TMI Blog1986 (12) TMI 366X X X X Extracts X X X X X X X X Extracts X X X X ..... . The purport and effect of the impugned notification is to nullify the decision of this Court in A.S. Parmar v. State of Haryana, [1984] 2 SCR 476, holding that a degree in Engineering was not essential for such promotion. By the impugned notification, a degree in Engineering is made an essential qualification for promotion of Assistant Engineers in the Irrigation Branch, a Class II service under r.6(b) of the Class I Rules and thereby the petitioners have been rendered ineligible for promotion to the post of Executive Engineer in Class I service. The circumstances which led to the issuance of the impugned notification are these. A controversy had arisen on the construction of r.6 of the Class I Rules as to whether a degree in Engineering was necessary when the post of Executive Engineer, which is a post in Class I service, was to be filled by promotion by members of Class II service and this was settled by the decision of this Court in A.S. Parmar's case, supra. The Court on a consideration of the relevant rules came to the conclusion that a member of Class II service, namely, Assistant Engineer or Sub-Divisional Officer did not require to have a University degree for promoti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cations prescribed in clause (a) shall be inserted. Presumably, the State Government adopted this unfortunate course of action taking cue of the observations made by this Court in the concluding part of the judgment in A.S. Parmar's case saying that if the Government wish to appoint only persons having a degree in Engineering 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 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 Engineering 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. In order to appreciate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government may waive this qualification in the case of a particular officer belonging to the Class II Service. (b) In case of appointment by promotion from Class II Service, has completed in that Class of Service for a period of ten years from the commencement of these rules, six years service and after that period eight years service. Shri Shanti Bhushan, learned counsel for the petitioners has put forward a three-fold contention. First of these submissions is that the impugned notification which purported to amend r.6(b) of the Class I Rules with retrospective effect from July 10, 1964 making a degree in Engineering essential for promotion to the post of Executive Engineer in Class I service constitutes a variation in the conditions of service applicable to officers belonging to Class II service who are diplomaholders like the petitioners prior to the appointed day i.e. November 1, 1966 to their disadvantage as it renders them ineligible for promotion to the post of Executive Engineer in Class I service and was ultra vires the State Government having been made without the previous approval of the Central Government as enjoined by the proviso to s.82(6),of the Punjab Reorg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on with the affairs of the State. It interdicts that the conditions of service applicable to persons referred to in sub-s. (1) or sub-s. (2) thereof i.e. members of civil services affected by the reorganisation of the State. The conditions of service of any persons who immediately before the appointed day were serving in connection with the affairs of the existing State of Punjab and are as from that date allocated for service in connection with the affairs of the successor State i.e. allocated Government servants cannot be varied to their disadvantage. There is a long fine of decisions starting from Mohammad Bhakar v.Y. Krishan Reddy, [1970] SLR 768 down to Mohammed Shujat Ali Ors. v. Union of India Ors., [1975] 1 SCR 449 while construing the analogous provision contained in the proviso to s. 115(7) of the States Reorganisation Act, 1956 laying down that any rule made under the proviso to Art. 309 of the Constitution which seeks to vary or alter the conditions of service without the previous approval of the Central Government would be void and inoperative being in violation of the proviso to sub-s. (7) of s. 115 of the Act., It is a trite proposition that any rule which aff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gineering an essential qualification for such promotion which amounts to alteration of the conditions of service applicable to them to their disadvantage without the previous approval of the Central Government and is thus void by reason of the proviso to sub-s.(6) of s.82 of the Punjab Reorganisation Act, 1966. Faced with the difficulty, learned counsel for the respondents strenuously contends that the proviso to s.82(6) of the Act is not attracted in the present case. It is argued that on the appointed day i.e. November 1, 1966 the petitioners were not members of Class II service. It is said that the petitioners on the appointed day being Supervisors belonged to the Class III service and therefore were not governed by the unamended r.6(b). Reliance is placed on the notification issued by the State Government dated October 27, 1985 constituting the Class II service w.e.f. December 25, 1970 and it is said that the petitioners are not shown as belonging to Class II service. It was then contended that under r.3(c) of the Punjab Service of Engineers, Class II P.W.D. (Irrigation Branch) Rules, 1941, a degree in Engineering was essential till the Punjab Service of Engineers, Class II, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... motion to the post of Offg. Sub Divisional Officers they had not only the legitimate expectation that they would in due course be considered for confirmation but also had the right on such confirmation to be considered for promotion. It