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CASE NO.: Appeal (civil)  3228 of 2005

PETITIONER: Diploma Engineers Sangh

RESPONDENT: State of U.P. & Ors

DATE OF JUDGMENT: 20/03/2007

BENCH: H.K. SEMA & R.V. RAVEENDRAN

JUDGMENT: J U D G M E N T

H.K.SEMA,J.

                       The challenge in this appeal is to the order dated  16.7.2004 passed by the division bench of the High Court of  Allahabad in Civil Misc. Writ Petition No. 9127 of 2003  quashing the Office Memorandum dated 11.2.2003 as being  violative of Rule 5(iv) and Rule 9(ii) of the Rules of U.P.Service  of Engineers (Building and Roads Branch) Class-II Rules, 1936  (hereinafter referred to as the 1936 Rules).  The Office  Memorandum was challenged by the graduate junior  engineers on the ground that the aforesaid circular has the  effect of exempting the diploma junior engineers from  undergoing and passing the qualifying examination for  promotion from the post of Junior Engineer to the post of  Assistant Engineer as it provided for assessment of their  eligibility only by holding viva voce, and therefore, illegal.   Aggrieved by the order of the High Court this appeal has been  preferred by the diploma holder junior engineers.  The present  controversy revolves around the question as to whether the  office order dated 11.2.2003 runs into the teeth of the 1936  Rules.           The following questions have been posed before us for  determination: (a)     Whether the 1936 Rules were in existence at the  time when the office order dated 11.2.2003 was  issued?

(b)     If the 1936 Rules were subsisting, what is the effect  of the office order dated 11.2.2003?  

(c)     What is the meaning of the words "qualifying  examination" prescribed under Rule 9(ii) of the  Rules read with Rule 5(iv) of the Rules?   

(a)     Whether the 1936 Rules were in existence at the time  when the office order dated 11.2.2003 was issued?  

        Before we proceed further on this question we may point  out that it was not the case of the appellant either before the  High Court or before this Court that 1936 Rules had ceased to  be in existence.   Before the High Court it was the contention  of the appellant that the 1936 Rules empowered the Governor  of the State to grant relaxation and therefore the Office Order  dated 11.2.2003 was nothing but grant of relaxation from the

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rigours of Rule 5(iv) read with Rule 9(ii) of the 1936 Rules.   The High Court also noted that it was nobody’s case that Rule  9(ii) ceased to exist nor had anyone challenged its validity.   Even before this Court, the questions of law that have been  raised are:- (A) Whether the writ petitioner had locus standi to  challenge the Office Memorandum dt. 11.2.2003  issued by the State Government for purpose of the  promotion of Diploma Holder’s Junior Engineers  from the post of Junior Engineers to the post of  Assistant Engineers according to U.P. Service of  Engineers (Building and Roads Branch) Class-II  Rules, 1936?  (B) Whether qualifying test as prescribed in the  1936 rules, for the purpose of promotion from  Junior Engineer to Assistant Engineer meant merely  written examination or any type of test like  interview etc.? (C) Whether the High Court failed to correctly  interpret the provisions of 1936 Rules for the  purpose of the promotion from the post of Junior  Engineer to Assistant Engineer? (D) Whether the Doctrine of desuetude is applicable   when the promotions were being made for 30 years  without holding any qualifying test as prescribed in  the 1936 Rules, and the subsequent modified  Service Rules ?

