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PETITIONER: K.K. KHOSLA & ANR.

       Vs.

RESPONDENT: STATE OF HARYANA & ORS.

DATE OF JUDGMENT20/02/1990

BENCH: KULDIP SINGH (J) BENCH: KULDIP SINGH (J) THOMMEN, T.K. (J) KASLIWAL, N.M. (J)

CITATION:  1990 AIR 1069            1990 SCR  (1) 464  1990 SCC  (2) 199        JT 1990 (1)   290  1990 SCALE  (1)234  CITATOR INFO :  RF         1991 SC1406  (4)

ACT:     Haryana Service of Engineers Class I PWD (Public  Health Branch)  Rules, 1961: Rules 5, 9, 11, 15 & 22--Promotion  to the post of Executive Engineer Class I--Relaxation of  Rules in favour of an Assistant Executive Engineer--Validity of.

HEADNOTE:     Rule  5 of the Haryana Service of Engineers Class I  PWD (Public  Health Branch) Rules 1961 requires 50 per  cent  of the  posts of Executive Engineers to be filled by  promotion from  m.tubers  of Class II Service. Rule  .9(3)  renders  a member  of service ineligible for promotion to the  rank  of Executive Engineer unless he renders five years’ service  as an Assistant Executive Engineer, and has passed the  depart- mental  examination. The first proviso thereto  grants  pre- fernce  to an Assistant Executive Engineer over an  eligible Class  II  Officer in the matter of  promotion.  The  second proviso empowers the Government to reduce the period of five years’  service as an Assistant Executive Engineer. Rule  II prescribes  two years’ probation case of direct recruits  to the  Service.  Rule 15 requires officers  appointed  to  the Service to pass departmental examination within such  period as may be prescribed unless they have already done so.  Rule 22 empowers Government to relax the requirement of Rules  In cases of undue hardship.     Respondent  No. 3, a direct recruit to the post  of  As- sistant Executive Engineer in the Public Health Branch,  was promoted to the post of Executive Engineer, Class I Service, defeating  the claim of the appellants, members of Class  II Service  of Engineers In the said Department. They  assailed his appointment by means of a writ petition under Article of the  Constitution on the ground that the respondent was  not eligible  for promotion as he had not rendered  five  years’ service  as an Assistant Executive Engineer and  further  he had  not passed the departmental examination which  was  the minimum requisite qualification for promotion to the post of Executive Engineer. Before the High Court the State  Govern- ment’s plea was that it had relaxed the requirement of  Rule

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9(3)(a)  not only to respondent No. 3 but to other  officers also. The High Court dismissed the writ petition on the view that there was no infirmity in the Government’s order grant- ing exemption to respondent 465     In  appeal, in addition to the pleas raised  before  the High  Court, it was further submitted that respondent No.  3 was  not eligible for promotion as he had not completed  two years’  probationary period as Assistant Executive  Engineer on the date of his promotion. Dismissing the appeal, the Court,     HELD:  1. There was no legal infirmity in the  promotion of respondent No. 3. The State Government had granted relax- ation to him by reducing the period of service under  clause (a)  to Rule 9(3) in exercise of its power under the  second proviso to the said Rule. This relaxation was granted as  he was  the  only officer in the department who  was  a  direct recruit  to  Class I Service. In addition to that,  Rule  22 further  confers  power  on the State  Government  to  grant relaxation  with regard to the operation of the  Rules.  The Government’s order granting relaxation in favour of respond- ent No. 3 was sustainable under Rule 22 also. [468B-D]     J.C.  Yadav & Ors. v. State of Haryana & Ors., [1990]  1 SCR470, referred to.     2.  The respondent’s promotion to the post of  Executive Engineer was not rendered illegal merely because he had  not undergone  departmental  examination in  the  Public  Health Branch.  He had been working as Sub-Divisional  Engineer  in the Public Works Department (Buildings and Roads Branch) for a period of 6-1/2 years prior to his recruitment to the post of Assistant Executive Engineer in the Public Health  Branch and  during that period he had passed departmental  examina- tion. The syllabus prescribed for the departmental  examina- tion  in  the Buildings and Roads Branch as well as  in  the Public Health Branch was almost the same. The Government was satisfied  that there was no necessity for him to  pass  the examination again. [469B; 468E˜G; 469A]     3. Non-completion of probationary period of two years on the post of Assistant Executive Engineer by respondent No. 3 did not affect the validity of his promotion to the post  of Executive  Engineer  under the Rules. There is  no  specific provision in the Rules requiring completion of  probationary period for the purposes of promotion within the Service.  It was relevant only for the purpose of confirmation in Class I Service. [469E; C-D]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No.  653  of 1981. 466     From the Judgment and Order dated 11.8.80 of the  Punjab and Haryana High Court in C.W.P. No. 1192 of 1980. M.K. Ramamurthy and Jitender Sharma for the Appellants..     Rajinder  Sachar,  Govind  Mukhoty  Dr.  Shankar  Ghosh, Mahabir Singh, S.C. Patel, T.C. Sharma, C.V. Subba Rao, C.M. Nayyar, P.P. Singh and S.K. Verma for the Respondents. The Judgment of the Court was delivered by     SINGH,  J. This appeal is directed against the  judgment and order of a Division Bench of the Punjab and Haryana High Court  dated  11th August, 1980 dismissing  the  appellants’ writ  petition under Article 226 of the  Constitution  chal- lenging validity of the appointment of Bhagwan Das  Sardana, respondent No. 3 to the post of Executive Engineer in Public

