D. K. JAIN AND ORS. ETC. ETC.versusSTATE OF HARYANA AND ORS.

A                       D. K. JAIN AND ORS. ETC. ETC.
                                        V.

                       STATE OF HARYANA AND ORS.

                              NOVEMBER 25, 1994

B                     [R. M. SARAI AND N. P. SINGH, JJ.]

        SERVICE LAW

        Punjab Government National Emergency (Concession) Rules 1965-
    Rule 3 (iii)-Appointment to posts of Assistant Engineers in Haryana State
c   Engineers Service, Class II-Relaxation of minimum qualification in favour
    ofpersons in military service during proclamation ofemergency-Counting
    period of their military service for purpose of seniority-Whether valid-
    Held, Yes.

       Punjab Service of Engineers, Class I, PWD (Public Health Branch),
D   1961-~ules 6 and 9 as amended by Haryana· First Amendment Rules,
    1986--:-Promotionjrom posts of Assistant Engineer to Executive Engineer
    under old r.ules~Relaxation in respect of degree-Claim. of promotion to
    posts of Superintending Engineer-Whether bar prescribed by proviso to
    Rule 9 introduced by Amending Rule of 1986 shall be applicable-Held.
    Yes.
E
         A decision had been taken by the State of Haryana to relax the
    minimum qualification in favour of ex-military personnel, who had
    served the nation, during the emergency while appointing them to the
    posts of Assistant Engineer in Haryana State Engineer Service, Class
    II, of Public Works Department. The respondents, being in military
F   service during the proclamation of emergency, were appointed as
    Assistant Engineers in the year 1969, although being diploma holders
    they were also given seniority, taking into account the period while they
    were in military service in accordance with the provisions of the
    Punjab Government National Emergency (Concession) Rules 1965.
G
         Writ Petition was· filed on behalf of the appellants, questioning the
    validity of the Order of the State Government, counting the period,
    while the respondents were in military service for the purpose of their
    seniority. It was dismissed. In the Writ Petition filed on behalf of the
    respondents it was claimed that although they were diploma holders,
H   still the Amended Rules 6 and 9 shall not be bar for their being

                                     104
                     D.K. JAIN v. STATE OF HAR YANA                   105

considered for the posts of Superintending Engiceer. The High Court A
allowed the petition holding that inspite of the Amendments introduced
in rules 6 and 9, the respondents who were petitioners in Writ Petition
shall not be debarred from being considered for promotion to the posts
of Superintending Engineer. The High Court had taken the view that it
was not open to amend the Rules retrospectively w.e.f. 2.6.1961.
                                                                            B
    These appeals were filed for setting aside the judgments of the
High Court, dismissing the Writ Petition filed by appellants. The
appellants also challenged the judgment of the High Court questioning
the validity of the Punjab Service of Engineers, Class I, PWD (Public
Health Branch) Haryana First Amendment Rules, 1986. Rules 6 and 9
of the Punjab Service of Engineers, Class I, PWD (Public Health C
Branch), 1961 were amended retrospectively w.e.f. 2.6.1961 by the
Amending Rules.

     The respondents submitted that once the minimum qualification
prescribed for the posts of Assistant Engineer i.e. degree was relaxed in
exercise of the power under Rule 3{iii) of the National Emergency           D
Rules at the stage of their appointment as Assistant Engineers, it shall
be deemed that their diploma was treated to be equivalent to degree.
By a statutory fiction they will be deemed to be the holders of degree
although in fact they were holders of diploma only and this benefit
which was extended to them for having served the nation during the
emergency shall be available to them till their date of superannuation.     E
It was further submitted that once the respondents were appointed as
Assistant Engineers and promoted to the post of Executive Engineers
although they were diploma holders, they could not be deprived of their
right to be considered for promotion for the posts of Superintending
Engineer. It was pointed out that the degree holders and diploma            F
holders both were holding the posts of Executive Engineer; they formed
one class and thereafter they had to be treated as a class and for
purpose of promotion to the posts of Superintending Engineer they
cannot be put under two classes of Executive Engineers. According to
respondents the proviso to Amended Rule 9 purported to create a class
within class by imposing a bar on the promotion of such Executive           G
Engineers, who were holders of diploma Gnly, which was violative of
Articles 14 and 16 of the Constitution •

