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PETITIONER: T.R. KAPOOR & ORS.

       Vs.

RESPONDENT: STATE OF HARYANA & ORS.

DATE OF JUDGMENT31/08/1989

BENCH: NATRAJAN, S. (J) BENCH: NATRAJAN, S. (J) SHARMA, L.M. (J)

CITATION:  1989 AIR 2082            1989 SCR  (3)1079  1989 SCC  (4)  71        JT 1989 (4)    31  1989 SCALE  (2)482

ACT:     Punjab Engineering Service--Class II  Officers--Promoted as  class I Officers pursuant to this Court’s  Judgment  and Order dated 17.12.86---Whether Courts order complied with in its full spirit-Directions sought re: date of promotions.

HEADNOTE:     This is an application filed by the Petitioners  seeking directions  of the Court for implementation of this  Court’s order  dated  17.12.86 in its true  spirit,  in  particular, praying  that the promotion orders dated 30.12.87  be  given effect from the back dates (deemed dates) or the dates  when their  juniors were promoted. The circumstances that led  to the filing of this application may be stated thus.     The Petitioners were members of the regularly constitut- ed  class  II Engg. service of the State  with  effect  from 25.12.1970  and  were working  as  Sub-Divisional  Officers. Further avenues of promotion to them were barred because the State  Government construed the service Rules to  mean  that without  a degree in Engineering, a class II  officer  could not be promoted to class I service. The said  interpretation of the State Government was disapproved by this Court in the case of A.S. Parmar v. State of Haryana, [1984] 2 SCR 476 as a consequence whereof a degree in Engineering did not remain an essential pre-requisite for a member of Class II  service for being promoted to Class I service. After the Judgment in Parmar’s case, the Petitioners filed a Writ Petition in this Court seeking a direction to the State Government to consid- er the case of the Petitioners and others similarly situated for promotion to the post of Executive Engineers in Class  I service.     On 24.2.84 an undertaking was given to the Court by  the State,  that the State would consider the claims of all  the eligible  persons  including  the  petitioners  for  regular appointment  to Class I service within four months.  Instead of  granting promotions, the State. Government  amended  the Rules with retrospective effect from 10.7.64 so as to make a degree in Engineering as an indispensable qualification  for an officer in Class II service for being promoted as Class I officer. The Petitioners thereupon amended their Writ  Peti- tion and challenged the validity of

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1080 the  amendment and the Court by its Judgment dated  17.12.86 struck  down the amendment to the Rules as ultra  vires  the State Government.     In  another  case involving the same point  viz.,  Ashok Gulati  v. B.S. Jain, [1987] 1 SCR 600 this  Court  directed the  State Government to consider the cases of all  eligible members  of  Class  II service for  promotion  as  Executive Engineers,  within six months time. The State having  failed to  comply  with  the Court’s order  aforesaid,  a  contempt petition  was  flied, which was disposed of by  the  Court’s order dated 30.12.87 by which time the State had reported to the  COurt  that the promotions to  all  concerned  eligible officers had since been granted.     The Petitioners have now filed this application contend- ing that since their placement In Class II service had  been made  effective with effect from 25.12.70 though  the  order therefore  was issued on 27.10.85, they Were entitled to  be considered for promotion to Class I service as and when they attained  eligibility after 25.12.70 especially in  view  of the Court’s Judgment in Parmar’s case whereby the degree  in Engineering  was  no longer a necessary  qualification.  The Petitioners  therefore  urge that they be  placed  in  their rightful  position  by giving promotion from back  dates  or deemed dates, or, in any case, the date when persons  junior to them were given promotions. According to them  promotions granted  to them belatedly on 30.12.87 did not  render  true justice to them and that the said order did not fully comply with  the  Court’s order. Further a grievance is  also  made that no benefit has been given to those officers who retired from service during this period. On the other hand the State contended  that it has duly complied with the Court’s  order by  giving promotions w.e.f. 30.12.87. The  State  supported its contention by saying that in approval of its action  the Court  on 17.12.86 dropped further proceedings  in  contempt petition which meant that there has been due compliance with the Court’s order. Disposing of the application with directions this Court,     HELD:  The combined effect of the striking down  of  the amendment  to the Rules by the Government and the  direction issued to the Government in Ashok Gulati’s case to  consider for  promotion the names of all the eligible Class II  offi- cers  would entitle the petitioners to seek the  benefit  of promotion  from 24.6.84 When the time limit of  four  months sought  for by the State Government to make  the  promotions came to expire. But for the unsustainable amendment made  to the  Rules,  the  Government could not  have  postponed  the promotions of the 1081 Petitioners  and  other Class II officers  similar  to  them beyond  the  time  limit of four  months  which  expired  on 24.6.84. It would therefore follow that the order of  promo- tion  made  by  the State Government on  30.12.87  will  not amount  to  due compliance of the Court’s  directions  dated 17.12.86.  The Government cannot take advantage of  its  own error  in  making  an illegal amendment to  the  Rules  with retrospective  effect and postpone the benefit of  promotion to Class II officers. [1087G-1088B]     The  Government cannot also take umbrage for its  action in  giving promotion to the petitioners and  other  eligible Class  II officers with effect from 30.12.87 either  because the  directions given on 17.12.86 did not set out  the  date from  when promotions should be given or because  the  Court passed  orders on 4.1.1989, dropping further proceedings  in the contempt petition. [1088C]