In the grounds also no plea was taken that the 1936 Rules  were not in existence.  Having realised this difficulty, Mr. Vijay  Hansaria, learned senior counsel for the appellant, filed  I.A.No.6 of 2006 seeking permission to urge additional  grounds.  The stand taken in the additional ground is that  since this Court struck down the amended Rules 3(c), 5 and 6  inserted by the 1969 Amendment to the 1936 Rules, and Rule  23 which was substituted by the 1971 Amendment, in P.D.  Aggarwal  vs.  State of U.P. (1987) 3 SCC 622), the 1936  Rules ceased to exist in entirety.   Technically speaking such  somersaulted contention cannot be accepted at this stage and  on this score alone the appeal deserves to be dismissed.  Be  that as it may, we have permitted the appellant to urge the  additional ground, we will deal with the said contentions.           To decide the question, it is essential to make a quick  survey of the amendments brought to 1936 Rules.  The 1936  Rules has undergone a sea change due to several  amendments.  1969 Amendment inserted Rules 3(c) to (k) and  substituted Rules 5 and 6 in the 1936 Rules. Rule 23 was  substituted by the 1971 Amendment.  This Court categorically  struck down Rules 3(c), 5 and 6 of the 1936 Rules as  substituted by 1969 Amendment and Rule 23 substituted as  per 1971 Amendment, holding them to be per se arbitrary on  the ground that these amendments were violative of Articles  14 and 16. Consequently, a writ of mandamus was issued  directing the government to prepare a fresh seniority list of  Assistant Engineers in accordance with the service rules,  meaning thereby the 1936 Rules.  It may be noted that the  controversy in P.D. Aggarwal’s case was with regard to  seniority between direct recruits appointed on permanent  vacancies and direct recruits appointed on temporary  vacancies; and the seniority gained by the latter was being  wiped out by reasons of 1969 and 1971 Amendments, which  led to the challenge. This Court after discussing the  amendments brought by 1969 and 1971 Amendments, held as  follows :-    29. We direct the authorities concerned to

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prepare a  fresh seniority  list of all the  members of the  service  in  the cadre  of   Assistant Engineer in the PWD Department  on   the basis  of  their length of service from the  date  they      have become members of the service  fulfilling all  the  requirements laid down in the  service rules. We cannot but observe in this   connection  that though  the temporary   Assistant Engineers have been duly selected by  the Public Service  Commission  after they  are  appointed as temporary Assistant Engineers  yet  in spite of several directions given by this  Court, the authorities  concerned did not think  it fit and proper to  prepare the  seniority list  in accordance with the directions  given by this  Court and as a result no seniority list in the  cadre of  Assistant Engineer has yet been  prepared  following the directions made even  by this Court as embodied in the  decision in  Baleshwar Dass & Ors. v. State of U.P. & Ors.  On the other  hand amendments have been  made to the  existing 1936 service rules which  per se seem to be arbitrary and this led to  a  spate of litigations. We do hope and expect  that considering all these, the Government will  take effective steps for preparation of seniority  list as early as possible in order to create  incentive for the members of the service by  holding out prospects of future promotions in  the interests of the service.  30.  In the premises aforesaid we dismiss these  appeals and affirm the judgment and order of  the High Court of Allahabad quashing the said  seniority list dated  29.7.1980  together with   supplementary  seniority lists dated 18.12.   1980  and 19.12. 1980 relating to Civil  Engineering Wing. Rules  3(c), 5  and 6 of 1969  Rules as well as Rule 23 of 1971 Rules  are also   quashed.        The condition in Office Memorandum  dated 21.1.1980, Annexure 2 of Writ Petition  No.  2447 of 1980 providing that for the  selection for the post of Superintending  Engineer the officer must be a confirmed  Executive Engineer is quashed. A writ of  mandamus be issued directing the Government  to prepare a fresh seniority list of Engineers in  the Civil Engineering and E.M. Wing  respectively in the light of the observations  made hereinbefore. This order, however, will not  affect any confirmations or promotions (other  than ad hoc promotions) made before  29.11.1979.  In the facts and circumstances of  the case, there will be no order as to costs.                                                                                          (emphasis supplied)                        Thus, this Court proceeded on the premise that the 1936  Rules, except to the extent struck down remained undisturbed  and continued to apply.           Mr. Hansaria contended that the original Rules 3(c), 5  and 6 which were material provisions of 1936 Rules were  deleted by substitution of corresponding new rules by the  1969 amendment, and subsequently when the  substituted/amended rules were struck down, the old rules  would not revive.    In this connection he has referred to the

