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PETITIONER:

SUBHASH CHANDER SHARMA & ANR, STATE OF PUNJAB & ORS.

Vs.

RESPONDENT:

HARI KRISHAN & ORS.

DATE OF JUDGMENT: 14/05/1999

BENCH:

G.T.Nanavati, S.N.Phukan

JUDGMENT:

NANAVATI. J.

Leave granted. Heard learned counsel for the parties.

The appellants are working as Junior

Engineers/Overseers in the Punjab Overseers Service,

Irrigation Branch, P.W.D. since about 1962. They hold

diploma in engineering. For Junior Engineers/Overseers the

next post of promotion is the post of Assistant Engineer.

Infact, the Assistant Engineer constitute Punjab Service of

Engineers, Class II (irrigation Branch). The recruitment to

the post of Assistant Engineer is governed by the Punjab

Service of Engineers, Class II, (Irrigation Branch) Rules,

1941.

On August 20, 1957 the Secretary to the Government of

Punjab, P.W.D. (Irrigation Branch) issued a letter

regarding recruitment to PSE Class II. It was stated

therein that in view of large number of temporary engineers

being in employment in irrigation branch due to heavy

expansion of Bhakra Nangal and other projects, the

Government has decided that till further orders no officer

shall be appointed by direct recruitment to P.S.E. Class !l

and henceforth the same shall be filled by promotion from

amongst temporary engineers and section officers and head

draftsman in the ratio mentioned in the letter. Later on

the said percentage was revised in October 1969, May 1972

and February 1974 but it is not necessary to go into those

details. Again by a notification dated April 23, 1992 the

percentage was fixed as under:

"1. Direct recruitment: Temporary Engineers. 55%

II. By promotion

i) from Junior Engineers (Civil) 20% ii) from Junior

Engineer (Mech.) 5% iii) from members of Drawing staff 6%

iv) From A.M.I.E. qualified

Junior Engineers 11% Drawing statf 3 % 14%"

This notification was challenged by those Junior

Engineers who are graduates in engineering by filing writ

petitions in the Punjab & Haryana High Court on the ground

that no promotion can be made of those Junior Engineers who

do not have the requisite educational qualifications

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prescribed by Rule 3 and, therefore, no quota could have

been legally fixed for their promotion. The Division Bench

of the High Court agreeing with the reasoning of the Single

Judge of the High Court in R.C. Tondon vs. State of Punjab

1995 (6) Services Law Reporter 307 held that the Junior

Engineers who do not possess university degree or other

qualifications prescribed in Appendix A to the Rules are not

eligible for promotion under Rule 5 except in cases where

relaxation in that behalf is made by the Government in

exercise of its power under the last proviso to Rule 5 read

with Note 2 to Rule 3 of the Rules. Taking this view the

High Court dismissed both the writ petitions.

Mr. Tulsi, learned Senior counsel appearing for the

appellants submitted that the High Court has not only

over-looked the fact that if Junior Engineers, who do not

possess graduate degree or an equivalent question is held

ineligible for promotion then they will not have even one

chance of promotion thorughout their career but has

also-mis-intorpreted Rule 5. He submitted that the second

proviso to Rule 5 which is in respect of promotion of

temporary engineers, is an independent provision and keeping

the object of the provision in mind it ought to have been

held that for promotion of a temporary engineer to the post

of Assistant Engineer the eligibility criteria is (1) he has

been declared by the Commission on the report of the Chief

Engineer to be fit for the service; (2) has held

anappointment for not less than two years continuously

before the date of entry into the service; (3) is not less

than 26 years or more than 50 years of age on the first day

of June, immediately preceding the date on which taken into

the service and (4) in 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. He also submitted that

third or the last proviso to Rule 5 is again an independent

provision made in respect of Junior Engineers possessing

outstanding merit. He also submitted that it could not have

been intended by the rule making authority that temporary

junior engineers apart from the qualification of a degree in

engineering should satisfy the other conditions also

mentioned in the second proviso to Rule 5. On the other

hand, Mr. P.P. Rao, learned Senior counsel appearing for

the respondents submitted that on correct interpretation of

Rule 5 it should he held that the qualification of a degree

in engineering is a must for an appointment as Assistant

Engineer and unless that condition is relaxed either by

exercising the power available under the third or the last

proviso to Rule 5 or the general power of relaxation under

Rule 19 Junior Engineer, who is a diploma holder, cannot be

promoted to the post of an Assistant Engineer.