is also not quite accurate to say that the petitioners were not shown as belonging to the Class II service. A bare look at the notification dated October 27, 1985 would show that the petitioners figure at Sr. Nos. 246, 254 and 369. It is not suggested that the State Government ever moved the Central Government seeking its prior approval to the proposed amendment of r.6(b) of the Class I Rules. In that connection, it is necessary to recall that prior to the reorganisation of the States under the States Reorganisation Act, 1956, a conference of the Chief Secretaries of the States that were to be affected was held at Delhi on May 18 and 19, 1956 for the purpose of formulation of the principles upon which integration of services was to be effected. The Government of India by its circular dated May 11, 1957 to all the State Governments stated inter alia that it agreed with the views expressed on behalf of the States' representatives that it would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enough, learned counsel for the respondents strenuously contends that the decision of this Court in A.S. Parmar's case was incorrect. He presses into service for our acceptance the decision of the High Court in o.P. Bhatia v. State of Punjab, ILR 1980 P H 470 taking a view to the contrary. It is urged that in the erstwhile State of Punjab a degree in Engineering was essential for recruitment of Assistant Engineers in Class II Service under r. 3(c) of the 1941 Rules as held by the High Court in O.P. Bhatia's case and that view was in consonance with the departmental instructions of the relevant rules in the State of Punjab and the State of Haryana as also in the erstwhile State of Punjab that r.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's case which expressly overrules the view taken by the High Court in O.P. Bhatia's case. That apart, the proviso to r.5 of the 1941 Rules conferred power on the State Government to relax the requirement of r.3(c) on the recommendation of the Chief Engineer in order to admit the promotion of a m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urse since in the matter of promotion under the unamended r.6(b) it was not necessary to possess a degree in Engineering as held by this Court in A.S. Parmar's case. It follows therefore that every member of the Overseers Engineering Service was eligible for promotion first as Assistant Engineer or Sub-Divisional Officer in Class II Service and thereafter, in due course, to the post of Executive Engineer in Class I Service even without the educational qualification of a degree in Engineering. In substance, the submission is that a retrospective amendment of r.6(b) by the impugned notification which seeks to take away the eligibility of members of Class II Service who are diploma-holders for purposes of promotion to the posts of Executive Engineers in Class I Service from a back date ranging over 20 years and thereby renders invalid the promotions already made is constitutionally impermissible. It is well-settled that the power to frame rules to regulate the conditions of service under the proviso to Art. 309 of the Constitution carries with it the power to amend or alter the rules with a retrospective effect: B.S. Vadhera v. Union of India, [1968] 3 SCR 575, Raj Kumar v. Uni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... status of government servants. Their status as Government servants could not be extinguished, so long as the posts were not abolished and their services were not terminated in accordance with the provisions of Art.311 of the Constitution. Nor was it permissible to single them out for differential treatment. That would offend Art. 14 of the Constitution. The learned Judge observed that the Amending Act was sought to be given retrospective effect to get over the constitutional safeguards of Arts. 311 and 14 by reverting to a situation that existed some 17 years ago. He said that there was no power to do so and observed: The legislation is pure and simple, self deceptive, if we may use such an expression with reference to a legislaturemade law. The legislature is undoubtedly competent to legislate with retrospective effect to take away or impair any vested fight acquired under existing laws but since the laws are made under a written Constitution, and have to conform to the do's and don'ts of the Constitution neither prospective nor retrospective laws can be made so a to contravene Fundamental Rights. The law must satisfy the requirements of the Constitution today taki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ules and appointments were yet in the offing. Surely, the rule-making authority did not intend to exclude from appointment candidates who were eligible under the old rules but became ineligible by reason of an amendment of the rules made after the process of selection had almost reached a final stage. And then queried: Are they to be penalised by barring their entry into the Punjab Civil Service (Judicial Branch) because they accepted employment at a time when acceptance of such employment was not a bar to appointment to the service? We do not think that we will be justified in attributing such an unreasonable intention to the rule-making authority. In our view, the only reasonable interpretation of the amended rule, consistent with the prevailing situation, is to hold that only those persons who having joined the service of the Union or the State or a post under the Union or the State previously continued to hold the post on the date of the coming into force of the rule, are excluded from appointment to the Punjab Civil Service (Judicial Branch). The expression 'joined or joins' must be given a reasonable interpretation in the context of the situation and we think ..... X X X X Extracts X X X X X X X X Extracts X X X X
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