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decisions of this Court in Firm A.T.B. Mehtab Majid And Co.   vs.  State of Madras 1963 Suppl.(2) SCR 435,  T. Devadasan    Vs.  Union of India AIR 1964 SC 179, B.N. Tewari  Vs.   Union of India, AIR 1965 SC 1430, Indian Express  Newspapers (Bombay) Pvt.Ltd. Vs. Union of India (1985)1  SCC 641, West U.P. Sugar Mills Assn. vs.  State of U.P.  (2002) 2  SCC 645 and hosts thereof.   On the other hand, Sri  Vinod Bobde appearing for the respondents relied on State of  Maharashtra vs. The Central Provinces Manganese Ore Co.  Ltd (1977) 1 SCR 1002 and Bhagat Ram Sharma vs. Union  of India (1988) Sup. SCC 30, to contend that where the  amendment is found to be stillborn and void, the amendment  will be totally ineffective, so as to leave intact what was  intended to be replaced by the amendment. We need not enter  upon this controversy, as the question with which we are  concerned in this case, relates to Rule 9 dealing with technical  qualification, which was not struck down.  It is clear that the decision in P.D. Aggarwal’s case  (supra) that only Rules 3(c), 5 and 6 inserted by 1969 Rules  and Rule 23 inserted by 1971 Rules were quashed.  It is  therefore evident that the 1936 Rules continued to exist at the  time when the Office Order dated 11.2.2003 was issued.  This  was also the understanding of the Government inasmuch as  the impugned Office order dated 11.2.2003 itself was issued in  exercise of the power under Rule 9(ii) read with Rules 5(iv) of  the 1936 Rules.  In view of the above, we find no merit in the  contention  of Mr. Hansaria that the 1936 Rules was not in  existence when the office order dated 11.2.2003 was issued.  (b) As 1936 Rules were subsisting, what is the effect of the  office order dated 11.2.2003.     

       The relevant portion of the office order dated 11.2.2003  reads thus :

                                       "OFFICE ORDER         By the order dated 22.3.2002 in Writ Petition  No.42762/2000 Aruvendra Kumar Garg & Ors.   Versus Govt. of U.P. & Ors and other related writ  petitions, High Court of Allahabad has set aside the  amendment made in Uttar Pradesh Service of  Engineers (Building and Roads Branch) Class-II,  Rule 1936 vide notification dated 4.8.87 and dated  25.9.97.  Therefore, under the remaining provisions  while leaving the provisions set aside by the Hon’ble  High Court, the promotion of junior engineer (civil)  to the post of Asstt. Engineer (Civil) can be made.  2.   Accordingly, under the effective rule-9 there is a  provision of technical qualification, in which Rule  9(i) is relating to direct recruitment and Rule 9(ii) is  related to promotion.  In Rule 9(ii) there is a  provision that under rule 5(iv) and 5(v)an officer will  not get promotion until he has passed such  qualifying examination as determined by the  Governor or he is holding technical qualification  under para (i) of this rule. 3.  Therefore in the aforesaid facts and  circumstances Hon’ble Governor has been pleased  to approve the following procedure for the qualifying  examination for the promotion of Jr.Engineers,  coming under the umbrella of Part (I), to the post of  Asstt. Engineer.    (l) For the aforesaid promotion for the post of Asst.  Engineer  personnel interview will be organized.         (2) The Selection Committee constituted for the  purpose of interview will constitute following

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members: xxxxxx"                          Rule 5(iv) and 9(ii) of the 1936 Rules, referred to in the  said order dated 11.2.2003 are extracted below :- "5. Source of Recruitment : Recruitment  to the service shall be made by the  Government :  x x x x x 5(iv) by promotion of members of the  United Provinces Subordinate  Engineering Service in the Public Works  Department Buildings and Roads Branch,  who have shown exceptional merit. 9(ii) No officer shall be promoted to the  service under rule 5(iv) and 5(v) unless he  has passed such qualifying examination  as the Governor may prescribe, or  possesses the technical qualification  prescribed in clause (i) of this rule."

       We may also extract Rule 12 of the 1936 Rules as  substituted in the U.P.Service of Engineers (Buildings and  Roads Branch) Class II (Second Amendment) Rules, 1992 : "Recruitment by promotion to the post of  Assistant Engineer shall be made on the  basis of "Seniority subject to the rejection  of unfit" in accordance with U.P.  Promotion by selection in consultation  with Public Service Commission  (Procedure) Rules, 1970, as amended  from time to time."