   . Therefore, the question for consideration was whether on the basis
of the relaxation given in respect of qualification regarding holding of
degree to the respondents at the stage of their initial appointment as H
    106                  SUPREME COURT REPORTS            [1994) SUPP. 6 S.C.R

A   Assistant Engineers and at the stage of promotion from the posts of
    Assistant Engineer to the Executive Engineers, in terms of Rule 3(iii) of
    the National Emergency Rules and proviso to Rule 6 of the Punjab
    Service of Engineers, Class I, PWD (Public Health Branch), Rules, 1961
    respectively will enure to their benefit even while they were to be
    considered for promotion to the posts of Superintending Engineer and
B   the bar prescribed by proviso to Rule 9 which was introduced by
    aforesaid Amending Rule of 1986 shall not be applicable in their case.

          Allowing the appeal, this Court

         HELD : 1.1. Different States have framed rules under Article 309
c   of the Constitution of India similar to the National Emergency Rules, in
    order to give benefit of seniority to persons, who were commissioned in
    armed forces when the nation was faced with foreign aggression. Such
    persons offered themselves to serve the nation by joining the armed
    forces at a time when the nation was in peril. In this background they
    have l!een treated as a separate class for extending the benefit in the
D   matter or relaxation of qualification, seniority, increment and pension.
    They belong to a separate class even in the light of Articles !4 and 16 of
    the Constitution. [109 H, llOA)

         Dhan Singh v. State of Haryana, (1990) Supp. 3 SCR 423; Union of
    India v. Dr. S. Krishna Murthy,(1990] 1 SLJ 67; and Narender Nath
E   Pandey v. State of U.P., AIR (1988] SC 1648 and Ram Janam Singh v.
    State ofUttar Pradesh (1994] 2 SCC 622, relied on.

         1.2. Rule 3 (iii) of National Emergency Rules does not purport to
    provide that a person who has rendered military service, although he
    does not possess the minimum qualifications prescribed for any service
F
    or post, he shall be deemed to possess the said qualifications,
    throughout, while in service. Rule 3 (iii) only provides that in case a
    person, who has rendered military service, but does not possess the
    minimum qualification prescribed for any service or post, he shall be
    deemed to possess the qualification. "If the appointing authority
G   certifies that such a person has acquired by experience or otherwise
    qualifications equivalent to those prescribed for that service/post." In
    other words, on the basis of the certificate of the appointing authority
    that such person has acquired by experience or otherwise qualifications
    which are equivalent to those prescribed for that service or post, such
    person shall be deemed to possess the qualifications in question. The
H
                        D.K. JAIN v. STATE OF HARYANA                  107

    words 'equivalent to those prescribed for that service or post' are A
    relevant because on basis of the certificate granted by the appointing
    authority that such person was possessing equivalent qualification to
    the prescribed one for the service and post, he shall be deemed to
    possess the qualifications prescribed. The Rule does not say that
    although such a person does not possess the prescribed qualifications,
    as he has rendered military service, it shall be deemed that he has been B
    possessing the prescribed qualifications. On the basis of the Certificate
    granted by the appointing authority, the concerned person shall be
    deemed to possess the qualifications equivalent to the qualifications
    prescribed for being appointed to the service and the post. It cannot be
    held that on the basis of that certificate it shall be deemed that such a C
    person possesses the qualifications in questions. It is well settled that a
:   statutory fiction cannot be extended beyond the purpose. [113 C to G)

         Bengal Immunity Co. v. State of Bihar, AIR (1955) SC 661;
    Commissioner of Sales Tax, U.P. v. Modi Sugar Mills Ltd, [1961) 2 SCR
    189; Braithwaite and Co. v. E.S.l.. Corporation, (1968) 1 SCR 771 and D
    K.S. Dharmadatan v. Central Government, [1979) 3 SCR 832, relied on.