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Works Department (Public Health Branch).     The  post of Executive Engineer in Public Works  Depart- ment (Public Health Branch) in the State of Haryana is borne on Class I Engineering Service, recruitment to which is made by direct recruitment and promotion under the provisions  of the Haryana Service of Engineers Class I PWD (Public  Health Branch)  Rules,  1961  (hereinafter  referred  to  as   ’the Rules’).  Under Rule 5, 50% of the posts of Executive  Engi- neers  in  Class I are required to be filled by  direct  re- cruits  while  the remaining 50% posts are to be  filled  by promotion from members belonging to Class II service. Rule 8 provides  for constitution of a Committee for making  selec- tion  for promotion to the post of Executive  Engineer.  The list  so prepared is forwarded to the State  Public  Service Commission  and  on  its approval the  State  Government  is required  to  make the appointments. Rule 9 lays  down  that promotion  shall be made by selection on the basis of  merit and suitability in all respects. Rule 9(3) lays down that  a member  shall not be eligible for promotion to the  rank  of Executive  Engineer,  unless  he has  rendered  five  years’ service  as an Assistant Executive Engineer, and has  passed the  departmental  examination as provided in Rule  15.  The first proviso to the Rule lays down that an Assistant Execu- tive  Engineer found suitable for promotion shall  be  given preference  over  an eligible Class II officer.  The  second proviso  to  Rule 9(3) confers power on  the  Government  to reduce  the  period of five years’ service as  an  Assistant Executive  Engineer. Rule 11 lays down that an  officer  ap- pointed  to  the  service shall remain on  probation  for  a period  of two years in case of direct recruitment. Rule  15 lays down that officers 467 appointed  to the service unless they have already done  so, shall  pass departmental examination and within such  period as may be prescribed by the Government. Under the proviso to Rule 15(1) the Government is empowered to extend the  period within  which an officer may pass the departmental  examina- tion.  Rule 22 confers power on the Government to relax  the requirements of Rules if it is satisfied that the  operation of any of these Rules causes undue hardship in any  particu- lar case.     The  appellants S/Shri K.K. Khosla and L.C.  Goyal  were holding  the  post of Sub-Divisional Engineers  PWD  (Public Health  Branch) in the State of Haryana in Class II  Service of Engineers. They were considered for promotion to the post of  Executive Engineer, Class I Service. The Selection  Com- mittee,  on scrutiny of cases of eligible Class II  officers prepared  a select list for promotion. The list so  prepared contained  the  names  of nine officers  including  the  two appellants but ultimately the appellants were not  appointed by promotion to the post of Executive Engineer instead other seven  officers belonging to Class II Service were  promoted and in addition to that Bhagwan Das Sardana, respondent  No. 3 a direct recruit was also appointed on the  recommendation or’ the Public Service Commission. Aggrieved, the appellants filed  a  writ petition in the High  Court  challenging  the validity  of  the  appointment of respondent No.  3  on  the ground  that he had not rendered five years’ service  as  an Assistant Executive Engineer and had not passed the  depart- mental examination which was the minimum requisite  qualifi- cation  for promotion to the post of Executive  Engineer  in Class  I Service. On behalf of the State Government, it  was pleaded  that the State Government had relaxed the  require- ment  of Rule 9(3)(a) with regard to five years’  period  of service  not only to respondent No. 3 but to other  officers

