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PETITIONER: D.K. SAHNI

       Vs.

RESPONDENT: MANAGING DIRECTOR, MANGANESE ORE INDIA LTD.AND ORS.

DATE OF JUDGMENT12/08/1992

BENCH: AHMADI, A.M. (J) BENCH: AHMADI, A.M. (J) REDDY, K. JAYACHANDRA (J)

CITATION:  1993 AIR  258            1992 SCR  (3) 800  1992 SCC  (4) 201        JT 1992 (4)   509  1992 SCALE  (2)186

ACT:      Manganese Ore (India) Recruitment and Promotion  Rules, 1977:      Rules 4 and 7-Mining Engineering Cadre-Promotion to the post   of   Chief  Mining   Engineer-Eligibility   criteria- Qualifications prescribed for direct recruitment applicable, failing   which  double  the  experience  specified  to   be fulfilled-Chief   Mining   Engineer   not   satisfying   the requirement  prior  to promotion,but  becoming  eligible  on modification  of  the relevant entry  in  the  Rules-Whether should  be  reverted-Whether should seek re-entry  into  the cadre of Chief Engineer on the acquisition of eligibility on modification of the relevant entry in the Rules.

HEADNOTE:      The appellant joined the respondent-company in 1966  as Assistant  Mining Manager and rose to the position of  Chief Mining  Engineer  in 1980.  Subsequently,  pursuant  to  the selection  made  by the  Departmental  Promotion  Committee, after interviewing the Chief Mining Engineers, the appellant who  ranked  fifth  in seniority,  was  promoted  as  Deputy General Manager, in preference to his seniors.      The superseded officers represented to the  authorities that  since  the  appellant did not  possess  the  requisite educational  qualifications  prescribed for  appointment  as Chief  Mining Engineer he could not be promoted to the  next higher  post of Deputy General Manager.  The  representation was  rejected on the ground that the post of Deputy  General Manager,  being  an  ex-cadre  post,  the  question  of  the appellant  possessing the requisite qualifications  did  not arise.   Thereupon, one of the superseded officers  filed  a writ   petition  before  the  High  Court  challenging   the appellant’s appointment.      During the pendency of the petition the company decided to restructure the Personnel and Technical Department and on the  basis  of the recommendations of a  sub-committee,  the appellant was appointed as                                                   801 General Manager (T).      Thereafter,  the High Court allowed the  Writ  Petition filed  by  one  of the superseded  Chief  Mining  Engineers,

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holding  that  the  post  of Chief  Mining  Engineer  was  a promotional post and since the appellant did not possess the educational qualifications prescribed for the post of  Chief Mining Engineer, his entry into that cadre was not legal and consequently,  his further promotion to the post  of  Deputy General  Manager  and  later as  General  Manager  (T)  were legally   unsustainable.    Accordingly,  it   quashed   the appointment  of the appellant as Deputy General Manager  and also  General  Manager (T) and directed the  authorities  to pursue  a fresh process of selection in accordance with  the rules framed on 6/12th October, 1983.      In  the  appeal  before this Court  on  behalf  of  the appellant  it  was  contended  that  under  Rule  7  of  the Recruitment and Promotion Rules, 1977 it had been made clear that  the  educational qualification would not  be  insisted upon in deciding the promotion of a departmental  candidate, that  according  to the said rule, the  appellant  was  only required  to show that he had the requisite  experience  for entry  by  promotion into the higher post, and so  when  the appellant  was  promoted  as Chief Mining  Engineer  he  was merely  required to possess the requisite qualification  for qualified  candidates and nothing more and,  similarly,  for entry  to  the cadre of Deputy General Manager also  he  had merely  to  show  that  he  had  satisfied  the   experience criterion  and was not required to show that   he  possessed the   educational   qualification  prescribed   for   direct recruitment,  that  by subsequent office orders  dated  22nd January 1982 and 1/12th October, 1983 certain  modifications were  made in the Annexure to the Recruitment and  Promotion Rules, 1977 pertaining to the qualifications and  experience in   respect   of  the  posts  of  Chief   Mining   Engineer (Production/Planning)  and Deputy General Manager (T),  that once the appellant was shown to possess the first class Mine Manager’s  Certificate and the prescribed experience he  was eligible  to be considered for promotion as  Deputy  General Manager regardless of whether or not he held the position of Chief  Mining  Engineer and that in any case  the  appellant could  not  be asked to revert since he had  held  the  post since quite some time, that since the appellant had  secured the First Class Mine Manager’s Certificate, he possessed the requisite  educational qualification and, therefore, it  was not  necessary  for  him to possess  double  the  experience prescribed for those                                                   802 without the required educational qualification; that even if it  was assumed that the appellant was not qualified  to  be promoted to the post of the Chief Mining Engineer in  April, 1980, he, at any rate, became eligible for promotion on  the modification  of  the relevant entry in  the  Annexure  with effect from 17th October, 1981 and even if his promotion was regularised  or  deemed  to have  been  regularised  by  the company from the said date, he was entitled to be considered for further promotion in the cadre of Deputy General Manager and later General Manager (TO) of the company.      While supporting the appellant’s contentions, on behalf of  the management it was submitted that under Rules  7  (c) and  (d),  the power to relax the minimum experience  or  to resort to direct recruitment was reserved to the  management and hence if the experience requirement fell short, it  must be  deemed to have been relaxed, and that it always  treated the  appellant as eligible for being promoted to the  higher posts of Deputy General Manager and General Manager (T).      On  behalf of the superseded officers it was  contended that the appellant   did not answer the requirement of  both the educational qualification and experience to be  promoted

