TMI Blog1995 (3) TMI 469X X X X Extracts X X X X X X X X Extracts X X X X ..... ief Engineers, as may be specified by the Government of Haryana from time to time (Rule 3(1). The recruitment to the service is made by the government as per Rule 5(1); (a) by direct recruitment; (b) by transfer from any other services of the State Govt. or of the Union of India; and (c) by promotion from Haryana Engineers, Class II Service. The appellants for short 'the promotees from Class II Service were promoted as Executive Engineers by relaxing five years length of service as Class II Engineers in officiating capacity on various dates between January 6, 1969 to May 29, 1971, There of them, namely, A.N. Sehgal, Raj Kumar and H.C. Sethi were confirmed as Executive Engineers w.e.f. July 11, 1973, December 11, 1974 and December 9, 1975 respectively. The rest are yet to be confirmed. Raje Ram Sheoran was recruited and appointed directly as Asstt. Executive Engineer w.e.f October 25, 1971. He too was given relaxation of the length of service of five years as Asstt. Executive Engineer and was promoted as Executive Engineer on October 8, 1973. He was confirmed w.e.f. December 22, 1976. All the appellants except M.R. Gupta were further promoted as Superintending Engineers on diff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stantive capacity as Executive Engineers from the respective dates of promotion. He further argued that since Raje Ram Sheoran was recruited as Asstt. Executive Engineer w.e.f. August 30, 1971 along after the promotion of the appellants upto B.L. Goyal, the appellants are senior to R.R. Sheoran as Executive Engineers. Proviso to Rule 5(2) entitles them to remain in a substantive capacity as Executive Engineers since requisite number of qualified Asstt. Executive Engineers were not available for promotion. In view of their continous officiation as Executive Engineers in terms of Rule 2(12)(a) of the rules, they must be deemed to be the members of the service from the dates of promotion and, therefore, they are seniors to R.R.Sheoran . M/s. Sachhar, learned counsel for the State and Gupta for R.R. Sheoran on the other hand contended that unless the appellants were appointed substantively to the cadre posts they could not be members of the service. R.R. Sheoran became member of the service from the date of his initial appointment as Asstt. Executive Engineer, therefore, he is senior to the appellants and proforma respondents and the High Court rightly interpreted rule 5(2). Since the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o appointed shall not be deemed to have become a member of the service as defined in Clause (12) of Rule 2. The Asstt. Executive Engineer means a member of the service in the junior scale of pay, (Rule 2(2)). Cadre post means permanent post in the service as per Rule 2(3). `Class II Service' means the Punjab Service of Engineers, Class II, in the Buildings and Roads Branch and includes, for purposes of promotion to and fixation of seniority in the Class I Service, Temporary Asstt. engineers when a suitable Class II Officer is not available vide Rule 2(5). Direct appointment means an appointment by open competition but does not include-(a) an appointment made by promotion; (b) an appointment by transfer of an officer from the service of the State Government or of the Union, (Rule 2(7). Ex-cadre post means a temporary post of the same rank as a cadre post vide Rule 2(10). A member of the service means an officer appointed sub-stantively to a cadre post and includes (a) in the case of a direct appointment an officer on probation, or such an officer who, having successfully completed his probation, awaits appointment to a cadre post vide Rule 2(12)(a). A reading of the rules cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the normal service jurisprudence as would appear from the scheme under the rules. Para 11(b) of appendix `A' read with Rule 3(2), while determining the cadre strength of the service, adumbrates creation and appointment of Asstt. Executive Engineers (direct recruit) to an ex-cadre junior scale post in each year. Therefore in a given situation, a direct recruit appointed to an ex-cadre post, cannot be kept in lurch until he is appointed to a cadre post so as to become a member of the service. Obviously to avoid such a hiatus, Rule 2(12)(a) was introduced. The main part o Rule 2(12)(a) declares that an appointee substantively to a cadre post i.e., permanent post is a member of the service. The inclusive definition brings an officer `by direct appointment on probation' who having successfully completed probation and awaits appointment to a cadre post is also a member of the service. Take for instance if direct recruitment is made to fill in five posts of Asstt. Executive Engineers of which four are cadre posts and one ex-cadre post and four persons are appointed to cadre posts in the order of merit and the last one to the ex-cadre post. The first four officers appointed on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y way of promotion to which a direct recruit Asstt. Executive Engineer is entitled to be considered. On promotion he shall be on probation for a period of one year as per Rule 11(1)(a), but the period spent on officiation as Executive Engineer shall be taken into account for purposes of completing the period of probation and on its successful completion, he shall remain in service As