants.

S.C. Gupta, Rajinder Sachhar, Sudarshan Goyal, Vivek

Bhandari, S.C.Patel, mahabir Singh and C.M. Nayar (NP) for

the Respondents.

The Judgment of the Court was delivered by

K.RAMASWAMY, J. The appellants and the proforma

respondents, thirty in number are employed in the Punjab

Service of Engineers, Class II. The Governor, in exercise of

the power under proviso to Art. 309 of the Constitution of

India framed the Punjab Service of Engineers, Class I,

P.W.D. (Road and Buildings) Rules. 1960 for short the Rules

constituting the Punjab Service of

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Engineers, Class I, P.W.D. (Roads and Buildings Branch),

After the formation of State of Haryana w.e.f. November 1,

1966, the rules are called Haryana Service of Engineers,

Class I, P.W.D. (Roads and Buildings Branch). The services

consist of Asstt. Executive Engineers, Executive Engineers,

Superintending Engineers, and Chief Engineers, as may be

specified by the Government of Haryana from time to time

(Rule 3(1). The recruitment to the service is made by the

government as per Rule 5(1); (a) by direct recruitment; (b)

by transfer from any other services of the State Govt. or of

the Union of India; and (c) by promotion from Haryana

Engineers, Class II Service. The appellants for short 'the

promotees" from Class II Service were promoted as Executive

Engineers by relaxing five years length of service as Class

II Engineers in officiating capacity on various dates

between January 6, 1969 to May 29, 1971, There of them,

namely, A.N. Sehgal, Raj Kumar and H.C. Sethi were confirmed

as Executive Engineers w.e.f. July 11, 1973, December 11,

1974 and December 9, 1975 respectively. The rest are yet to

be confirmed. Raje Ram Sheoran was recruited and appointed

directly as Asstt. Executive Engineer w.e.f October 25,

1971. He too was given relaxation of the length of service

of five years as Asstt. Executive Engineer and was promoted

as Executive Engineer on October 8, 1973. He was confirmed

w.e.f. December 22, 1976. All the appellants except M.R.

Gupta were further promoted as Superintending Engineers on

different dates between 1980 to 1984 and Mr. Sheoran was

promoted as Superintending Engineer on March 4, 1987 A.N.

Sehgal was further promoted as Chief Engineer, Equally Mr.

Sheoran was also promoted as Chief Engineer but the validity

was challenged and it is not necessary to refer any further

as it is subject matter of proceedings in the High Court.

R.R. Sheoran who was shown junior to the appellants,

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field Writ Petition No. 5371/81 and sought a writ of

mandamus directing the second respondent, State Government

to consider his case for promotion as Superintending

Engineer from the date on which the respondents were

promoted; to quash the gradation list; to assign the

seniority over the appellants and the consequential reliefs.

On reference, a Division Bench of the High Court by its

judgement dated July 9, 1984 agreed with the ratio laid down

in M.S. Mighlani v. State of haryana & Anr., [1983] 1 S.L.R.

421 and held that R.R. Sheoran was a member of the service

from the date of his initial appointment as Asstt. Executive

Engineer and the appellants and the proforma respondents are

not members of the service and directed the learned Single

Judge to dispose of th matter on merit. This appeal on leave

arises against the judgement of the Division Bench.

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The controversy centres round the inter se seniority of

the appellants and R.R. Sheoran. For its determination the

Rules need interpretation. The counsel for parties agreed

that we should decide the principles on consideration of the

Rules and leave the matter for the State Govt. to determine

the inter se seniority by applying the law, so for as the

controversy relating to relaxation of the length of service

is concerned it is set at rest by this Court in J.C. Yadav

v. State of Haryana, [1990] 2 SCC 189 and K.K. Khosla V.

State of Haryana, [1990] 2 SCC 199 by a bench of three

Judges to which one of us (K.N. Singh, J.) was a member. The

only question which survives is as to when `the appellants'

and `R.R. sheoran' become members of the respective

services.

Shri P.P.Rao, learned Senior Counsel for the appellants

contends that the appellants were promoted as Executive

Engineers against regular vacancies, which were neither a

stop-gap arrangement nor fortuitous, and they continued in

service without any break from the respective dates of their

promotion, therefore, they are members of the service in a

substantive capacity as Executive Engineers from the

respective dates of promotion. He further argued that since

Raje Ram Sheoran was recruited as Asstt. Executive Engineer

w.e.f. August 30, 1971 along after the promotion of the

appellants upto B.L. Goyal, the appellants are senior to

R.R. Sheoran as Executive Engineers. Proviso to Rule 5(2)

entitles them to remain in a substantive capacity as

Executive Engineers since requisite number of qualified

Asstt. Executive Engineers were not available for promotion.

In view of their continous officiation as Executive

Engineers in terms of Rule 2(12)(a) of the rules, they must

be deemed to be the members of the service from the dates of

promotion and, therefore, they are seniors to R.R.Sheoran .