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as  Chief Mining Engineer as well as Deputy General  Manager and later General Manager (T) and hence he was a usurper and was  not entitled to the protection of this Court, and  that once the Court held that the initial entry of the  candidate was in violation of the promotional criteria, his entry must be treated as void and unless the DPC reconsidered his  case for promotion along with others his entry in the cadre could not  be regularised on a deeming fiction; that no such  case was put up before the High Court and, therefore, this Court should  not  permit it to be placed for the  first  time  in proceedings  under Article 136 of the Constitution and  that Article 136 jurisdiction must be exercised sparingly.      Disposing of the appeals, this Court,      HELD : 1.1 Under the rule position as it existed at the date  of  the  appellant’s promotion to the  post  of  Chief Mining Engineer, i.e. on 19/21st April, 1980, the  appellant was  not  eligible  for  appointment to  the  said  post  by promotion.   However,  on the change brought  about  in  the relevant  entry  by  the order of 22nd  January,  1982  with effect  from  17th  October,  1981,  the  appellant   became eligible  for  promotion and even if his  placement  in  the cadre of Chief Engineer is reckoned from that date he was                                                   803 clearly eligible for upward promotion. [815 E]      1.2  The appellant’s promotion made under the order  of 19th  April,  1980 was sought to be undone  only  after  his promotion  to  the  higher  post.   There  is  no  charm  in directing the reversion of the appellant for a short  period from 21st April, 1980 to 16th October, 1981 when it is found that under the revised or modified criteria he was  eligible for  appointment as Chief Mining Engineer on  17th  October, 1981.   He  was placed junior to others and even  if  he  is considered as promoted with effect from 17th October,  1981, he  would continue to rank junior.  He was selected for  the higher  post  on  merit  though he  was  junior  to  others. Therefore, it is not a case where he had received  weightage because  he was shown senior when the DPC selected  him  for the  higher post.  He has served  on the promotion  post  of Deputy  General  Manager  (T)  since  July,  1983.   In  the circumstances, it would be harsh and shocking to revert  him after so many years only on the ground that he must seek re- entry in the cadre of Chief Mining Engineer with effect from 17th  October,  1981, when he acquired  eligibility  on  the modification  of the relevant entry in the annexure  to  the Rules.                                              [816A-D]      2.1   Schedule  I  appended  to  the  Recruitment   and Promotion  Rules,  1977 of the Manganese  Ore  (India)  Ltd. indicates  the posts in the Mining Engineering Cadre of  the company  carrying a scale of pay of Rs. 500-800  and  above. The  post of Chief Mining Engineer in the pay scale  of  Rs. 1800-2500  is  a cent per cent promotion post and is  to  be filled in by selection.  The educational qualifications  and experience  set  out in Column7, which is meant  for  direct recruitment  are (1) degree or equivalent diploma in  Mining from  a  recognised University or Institute, (2)  Ist  Class Mine Manager’s Certificate of competency under Metalliferous Mines Regulations, and (3) at least 15 year’s experience  of which  7 years in a responsible position in  an  underground Mine  such as Senior Mining Engineer or Deputy Planning  and Design Engineer.  In Column 8 meant for indicating the grade from  which  promotion  will be made it  is  stated  "Senior Mining Engineer."  Thus, a Senior Mining Engineer or a  Mine Engineer could be promoted as Chief Mining Engineer.  [811D, F-H, 812A]

