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CASE NO.: Appeal (civil) 4341-42  of  2000 Appeal (civil)  1014     of  2001

PETITIONER: O.P. LATHER & ORS., ETC.

       Vs.

RESPONDENT: SATISH KUMAR KAKKAR & ORS.

DATE OF JUDGMENT:       02/02/2001

BENCH: S. Rajendra Babu & K.G. Balakrishnan.

JUDGMENT:

K.G. BALAKRISHNAN, J.

Leave granted.

L...I...T.......T.......T.......T.......T.......T.......T..J

   Aggrieved  by  the  judgment of the  Division  Bench  of Punjab  &  Haryana High Court at Chandigarh in  C.W.P.   No. 9655  of  1999 and C.W.P.  No.  15317 of 1999,  the  present appeals  are filed by the party respondents and the State of Haryana  respectively.   By  the   impugned  judgment,   the Division  Bench  held that the contesting party  respondents [appellants  in the civil appeals arising from S.L.P.(Civil) Nos.   4341-42 of 2000] were not entitled to be promoted  as Executive  Engineers and that the claim of the petitioner in the writ petitions shall be considered.

   Initially,  Satish Kumar Kakkar, the first respondent in these  appeals, filed a writ petition [C.W.P.  No.  9655  of 1999]  claiming that he alone was entitled to be promoted as Executive  Engineer and contended that the third  respondent therein,  namely,  O.P.   Lather,  then  working  as  Asstt. Engineer, lacked the requisite educational qualification for promotion  as  Executive Engineer.  The Division Bench  held that  the  said third respondent did not have the  requisite qualification  for  promotion  to   the  post  of  Executive Engineer and directed that the post of Executive Engineer be filled  up in accordance with the Rules.  Subsequent to this judgment, the Govt.  of Haryana issued an executive order on 7th  October,  1999 whereby it was clarified that the  Three Years’  Diploma  in Electrical Engineering, awarded  by  the State  Board  of  Technical  Education,  Haryana,  would  be treated  as equivalent to Diploma in Electrical  Engineering from  a recognised university.  Consequently, the appellants herein,  namely,  O.P.  Lather, P.D.  Sharma and  Daya  Nand were  promoted  to  the  posts   of  Executive  Engineer  by proceedings  dated 26th October, 1999.  The order passed  by the  Govt.  of Haryana on 26th October, 1999, was challenged by  Satish  Kumar  Kakkar in a writ  petition  [C.W.P.   No. 15317  of  1999] contending that none of them possessed  the

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requisite  qualification  for  being promoted  as  Executive Engineer  and the Division Bench of the High Court  accepted his  contention  and quashed the promotions.   The  Division Bench  also  directed  to consider the claim  of  the  first respondent  herein  for promotion to the post  of  Executive Engineer.   Judgments  in  these   two  writ  petitions  are challenged before us.

   As  per  Rules  framed  by the State  of  Haryana  under Proviso  to  Article 309 of the Consititution, the  post  of Executive  Engineer would be filled up by direct recruitment as  well  as  by  promotion.  The relevant  portion  of  the "Haryana  Electrical  Inspectorate (Group-A) Service  Rules, 1997" is column 3 of Appendix B of the said Rules.  The same is to the following effect :

-------------------------------------------------------------------------------------------- ------- S.   Designation   Academic qualifications         Academic qualifications No. of posts          & experience, if any,             & experience, if any,                                        for direct recruitment             for appointment other                                                  than by direct@@       JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJIIIIIIIIIIIIIIIIIIIIIIII  recruit-

    ment -------------------------------------------------------------------------------------------- ------- 2.  Executive    1. Degree   in     Electrical          1. Degree or Diploma           Engineer         Engineering from a recog-          in            Electrical  from         a                nised University or its                 Engineering            equivalent                                   recognised  Univer- equiva-                                                                      sity or                                              lent.

[emphasis supplied]

-------------------------------------------------------------------------------------------- ------- S.   Designation   Academic qualifications         Academic qualifications No. of posts          & experience, if any,             & experience, if any,                                        for direct recruitment             for appointment other

    than by direct recruit-

      ment -------------------------------------------------------------------------------------------- -------

             2. Should have been regularly    2. Eight years experi-                                        engaged  for  a period of at ence as   Asstt.                                        least   eight  years  in  the

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               Engineer.                                        practice of electrical engineer-                                        Ing of which not less than two                                        years should have been spent                                        in an electrical or mechanical                                        engineering workshop or in                                        generation, transmission or                              distribution of electricity or in                                        the administration of Indian                                        Electricity Act, 1910, and the                                        Rules made thereunder in a                                        position of responsibility. -------------------------------------------------------------------------------------------- -------

   As   per  the  above   Rules,  the  requisite   academic qualification  for  promotion  to   the  post  of  Executive Engineer is Degree or Diploma in Electrical Engineering from a  recognised university or its equivalent.  The  appellants have  passed  Diploma  in  Electrical  Engineering  from  an institution  affiliated  to  the State  Board  of  Technical Education,  Haryana, but the Diploma acquired by them is not from   a  recognised  university.    Therefore,  the   first respondent  contended  that  they were not  entitled  to  be promoted to the posts of Executive Engineer.