M/s. Sachhar, learned counsel for the State and Gupta for

R.R. Sheoran on the other hand contended that unless the

appellants were appointed substantively to the cadre posts

they could not be members of the service. R.R. Sheoran

became member of the service from the date of his initial

appointment as Asstt. Executive Engineer, therefore, he is

senior to the appellants and proforma respondents and the

High Court rightly interpreted rule 5(2). Since the High

Court did not enter into the merits of the respective claims

of the appellants and Sheoran, we express no opinion on

merits except, as agreed by the parties, we declare the law

on the interpretation of the rules and leave it to the State

Govt. to decide the inter se seniority on merits.

It is necessary to have a look into the Rules

regulating the

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service. Rule 3(1) postulates that the service shall

comprise of Assistant Executive Engineers, Executive

Engineers, Superintending Engineers and Chief Engineers.

Rule 3(2) read with appendix `A' enjoins the State of

Haryana to determine the cadre strength of service each

year. Appendix `A' lays down procedure to determine the

cadre strength of service. The senior posts include

Executive Engineers and above while junior scale posts

include Asst. Executive Engineers . Ex-cadre posts also are

contemplated in the respective senior posts and junior scale

posts. Rule 5(1)(a) posits recruitment to the service: (a)

by direct recruitment; (b) by transfer and (c) by promotion

from Class II service. Sub-rule (4) of Rule 5 says that all

direct appointments to the service shall be to the post of

Asstt. Executive Engineer. Proviso therein gives power to

the government to appoint by direct recruitment as Executive

Engineers, in exceptional circumstances, for reasons to be

recorded in writing. Rules 6 and 7 prescribe qualifications

and method of appointment by direct recruitment . Subrule

(3) of Rule 7 states that appointment to the service shall

be made according to the number of vacancies to be filled by

direct recruitment strictly in the order of merit as

indicated by the Public Service Commission. As per Rule

11(1) and direct recruit shall remain on probation for a

period of two years or extended period upto maximum of three

years. On satisfactory completion of probation, the

government may confirm under clause (a) of sub-rule (3) of

Rule 11 or to discharge him from service otherwise. The post

of Asstt. Executive Engineer is a junior scale post. Under

rule 12(3), they year of allotment of an Asstt. Executive

Engineer shall be the calendar year in which the order of

appointment is issued by the government.

Rule 2(1) defines appointment to the service which includes

an appointment made according to the terms and provisions of

the rules to an officiating vacancy or to an ex-cadre post

provided that an officer so appointed shall not be deemed to

have become a member of the service as defined in Clause

(12) of Rule 2. The Asstt. Executive Engineer means a member

of the service in the junior scale of pay, (Rule 2(2)).

Cadre post means permanent post in the service as per Rule

2(3). `Class II Service' means the Punjab Service of

Engineers, Class II, in the Buildings and Roads Branch and

includes, for purposes of promotion to and fixation of

seniority in the Class I Service, Temporary Asstt. engineers

when a suitable Class II Officer is not available vide Rule

2(5). Direct appointment means an appointment by open

competition but does not include-(a) an appointment made by

promotion; (b) an appointment by transfer of an officer from

the service of the State Government or of the Union, (Rule

2(7). Ex-cadre

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post means a temporary post of the same rank as a cadre post

vide Rule 2(10). A member of the service means an officer

appointed sub-stantively to a cadre post and includes (a) in

the case of a direct appointment an officer on probation, or

such an officer who, having successfully completed his

probation, awaits appointment to a cadre post vide Rule

2(12)(a).

A reading of the rules clearly indicates that an Asstt.

Executive Engineer appointment by open competition to a

substantive vacancy in a cadre post and put on probation is

a member of the service. Equally such Asstt. Executive

Engineer recruited by open competition and appointment to an

ex cadre post and put on probation and who having

successfully completed his probation and awaits appointment

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to a cadre post would also become a member of the service.

The contention of Shri P.P.Rao is that an officer appointed

substantively to a cadre post is a direct recruit and the

inclusive definition encompasses within its ambit the

promotee and the phase ``such an officer who having

successfully completed his probation and awaits appointment

to the cadre post'' is only referable to a promotee. So

promotee is also a member of the service from the date of

initial promotion. We may make it clear at this juncture

that in normal service jurisprudence a direct recruit would

always be recruited and appointed to a substantive vacancy

and from the date he starts discharging the duty attached to

the post he is a member of the service subject to his

successfully completing the probation and declaration

thereof at a later date and his appointment relates back to

the date of initial appointment, subject to his being

discharge from service on failure to complete the probation

within or extended period or termination of the service

according to rules. Equally it is settle law that a promotee

would have initial officiating promotion to a temporary

vacancy or substantive vacancy and on successful completion

and declaration of the probation, unless reverted to lower

posts, he awaits appointment to a substantive vacancy. Only

on appointment to a substantive vacancy he become a member

of the service. But confirmation and appointment to a

substantive vacancy always an inglorious uncertainty and

would take unduly long time. Therefore, the confirmation or

appointment to a substantive capacity would not normally be

a condition precedent to reckon the continuous length of

service for the purpose of seniority. On the facts of the

case and the settled legal position, at first blush the

argument of Shri P.P.Rao carried weight that the appellants

would get their seniority from the respective dates of the

initial promotion as Executive Engineers. But we find that

in the instant case the rules have made departure from the

normal service jurisprudence as would

208

appear from the scheme under the rules.