The Rules relevant for consideration of the rival

contentions are as under:

"(2) In these rules, unless there is anything

repugnant in the subject or the context -

(a) xxx xxx xxx xxx (b) xxx xxx xxx xxx (C) xxx xxx

xxx xxx (d) xxx xxx xxx xxx (e) xxx xxx xxx xxx

(f) "Temporary Engineer" means an Engineer in the

service of the Public Works Department, Punjab, whose

appointment is temporary within the meaning of the

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Fundamental Rules, is nonpensionable and who is not a member

of any regular service.

(g)"the service" means the Punjab Service of

Engineers. Class II (Irrigation Branch)

(h) "Assistant Engineer" means a member of Punjab

Service of Engineers, Class II (irrigation Branch)

(3) No Person shall be appointed to service unless he

(a) xxx xxx xxx xxx (b) xxx xxx xxx xxx

(C) possesses one of the university degrees or other

qualifications prescribed in Appendix 'A' to these Rules;

(d) xxx xxx xxx xxx

NOTE : Clause ( c ) may be waived in the case of

members of the Oversear Engineering Service, Irrigation

Branch, Punjab to be promoted to the Service, under the

proviso at end of Rule 5 of Part II, appointment rules.

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 Draftsman and Tracers) Service

or temporary engineers taken into the service..

(c) Officers directly appointed by Government

NOTE: xxx xxx xxx xxx

5. Appointment to the Service: Government may make

appointments to the service from the classes mentioned in

rule 4, provided that no person shall be appointed unless

the possesses the qualifications specified in Rule 3, and

provided further, that no temporary Engineer shall be taken

into and no member of the Overseers Engineering Service or

Draftsman 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, and has held an appointment for not less than 2

year" continuously before the date of entry into the

service, and is not less than 26 years or more than 50 years

of ago on the first day of June. immediately preceding the

date on which taken into the service and in 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 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

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the promotion of a member of the overseer Engineering

Service of irrigation Branch, Punjab or Irrigation Branch

(Provincial Draftsmen and Tracers) Service of outstanding

merit, who may not possess the qualifications specified in

rule 3.

NOTE: xxx xxx xxx xxx

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 reading of the above rules discusses that Rule 3

provides for qualification of a candidate, Rule 4 specifies

the feeder category or the source of recruitment and Rule 5

provides tor appointments out of those who are otherwise

eligible for appointment including promotion to the post of

an Assistant Engineer. Rule 3 in categorical terms provides

that no person shall be appointed to the service unless he

possesses one of the university's degrees or relevant

qualification prescribed by the Rules. The only relaxation

contemplated by the Rules in this behalf is to be found in

Note to Rule 3 and the proviso at the end of Rule 5 and that

relaxation is in respect of certain Oversears and Junior

Engineers possessing outstanding merit. Only other rule

left for consideration is Rule 5 and what is required to be

considered is whether Rule 5 dispenses with the requirement

of a degree or an equivalent qualification in the matter of

promotion of temporary junior engineers.

Rule 5 first provides that the Government may make

appointments to the service from the feeder cadre mentioned

in Rule 4. Having thus positively provided generally both

in respect of direct recruitment and promotion or transfer,

it further provides that even out of the persons from those

feeder cadre no person shall be appointed unless he

possesses the qualifications specified in Rule 3 meaning

thereby a degree or an equivalent qual;ification. This

proviso to the general provision making all persons in the

feeder cadre eligible for appointment including promotion

has restricted the power of the Government by confining it

to only those persons who possess the required educational

qualification. Having provided like this it further

provides by slating "and provided further" that no temporary

engineer shall be taken into and no member of the Oversear

Engineering Service or Draftsmen and Tracers Service shall

be permitted to the service unless he satisfies the four

conditions which we have referred to above. It was

submitted by Mr. Tulsi that this proviso is a different

proviso and should not be read as a proviso to the earlier

proviso and has an additional condition of eligibility. On

the other hand, Mr. Rao emphasised the words "and provided

further" and submitted that they clearly indicate the

intention of the rule making authority and leave no doubt

that they are additional conditions of eligibility in

respect of a certain category of persons in Class III

service, namely, temporary engineers and overseers. He also

submitted that in case of direct recruitment there is heavy

competition but in case of promotion it is comparatively

less and it was , therefore, thought fit by the rule making

authority to impose those four additional conditions for

persons like temporary engineers and overseers for their

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promotion. In support of his submissions Mr. Tuisi relied