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    2.2 The qualification and experience set out in  Column 7  being for direct recruitment would not ordinarily,  apply where  the  post  is required to be filled by  promotion  by selection.  Rule 7 makes this position clear.  It                                                   804 in  no uncertain terms says that educational  qualifications should  not be insisted upon in deciding the promotion of  a departmental  candidate  provided  he  possesses  twice  the experience stipulated for a qualified candidate. [812B]      2.3  On  a plain reading of Rule 7  with  the  instance quoted therein it is clear that if a Senior Mining  Engineer or  a  Mine  Managers  does  not  possess  the   educational qualifications set out in Column 7 for direct recruitment as Chief  Mining Engineer, he must have double  the  experience requirement  set  out  in that column  to  be  eligible  for promotion  to  the higher post.  In other  words,  going  by direction in Rule 7, a Senior Mining Engineer/Mine  Manager, who does not possess the educational qualification for entry into  the Chief Mining Engineer’s Cadre, must show  that  he possessed  experience  of thirty years  in  the  department. [812F-G]      2.4  Indisputably,  the appellant who  had  joined  the service in 1966 had not put in thirty years of service  when he was promoted as Chief Mining Engineer.  However,  certain modification  were  made  in the Annexure  attached  to  the Recruitment  and  Promotion  Rules, with  effect  from  17th October,  1981 vide office order of 22.1.1982. Column  8  of the modified entry reads as Senior Mining Engineer with  (a) Degree  in  Mining of a recognised  University/Institute  or equivalent,  (b)  Ist Class Mine  Manager’s  Certificate  of competency  under Metalliferous Mines Regulations  (UR)  and (c)  3  years service in company in the scale of  Rs.  1500- 2000.   Thus,  under  the  modified  entry  the  eligibility criteria  for direct recruits remains the same except for  a slight  change  in  the  experience  criterion,  viz.,   the requirement  of  experience  of 7  years  in  a  responsible position  in  an underground mine has been  dispensed  with. The  significant change, however, brought about in Column  8 is  to state the educational/experience  qualifications  for promotion   separately.    The  experience   criterion   for promotion under the modified entry is reduced to three years service  in  the company in a post carrying a scale  of  Rs. 1500-2000.   Therefore,  under the revised  entry  a  Senior Mining Engineer possessing the educational qualification  at (a)  and  (b) and experience of three years service  in  the company  on a post carrying a scale of Rs. 1500-2000  became eligible for promotion to the post of Chief Mining Engineer. Under  Rule 7 (a) of the Recruitment and Promotion  Rules  a Senior  Mining Engineer who does not possess  the  requisite educational    qualification,but   possesses   double    the prescribed experience, i.e. experience of six years  service in the company                                                   805 on  a post carrying a pay scale of Rs. 1500-2000,  would  be eligible for promotion to the post of Chief Mining Engineer. [812G, 814D-H,815A-B]      Narender Chadha & Ors. v. Union of India & Ors., [1986] 2  SCC 157 and Ujagar Singh & Anr. etc.etc. v. State  (Delhi Administration) etc. etc., [1979] 4 SCC 530, referred to.

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.  2933- 34 and 2942-43 of 1992.

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    From the Judgment and Order dated 18.7.89 & 30.1.90  of the  Bombay High Court in W.P.No. 2681/84 & C.A.No. 2259  of 1989.      K.K.  Venugopal,  Ashok H Desai, V.A.  Bobde  and  R.K. Jain,  P. Sreedhran Nair, T.G.N. Nair, S Sukumaran and  P.N. Misra for the appearing parties.      The Judgment of the Court was delivered by      AHMADI, J. Special leave in all the matters granted.      The appellant, D.K. Sahni, began his service career  in 1966  as  an  Assistant  Mining Engineer  and  rose  to  the position  of Chief Mining Engineer on his promotion to  that post in 1980.  The Board of Directors of the Company at  its 143rd meeting on 22nd March, 1983 resolved to upgrade  three posts  of  Chief  Mining Engineers to the  level  of  Deputy General  Managers.  At that point of time amongst the  Chief Mining Engineers of the Company, the appellant in the  order of  seniority  ranked after (1) A.H.  Dharmadhikari  (2)  S. Kumar  (3) G.N. Misra and (4) T.N. Prasad.  A  high  powered Departmental  Promotion  Committee (DPC)  was  appointed  to select  candidates from amongst Chief Mining  Engineers  for placement in the upgraded posts of Deputy General  Managers. This   Committee   interviewed  candidates  and   made   its selection. Meanwhile A.H. Dharmadhikari was promoted to  the post of Deputy General Manager in the vacancy arising on the demise  of K.V.P. Singh.  Pursuant to the selection made  by the  DPC the appellant was promoted and appointed as  Deputy General  Manager in preference to his seniors.  S.Kumar  and others,  therefore, filed a Writ Petition No. 2533  of  1983 challenging  the appointment of the appellant.  However,  in the  meantime S.Kumar was promoted in due course  as  Deputy General  Manager  whereupon he withdrew the  Writ  Petition. The other two, G.N. Misra and T.N. Prasad represented to the                                                   806 Board  pointing out that the appellant did not  possess  the requisite educational qualification for appointment as Chief Mining Engineer and consequently he could not be promoted to the  next  higher  post of  Deputy  General  Manager.   That representation  was rejected on the ground that the post  of the  Deputy  General  Manager being an  ex-cadre  post,  the question   of   the  appellant  possessing   the   requisite educational  qualification  did not arise.   Thereupon  G.N. Misra  filed  another Writ Petition No. 2681 of  1984  under Article 226 of the Constitution challenging the  appellant’s appointment.   In that petition although the  appellant  was impleaded  as  a  co-respondent  along  with  the   Managing Director  and Chairman of the company he did not  choose  to enter  an  appearance, presumably because  the  company  was expected  to  defend its action.  Pending  the  hearing  and disposal of the petition the company decided to  restructure the Personal & Technical department of the company.  A  sub- committee was entrusted the task to undertake this  exercise and  select  candidates  from amongst the  officers  of  the company  to  occupy  higher  posts  that  may  be   created. Accordingly one Pillai was appointed as General Manager  (P) while  the appellant was selected and appointed  as  General Manager  (T).   The  Writ  Petition No.  2681  of  1984  was allowed by a Division Bench of the High Court on 18th  July, 1989.      The High Court in its impugned judgment points out that the  post of the Chief Mining Engineer was a promotion  post to  be  filled  in by selection.   The  minimum  educational qualification  for entry into the said promotional post  was (i)  a  degree  or  equivalent  diploma  in  mining  from  a recognised university or institute and (ii) First Class Mine Manager’s  certificate  of  competency  under  Metalliferous