Para 11(b) of appendix `A' read with Rule 3(2), while

determining the cadre strength of the service, adumbrates

creation and appointment of Asstt. Executive Engineers

(direct recruit) to an ex-cadre junior scale post in each

year. Therefore in a given situation, a direct recruit

appointed to an ex-cadre post, cannot be kept in lurch until

he is appointed to a cadre post so as to become a member of

the service. Obviously to avoid such a hiatus, Rule 2(12)(a)

was introduced. The main part o Rule 2(12)(a) declares that

an appointee substantively to a cadre post i.e., permanent

post is a member of the service. The inclusive definition

brings an officer `by direct appointment on probation' who

having successfully completed probation and awaits

appointment to a cadre post is also a member of the service.

Take for instance if direct recruitment is made to fill in

five posts of Asstt. Executive Engineers of which four are

cadre posts and one ex-cadre post and four persons are

appointed to cadre posts in the order of merit and the last

one to the ex-cadre post. The first four officers appointed

on probation to the substantive vacancies and they are

covered by the main part of Rule 2(12)(a). The fifth one

intended to cover the field of operation of the inclusive

definition which says that `and also includes an officer

directly appointed on probation ' `and such an officer who

having successfully completed his probation, awaits

appointment to a cadre post'. The words `and such an

officer' `directly appointed' would obviously referable to

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an Asstt. Executive Engineer directly appointed to an ex-

cadre post; who may be placed on probation and awaits

appointment to a cadre post. By operation of the definition

clause he also becomes the member of the service from the

date of initial appointment. This view is further fortified

by the definition the `appointment to the service' in Rule

2(1) which says that appointment to the service includes an

appointment made according to the terms and provisions of

these rules to an officiating vacancy or to an ex-cadre

post. Rule 2(7) says that direct appointment means

appointment by open competition but excludes `promotee' or

`transferee'. So a promotee promoted to an officiating

vacancy or on ex-cadre post does not become member of the

service unless he is appointed substantively to a cadre

post. We, therefore, hold that a direct recruit appointed to

an ex-cadre post alone is a member of the service even while

on probation and Rule 2(12)(a) applies to them and it does

not apply to promotee from Class II service.

An Asstt. Executive Engineer, on putting five years of

service under rule 9(3)(a) and passing the department

examination as

209

required under rule (15), (unless the qualifications are

relaxed in exercise of the power under rule (22) of the

rules) becomes eligible for promotion as Executive Engineer.

The State Govt. had relaxed the required length of five

years service of the promotees as well as direct recruits.

R.R.Sheoran therefor became eligible to be considered for

promotion. As per the procedure prescribed in this regard

under rule 9(2), he was found fit and suitable and was

promoted as an Executive Engineer w.e.f. October 8, 1973.

Though M/s. Sachhar and Gupta contended that the direct

recruit need not undergo the required probation ad Executive

Engineer, we find no force in the contention. The normal

channel of appointment to the post of Executive Engineer, a

senior post, is by way of promotion to which a direct

recruit Asstt. Executive Engineer is entitled to be

considered. On promotion he shall be on probation for a

period of one year as per Rule 11(1)(a), but the period

spent on officiation as Executive Engineer shall be taken

into account for purposes of completing the period of

probation and on its successful completion, he shall remain

in service As Executive Engineer. On a conjoint reading of

Rule 12(3) and 12(5) it is clear that the year of allotment

of the Asstt. Executive engineer in the post of Executive

Engineer, shall be the calendar year in which th order of

appointment as Asstt. Executive Engineer had been made. Thus

his seniority as Executive engineer, by fiction of law,

would relate back to his date of initial appointment as

Asstt. Executive Engineer and in Juxta position to Class II

officers' seniority as Executive Engineer is unalterable.

The date of the seniority of Mr. R.R.Sheoran 1971.

The question then is what is the date from which the

seniority of a promotee as Executive Engineer shall be

reckoned? The contention of Shri P.P. Rao is that Rule 5(2)

reserve 50% of the posts to the direct recruits but the

proviso thereto makes a built in relaxation, namely, so long

as the required number of direct recruits are not available

to occupy those posts, the promotees are entitled to hold

those posts also. Admittedly except R.R. Sheoran no other

direct recruit was available. The promotees are eligible to

occupy all the cadre posts even in excess of their quota.