upon A.S. Parmar vs. State of Haryana 1984 (Supp) SCC 1,

In that case, this Court was called upon to examine Punjab

Service of Engineers, Class I P.W.D. (Buildings and Roads

Branch) Rules, 1960. This Court was also required for the

purpose to consider the Punjab Service of Engineers Class II

P.W.D. (Building and Roads Branch) Rules, 1965. After

taking into consideration Rule 7 of Class II Rules and Rule

6 of Class I Rules this Court observed as under:

"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 clause (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 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 ft is seen that as

regards Class II officers the minimum educational

qualifications which they should possess have been fixed in

the Class II 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 bypromotion from amongst persons which certain

educational qualifications and experience of ten years in

the lower cadre or such other experience as stated in the

Class il Rules. Rule 6 of the Class I Rules treats the

possession of a degree plus the selection at the competitive

examination and the passing of the departmental examination

after appointment as sufficient for getting into the cadre

of Assistant Exacutive Engineers or to the cadre of

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

departmental examinations before promotion of an Assistant

Engineer in the Class II Service as sufficient qualification

for promotion to the cadre of Executive Engineers."

The Court further observed that:

"We are of the view that in the circumstances it could

not have been the intention of the rule making authority

that no person without a degree should be 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 Class I Rules would

have contained 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 insofar as the promotees are concerned as

"no person shall be appointed to the Service unless in the

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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."

Relying upon these observations it was submitted by

Mr. Tulsi that Rule 5 of the Rules with which we are

concerned is substantially the same, that it is similarly

worded except that different categories of persons have been

referred to for appointed in Class I service. Rule 5 of the

Rules with which we are concerned provides for the same

thing by adopting the method of including in a proviso an

independent clause. We do not think that Mr. Tulsi is

right in his submission that Rule 5 is substantially the

same as Rule 6 of Class I rules dealt by this Court in A.S.

Parmar's case (supra). As this Court found that each of

those clauses was dealing with the persons failing under

those clauses independently, in other words each clause was

dealing with a specific class, they deserved to be

considered as independent clauses. The appellants in that

case were the members of Haryana Public Works. Department.

It was under those circumstances that this Court held in

that case that the High Court was not right in holding that

degree is a pre-requisite for being promoted to class III,

class II and class I service.

Mr. Tulsi next relied upon T.R.Kapur vs. State of

Haryana 1986 (Supp) SCC 584. In that case the petitioners

were diploma holders in engineering who were in due course

promoted to Class II service. The question which had arisen

in that case was whether such diploma holders in Class II

service could be promoted to Class I service in the absence

of a university degree. This Court after referring to its

earlier decision in A.S.Parmar's case (supra) observed as

under:

"One should have thought that the controversy whether

a degree in Engineering was an essential qualification for

promotion of Sub-Divisional Officers in Class II Service to

the post of Executive Engineer in Class I service under Rule

6(b) of the Class I Rules had ended with the decision of

this Court in A. S. Parmar case. Curiously enough,

learned counsel for the respondents strenuously contends

that the decision of this Court in A.S. Parmar case was

incorrect. He presses into service for our acceptanes the

decision of the High Court in O.P. Bhatia v. State of

Punjab taking a view to the contrary. It is urged that in

the erstwhile State of Punjab 3 degree in Engineering was

essential for recruitmant of Assistant Engineers in Class II

service under Rule 3(c) of the 1941 Rules as held by the

High Court in O.P. Bhatia case and that view was in

consonance with the departmental instructions of the

relevant rules in the State of Punjab and the State of

Hsryana as also in the erstwhile State of Punjab that Rule

6(b) required the promotees to have the essential

qualification of a degree in Engineering. We do not think

that it is open to question the correctness of the decision

in A.S. Parmar case which . expressly overrules the view

taken by the High Court in O.P. Bhatia case. That apart,

the proviso to Rule 5 of the 1942 Rules conferred power on

the State Government to relax the requirement of Rule 3(c)