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Mines  Regulations.  In addition the candidate was  required to  have at least 15 years experience of which 7 years in  a responsible  position  in an underground  mine  e.g.  Senior Mining   Engineer,  Deputy  Production  Manager  of   Deputy Planning and Designing Engineer.  The High Court found  that the appellant possessed the required certificate as well  as experience but did not possess the educational qualification for  entry  into  the  promotional  cadre  of  Chief  Mining Engineers.    The  High  Court  rejected  the   management’s contention that the appellant was qualified to be  appointed the Deputy General Manager because the only requirement  for that  post  was  three  years  experience  as  Chief  Mining Engineer  which  the appellant undoubtedly  possessed.   The High court held:          "If person to be considered held a particular post,          his entit                                                   807          lement  to  hold that post would also  have  to  be          considered  if holding that post made him  eligible          for being considered to the promotional post of the          Deputy General Manager."      The   High  Court,  therefore,  held  that  since   the appellant  did  not possess  the  educational  qualification prescribed  for the post of Chief Mining Engineer his  entry into  that cadre was not legal and consequently his  further promotions  to the post of Deputy General Manager and  later General  Manager  (T) were legally unsustainable.  The  High Court  also  brushed  aside the submission  that  since  the appellant’s  appointment as Chief Mining Engineer had  never been  challenged during the entire tenure in that office  it should  not  be  permitted to  be  challenged  belatedly  by pointing out that in the cadre of Chief Mining Engineers the appellant  was  junior  to Mr.  G.N.Misra  and  others  and, therefore,  there  was  no need for them  to  challenge  his appointment as such but now that their seniority and  career advancement  stand jeopardised, they have a cause of  action and are, therefore, entitled to challenge the same.   Lastly the High Court held that since the appellant did not hold  a diploma  in  Mining with a pass which was  equivalent  to  a degree as per Schedule I he was not eligible for the post of Chief Mining Engineer and hence the exemption stated to have been granted by the Institute of Engineers (India) is of  no consequence what so ever. On this line of reasoning the High Court allowed the Writ Petition and quashed the  appointment of  the  appellant before us as Deputy General  Manager  and General Manager (T) and directed the authorities to pursue a fresh  process  of selection in accordance  with  the  rules framed on 6/12th October, 1983.  The rule was made  absolute accordingly.      When  the  appellant before us learnt  of  the  adverse order against him, he filed a Civil Application No. 2259  of 1989 in the said proceedings praying for a re-hearing on the ground  that he had not been served with the notice  of  the Writ  Petition and, therefore, had no opportunity to  defend himself.    The  notice  of  the  Writ  Petition  had   been admittedly  served  on the Despatch Clerk in the  Office  of Manganese Ore (India) Ltd.  The appellant contended (i)  the said Despatch Clerk had no authority to accept the notice on his behalf and (ii) he had in any case failed to forward  it to  him.   The High Court rejected this stand taken  by  the present  appellant and held that the appellant was aware  of the  service of the notice to the Despatch Clerk and was  in full  know of the pendency of the Writ Petition and  had  in fact spoken about it to his colleagues.  We have perused the order of the