The seniority has to be determined from the respective dates

of initial officiating promotion. Shri Rao' further

contention that the phrase `such an officer appointed to an

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officiating post' has reference only to promotees cannot be

accepted for the reasons given earlier. The officer

appointed directly is referable only to Asstt. Executive

Engineer and a promotee by operation of Rules 2(7) stands

excluded until he is appointed substantively to a cadre

post.

210

When an officer is appointed substantively to a cadre

post, is the next question. It is settled law that all the

rules should be harmoniously construed giving life, force

and effect to every part of the rule of clause or word so

that no part would be rendered redundant, ineffectual,

nugatory or otiose. Rule 5(1) regulates recruitment to the

service from three sources, namely, direct recruitment; by

transfer and by promotion from Class II service. Sub-rule

(2) thereof prescribes the ratio between the promotees and

others. It says that, "recruitment to the service shall be

so regulated that the number of posts so filled by promotion

from Class II service shall not exceed 50%" of the number of

posts in the service excluding the posts of Asstt. Executive

Engineers; provided that till such time the adequate number

of Asstt. Executive Engineers who ar eligible and considered

fit for promotion are available, the actual percentage of

officers promoted from Class II service `may be larger than

50%. A reading thereof clearly manifests the legislative

animation, namely, that the promotees from Class II service

shall not exceed 50% of the posts in the service. The word

`shall' indicates that it is mandatory that the remaining

50% shall be kept open only to the Asstt.Executive Engineers

who were directly recruited but later were found eligible

and fit for promotion as Executive Engineers. Therefore,

unless the government resorts exceptionally with prior

permission of Public Service Commission, vide Rule 10 to

recruitment by transfer of an officer from other service of

the State Govt. or of the Union, the remaining 50% of the

posts as Executive Engineers, Superintending Engineers and

Chief Engineers shall be occupied only by the direct recruit

Asstt. Executive Engineers. It is settled law that

prescription of quota for recruitment from different sources

is constitutionally a valid rule.

Rule 5(2) limits 50% posts to the promotees from Class

II Service and no further, but the proviso to the Rule lays

down that till adequate number of Asstt. Executive Engineers

are available, the rigour of 50% quota may be relaxed and

Class II officers may be promoted in excess of their quota.

What is the intendment of the class `the actual percentage

of officers promoted from Class II service may be larger

than 50% is the question. The mandate of Rule 5(2) is that

the officers promoted from Class II service shall in no case

exceed 50% of the number of posts in the service. Unless

it is relaxed, the appointment and occupation of the posts

by promotee in excess thereof is irregular or illegal and

the government have no power to promote persons from Class

II service to fill in such posts of Executive Engineers

Superintending Engineers and Chief Engineers. It is common

knowledge that direct recruitment as Asstt.Executive

Engineers

211

or Executive Engineer; in exceptional circumstances is a

tardy process and even after appointment they have to put in

five years service. The balance 50% of the posts cannot be

kept vacant. With a view to allow the wheels of the

administration moving, the proviso carves out an exception

and allows the promotees to occupy temporarily the posts in

excess of their quota. In this view the contention of Shri

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Rao that the seniority as Executive Engineer is to be

counted from the date of initial temporary promotion cannot

be accepted as it would allow the promotees to occupy 100%

posts of Executive Engineers, Superintending Engineers and

Chief Engineers leaving little room for Rule 5(2) (a) to

operate in full force. The exception would eat away the

flesh and blood of Rule 5(2)(a) freezing the channel of

promotion to the direct recruits to senior posts for a very

long time to come. In the absence of rule of rotation there

may be no chance to a direct recruits to occupy the senior

posts. That does not appear to be the intendment, scope and

operation of the proviso. The intendment appears to be that

so long as the direct recruit Asstt.Executive Engineer,

eligible and considered fit for promotion is not available,

the promotee from Class II service in excess of the quota is

eligible to occupy on officiating capacity the senior posts,

i.e., Executive Engineers and above. The moment direct

recruits are available, they alone are entitled to occupy

50% of their quota and the promotees shall give place to the

direct recruits.

It is a cardinal rule of interpretation that a proviso

to a particular provision of a statute only embraces the

field which is covered by the main provision. It carves out

an exception to the main provision to which it has been

enacted by the proviso and to no other. The proper function

of a proviso is to except and deal with a cause which would

otherwise fall within the general language of the main

enactment, and its effect is to confine to that case. Where

the language of the main enactment is explicit and

unambiguous, the proviso can have no repercussion on the

interpretation of the main enactment, so as to exclude from

it, by implication what clearly falls within its express

terms.

The scope of the proviso, therefore, is to carve out an

exception to the main enactment and it excludes something

which otherwise would have been within the rule. It has to

operate in the same field and if the language of the main

enactment is clear, the proviso cannot be torn apart from

the main enactment nor can it he used to nullify by

implication what the enactment clearly says nor set at

naught the real object of the main enactment, unless the

words of the proviso are such

212

that it is its necessary effect.