on the recommendation of the Chief Engineer in order to

admit the promotion of a member of the Overseers Engineering

Service (Irrigation Branch), Punjab if he was an officer of

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outstanding merit although he did not possess the

qualification prescribed in Rule 3(c) i.e. the educational

qualification of a degree in Engineering. The requirement

of a degree in Engineering for recruitment to the Class II

service was done away with in the 1370 Rules. Tho

contention also fails to take note of the fact that the

requirement of a degree in Engineering which was an

essential educational qualification for purposes of direct

recruitment of Assistant Executive Engineers in Class I

service under Rule 6(a) of the Class I Rules could not be

projected for promotion of Sub-Divisional Officers belonging

to Class II service to the posts of Executive Engineers in

Class I service under Rule 6(b) as they form two distinct

sources from which the appointments to the posts of

Executive Engineers could be made. As laid down in

A.S.Parmar case, what was of the essence for purpose of

promotion of Sub-Divisional Officers who were members of

Class II service to the post of Executive Engineer underrule

6(b) Class I Rules was not a degree in Engineering but 8

years' experience in that class of service i.e. Class II

service."

Both the aforesaid decisions were not directly

concerned with the Rules with which we are concerned in

these appeals. Rule 5, as it is worded, leaves no doubt

that the rule making author intended by enacting the second

proviso that a temporary engineer/oversear referred to

therein should also satisfy other conditions before he can

be promoted to Class II service. If the intention of the

rule making authority was to do away with the requirement of

degree qualification then it was not at all necessary to

incorporate the last proviso in Rule 5. The second proviso

also deals with a member of the Oversears Engineering

Service or Draftsmen Service and the last proviso also deals

with promotion of a member of the Oversear Engineering

Service of irrigation Branch, Punjab or Irrigation Branch

(Provincial Draftsmen and Tracers) Service. If a member of

such a service without being a graduate was to be treated as

eligible for promotion as an Assistant Engineer then it is

difficult to appreciate how it became necessary to provide

for relaxation of educational qualification in his favour

again by enacting a separate proviso. Therefore, if we

interpret second proviso to Rule 5 as suggested by Mr.

Tulsi that would render the last proviso to Rule 5 otiose.

The test proviso could not have been intended to enable the

Government to relax the other conditions mentioned in the

second proviso in case of class of persons referred to in

the last proviso. Outstanding merit of a membar of the

Oversears Engneering Service or Draftsmen and Tracers

service obviously could not have been ascertained unless he

had completed at least his two years ccnt*riuous service.

Similarly a person having outstanding merit could have been

easily dedared by the Commission on the report of the Chief

Engineer to be fit for service and, therefore, there was

hardly any point in making a special provision for

relaxation of such conditions. It is also not possible to

believe that the said proviso was enacted for dispensing

with the requirement of age. It would not have been

difficult for a person having outstanding merit to have

passed a departmental test and, therefore, it is. not

possible to believe that the last proviso was enacted with a

view to dispense with the requirement of that condition.

Moreover if only the conditions specified in the second

proviso were intended to be relaxed then the last proviso

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would have been worded in a different manner. The important

words in this context in the last proviso are "this Rule may

be relaxed". The Rule which is obviously referred to is the

Rule .that no person shall be appointed unless he possesses

the qualification specified in Rules. The Note to Rule 3

also specifically refers to the last proviso of Rule 5 and

that is also indicative of the fact that educational

qualification is to be relaxed only in respect of persons

specified in the last proviso if they are of outstanding

merit.

In our opinion the High Court was right in holding

that a temporary Junior Engineer who does not possess a

degree qualification is not eligible for promotion to the

post of Assistant Engineer and, therefore, the impugned

notification fixing quote for promotion was bad to that

extent. These appeals are, therefore, dismissed with no

order as to costs.