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                                                 808 High  Court on the said application and we are  in  complete agreement  with the High Court on the view it had taken  and the consequential order it passed rejecting the application. It  is unfortunate that the present appellant  made  certain inaccurate  and  untenable averments in the  application  to secure a rehearing.      Mr.  K.K. Venugopal, while assailing the  High  Court’s order dated 18th July, 1989, submitted that under Rule 7  of the Recruitment and Promotion Rules, 1977, it is made  clear that  the educational qualifications shall not  be  insisted upon  in deciding the promotion of a departmental  candidate if  he  possesses  twice the  experience  stipulated  for  a qualified  candidate.  According to the said  rule,  counsel submitted,  all that the appellant was required to show  was that he had the requisite experience for entry by  promotion into the higher post.  So when the appellant was promoted as Chief  Mining Engineer, he had merely to possess ‘twice  the experience stipulated for a qualified candidate’ and nothing more.  Similarly for entry into the cadre of Deputy  General Manager  also  he had merely to show that he  satisfied  the experience  criterion and was not required to show  that  he possessed  the  educational  qualification  prescribed   for direct recruits.  These rules were brought into force w.e.f. 5th June, 1978.  In the alternative he invited our attention to a letter dated 26/27 November, 1976 of the Institution of Engineers  (India), Calcutta, wherein it is stated that  the Council of the Institution had decided that persons who have passed  First Class Mine Manager’s  Certificate  Examination and  possess atleast five years experience in  a responsible position  as  an  Engineer  after  passing  the  certificate examination  shall  be eligible to apply  for  admission  to corporate Membership of the Institution.  It further  states that after assessment of the qualification and experience of Shri D.K. Sahni (the appellant before us) by the Equivalence Committee  of  the Institution, Shri Sahni  was  elected  as Associate   Member  of  the  Institution  by  granting   him exemption  from passing Sections A and B examinations  which was  otherwise  essential to secure  such  membership.   The letter  then  states  that  passing  of  Sections  A  and  B examinations of the Institution in any branch of engineering is recognised by the Govt. of India as equivalent to passing a  degree examination in engineering in that branch for  the purposes  of  recruitment to superior  posts  and  services. This  letter  which  was received  by  the  Chief  Personnel Manager of the Company was forwarded to the appellant by the letter  dated  6/7th December, 1976.  While  forwarding  the same Shri A.P. Pillai stated:                                                  809          "In view of what has been stated in this letter, we          shall be treating your certificate as equivalent to          degree."      and   advised   the  appellant  to  submit   a   formal application  to the Ministry of Education, Govt.  of  India, New  Delhi,  requesting to extend recognition  to  the  said equivalence.   The Ministry of Education and Social  Welfare by  their communication No. F.RED.O.-  11023/4/77/7-7  dated 9th  June,  1977 clarified that equivalence was  granted  to only  those  who  had  actually  passed  Sections  A  and  B examination and not to those who had secured the Association Membership  by  securing  exemption from  passing  the  said examination.   But  by a subsequent office  order  No.  6(1) dated 22nd January, 1982 the Board of Directors made certain modifications  in  the  Annexure  to  the  Recruitment   and Promotion   Rules  pertaining  to   qualification/experience

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prescribed for various posts in Mining and Geological cadres which  were  brought  into force from  17th  October,  1981. According  to the said order the qualification for the  post of Chief Mining Engineer (Production/Planning) was  modified to  include  First  Class  Mine  Manager’s  certificate   as sufficient  educational  qualification  and  the  experience requirement  was  specified as three years  service  in  the company in the scale of Rs. 1500-2000.  By a further  Office Order  No.20/OFFR/CPM/83-84 dated 1/12th October,  1983  the Board  of Directors approved  the  qualifications/experience for  the post of Deputy General Manager (T) as  annexure  to the  Recruitment  and Promotion Rules of the  company.   The minimum educational qualification and experience  prescribed hereunder   is  (i)  Degree/equivalent  Diploma  in   Mining Discipline from a recognised Institute/University (ii) First Class   Mine  Manager’s  certificate  of  competence   under M.M.R.(U/R)  and (iii) 18 years experience.  Mr.  Venugopal, therefore,  submitted that once the appellant was  shown  to possess the certificate and the prescribed experience he was eligible  to be considered for promotion as  Deputy  General Manager regardless of whether or not he held the position of a  Chief Mining Engineer.  Lastly he submitted that  in  any case  the appellant cannot be asked to revert since  he  had held the post since quite some time now.  In support of this contention  he invited our attention to the  observation  in paragraph  26 of the decision in Narender Chadha &  Ors.  v. Union  of  India  & Ors., [1986] 2 SCC 157  which  reads  as under:          "We  are  informed that some of the  promotees  and          direct  recruits who are governed by this  decision          have  been  promoted  to higher grades.   If  as  a          result of the preparation of the seniority                                                   810          list in accordance with the decision and the review          of the promotions made to higher grades any of them          is likely to be reverted such officer shall not  be          reverted.  He shall be continued in the higher post          which he is now holding by creating a supernumerary          post, if necessary to accommodate him.  His further          promotion shall however be given to him when it  be          comes  due  as  per the new seniority  list  to  be          prepared pursuant to this decision."      Mr. Ashok Desai for the management generally  supported the  sub-missions of Mr. Venugopal and said that under  Rule 7(c) and (d) the power to relax the minimum experience or to resort to direct recruitment was reserved to the  management and hence if the experience requirement falls short it  must be deemed to have been relaxed.      Mr. R.K. Jain, the learned counsel for respondents Nos. 3  and 4 i.e. G.N. Misra and A.H.  Dharmadhikari,  submitted that  this  was not a fit case for exercise of  power  under Article  136  of the Constitution and in any case  the  High Court had, in the facts and circumstances of the case, taken a  correct  view on a proper appreciation  of  the  relevant rules and hence no interference was called for.  In  support of this contention he placed reliance on the observations of this  Court  in  Ujagar Singh & Anr. etc  v.  State   (Delhi Administration), etc. etc., (1979] 4 SCC 530 which run thus:          "It   is  time  that  it  was  realised  that   the          jurisdiction  of this Court to grant special  leave          to  appeal  can  be  invoked  in  very  exceptional          circumstances.  A question of law of general public          importance   or   a  decision  which   shocks   the          conscience  of  the  Court are some  of  the  prime          requisites for the grant of special leave."