In V.B. Badami, etc. v. State of Mysore, [1976] 1SCR

815 dealing with the problem arising out of quota rule

between promotees, this Court observed that:

"In working out the quota rule, these principles

are generally followed. First, where rules

prescribe quota between direct recruits and

promotees, confirmation or substantive appointment

can only be in respect of clear vacancies in the

permanent strength of the cadre. Second,

confirmed persons are senior to those who are

officiating. Third, as between persons appointed

in officiating capacity, seniority is to be

counted on the length of continuous service.

Fourth, direct recruitment is possible only by

competitive examination which is prescribed

procedure under the rules. In promotional

vacancies, the promotion is either by selection or

on the principle of seniority-cum-merit, a

promotion could be made in respect of a temporary

post or for a specified period but a direct

recruitment has generally to be made only in

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respect of clear permanent vacancy either existing

or anticipated to arise at or about the period of

probation is expected to be completed. Fifth, if

promotions ar made to vacancies in excess of the

promotional quota, the promotions may not be

totally illegal but would be irregular. The

promotees cannot claim any right to hold the

promotional posts unless the vacancies fall within

their quota. If the promotees occupy any

vacancies which are within the quota of direct

recruits, when direct recruitment takes place the

direct recruits will occupy vacancies within their

quota. Promotees who were occupying the vacancies

within the quota of direct recruits will either be

reverted or they will be absorbed in the vacancies

within their quota in the facts and circumstances

of a case".

With a view to have efficient and dedicated services

accountable to proper implementation of Govt. policies, it

is open, and is constitutionally permissible for the State,

to infuse into the services, both talented fresh blood

imbued with constitutional commitments, enthusiasm, drive

and initiative by direct recruitment, blended with matured

wealth of experience from the subordinate services. It is

permissible to constitute an integrated service of persons

recruited from two or more sources, namely, direct

recruitment, promotion from subordinate

213

service or transfer from other services, Promotee from

subordinate generally would get few chances of promotion to

higher echolans of services. Avenues and facilities for

promotion to the higher services to the less privileged

members of the subordinate service would inculcate in them

dedication to excel their latent capabilities to man the

cadre posts. Talent is not the privilege of few but equal

avenues made available would explore common man's

capabilities overcoming environmental adversity and open up

full opportunities to develop one's capabilities to shoulder

higher responsibilities without succumbing to despondence.

Equally talented young men/women of great promise would

enter into service by direct recruitment when chances of

promotions are attractive. The aspiration to reach higher

echolans of service would thus enthuse a member to dedicate

honestly and diligently to exhibit competence,

straightforwardness with missionary zeal exercising

effective control and supervision in the implementation of

the programmes. The chances of promotion would also enable

a promotee to imbue involvement in the performance of the

duties; obviate frustration and eliminate proclivity to

corrupt practices, lest one would tend to become corrupt,

sloven and mediocre and a dead wood. In other words, equal

opportunity would harness the human resources to augment the

efficiency of the service and under emphasis on either would

upset the scales of equality germinating the seeds of

degeneration.

With a view to achieve this objective, the rule making

authority envisaged to appoint direct recruits as well as by

promotion from Class II Service, otherwise by transfer from

other services. In interpreting the rules, effect must be

given to allow everyone drawn from these sources to have

their due share in the service and chances of involvement of

effectively discharge the duties of the posts honestly and

efficiently with dedication. Any wanton or deliberate

deviation in the implementation of the rules should be

curbed and snubbed and the rules must be strictly

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implemented to achieve the above purpose. If wanton

deviations are allowed to be repeated, it would breed

indiscipline among the service and amounts to undue favour

to some and denial of equality for many for reasons known or

unknown subverting the purpose of the rules.

It is settled law that appointment to a post in

accordance with the rules is condition precedent and no one

can claim appointment to a post or promotion, as of right,

but has a right to be considered in accordance with the

rules. Appointment by promotion or direct recruitment,

therefore, must be in accordance with the rules so as to

214

become a member of the service in a substantive capacity.

Seniority is to be fixed in accordance with the principles

laid down in the rules.

Rule 8 prescribes procedure for appointment by

promotion from Class II services. Rule 9(2) states that

promotion would be made by selection on the basis of merit

and suitability in all respect and no member of the service

shall have any claim, to such promotion as a matter of right

by mere seniority. The committee as constituted under Rule

8 shall prepare the list of officers considered fit for

promotion in the order of merit and on approval by the

public Service Commission, the State Govt. shall appoint the

persons from the list in the order in which the names have

been placed by the Commission, Appointment by promotion may

be made under Rule 8(12) to an excadre post or to any post

in the cadre in an officiating capacity from the list

prepared as aforesaid. On promotion, as per Rule 11(1),

officer shall be on probation for a period of one year, but

if the officer had been officiating as an Executive Engineer

the period of officiation would be counted towards

probation. Rule 11(4) provides the on satisfactory

completion of the probationary period, the Govt. confirms

the officiating promotee and "appoint him in a substantive

capacity on a cadre post provided the post is available to

him". If no cadre post is available, the officer has to

wait for an appointment to the cadre post.

