SUPREME COURT OF INDIA
Diploma Engineers Sangh
Vs.
State of Uttar Pradesh & Ors.
(H.K.Sema and R.V.Raveendran,JJ.,)
20.03.2007
JUDGMENT
H.K.Sema, J.,
1. 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.
2. 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 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 ?”
3. 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.P1 ,
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.
4. 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 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. & Ors2
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)
5. Thus, this Court proceeded on the premise that the 1936 Rules, except to the
extent struck down remained undisturbed and continued to apply.
6. 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 decisions of this Court in Firm A.T.B. Mehtab Majid and
Co. vs. State of Madras3 ,
T. Devadasan Vs. Union of India4, B.N.
Tewari Vs. Union of India5,
Indian Express Newspapers (Bombay) Pvt.Ltd. Vs. Union of India6 West
U.P. Sugar Mills Assn. vs. State of U.P7. 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.
Ltd8 and Bhagat Ram Sharma vs. Union of India9 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.
7. 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 were 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.
8. 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. & Ors10 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 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."
9. 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."
10. 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.11 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.P12) 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.
11. 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 Of India, 1950 relating to the executive
power of the State which enables the Executive to make laws.
12. 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'.
13. Meaning of the words 'qualifying examination' in Rule 9(ii)
14. 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.
15. 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 Babu13 this
Court observed :
"We thus arrive at the conclusion that the 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."
16. 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'.
17. 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
Raju14, Anjur Ahmed vs. State of Bihar 15,
Surinder Singh vs. State of Punjab16 ,
Siya Ram vs. Union of India17,
and Sardar Singh vs. State of Punjab18 to
contend that 'interview' alone can be the basis for promotion. Reliance was
also placed on the decisions in Lila Dhar vs. State of Rajasthan19 and
Kiran Gupta Vs. State of U.P20. 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.
18. '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 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.
19. 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.
Judgment Referred.
1(1987) 3 SCC 0622
2(198)1 SCR 1 0449
3(1963) Suppl.(2) SCR 0435
4AIR 1964 SC 0179
5AIR 1965 SC 1430
6(1985)1 SCC 0641
7(2002) 2 SCC 0645
8(1977) 1 SCR 1002
9 (1988) Sup. SCC 0030
10Writ Petition No.42762/2000
11(1992) CriLJ 3209
12(2002) 2 UPLBEC 1483
13(1998) 6 SCC 0720
14(1994) 5 SCC 0359
15(1994)1 SCC 0150
16(1980) 3 SCC 0418
17(1998) 2 SCC 0566
18(1991) 4 SCC 0555
19(1981) 4 SCC 0159
20(2000) 7 SCC 0719