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    On the merits of the case he supported the view of  the High  Court and submitted that the appellant did not  answer the  requirement of both the educational  qualification  and experience  to be promoted as Chief Mining Engineer as  well as Deputy General Manager and later General Manager (T)  and hence  he was a usurper and was, therefore, not entitled  to the   protection  of  this  Court.   Mr.  Jain,   therefore, submitted that there is no merit in the present  proceedings and the same deserves to the dismissed with costs.                                                        811      From  the narration of the facts it becomes clear  that the appellant joined service as an Assistant Mining Engineer in  1966 and was appointed Mine Manager in 1970.   A  decade later  on 21st April, 1980 he was promoted as  Chief  Mining Engineer.   The  Recruitment and Promotion Rules,  1977  had come  into  force with effect from 1978.  These  rules  were made applicable to all posts in the company except those  to be  filled  in  by  the Central  Government.   The  mode  of recruitment  provided in Rule 4 was (a)  direct  recruitment from (i) open market (ii) from amongst persons in the employ of  the  Central/State  Governments,  Government  Industrial undertakings,  local  and other authorities and  (iii)  from deputationists   serving  the  company  (b)   promotion   of employees at the Head Office/Projects of the company and (c) by  borrowing from pool officers from the CSIR and  Ministry of Labour and Employment.  Rule 5 provides the procedure for direct recruitment and Rule 6 provides the procedure to fill in  the  vacancy by deputation/appointment of  employees  of government  and  public sector undertakings.  Rule  7  deals with  the  mode  of appointment by  promotion.   Schedule  I appended  to  the Rules indicates the posts  in  the  Mining Engineering cadre of the company carrying a scale of pay  of Rs.500-800  and above.  Against each post shown in column  2 the  method of recruitment is indicated in column 4.   Where the recruitment is by direct selection as well as promotion, the  percentages have been indicated therein, the  criterion is set out in the next column 5 and the age limit is  stated in  column  6.  Then comes column  7  which  prescribes  the ‘minimum  educational qualification and experience  required for direct recruitment’.  Column 8 indicates the grades from which  promotion  will be made.  Column 9 provides  for  the composition of the D.P.C.  The post of Chief Mining Engineer is shown at serial No. 4 in the pay-scale of Rs.  1800-2250. It  is a cent percent promotion post and is to be filled  in by selection.  The educational qualifications and experience set out in column 7 which is meant for direct recruitment is as under:          "1.  Degree or equivalent Diploma in Mining from  a          recognised University or Institute.          2.   1st  Class  Mine  Manager’s   Certificate   of          Competency under Metalliferous Mines Regulations.          3. Atleast 15 years experience of which 7 years  in          a responsible position in an Underground Mine  such          as Sr. Mining Engineer                                                        812          or Deputy Planning and Design Engineer."      In  column 8 meant for indicating the grade from  which promotion   will   be  made  it  is   stated   "Sr.   Mining Engineer/Mine Manager".  It will thus be seen that a  Senior Mining Engineer or a Mine Manager could be promoted as Chief Mining  Engineer.  The qualification and experience set  out in  column   7  being  for  direct  recruitment  would   not ordinarily apply where the post is required to be filled  by promotion by selection.  Rule 7 of the 1977 Rules makes  the position  clear. It in no uncertain terms says  ‘educational