   The  first respondent had joined service in the  Haryana Govt.   as Junior Engineer in 1981 and he too is a holder of Diploma  in Electrical Engineering from Haryana Polytechnic, Nilokheri,  which  is  affiliated  to  the  State  Board  of Technical  Education, Haryana.  He was promoted to the  post of  Asstt.  Engineer on 2.4.1985 whereas the appellants were promoted  during  the period 1984-85 to the cadre of  Asstt. Engineer.   Three  vacancies of Executive Engineer arose  on 29.12.1998.  The first respondent claimed that he had passed A.M.I.E.   Examination  in 1995 and was thus entitled to  be promoted  to the post of Executive Engineer.  In the earlier writ petition, viz.  C.W.P.  No.  9655 of 1999, the Division Bench  had held that as the third respondent therein,  viz., appellant-O.P.  Lather was only a Diploma-holder, and as the Diploma  Certificate  obtained  by  him   was  not  from   a recognised university, he was disqualified to be promoted to the  cadre  of Executive Engineer.  Subsequent to this,  the Govt.   of  Haryana  issued  a clarificatory  order  on  7th October,  1999  whereby  it  was held that  the  Diploma  in Electrical  Engineering  awarded  by   the  State  Board  of Technical  Education, Haryana, and approved by the All India Council  for Technical Education be treated as equivalent to Diploma   in  Electrical  Engineering   from  a   recognised university.   The Division Bench, in its subsequent judgment in C.W.P.  No.  15317 of 1999, held that the vacancies arose prior  to  the issue of the said clarificatory order by  the Govt.   of  Haryana and, therefore, the promotion  to  those posts  should  have  been made in accordance with  the  then existing  rules  as  the order passed by the Govt.   on  7th October, 1999 cannot have retrospective effect.  It was held that  by virtue of the amendment of Rules, no  retrospective effect could be given to the said order and as the vacancies had  occurred prior to the coming into force of the  amended rules,  the  appellants  herein  were  not  entitled  to  be promoted to the posts of Executive Engineer.

   We heard the learned counsel on either side.  It is true

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that  as  per  the  special rules framed  under  Proviso  to Article 309 of the Constitution, the requisite qualification for  the  purpose  of promotion to the  cadre  of  Executive Engineer is Degree or Diploma in Electrical Engineering from a  recognised  university  or its equivalent.   The  learned counsel  for the State of Haryana submitted that there is no university  in the State of Haryana which awards Diploma  in Electrical Engineering and that such Diplomas are awarded by various  recognised institutions which are affiliated to and approved  by  the  State  Board of  Technical  Education  in Haryana.   It  is argued that the first respondent had  also acquired  a  three years’ Diploma in Electrical  Engineering granted by the State Board of Technical Education, though he has  passed A.M.I.E.  Examination, which is also not  issued from  a  recognised  university.   It  was  submitted   that realising  this  position, the Govt.  of Haryana  issued  an executive order on 7th October, 1999 by way of clarification wherein  it  is  stated that no university situated  in  the State  of  Haryana awards Diploma in Electrical  Engineering and  that  the Diploma in Electrical Engineering is  awarded only by the State Board of Technical Education, Haryana, and no   requirement  of  equivalent   qualification  has   been prescribed  for  such  a course (Diploma) in  the  State  of Haryana;   the  three years’ Diplomas awarded by  the  State Board  of Technical Education, Haryana, are duly approved by the All India Council for Technical Education also.

   The  question  that  arises  for  our  consideration  is whether the clarification issued by the Govt.  of Haryana by an  executive  order  is  proper and valid  and  whether  it amounts  to amendment of the Rules made under Article 309 of the  Constitution.  If it is an amendment to the Rules  made under  Article 309, a further question arises whether by  an executive order, can such rules be amended.

   Normally,  the Rules framed under the proviso to Article 309,  cannot be amended except in accordance with  procedure laid down therein.  But in the instant case, the question is whether  a  clarification  issued  by the  Govt.   could  be construed  as  an  amendment to the rules.  Even  under  the rules, it is specifically stated that a Degree or Diploma in Electrical  Engineering from a recognised university or  its equivalent   would  be  the   requisite  qualification   for promotion to the cadre of Executive Engineer.  In the Rules, some  of the recognised universities are also mentioned  and admittedly, these institutions are not awarding any Diploma. The  rules  say that equivalent qualification also would  be considered.   There  is  nothing  wrong  in  the  appointing authority  issuing  a clarification as to what would be  the equivalent  qualification  for the purpose  of  appointment. When  the universities do not offer the Diplomas  prescribed under  the  Rules, the rule itself becomes  meaningless  and nugatory.   Under  the  Rules, the candidates are  asked  to produce  a  certificate  which is neither in  existence  nor awarded.   It was at this juncture that the Govt.  issued  a clarification  that  the  Diploma   awarded  by   recognised institutions,  which  are affiliated to the State  Board  of Technical  Education  in  Haryana, would  be  considered  as equivalent.