Executive Engineer. On a conjoint reading of Rule 12(3) and 12(5) it is clear that the year of allotment of the Asstt. Executive engineer in the post of Executive Engineer, shall be the calendar year in which th order of appointment as Asstt. Executive Engineer had been made. Thus his seniority as Executive engineer, by fiction of law, would relate back to his date of initial appointment as Asstt. Executive Engineer and in Juxta position to Class II officers' seniority as Executive Engineer is unalterable. The date of the seniority of Mr. R.R.Sheoran 1971. The question then is what is the date from which the seniority of a promotee as Executive Engineer shall be reckoned? The contention of Shri P.P. Rao is that Rule 5(2) reserve 50% of the posts to the direct recruits but the proviso thereto mak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Govt. or of the Union, the remaining 50% of the posts as Executive Engineers, Superintending Engineers and Chief Engineers shall be occupied only by the direct recruit Asstt. Executive Engineers. It is settled law that prescription of quota for recruitment from different sources is constitutionally a valid rule. Rule 5(2) limits 50% posts to the promotees from Class II Service and no further, but the proviso to the Rule lays down that till adequate number of Asstt. Executive Engineers are available, the rigour of 50% quota may be relaxed and Class II officers may be promoted in excess of their quota. What is the intendment of the class `the actual percentage of officers promoted from Class II service may be larger than 50% is the question. The mandate of Rule 5(2) is that the officers promoted from Class II service shall in no case exceed 50% of the number of posts in the service. Unless it is relaxed, the appointment and occupation of the posts by promotee in excess thereof is irregular or illegal and the government have no power to promote persons from Class II service to fill in such posts of Executive Engineers Superintending Engineers and Chief Engineers. It is common know ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g which otherwise would have been within the rule. It has to operate in the same field and if the language of the main enactment is clear, the proviso cannot be torn apart from the main enactment nor can it he used to nullify by implication what the enactment clearly says nor set at naught the real object of the main enactment, unless the words of the proviso are such that it is its necessary effect. In V.B. Badami, etc. v. State of Mysore, [1976] 1SCR 815 dealing with the problem arising out of quota rule between promotees, this Court observed that: In working out the quota rule, these principles are generally followed. First, where rules prescribe quota between direct recruits and promotees, confirmation or substantive appointment can only be in respect of clear vacancies in the permanent strength of the cadre. Second, confirmed persons are senior to those who are officiating. Third, as between persons appointed in officiating capacity, seniority is to be counted on the length of continuous service. Fourth, direct recruitment is possible only by competitive examination which is prescribed procedure under the rules. In promotional vacancies, the promotion is either by selec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e honestly and diligently to exhibit competence, straightforwardness with missionary zeal exercising effective control and supervision in the implementation of the programmes. The chances of promotion would also enable a promotee to imbue involvement in the performance of the duties; obviate frustration and eliminate proclivity to corrupt practices, lest one would tend to become corrupt, sloven and mediocre and a dead wood. In other words, equal opportunity would harness the human resources to augment the efficiency of the service and under emphasis on either would upset the scales of equality germinating the seeds of degeneration. With a view to achieve this objective, the rule making authority envisaged to appoint direct recruits as well as by promotion from Class II Service, otherwise by transfer from other services. In interpreting the rules, effect must be given to allow everyone drawn from these sources to have their due share in the service and chances of involvement of effectively discharge the duties of the posts honestly and efficiently with dedication. Any wanton or deliberate deviation in the implementation of the rules should be curbed and snubbed and the rules must ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ire officiating period towards seniority, unless there is break in the service or from the date of later promotion. Such promotee, by necessary implication, would normally become senior to the direct recruit promoted later. Combined operation of sub-rules (3) to (5) of Rule 12 makes the direct recruit a member of the service of Executive Engineer from the date of year of allotment as an Asstt. Executive Engineer. The result is that the promotee occupying the posts within 50% quota of the direct recruits, acquired no right to the post and should yield to direct recruit though promoted later to him, to the senior scale posts i.e., Executive Engineer, Superintending Engineer and Chief Engineer. The promotee has right to confirmation in the cadre post as per Rule 11(4) if a post is available to him within his quota or at a later date under