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   The State Government was directed to give promotions  to all eligible Class II officers with effect from 24.6.84  and to  give them all the consequential benefits arising  there- from. The court further directed that the benefit of  promo- tion and consequential benefits should also be given to  all those  officers who were eligible for promotion  on  24.6.84 but who have retired since then. [1089B]

JUDGMENT: CIVIL APPELLATE JURISDICTION: C.M.P. No. 17238 of 1988. IN Writ Petition Nos. 630-632 of 1984. (Under Article 32 of the Constitution of India). Shanti Bhushan and P.D. Sharma for the Petitioner.     G.L. Sanghi, Mahabir Singh, Rana Ranjit Singh,  Srinivas Choudhary, S.K. Mehta and G.K. Bansal for the Respondents. The Judgment of the Court was delivered by     NATARAJAN, J. This Civil Miscellaneous Petition has been filed with a prayer for appropriate directions being  issued to the State of Haryana as under: (a)  Issue appropriate directions to the respondents  No.  1 and 2 1082 to implement the judgment and order dated 17.12.86 and carry out  the  directions issued by way of writ  of  mandamus  as prayed  to  this  Hon’ble Court in its  full  spirit  giving effect  to  the promotion orders dated 30.12.87,  from  back dates  (deemed dates) or the dates when their  juniors  were promoted.       (b) Further issue suitable directions to the  Respond- ents No. 1 and 2 to allow other consequential benefits  viz. fixation  of  pay  from deemed dates,  payment  of  arrears, pension  and gratuity benefits to all officers  figuring  in list  dated 27.10.85 irrespective of their retirement  prior to the order of promotions dated 30.12.87 pronouncement.       (c)  Give  effective  relief to  the  petitioner  Shri Mohinder  Singh Kundu in full, irrespective of  his  retire- ment.       (d)  Any other suitable orders or directions  as  this Hon’ble  Court  may  deem fit and proper in  the  facts  and circumstances set out in the present petition.       To understand the grievance of the petitioners, it  is necessary  to set out the back ground material and the  pro- nouncements made in T.R. Kapoor v. State of Haryana,  [1987] 1 SCR 584 and Ashok Gulati v. B.S. Jain, [1987] 1 SCR 603 in favour of the petitioners.       The  petitioners  who are  Diploma  holders  initially joined the Class III Engineering Service of the Punjab State in  the early fifties and were promoted to Class II  service as officiating S.D.Os in the middle sixties and in the  case of some of them the said temporary promotion was even earli- er.  By a Notification dated 27.10.1985 the petitioners  and other similarly situated persons were regularly  constituted as  Class II service officers with effect  from  25.12.1970. Further avenues of promotion to them were barred because the State  Government construed the Service Rules to  mean  that without  a degree in Engineering, a Class II officer  cannot be  promoted to Class I service. The said interpretation  of the  Service  Rules was disapproved by this  Court  in  A.S. Parmar  v. State of Haryana, [1984] 2 SCR 476. By reason  of that judgment, it followed that a degree in Engineering  was not  an  essential pre-requisite for a member  of  Class  II service being promoted to the Class I service.