A promotee within quota under rule 5(2) gets his

seniority from the initial date of his promotion and the

year of allotment, as contemplated in Rule 12(6) shall be

the next below "the junior most officer in the service

whether officiating or confirmed as Executive Engineer

before the former's appointment' counting the entire

officiating period towards seniority, unless there is break

in the service or from the date of later promotion. Such

promotee, by necessary implication, would normally become

senior to the direct recruit promoted later. Combined

operation of sub-rules (3) to (5) of Rule 12 makes the

direct recruit a member of the service of Executive Engineer

from the date of year of allotment as an Asstt. Executive

Engineer. The result is that the promotee occupying the

posts within 50% quota of the direct recruits, acquired no

right to the post and should yield to direct recruit though

promoted later to him, to the senior scale posts i.e.,

Executive Engineer, Superintending Engineer and Chief

Engineer. The promotee has right to confirmation in the

cadre post as per Rule 11(4) if a post is available to him

within his quota or at a later date under rule 5(2) read

with 11(4) and gets appointment under s. 8(11). His

seniority would be reckoned only from the date of the date

of the availability of the post and the year of allotment,

he shall be next below to his immediate

215

senior promotee of that year or the junior most of the

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previous year of allotment whether officiating or permanent

occupying the post within 50% quota. The officiating period

of the promotee between the dates of initial promotion and

the date of the availability of the cadre post would thus

be rendered fortuitous and stands excluded. A direct

recruit on promotion within his quota, though later to the

promotee is interposed in between the periods and interjects

the promotee's seniority; shaps the links in the chain of

continuity and steals a march over the approved promotee

probationer. Harmonious construction of rule 2(1), 2(3),

2(7), 2(10), 2(12),(a) 5(2)(a), 8,9(2), 11, 12(3), 12(5) to

12(7) would yield to the above result, lest the legislative

animation would be defeated and the rules would be rendered

otiose and surpluses. It would also adversely effect the

morale and efficiency of the service. Mere officiating

appointment by promotion to a cadre post outside the quota;

continuous officiation therein and declaration of probation

would not clothe the promotee with any right to claim

seniority over the direct recruits. The necessary

conclusion would, therefore, be that the direct recruit

shall get his seniority with effect from the date of the

year of the allotment as Asstt. Executive Engineer which is

not alterable. Whereas the promotee would get his seniority

w.e.f. the date of the availability of the posts within 50%

quota of the promotees. The year of allotment is variable

and the seniority shall be reckoned accordingly.

Appointment to the cadre post substantively and confirmation

thereof shall be made under rule 8(11) read with Rule 11(4)

of the rules. A promotee Executive Engineer would only then

become member of the service, `Appointed substantively'

within the meaning of Rule 2(12) (a) shall be construed

accordingly. We, further hold that the seniority of the

promotee from Class II service as Executive Engineer shall

be determined with effect from the date of which the cadre

post was available to him and the seniority shall be

determined accordingly.

In K.C.Joshi & Ors. etc. v. Union of India & Ors.,

[1990]2 Scale 951 a Bench of three Judges to which one of us

(K. Ramaswamy, J.) was a member, considered similar

question. In that case U.P. Forest Service Rules, 1952

provides, two sources of recruitment to the post of Asstt.

Conservators of Forest. The petitioners therein were Forest

Range Officers in U.P. Forest Subordinate Service. The

respondents were direct recruits as Asstt. Conservators of

Forest. The rules prescribed ratio between direct recruits

and promotees. Due to delay in recruitment as Asstt.

Conservators of Forest, the Forest Rangers were promoted in

excess of their quota as Asstt. Conservators of Forest

temporarily and continued in service without any break for 5

to 12

216

years. The promotees claimed seniority from the date of

their initial promotion. Considering the scope of the rules

and rights acquired by the petitioners therein and the

direct recruits, the Court held that:

"When promotion was outside the quota, the

seniority would be reckoned from the date of the

vacancy within the quota, rendering the pervious

service fortuitous. The previous promotion would

be regular only from the date of the vacancy

within the quota and seniority shall be counted

from that date and not from the date of his

earlier promotion or subsequent confirmation. In

order to do justice to the promotees it would not

be proper to do injustice to the direct recruits.

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The rule of quota being a statutory one must be

strictly implemented and it is impermissible for

the authorities concerned to deviate from the rule

due to administrative exigencies of expediency.

The result of punishing down the promotees

appointed in excess of the quota may work hardship

but it is unavoidable and any construction

otherwise would be illegal, nullifying the force

of statutory rules and would offend Arts. 14 &

16(1). Therefore, the rules must be carefully

applied in such a manner as not to violate the

rules or equality assured under Art. 14 of the

Constitution. This Court interpreted that equity

is an integral part of Art. 14. So every attempt

would be made to minimise, as far as possible

inequity. Disparity is inherent in the system of

working out integration of the employees drawn

from different sources, who have legitimate

aspiration to reach higher echolans of service. A

feeling of hardship to one, or heart burning to

either would be avoided. At the same time equality

is accorded to all the employees".

