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CASE NO.:

Appeal (civil) 2720 of 2001

PETITIONER:

RAJINDER SINGH (DR.)

RESPONDENT:

STATE OF PUNJAB AND ORS.

DATE OF JUDGMENT: 11/04/2001

BENCH:

K.T. THOMAS & R.P. SETHI

JUDGMENT:

JUDGMENT

2001 (2) SCR 1108

The Judgment of the Court was delivered by SETHI, J. Leave granted.

Aggrieved by the recommendations of the Departmental Promotion Committee

held on 14.1.1998 and consequential promotion of respondent No.3 as Deputy

Director (Health Services), the appellant filed a writ petition in the High

Court mainly on the ground that the promotee-respondent did not possess the

requisite qualifications under the Service Rules applicable in the case.

Relying upon the notification dated 9th April, 1989 which treated PCMS

Class II as PCMS Class I, the high Court dismissed the writ petition

observing that for the purpose of treating the PCMS Class II as PCMS Class

I, there was no necessity of amending the rules. The High Court, however,

held that Rule 9A of the Rules applicable in the case provided that for the

post of Deputy Director, a person should be member of Class I atleast for a

period of 10 years.

It is not disputed that service conditions of the appellant and respondent

No.3 are governed by the statutory rules made in exercise of the powers

conferred upon the Government under Article 309 of the Constitution which

are known as Punjab Civil Medical (State Service Class I) Rules, 1972

(here-inafter referred to as "PCMS Class I Rules"). Rule 9 deals with the

matters of recruitment and provides that recruitment to any post in service

excepting the post of Director (Health Services), Joint Director (Health

Services) and Dy. Director (Health Services) be made in the manner

prescribed therein. Rule 9A dealing with the appointment to the senior

posts provides:

"Appointment to Senior Posts - No person shall be appointed -

(a) to the post of Director, Health Services, unless he has an

experience of working on the post of Joint Director, Health Services for a

minimum of one year.

(b) to the post of Joint Director, Health Services, unless he has been

a member of service for a minimum period of twelve years including two

years as Deputy Director, Health Services, and

(c) to the post of Deputy Director Health Services, unless he has been

a member of the service for a minimum period of ten year."

According to sub-rule (c) of Rule 9A, a person cannot be appointed to the

post of Deputy Director unless he has been the member of the service for a

minimum period of 10 years. "Service" has been defined as: "Service means

the Pubjab Civil Medical (State Service Class I)"

It has not been disputed before us that at the relevant date when the

respondent No.3 was recommended for promotion, he had not completed 10

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years of service within the meaning of Rule 9A read with Rule 2(2) of the

PCMS Class 1 Rules. As the respondent NO.3 was not possessing the requisite

qualifications on the relevant date, he could not be considered for

promotion to the post of Deputy Director, Health Services.

We do not agree with the High Court that even without amending the rules,

the respondent-State could have declared the PCMS Class II as PCMS Class I.

The notification dated 9th April, 1989 reads as:

"In pursuance of the recommendations of the Committee for the removal of

anomalies in the Revised Scales of pay of Punjab Civil Medical Services,

the President of India is pleased to declare the PCMS (Class II) as PCMS

(Class I). There will be only one service with the nomenclature of PCMS

(Class I) with effect from 1.1.1986.

The necessary amendments in the service rules of PCMS (Class II) and PCMS

(Class I) will be made separately.

This issue with the concurrence of the Finance Department conveyed vide

their I.D. No.l0/27/89-FPI, dated 20.3.89." (Emphasis Supplied)

A perusal of the notification clearly indicates that the Government itself

was aware that the two classes of service cannot be equated or treated

alike without amending the rules. There is no dispute that the rules have

not been amended so far. The Departmental Promotion Committee, therefore,

erred in recommending the promotion of respondent No.3, ignoring the rules

and only relying upon a notification.

The settled position of law is that no Government Order, Notification or

Circular can be a substitute of the statutory rules framed with the

authority of law. Following any other course would be disastrous inasmuch

as it would deprive the security of tenure and right of equality conferred

upon the civil servants under the constitutional scheme. It would be

negating the so far accepted service jurisprudence. We are of the firm view

that the High Court was not justified in observing that even without the

amendment of the rules, the Class II of the service can be treated as Class

I only by way of notification. Following such a course in effect amounts to

amending the rules by a Government Order and ignoring the mandate of

Article 309 of the Constitution. As respondent NO.3 was not eligible for

consideration to the post of Deputy Director, Health Services, the

Departmental Promotion Committee committed a mistake in recommending him.

Consequent promotion of re-spondent No.3 on the basis of recommendation of

the Departmental Promo-tion Committee being contrary to law is liable to be

set aside.

Learned counsel appearing for both the parties addressed arguments

regarding the claims and counter claims of the appellant and respondent

No.3 to the post of Deputy Director, Health Services to which the

respondent No.3 is stated to have become eligible by now. We refrain to

comment upon such submissions in view of the order which we propose to pass

in this appeal.

Accordingly this appeal is allowed by setting aside the impugned judgment.

The recommendation of the Departmental Promotion Committee and

consequential promotion to the post of Deputy Director, Health Services is

set aside and the said post of Deputy Director, Health Services in the

State of Punjab is declared to have fallen vacant forthwith. The

respondent-State is directed to appoint a fresh Departmental Promotion

Committee who shall consider the cases of all the eligible officers

including the appellant and respondent No.3 and recommend for promotion any

of the eligible persons from the service in accordance with the Service

Rules totally ignoring notification dated 9th April, 1989.

No costs.