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1083     After  the  judgment in A.S. Parmar’s case  (supra)  was rendered, the petitioners filed Writ Petitions under Article 32  of  the Constitution seeking writs of  mandamus  to  the State Government to consider the case of the petitioners and the  like  of them for-promotion to the posts  of  Executive Engineers  in Class I service. On 24.2.1984  an  undertaking was  given  to the Court that the State would  consider  the claims of all the eligible persons including the petitioners for  regular  appointment to Class I service  and  that  the exercise would be completed within four months time.  Howev- er,  two days before the expiry of the said period  of  four months,  the  State Government brought an amendment  to  the Rules with retrospective effect from 10.7.64 so as to make a degree in Engineering an indispensable qualification for  an officer in Class II service being promoted to Class I  serv- ice.  Dismayed  by the action of the State  Government,  the petitioners amended their writ petitions suitably and  chal- lenged  the  validity of the amendment to the  Rules.  After considering  the  matter  in detail,  this  Court  delivered judgment on 17.12.1986 striking down the impugned  amendment to  the rules as ultra vires the State Government and  in  a connected  appeal C.A. No. 149 of 1981 Ashok Gulati  (supra) this  Court  directed the State Government to  consider  the cases of all eligible members of Class II service for promo- tion to the post of Executive Engineer in Class I service in accordance with law and to complete the process of .appoint- ment within six months’ time.     As  the  State Government failed to give effect  to  the said directions within the allotted time of six months,  the petitioners  filed a contempt petition C.M.P. No.  15430  of 1988  against the State. In reply to the contempt  petition, the State Government stated that the delay in the  implemen- tation of the Court’s order was due to the stupendous nature of  the work involved in the fixation of seniority  of  more than  four  hundred officers, their  promotions,  reversion, claims, and counter-claims and their deemed promotions  etc. After  taking note of the said explanation, this  Court  di- rected the State to expedite the matter and to complete  the process of promotion of Class II officers to class I service within  a  period of two ’months and  ordered  the  contempt petitions  to be listed in the first week of  January  1988. When the contempt petition came up before Court on 4.1.1988, it  was represented on behalf of the State  Government  that the Court’s directions have been complied with and orders of promotion  have been issued to the petitioners  on  30.12.87 itself. Acting on 1084 the  said  representation, this Court passed  the  following order and discharged the notice in the contempt petition:               "in  view  of this Court’s  order  dated  17th               December, 1986 and the order dated 12th  Octo-               ber,  1987, the officers concerned  have  been               promoted by an order dated 30th December, 1987               and we presume that they will now be posted in               consequence  of  that promotion. We  hope  and               trust  that  the State of  Haryana  will  pass               posting  orders expeditiously. The Civil  Mis-               cellaneous Petition is disposed of  according-               ly".     It is thereafter the petitioners have come forward  with this  application  for  directions. The  contention  of  the petitioners is that since their placement in Class II  serv- ice  had  been made effective with effect  from  25.12.1970, though  the order therefore was issued on  27.10.1985,  they

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were  entitled  to be considered for promotion  to  Class  I service   as  and  when  they  attained  eligibility   after 25.12.1970  especially in view of the judgment in A.S.  Par- mar’s  case (supra) which held that a degree in  Engineering was  not an essential pre-requisite for members of Class  II service  being promoted to posts in Class I service. It  is, therefore,  stated by the petitioners that in  all  fairness they  must  be placed in their rightful  position  by  being given promotion "from back dates or deemed dates or, in  any case, the dates when persons junior to them were  promoted." According to the petitioners their juniors were given promo- tions  in the years 1963, 1969, 1970, 1971, 1973,  1976  and 1978.  The petitioners blame the State Government for  their non-promotion because of the delay in preparing the seniori- ty  list of Class II officers till 1985 and for closing  the doors  of promotion to them by wrong interpretation  of  the Rules  and thereafter by making a wrongful amendment to  the rules  till  judgments were rendered in T.R.  Kapoor’s  case (supra)  and Ashok Gulati’s case (supra) on 17.12.1986.  The petitioners  would  therefore contend  that  the  promotions given  to  them belatedly on 30.12.1987 do not  render  full justice  to  them and the said order is also  not  fully  in compliance  with the directions given by this Court  in  the judgments rendered in the two cases on 17.12.86. Yet another grievance  put  forth is that the Government has  not  given relief  to  those Class II officers who  have  retired  from service prior to 30.12.1987. The petitioners therefore  seek further  directions being issued to the State Government  to give them and other similarly placed officers besides  those who have already retired from service the benefit of  promo- tion  with  effect from back dates or deemed  dates  as  per theft  entitlement  or atleast from the dates  when  persons junior to 1085 them  were  promoted  together with  all  the  consequential benefits arising therefrom.     In reply to the petition for directions, three  counter- affidavits  have been filed on behalf of the State  of  Har- yana,  one by Shri H.D. Bansal, Financial  Commissioner  and Secretary  to Government, Irrigation & Power Department  and the  second by Shri H.K. Khosla, Engineer-in-Chief,  Irriga- tion Department. In both the counter affidavits it has  been stated  that the State has fully complied with,  the  direc- tions of the Court by giving promotion to all the  petition- ers by order dated 30.12.87 and that the Court, in  approval of the action of the Government as proper compliance to  the directions given on 17.12.1986, dropped further  proceedings in  the contempt petition and as such there is no basis  for the petitioners to seek further directions from the Court.     The  third  counter-affidavit dated  14.10.88  has  been filed by Shri Raj Rup Fuliya, Deputy Secretary to Government of  Haryana,  Irrigation and Power Department.  Therein  the stand taken is that since the petitioners had acquiesced  in the  interpretation of the Service Rules by  the  Government till they filed the writ petitions, the petitioners are  not entitled  to  claim promotional benefits with  reference  to their  service  in Class II posts from 1970. It  is  further stated  that  in the judgments rendered in  T.R.  Kapoor  v. State  of  Haryana, (supra) and Ashok Gulati v.  B.S.  Jain, (supra), this Court had not directed that promotions  should be given to the petitioners from back dates or deemed  dates or  from  the dates their juniors were promoted to  Class  I Service.  Likewise,  it  is stated that the  Court  had  not directed the State to give the benefit of promotion to  per- sons who have already retired from service.