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qualifications  shall not be insisted upon in  deciding  the promotion  of  a department candidate  provided  he  possess twice the experience stipulated for a qualified  candidate.’ And illustration is then provided as under:          "For instance an Office Superintendent who is not a          graduate   nor  he  has  a  diploma  in   Personnel          Management  shall  be considered for  promotion  as          Asstt.  Personnel Officer only if he has worked for          6 years as Office Superintendent."      In  Schedule  I  appended  to the  Rules  the  post  of Assistant  Personnel Officer is shown at serial  No.18.   In column  7 the educational qualification set out is a  degree of  a  recognised  university or a diploma  in  one  of  the disciplines  indicated  therein.  So far as  the  experience criterion is concerned it is stated as three years.  Now  an office  Superintendent who does not possess the  educational qualification  of a degree or diploma must have atleast  six years  experience  to  qualify for  promotion  as  Assistant Personnel  Officer.  This much seems to be clear on a  plain reading  of  Rule  7  with  the  instance  quoted   therein. Therefore,  if  a Senior Mining Engineer or a  Mine  Manager does  not possess the educational qualifications set out  in column 7 for direct recruitment as Chief Mining Engineer, he must have double the experience requirement set out in  that column to be eligible for promotion to the higher post.   In other  words going by the illustration in Rule  7  extracted earlier  a Senior Mining Engineer/Mine Manager who does  not possess  the  educational qualification for entry  into  the Chief  Mining Engineer’s cadre must show that  he  possessed experience of thirty years in the department.   Indisputably the appellant who had joined service in 1966 had not put  in thirty years of service when he was promoted as Chief Mining Engineer in 1980.      Realising  this difficulty Mr. Venugopal fell  back  on Rule 7(c) which                                                        813 reads as under:          "No  employee shall ordinarily be promoted  from  a          lower  post to higher post unless he has served  in          the  lower post for minimum period of three  years.          The  appropriate Departmental Promotion  Committee,          may,  however, in special cases and for reasons  to          be recorded in writing, reduce the period of  three          years mentioned above."      In our view this rule has no application.  It lays down a  rule  of  general application that  an  employee  seeking promotion  to  the next higher grade must  have  served  for atleast  three  years at the lower level unless  the  D.P.C. reduces the  said period.  This sub-rule has to be  read  in conjunction with sub-rule (a) of Rule 7.  Read together they convey that ordinarily employees who have not served in  the lower  level for atleast three years will not be  considered for promotion to the higher level unless the D.P.C.  reduces the  requirement.   This  rule applies  to  cases  where  no experience   criterion  is  prescribed  or   the   criterion prescribed is for less than three years but cannot apply  to cases  where the criterion prescribed is higher.  Much  less would it apply to cases covered by sub-rule (a) which  deals with specific cases where the incumbent does not possess the prescribed qualifications.  Where educational  qualification is  to  be  waived altogether, Rule 7(a)  expects  that  the incumbent  must possess twice the experience  prescibed  for those   with   the   required   educational   qualification. Therefore, reliance on Rule 7(c) is of no avail.      It was, however, submitted that since the appellant had

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secured  the  First  Class Mine  Manager’s  Certificate,  he possessed  the  requisite  educational  qualification   and, therefore,  it  was  not necessary  to  possess  double  the experience   prescribed  for  those  without  the   required educational  qualification.   We have  already  pointed  out earlier  that  by the letter of 26/27th November,  1976  the Institution of Engineers (India) Calcutta had conveyed  that persons possessing such a certificate and having five  years experience  in a responsible position as an  engineer  after acquiring  the certificate shall be eligible for  admissions to Membership of the Institution.  The Equivalence Committee of  the Institution had after evaluating  the  qualification and  experience of the appellant admitted him  as  Associate Member   after  exempting  him  from  passing  the  A  &   B examinations.  True it is that on receipt of the said letter it was communicated to the appellant                                                        814 that  his  certificate will be treated as  equivalent  to  a degree.   But at the same time the appellant was advised  to obtain  a  formal clearance from the Ministry  of  Education extending    recognition    to   the    said    equivalence. Unfortunately for the appellant the Ministry clarified  that equivalence  could be granted only to those who had  secured the certificate after passing the A & B examinations and not if   exempted  from  passing  the  same.    Therefore,   the recognition  for equivalence proposed to be granted  by  the company  could  not  ultimately be  granted.   The  Tribunal rightly points out that ‘the equivalence which was good  for the purpose of Institution of Engineers (India) was not  one which  was recognised by the Central Government’  and  hence the  appellant could not be said to be possessing a  Diploma equivalent   to   a  degree  to   answer   the   educational qualifications  prescribed by the Rules.  This  approach  of the Tribunal is, therefore, unassailable.      We  may  now turn to office order No. 6(1)  dated  22nd January,  1982  whereby  the  Board  of  Directors  approved certain  modifications  in  the  Annexure  attached  to  the Recruitment  and Promotion Rules.  These changes  were  made effective from 17th October, 1981.  Column 8 of the modified entry reads as under:          "Sr. Mining Engineer with          (a)    Degree   in   Mining   of    a    recognised          University/Institute or equivalent.          (b)   Ist  Class  Mine  Manager’s  Certificate   of          competency  under Metalliferous  Mines  Regulations          (UR).          (c) 3 years service in the company in the scale  of          Rs. 1500-2000.      Under  the modified entry the eligibility criteria  for direct recruits remains the same except for a slight  change in  the  experience  criterion,  viz.,  the  requirement  of experience  of  7  years in a  responsible  position  in  an underground  mine has been dispensed with.  The  significant change,  however brought about in column 8 is to  state  the educational/experience    qualifications    for    promotion separately.  The experience criteria for promotion under the modified  entry  is reduced to three years service  in   the company  in  a  post  carrying a  scale  of  Rs.  1500-2000. Therefore, under the revised entry a Senior Mining  Engineer possessing the educational qualification at (a) and (b)  and experience of three years service in the                                                        815 company  on a post carrying a scale of Rs. 1500-2000  became eligible for promotion to the post of Chief Mining Engineer. Now, if Rule 7(a) of the Recruitment and Promotion Rules  is

