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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.