Shri P.P. Rao urged that the cadre posts in Rule 2(12)

must include not only the permanent posts but also temporary

posts continued for more than three years and notional posts

which may have existed for short spells during preceding

three years taking into account the number of months and

days for which each post had existed as per the formula

prescribed in appendix `A' read with Rule 3 of the rules.

He further urged that the promotees appointed to such posts

should be treated to be `members of the service' interms of

Rule 2(12)(a) and that their promotion should be

retrospectively declared to have been promoted w.e.f. the

dates on which the posts were created. We are unable to

accept this contention. Rule 3 read with

217

appendix `A' confers power and also imposes duty on the

State Govt. to determine the cadre posts from time to time

and in the first five years on the first day of each year.

This exercise should be done in the light of the criteria

prescribed in appendix `A'. The present controversy does not

concern itself with the method and manner of determination

of th cadre posts, though determination of seniority hinge

upon it. Therefore, for determining seniority, the State

Govt. should undertake the exercise interms of Rule 3 read

with appendix `A'. The rules postulate that substantive

appointment to a cadre post is a condition precedent to

become a member of the service. A class II officer shall be

promoted to a temporary post or in an officiating capacity

to a cadre post if vacancy exist' when he occupies a vacancy

in a substantive post and continued uninterruptedly it would

be open to the appointing authority to put the promotee

Executive Engineer on probation. Though confirmation is an

inglorious uncertainty depending neither on the efficiency

of the officer nor generally on the availability of the

post, the mandate of Quota of 50% in Rule 5(2) should be

adhered to. Declaration of probation and confirmation to a

cadre post, if available, under Rule 11(4) shall be made.

Seniority of such approved or confirmed promotee should be

counted from the date of either initial officiating

promotion of continous later officiation from the date of

availability of the cadre post, however, should be next

below his senior promotee or the junior most of the

preceding year of allotment within the quota. If no post is

available till such date of the availability, the entire

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period of continuous officiation would be rendered

fortuitous. The contention, therefore, that the promotion

would relate back retrospectively to the date of creation of

the post and the appointment to the vacancy shall be with

reference to the date of the creation of the post, would

result anomalies and render Rule 5(2) to the direct recruits

surplusage.

Shri P.P. Rao's further contention that the de facto

promotion and the retrospective declaration of cadre post

would make the Class II officers as de jure members of the

service from the very date of temporary appointment w.e.f.

the date of initial appointment also lacks force for the

same reasons. The principles laid down in R.P. Khanna v.

S.A.F. Abbas & Ors., [1973]3 SCR. 548 at 557 C-J . is not

applicable to the facts of this case. In that case the

certain posts in State services were required to be declared

as senior cadre posts in the All India Service, but before

such declaration could be made some of the promotee officers

officiated in the senior cadre post. In that context the

Court observed that 1the promotee could not get the benefit

of officiation unless the post was declared a equivalent to

a senior cadre

218

post before the promotee was appointed; to officiate him

would defeat the policy of the government' and held that

they are entitled to the benefit of the retrospective

declaration `in the absence of things practical as well as

reasonable. The scheme of the rules made a definite

departure to the normal service jurisprudence and the

operation of the scheme in the rules must be given full

effect. In the instant case under the Rules `determination

of seniority would be' made only after the promotee becomes

a member of the service. Therefore, the year of allotment

must be determined having regard to (i) availability of the

cadre post within quota; (ii) satisfactory completion of the

probation; and (iii) appointment to the post in the

substantive capacity in term of Rules 12(6) and (7) read

with 11(4) and Rule 8(12). Any other construction would be

contrary to the avowed object of the rules as a whole.

The inclusive definition of Rule 2(12) (a) must be

interpreted liberally and not restrictively. Undoubtedly

the inclusive definition always receives liberal

interpretation to bring within its ambit cognate but

unforeseen similes. But the rules envisage only three

sources of recruitment, namely, direct recruitment,

appointment by promotion and in exceptional cases with prior

approval of the Public Service Commission as per Rule 10,

the appointment by transfer from other services of the State

or Central Govt. Until the ex-cadre posts are declared to

be cadre posts they remain ex-cadre posts. The promotion to

the ex-cadre post is temporary or to a cadre post could be

only on officiating basis. It may be open to the government

to abolish at any time the ex-cadre posts. Determination of

cadre strength is a condition precedent for Rule 5(2)(a) to

operate. Till a promotee is confirmed in a substantive

capacity as Executive Engineer, he continues to retain line

in Class II service. The interpretation that the promotion

to the temporary post or ex-cadre post within the meaning of

Rule 2(10) should also be deemed to be an appointment to a

substantive post would do violence to the language of the

relevant rules and the scheme. It is true that this Court

in Baleshwar Dass & Ors. v. State of U.P. & Ors. etc.,

[1981] 1 SCR 449 at 463 held that there cannot be probation

for a government servant who is not to be absorbed

substantively in the service on completion. The ratio

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therein does not apply to the facts of this case for the