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   The  petitioners have controverted the averments in  the counter affidavits by means of a rejoinder and have  reiter- ated their claim for promotion from anterior dates. In  turn Shri Raj Rup Fuliya, Deputy Secretary to the Government  has filed  a  supplemental counter’affidavit  to  the  rejoinder filed by the petitioners.     In  the  light of the conflicting stands  taken  by  the parties, it falls for consideration whether the  petitioners are entitled to the benefit of promotion from anterior dates i.e. from deemed dates of promotion or from the dates  their juniors  were  promoted as claimed by them  or  whether  the promotions  given  to  them on 30.12.87  by  the  Government amounts  to grant of full relief to the petitioners  as  per this Court’s judgments dated 17.12.86. 1086     Taking up for consideration the contention of the  peti- tioners  that by reason of their being constituted Class  II Officers  with effect from 25.12.70, they were  entitled  to promotion as and when they attained seniority, but the State Government had unjustly deprived them the benefit of  promo- tion due to wrong interpretation of the Rules, we are unable to  accept the plea for more than one reason. In  the  first place, the petitioners had acquiesced in the  interpretation of  the Rules by the State Government all along and  it  was only after the decision in A.S. Parmar’s case, they chose to move  this Court under Art. 32 of the Constitution  to  seek promotional benefits. Having remained complacent for a  long number  of years, the petitioners cannot now turn round  and say  that  notwithstanding their inaction,  they  should  be granted promotion from deemed dates on the basis of seniori- ty. Secondly, in the long interval of time that had  elapsed before  the  petitioners chose to file the  writ  petitions, several o*her Class II Officers holding engineering  degrees have  been promoted to Class I Service. The  benefits  which had  accrued to those persons by reason of their  promotions cannot  now  be disturbed or interfered with by  giving  the petitioners promotions from deemed dates of eligibility  for promotion. In other words, a settled state of affairs  among the Class I Promotees cannot be unsettled now.     As  already  stated,  during the pendency  of  the  writ petitions,  the  State  Government gave  an  undertaking  on 24.2.1984  that they would consider the claims of the  peti- tioners for promotion to Class I service and pass orders  in four  months’ time. Subsequently, the State Government  went back  on its representation and brought about  an  amendment with  retrospective  effect  to the Rules so as  to  make  a degree in engineering an essential qualification for  promo- tion  to Class I service. This amendment was struck down  by this  Court  in T.R. Kapoor’s case and it  was  observed  as follows:               "Presumably, the State Government adopted this               unfortunate course of action taking cue of the               observations  made by this Court in  the  con-               cluding part of the judgment in A.S.  Parmar’s               case  saying  that if the Government  wish  to               appoint only persons having a degree in  Engi-               neering to Class I service, it was free to  do               so by promulgating appropriate rules and  that               the  power  to frame such a  rule  was  beyond               question.  But the Court never laid down  that               such  a rule may be framed under Art.  309  of               the Constitution with retrospective effect  so               as to render ineligible Class II officers like               the petitioners who were Diploma-holders               1087