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also.  The  High Court dismissed the writ  petition  on  the finding  that  there was no infirmity  in  the  Government’s order granting exemption to respondent No. 3 and his  promo- tion  and appointment to the post of Executive Engineer  did not  suffer  from any legal infirmity. The  appellants  have challenged  the view taken by the High Court in the  instant appeal.     On behalf of the appellants it was urged that the promo- tion  and  appointment of respondent No. 3 to  the  post  of Executive Engineer was made in utter disregard of the  Rules as  he had not rendered five years’ service as an  Assistant Executive  Engineer as required by Rule 9(3)(a) and  he  had not  passed the departmental examination as contemplated  by Rule  15 and lastly he was not eligible for promotion as  he had not completed two years’ probationary period as  Assist- ant Execu- 468 tive Engineer on the date of his promotion.     On  a careful scrutiny of the Rules and the material  on record  we do not find any merit in the submission  made  on behalf of the appellants. No doubt respondent No. 3 had  not rendered  five  years’  service as  an  Assistant  Executive Engineer but the State Government had granted relaxation  to the respondent No. 3 by reducing the period of service under Clause  (a) to Rule 9(3) in exercise of its power under  the proviso to the said Rule. This relaxation was granted as the respondent No. 3 was the only officer in the Department  who was  a direct recruit to Class I Service. The State  Govern- ment had power to grant relaxation under the second  proviso to  Rule  9(3) therefore we find no legal infirmity  in  the respondent’s promotion. In addition to that Rule 22  further confers  power on the State Government to  grant  relaxation with  regard to the operation of the Rule. The  Government’s order  granting relaxation in favour of respondent No. 3  is sustainable  under Rule 22 also. The scope of State  Govern- ment’s power to relax operation of Rules has been  discussed by  us  in  J.C. Yadav & Ors. v. State of  Haryana  &  Ors., [1990] 1 SCR 470. On the application of those principles  we find  no illegality in the order of the Government  granting relaxation  to respondent No. 3, in respect of operation  of Rule 9(3)(a).     As regards the departmental examination is concerned, it is  true that the respondent No. 3 did not pass the  depart- mental  examination afresh in the Public Health  Branch.  On behalf of the State Government it is pointed out that  prior to his recruitment to the post of Assistant Executive  Engi- neer  in the Public Health Branch respondent No. 3 had  been working as Sub-Divisional Engineer (SDE) in the Public Works Department (Building and Road Branch) for a period of  6-1/2 years  and  during that period he  had  passed  departmental examination. In this view the Government did not consider it necessary  to require the respondent No. 3 to pass  the  de- partmental examination once again. The Public Health  Branch as  well as the Building and Road Branch both belong to  the Public  Works  Department. The syllabus prescribed  for  the departmental examination in the Building and Road Branch  as well  as in the Public Health Branch is almost the same,  as except  one,  all  other subjects are  common  to  both  the Branches.  The  State Government’s opinion  that  since  the respondent No. 3 had already passed a departmental  examina- tion  while working in the Building and Road Branch, it  was not necessary for him to have passed the departmental exami- nation again was justified though it had at an earlier stage directed the respondent No. 3 to pass the depart- 469

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mental examination again. Later on the Government was satis- fied  that since the respondent had already passed  the  de- partmental  examination in Building and Road  Branch,  there was no necessity for the respondent to pass the  examination again.  In  these circumstances we  hold  that  respondent’s promotion to the post of Executive Engineer was not rendered illegal  merely  because he had not  undergone  departmental examination in the Public Health Branch afresh.     Respondent No. 3 had been appointed as a direct  recruit to the post of Assistant Executive Engineer on 7.12. 1977 on probation  for a period of two years. Before the  expiry  of the  probation period he was selected for promotion  to  the post of Executive Engineer. The appellants’ contention  that unless  the  respondent  had  satisfactorily  completed  the probation  period, he could not be promoted to the  post  of Executive  Engineer, is misconceived. There is  no  specific provision in the Rules requiring completion of  probationary period  for  the purposes of promotion within  the  service. Under  Rule  11 an officer is required to  be  appointed  on probation, if during the period of probation his work is not found satisfactory his services are to be dispensed with and in the event of his services being found satisfactory he  is entitled to confirmation on the post. It is thus clear  that the completion of the probationary period of respondent  was relevant  only  for the purpose of confirmation in  Class  I Service  and Same was not a precondition for the purpose  of promotion  within  the  service.  Moreover,  the  Government issued an order waiving the probationary period of one  year in  the  respondent’s case. Non-completion  of  probationary period  of  two  years on the post  of  Assistant  Executive Engineer  did  not affect the validity of  the  respondent’s promotion  to the post of the Executive Engineer  under  the Rules.     In view of the above discussion, we find no merit in the appeal  and  it is accordingly dismissed. There will  be  no order as to costs. P.S.S.                                                Appeal dismissed. 470