       The U.P.Service of Engineers (Buildings & Roads Branch)  Class II Rules, 1936 were amended by 1987 Amendment Rules  and 1997 Amendment Rules providing for separate quotas for  promotion. The said Amendment Rules of 1987 and 1997 were  challenged in CMWP No.17949/1998 (Atibal Singh vs. State of  U.P. and connected cases). On the other hand the diploma  holder Junior Engineers had filed CMWP No.42762/2000  (Arvendra Kumar Garg v. State of U.P.) seeking a mandamus  directing the State Government to consider them for promotion  to the post of Assistant Engineer in accordance with the 1936  Rules (as amended by the 1987 and 1997 Rules). A Division  Bench of the Allahabad High Court, by common judgment  dated 22.3.2002 allowed CMWP No.17949/1998 and  connected cases challenging the 1987 Amendment Rules and  1997 Amendment Rules, but dismissed WP No.42762/2000  filed by the diploma holder Junior Engineers. It held that the  Amendments made in 1987 and 1997 were invalid and  deemed not to have come into force. It is in view of the said  decision dated 22.3.2002, that the State Government issued  the office order dated 11.3.2003 proposing to promote Junior  Engineers (Diploma-holders) to the post of Assistant Engineers  under the 1936 Rules by holding ’interview’ as qualifying  examination.         It is contended by Mr. Hansaria, learned senior counsel  for the appellant that Rule 9(ii) contemplates the qualifying  examination being prescribed by the Governor; and the  Government order dated 11.2.2003 contains the prescription  of the Governor and therefore there is no inconsistency.  Reliance is also placed on Article 162 of the Constitution  relating to the executive power of the State which enables the  Executive to make laws.      

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       On the other hand, Mr.Bobde, learned senior counsel  appearing for respondent No.5, contended that the office order  is merely an executive instruction and it cannot run counter to  the provisions of Rule 9(ii).  It is contended that the office  order dated 11.2.2003 attempts to nullify the requirement of  Rule 9(ii) by superseding the rule by an executive instruction.   It is also contended that the office order provides for an  interview without specifying the total and passing marks and  lacks guidelines and if such office order is allowed to stand, it  will not only be violative of Articles 14 and 16 but will also  open floodgates for nepotism, favouritism and corruption.    A careful reading of office order dated 11.2.2003 shows  that it does not supercede or override Rule 9(ii) but purports  merely to be a prescription of the ’qualifying examination’ by  the Governor as contemplated under Rule 9(ii). Therefore, the  question is not whether the office order dated 11.2.2003  supersedes Rule 9(ii) or not, but whether the office order is in  conformity with Rule 9(ii), as the office order itself states that  the Governor is prescribing the qualifying examination as  contemplated under Rule 9(ii). This means that the limited  question that arises for consideration is whether interview can  be considered as a ’qualifying examination’.    

Meaning of the words ’qualifying examination’ in Rule 9(ii)

       Under the Rules, recruitment to the post of Assistant  Engineer is through more than one source. We are not  concerned with the source of direct recruitment in this case.  Rule 5(iv) provides for recruitment by promotion of members of  the Sub-ordinate Engineering Services who have shown  exceptional merit. Rule 9(ii) provides that no officer shall be  promoted to the service under Rule 5(iv) unless he has passed  such qualifying examination as the Governor may prescribe, or  possesses the technical qualification prescribed in clause (i) of  that Rule. Admittedly, the Diploma Holders working as Junior  Engineers do not possess the technical qualification  prescribed in Rule 9(i).  Therefore, for promotion, they will  have to pass the qualifying examination. Earlier, the procedure  was that members belonging to the sub-ordinate engineering  services who had completed a certain number of years and  who were recommended by their superior officers on the  ground of exceptional merit were permitted to appear in an  examination to qualify for promotion to the post of Assistant  Engineers. Those who secured prescribed minimum  percentage of marks in such qualifying examinations were  promoted to the post of Assistant Engineer.          After substitution of Rule 12 by the 1992 Amendment to  the 1936 Rules, ’seniority subject to rejection of unfit’ is the  criterion for promotion. This is similar to as ’seniority-cum- merit’ and ’seniority-cum-suitability’. Application of such  criterion does not mean that promotion is automatic, on the  basis of seniority. It means that a list of all candidates in the  feeder post should be prepared in the order of seniority, and  each candidate as per the rank in seniority is considered on  merit. Whoever is found unfit, is rejected. Whether the  candidate is ’fit’ or unfit is determined by adopting the  procedure prescribed by the Rules. It can be by requiring the  candidates to undergo a qualifying examination. It can also be  by an interview. It can be with reference to the grades assigned  in the Annual Confidential records. It can be by any other  reasonable and relevant method prescribed. In B.V. Sivaiah v.  K. Addanki Babu [1998 (6) SCC 720], this Court observed :