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             for  further promotion as Executive  Engineers               in  Class  I  service. In view  of  the  clear               formulation of law interpreting r. 6(b) of the               Class  I Rules holding that a degree in  Engi-               neering was not an essential qualification for               promotion of Class II Officers to the cadre of               Executive Engineers in Class I service,  there               was  no occasion for the State  Government  to               issue the impugned notification unless it  was               with the object of nullifying the decision  of               this Court in A.S. Parmar’s case". After thus disapproving the Government’s action, this  Court gave  directions  to the State Government in  the  connected appeal  Ashok Gulati v. B.S. Jain, (supra) to  consider  the claims  of all the eligible Class II officers for  promotion to  Class I service without reference to their possessing  a degree  in Engineering. It is bearing in mind these  factors the question whether the promotions granted to the petition- ers  with effect from 30.12.1987 amounts to sufficient  com- pliance of the directions of the Court dated 17.12.1986  has got to be examined.     Inasmuch  as the petitioners had not asked for  mandamus being issued for promotion them to Class I posts from  ante- rior  dates on deemed basis or with reference to the  promo- tions  given  to junior persons, and since even  if  such  a prayer  had been made, the relief would not have been  given for  the  reasons set out above,  this  Court  appropriately called  upon  the  Government to consider the  case  of  all eligible  members of Class II service for promotion  to  the post of Executive Engineer in Class I service in  accordance with  law and to complete the process of appointment  within six  months time. The direction therefore enjoined the  Gov- ernment to give promotion to all Class II officers who  were eligible  for  promotion to Class I service after  Rule  was issued in the writ petitions. Even before the direction  was issued,  the Government had conceded the position  and  that was  why  the  Government had asked  for  four  months  time through  its  counsel to consider the case of  all  eligible Class II officers and give them promotion.     The  combined effect of the striking down of the  amend- ment to the Rules by the Government and the direction issued to the Government in Ashok Gulati’s case (supra) to consider for  promotion the names of all the eligible Class II  offi- cers  would entitle the petitioners to seek the  benefit  of promotion from 24.6.1984 when the time limit of four  months sought  for by the State Government to make  the  promotions came to expire. But for the unsustainable amendment made to 1088 the  Rules,  the  Government could not  have  postponed  the promotion  of  the petitioners and other Class  II  officers similar  to them beyond the time limit of four months  which expired 24.6.1984. It would therefore follow that the  order of  promotion  made by the State Government on  30.12.  1987 will not amount to due compliance of the Court’s  directions dated  17.12.1986. The Government cannot take  advantage  of its  own error in making an illegal amendment to  the  Rules with retrospective effect and postpone the benefit of promo- tion to Class II officers.     The  Government cannot also take umbrage for its  action in  giving promotion to the petitioners and  other  eligible Class II officers with effect from 30.12.1987 either because the directions given on 17.12.1986 did not set out the  date from  when promotions should be given or because  the  Court passed  orders on 4.1.1989 dropping further  proceedings  in the  contempt petition. As regards the directions issued  on

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17.12.1986 to the State Government to give promotions to the Class  II  officers  in accordance with law,  they  must  be construed  with reference to the observations made  in  T.R. Kapoor’s  case (supra) that the amendment to the  Rule  with retrospective effect by the Government "was with the  object of  nullifying the decision of this Court in  A.S.  Parmar’s case". Viewed thus, the Government’s action in giving promo- tions to the petitioners and others belatedly on  30.12.1987 cannot be construed as due compliance of the Court’s  direc- tions.  Once that conclusion is reached the  question  would then  be  as to from which date the Government  should  have given promotions to the petitioners and others in accordance with  the directions of the Court. The latest point of  time in  which  the Government could not and  should  have  given promotions would be the date on which the four months’  time prayed for by the Government on 24.2.1984 to give promotions to  the eligible Class II officers came to an end. The  said period  on  24.6.1984 and the Government cannot  escape  its obligation  to give promotions to the officers  in  question with effect from that date.     In  so far as the order passed in the contempt  applica- tion  on 4.1. 1988 is concerned, it is needless to say  that this  Court did not go into the question on that day  as  to whether  the order of promotion passed on 30.12.1987 was  in full compliance or only in partial compliance of the Court’s order  dated 17.12.1986. In fact it is the grievance of  the petitioners that the State Government did not communicate to them the orders passed on 30.12.1987 and therefore they  had no  opportunity to state before Court on 4.1.1988  that  the Government  had acted mala fide in granting  them  promotion only with effect from 30.12.1987 and that the said order had been passed only to escape 1089 the  consequences of the contempt petition and not for  ful- filling  the directions given by the Court on 17.12.1986  to promote all eligible persons in accordance with law.     We,  therefore,  direct  the State  Government  to  give promotion to all eligible Class II officers with effect from 24.6.1984  and to give them all the  consequential  benefits arising therefrom. The benefits of promotion and  consequen- tial benefits should also be given to all those officers who were  eligible for promotion on 24.6.1984 but who  have  re- tired since then. The Government shall complete the exercise in two months’ time from today. To  this extent the petition for directions will  stand  or- dered. No costs. Y. Lal 1090