rule 5(2) read with 11(4) and gets appointment under s. 8(11). His seniority would be reckoned only from the date of the date of the availability of the post and the year of allotment, he shall be next below to his immediate senior promotee of that year or the junior most of the previous year of allotment whether officiating or permanent occupying th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cruits as Asstt. Conservators of Forest. The rules prescribed ratio between direct recruits and promotees. Due to delay in recruitment as Asstt. Conservators of Forest, the Forest Rangers were promoted in excess of their quota as Asstt. Conservators of Forest temporarily and continued in service without any break for 5 to 12 years. The promotees claimed seniority from the date of their initial promotion. Considering the scope of the rules and rights acquired by the petitioners therein and the direct recruits, the Court held that: When promotion was outside the quota, the seniority would be reckoned from the date of the vacancy within the quota, rendering the pervious service fortuitous. The previous promotion would be regular only from the date of the vacancy within the quota and seniority shall be counted from that date and not from the date of his earlier promotion or subsequent confirmation. In order to do justice to the promotees it would not be proper to do injustice to the direct recruits. The rule of quota being a statutory one must be strictly implemented and it is impermissible for the authorities concerned to deviate from the rule due to administrative exigencies of e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when he occupies a vacancy in a substantive post and continued uninterruptedly it would be open to the appointing authority to put the promotee Executive Engineer on probation. Though confirmation is an inglorious uncertainty depending neither on the efficiency of the officer nor generally on the availability of the post, the mandate of Quota of 50% in Rule 5(2) should be adhered to. Declaration of probation and confirmation to a cadre post, if available, under Rule 11(4) shall be made. Seniority of such approved or confirmed promotee should be counted from the date of either initial officiating promotion of continous later officiation from the date of availability of the cadre post, however, should be next below his senior promotee or the junior most of the preceding year of allotment within the quota. If no post is available till such date of the availability, the entire period of continuous officiation would be rendered fortuitous. The contention, therefore, that the promotion would relate back retrospectively to the date of creation of the post and the appointment to the vacancy shall be with reference to the date of the creation of the post, would result anomalies and render R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he promotion to the ex-cadre post is temporary or to a cadre post could be only on officiating basis. It may be open to the government to abolish at any time the ex-cadre posts. Determination of cadre strength is a condition precedent for Rule 5(2)(a) to operate. Till a promotee is confirmed in a substantive capacity as Executive Engineer, he continues to retain line in Class II service. The interpretation that the promotion to the temporary post or ex-cadre post within the meaning of Rule 2(10) should also be deemed to be an appointment to a substantive post would do violence to the language of the relevant rules and the scheme. It is true that this Court in Baleshwar Dass Ors. v. State of U.P. Ors. etc., [1981] 1 SCR 449 at 463 held that there cannot be probation for a government servant who is not to be absorbed substantively in the service on completion. The ratio therein does not apply to the facts of this case for the reason that the Govt. itself did not understand the scope and operation of the rules properly as is amply demonstrated from their mutually irreconcilable inconsistent stand taken in the counter-affidavits filed by the State Govt. in the High Court and in thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hile a promotee Executive Engineer continues to retain his line on the posts as Class II officers still he is appointed substantively to Class I service. There is reasonable classification and discernable distinction drawn between the direct recruit and the promotee. The nexus is to treat direct recruit Asstt. Executive Engineer appointed to the cadre posts as well as ex-cadre post at par as members of the service and the deeming clause is to serve this purpose. Thus, there is nether invidious discrimination nor arbitrariness in Rule 2(12)(a) offending Arts. 12 16. The differentiation drawn between direct recruit and the promotee bears rational relation to the object of Rule 2(12), the ratio of the Constitution Bench in B.S. Yadav v. State of Haryana, [1980] 1 SCR 1024 and The Direct Recruit, Class II Engineering Officers' Association v. State of Maharashtra Ors., [1990] 2 SCC 715 at 745 cannot be imported bodily and applies to the ficts of the case in the light of the operation of the rules in question. The further contention that Rule 12 adumbrates that not only a member of the service, but even an officer officiating as an Executive Engineer before becoming a member o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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