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invoked  a Senior Mining Engineer who does not  possess  the requisite educational qualification but possesses double the prescribed experience, i.e. experience of six years  service in  the company on a post carrying a pay scale of Rs.  1500- 2000,  would be eligible for promotion to the post of  Chief Mining  Engineer.  The submission of Mr. Venugopal was  that even  if it is assumed that the appellant was not  qualified to  be promoted to the post of the Chief Mining Engineer  on 19/21st  April  1980,  he at any rate  became  eligible  for promotion  on the modification of the relevant entry in  the Annexure  extracted earlier with effect from  17th  October, 1981  and even if his promotion is regularised or deemed  to have been regularised by the company from the said date,  he was  entitled to be considered for further promotion in  the cadre  of Deputy General Manager and later  General  manager (T)  of  the  company.   Mr. Ashok  Desai  for  the  company supported  this line of reasoning and contended that as  far as the company is concerned, it always treated the appellant as eligible for being promoted to the higher posts of Deputy General   Manager  and  General  Manager  (T).    There   is considerable force in this submission.  The Tribunal’s order does  not  deal  with this aspect of the  matter.   We  have agreed with the Tribunal that under the rule position as  it existed at the date of the appellant’s promotion to the post of  Chief Mining Engineer, i.e. on 19/21st April, 1980,  the appellant was not eligible for appointment to the said  post by  promotion.  However, on the change brought about in  the relevant  entry  by  the order of 22nd  January,  1981  with effect  from  17th  October,  1981,  the  appellant   became eligible  for  promotion and even if his  placement  in  the cadre of Chief Mining Engineer is reckoned from the date  he was  clearly eligible for upward promotion.  But,  submitted Mr. Jain, once the Court holds that the initial entry of the candidate was in violation of the promotional criteria,  his entry must be treated as void and unless the DPC reconsiders his  case for promotion along with others his entry  in  the cadre  cannot be regularised on a deeming fiction.  He  also submitted that no such case was put up before the High Court and, therefore, this Court should not permit it to be placed for  the first time in proceedings under Article 136 of  the Constitution.  According to him the Article 136 jurisdiction must  be exercised sparingly and in support he  invited  our attention  the  observations (extracted earlier)  from  this Court’s  decision  in  Ujagar  Singh’s  case.   We  are  not impressed by this                                                        816 approach.  In the first place it must be remembered that the appellant’s  promotion made under the order of  19th  April, 1980 was sought to be undone only after his promotion to the higher  post.  Secondly there is no charm in  directing  the reversion  of  the appellant for a short  period  from  21st April,  1980 to 16th October, 1981 when we find  that  under the  revised  or  modified  criteria  he  was  eligible  for appointment as Chief Mining Engineer on 17th October,  1981. He was placed junior to others and even if he is  considered as  promoted  with effect from 17th October, 1981  he  would continue  to  rank junior.  He was selected for  the  higher post on merit though he was junior to others.  Therefore, it is not a case where he had received weightage because he was shown senior when the DPC selected him for the higher  post. He  has  served  on the promotion  post  of  Deputy  General Manager  (T)  since July, 1983.  Would it not be  harsh  and shocking  to  revert  him after so many years  only  on  the ground  that  he must seek re-entry in the  cadre  of  Chief Mining Engineers with effect from 17th October, 1981 when he

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acquired  eligibility  on the modification of  the  relevant entry  in  the  annexure to the Rules.  We  think  it  would result  in  gross  injustice  to  the  appellant.   We  are, therefore,  not impressed by the technical objection  raised by Mr. Jain.      In the result the appeals insofar as they relate to the impugned  order of the High Court dated 18th July, 1989  are allowed  and  the  said order is hereby set  aside  and  the petition  which gave rise to the same will stand  dismissed. The  appeals insofar as they are directed against the  order passed by the High Court in review dated 30th January,  1990 shall  stand  dismissed on the setting aside  of  the  order dated  18th July, 1989.  There will be no order as to  costs throughout. N.P.V.                                  Appeals disposed of.                                                        817