"We thus arrive at the conclusion that the

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criterion of "seniority-cum-merit" in the  matter of promotion postulates that given  the minimum necessary merit requisite  for efficiency of administration, the  senior, even though less meritorious,  shall have priority and a comparative  assessment of merit is not required to be  made. For assessing the minimum  necessary merit, the competent authority  can lay down the minimum standard that  is required and also prescribe the mode of  assessment of merit of the employee who  is eligible for consideration for promotion.  Such assessment can be made by  assigning marks on the basis of appraisal  of performance on the basis of service  record and interview and prescribing the  minimum marks which would entitle a  person to be promoted on the basis of  seniority-cum-merit."             In this case, qualifying examination is prescribed as the  method of ascertaining the minimum necessary merit. The  question is whether ’interview’ can be considered as ’qualifying  examination’.         The contention of the learned counsel for the appellant is  that the rules do not require the candidates to undergo a  "written examination". It is pointed out that rule 9(ii) merely  uses the word ’qualifying examination’ and not "written  examination". According to the appellant, the word  ’examination’ can be either written or by an interview. Reliance  is placed on the decisions of this Court in A.P. State Finance  Corporation vs. C.M. Ashok Raju [1994 (5) SCC 359], Anjur  Ahmed vs. State of Bihar [1994(1) SCC 150], Surinder  Singh vs. State of Punjab [1980 (3) SCC 418], Siya Ram vs.  Union of India [1998 (2) SCC 566], and Sardar Singh vs.  State of Punjab [1991 (4) SCC 555] to contend that ’interview’  alone can be the basis for promotion. Reliance was also placed  on the decisions in Lila Dhar vs. State of Rajasthan [1981  (4) SCC 159] and Kiran Gupta Vs. State of U.P. [2000 (7)  SCC 719] to contend that for promotions to senior positions or  promotion of persons of matured personality, prescription of  interview alone as the method of assessment is recognized and  valid. It is pointed out that all the aggrieved diploma Junior  Engineers have put in more than 20 years of service and are  mature persons and therefore ’interview’ can be a suitable  method for ascertaining whether they are ’fit’ or ’unfit’ and  therefore there is no infirmity in the office order dated  11.2.2003. But the question here is not whether interview can  alone be the criterion for ascertaining fitness for promotion.  The rule requires a ’qualifying examination’. The office order  prescribes ’interview’ as qualifying examination. The aforesaid  decisions are not of any assistance to decide whether interview  can be a ’qualifying examination’. It is also unnecessary to  consider the several decisions cited by Mr. Bobde to contend  that ’interview’ alone should not be the criterion for selection.  That issue does not arise in this case.         ’Qualifying examination’ in the context of promotion  refers to an examination which when passed, qualifies or  makes the candidate eligible for promotion. The purpose of a  qualifying examination is not to determine the comparative  inter se merit of the candidates. When the minimum  prescribed marks are secured in the qualifying examination, it  confers eligibility on those who secure the minimum marks in  such an examination in the order of seniority. Therefore, when

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a ’qualifying examination’ is provided, it presupposes that the  questions will be identical and all candidates shall have  identical opportunity to answer the same questions and pass  such examination to secure eligibility. This can only be by  means of a written examination and not an ’interview’.  Therefore, in the absence of any specific provision prescribing  interview as the means of ascertainment of fitness for  promotion, ’interview’ cannot generally be considered to be a  qualifying examination nor can it take the place of a qualifying  examination. ’Qualifying examination’  in the circumstances  would necessarily refer to a written examination. We therefore  uphold the decision of the High Court (though for different  reasons) that the officer order dated 11.2.2003 is contrary to  the Rules and interview cannot be the method of ascertaining  fitness.  We see no reason to interfere with the order of the High  Court quashing the office order dated 11.2.2003 and requiring  the diploma-holder Junior Engineers to undergo a qualifying  examination.  We direct the first respondent-Government and  third respondent (UP.PSC) to conduct the qualifying  examination within a period of four months from today in  accordance with the Rules.  We, however, clarify that if any of  the diploma-holder Junior Engineers have already been  promoted as Assistant Engineers in pursuance of the interim  order dated 27.9.2004 and are functioning in that capacity as  on today, they may continue to hold the said posts on ad hoc  basis till regular promotions are made in accordance with the  rules.  We further clarify that if any of them fails to pass such  qualifying examination, they shall stand reverted as Junior  Engineers.  Subject to the aforesaid observations, this appeal  is dismissed.  No costs.