   A similar question came up for consideration in State of Haryana vs.  Shamsher Jang Bahadur (1972) 2 SCC 188.  It was held in paragraph 7 of the judgment as under :

   "The  first question arising for decision is whether the

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Government  was competent to add by means of  administrative instructions  to  the  qualifications prescribed  under  the Rules  framed  under  Article 309.  The High Court  and  the courts below have come to the conclusion that the Government was  incompetent to do so.  This Court has ruled in Sant Ram Sharma  v.   State of Rajasthan and Another that  while  the Government  cannot amend or supersede the statutory rules by administrative  instructions, if the rules are silent on any particular  point, the Government can fiill up the gaps  and supplement the rules and issue instructions not inconsistent with the rules already framed."

   In the instant case also, the Govt.  Order passed on 7th October,  1999  was only supplemental to the  Rules  already@@           JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ framed under the Proviso to Article 309 of the Constitution.@@ JJJJJJJJJJJJJJJJ It  does not have the effect of altering the Rules nor is it inconsistent  therewith.  The relevant rule in fact provides that  Diploma  holders  are entitled to be promoted  to  the cadre  of  Executive  Engineer.  If this rule,  without  the present clarification, is allowed to operate, no officers in the  cadre  of Assistant Engineers would be entitled to  get promotion  as  they  are  not  holders  of  Diploma  from  a recognised  university.   That would be a virtual denial  of opportunity  of promotion to these officers.  The rule  does not intend that the Diploma holders shall not be promoted to the   cadre   of  Executive   Engineer.   To  obviate   this difficulty,  the  clarification  was  issued.   It  is  also pertinent to note that even the 1997 Rules give the power to Govt.   to  relax the Rules.  Rules 17 and 18 of 1997  Rules thus  confer  power  of relaxation and  for  making  special provisions/special  terms and conditions as may be deemed to be expedient.

   The  next question that arises for our consideration  is whether  the  High Court was justified in holding  that  the posts  had to be filled up in accordance with the Rules that were  in  existence at the time the vacancies arose.  We  do not think that the stand taken by the High Court is correct. The   executive  order  issued  by   the  Govt.   was   only clarificatory  in nature and the ’equivalent qualification’, which formed part of the Rules was exaplained by that order.

   It  was  argued  that by amendment  of  Rules,  benefits acquired  under the existing Rules cannot be taken away.  It is  true  that by retrospective amendment of  rules,  vested rights  cannot  be taken away.  This view was held  by  this Court  in T.R.  Kapur vs.  State of Haryana 1986 Supp.   SCC 584  =  AIR 1987 SC 415.  This Court held in Para 16 of  the said judgment as follows :

   "The  rules defining qualifications and suitability  for promotion  are conditions of service and they can be changed retrospectively.   This  rule is however subject to  a  well recognised  principle  that the benefits acquired under  the existing  rules  cannot be taken away by an  amendment  with retrospective  effect, that is to say, there is no power  to make  such  a  rule under the proviso to Article  309  which affects or impairs vested rights."

   But in the present case, by issuing the clarification no vested  rights  of any person were taken away  or  impaired, much   less  that  of  the   first  respondent.    By   this

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clarification,  it was made clear that Diploma issued by the State  Technical Education Department would be equivalent to a Diploma issued from a recognised university.  Even without this  explanation,  both Diploma-holders and  Degree-holders having eight years’ service as Asstt.  Engineer are entitled to  be  promoted to the cadre of Executive  Engineer.   This clarification  has  been  issued by the State  Govt.   after taking   into  consideration   all  relevant  circumstances, including  the  fact  that no university in  Haryana  grants Diploma    in   Electrical     Engineering.    When   expert qualification  is  fixed by competent authority,  ordinarily court  shall not interfere with such matters.  In University of  Mysore  & Anr.  vs.  C.D.  Govinda Rao & Anr.  (1964)  4 SCR  575, it was observed that normally it is wise and  safe for  the courts to leave the decision of academic matters to experts  who  are more familiar with the problems they  face than the courts generally can be.

   We do not find any illegality in the order passed by the Govt.   of Haryana promoting the appellants to the posts  of@@            JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ Executive Engineer.  They are admittedly senior to the first JJJJJJJJJJJJJJJJJJJ respondent in the cadre of Asstt.  Engineer.  We, therefore, set  aside  the  impugned  judgments   and  hold  that   the promotions of the appellants are made in accordance with the Rules.   All  the appeals are allowed  accordingly  without, however, any order as to costs.