reason that the Govt. itself did not understand the scope

and operation of the rules properly as is amply demonstrated

from their mutually irreconcilable inconsistent stand taken

in the counter-affidavits filed by the State Govt. in the

High Court and in this Court. That apart, it would appear

that in the instant case after the formation of the State of

Haryana, adequate number of officers were

219

not available to hold the posts. The length of service and

passing of prescribed tests were relaxed enmass. In view of

the above peculiar and special facts merely because the

promotee Class II Officers were put on probation and the

same was declared it does not clothe them with any right to

deemed appointment to substantive vacancies in excess of

their quota with retrospective effect from the date of

initial promotion to the cadre posts. The year of allotment

of a direct recruit is always the year in which he is

appointed to the junior scale post of Asstt.Executive

Engineer but the year of allotment to the promotee is

variable depending on the availability of the cadre post

within quota of 50% and subject to taking the seniority next

below the junior most promotee of the preceding year of

allotment or immediate senior of the same year. If the

contention of Shri P.P. Rao is accepted is accepted it would

render Rule 8(11) mutually inconsistent with Rule 5(2w) read

with Rules 2(7) and 2(12) and Rule 2(1). No countenance

could be given to the contention that the officers put on

probation in terms of Rule 11(1) irrespective whether they

occupied declared posts, but also posts which ought to have

been declared as such from time to time and have

continuously remained in service entitle them to become

member of service and that, as and when the posts occupied

by them are declared as cadre posts with retrospective

effect, they are entitled to be treated as members of the

service w.e.f. the due dates. In other words it amounts to

put a premium on the inaction on the part of the State Govt.

to declare the cadre posts in terms of Rule 3(2) read with

appendix `A' defeating the scheme of the Rules.

The contention that our interpretation renders Rule

2(12) arbitrary and discriminatory violating Arts. 14 and 16

is also not tenable. A direct recruit, by operation of Rule

2(12) (a) read with Rules 2(1) and 2(10), though appointed

to an ex-cadre post, by fiction of law, becomes a member of

the service from the date of his initial appointment since

being a fresh recruit. On his satisfactory completion of

the prohibition and on availability of the cadre post as

Asstt. Executive Engineer, he becomes a confirmed Asstt.

Executive Engineer. While a promotee Executive Engineer

continues to retain his line on the posts as Class II

officers still he is appointed substantively to Class I

service. There is reasonable classification and discernable

distinction drawn between the direct recruit and the

promotee. The nexus is to treat direct recruit Asstt.

Executive Engineer appointed to the cadre posts as well as

ex-cadre post at par as members of the service and the

deeming clause is to serve this purpose. Thus, there is

nether invidious discrimination nor arbitrariness in Rule

2(12)(a) offending Arts. 12 & 16. The differentiation drawn

between direct recruit and the

220

promotee bears rational relation to the object of Rule

2(12), the ratio of the Constitution Bench in B.S. Yadav v.

State of Haryana, [1980] 1 SCR 1024 and The Direct Recruit,

Class II Engineering Officers' Association v. State of

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Maharashtra & Ors., [1990] 2 SCC 715 at 745 cannot be

imported bodily and applies to the ficts of the case in the

light of the operation of the rules in question.

The further contention that Rule 12 adumbrates that not

only a member of the service, but even an officer

officiating as an Executive Engineer before becoming a

member of the service is entitled to an year of allotment

because the rules nowhere say that only members of service

are entitled to year of allotment is devoid of substance.

As already discussed a promotee cannot be given year of

allotment, before he becomes a member of the service and his

seniority cannot be fixed arbitrarily with reference to the

date of his initial promotion to an ex-cadre post or

continuous officiating in a cadre post without break, as the

case may be.

We accordingly, direct the Government of Haryana to

determine the cadre posts, if not already done, regularly

from time to time including the post created due to

exigencies of service in terms of Rule 3(2) read with

appendix `A' and allot the posts ineach year of allotment as

contemplated under rule 12 read with Rule 5(2)(a) and issue

orders appointing substantively to the respective posts

within the quota and determine the inter se seniority

between the appellants promotees and R.R. Sheoran, direct

recruits in the respective quota cadre posts of Executive

Engineers etc. within four months from the date of receipt

of this judgment. The inter se seniority of promotees and

direct recruits shall be determined accordingly. All the

inpugned promotions or those pending proceedings in the High

Court or in this Court shall be subject to the above

determination and the status quo would continue till the

appointments according to the rules are made and seniority

is determined in the light of the law declared inthis

judgment. The appeals is disposed of accordingly. In the

circumstances parties are directed to bear their respective

costs.

V.P.R. Appeal disposed of

221