         1.3. The appellants were degree holders, whereas the respondents
    were diploma holders. The cases of the appellants and the respondents
    had to be examined in the light of the proviso, which was introduced in
    Rule 9 by the Amending Act 1986 saying that a member of the service E
    who does not possess one of the degree or other qualifications
    prescribed in Appendix 'B' to those Rules shall not be eligible for
    promotion to the post of Superintending Engineer or above, till he has
    acquired the requisite qualifications. Although, the respondents had
    served the nation in the hour of peril by offering themselves for service
    in the Armed Forces, it could not be held that benefit extended to them F
    by Rule 3 (iii) of National Emergency Rules on the eve of initial
    appointment, had to be extended, even while they were being
    considered for promotion to higher post. This was not possible because
    of the specific bar prescribed by the proviso to Rule 9 introduced by
    Amending Rule of 1986, which cannot be held to be unconstitutional,
    invalid or violative of Articles 14 and 16 of the Constitution. The High G
    Court was not justified in ignoring the proviso to Rule 9 while coming
    to the conclusion that the said respondents were entitled to be
    considered for the posts of Superintending Engineers. The proviso to
    Rule 9 had to be kept in view while considering the cases of respondents
    for promotion to the posts of Superintending Engineer.
                                                          [115 E to G 118 F] H
     108                   SUPREME COURT REPORTS             [1994] SUPP. 6 S.C.R

A       State ofJammu and Kashmir v. Triloki Nath Khosa, [1974) 1 SCR 771
     (Constitution Bench) and P. Murugesan v. State of Tamil Nadu, (1993) 2
     sec 340, relied on.
         CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 7892-93 of
     1994 Etc.
B
         From the Judgment and Order dated 6.7.93 of the Punjab and Haryana
     High Court in L.P.A. Nos. 164/91, 246/91 and C.W.P. No. 3614of1991.

         Arun Jaitley, P.P. Rao, S. Markendeya, Ms. Chitra Markendeya, Ajay
     Singh, H.P. Sharma, Ms. Indu Malhotra, B.A. Mohanty, A. Mariaruputham,
c    for Arputham Aruna and Co., K.G. Bhagat, Kamal Baid, Ranbir Yadav,
     A.D. Sikri, Pradeep Gupta, K.K. Mohan, Rajesh and R.K. Gupta for the
     appearing parties.

           The Judgment of the Court was delivered by

           N.P. SINGH, J. Leave granted.
D
         The appeals on behalf of D.K. Jain, C.P. Taneja and other have been
    filed for setting aside the judgment of the High Court, dismissing the Writ
    Petition No. 1277of1988 filed on behalf of the said appellants, questioning
    the validity of the Order of the State Government, counting the period,
    while the respondents were in military service, during the proclamation of
E emergency, for the purpose of their seniority. The appellants have also
    challenged the judgment of the High Court allowing the Writ Petition No.
    3184 of 1988, filed on behalf of the respondents, questioning the validity of
    the Punjab Service of Engineers, Class I, PWD (Public _Health Branch),
    Haryana First Amendment Rules, 1986 (hereinafter referred to as
    'Amending Rules'). Rule 6 and Rule 9 of the Punjab Service of Engineers,
F Class I, PWD (Public Health Branch), 1961 were amended retrospectively
    with effect. from 2.6.1961 by the aforesaid Amending Rules. The High
  . Court has held that inspite of the amendments introduced in rules 6 and 9,
    the respondents who were petitioners in Writ Petition No. 3184 of 1988,
    shall not be debarred from being considered for promotion to the posts of
    Superintending Engineer.
G
         The respondents, admittedly were in military service, during the
     proclamation of emergency and after release from the military service, they
     were appointed as Assistant Engineers, on basis of an advertisement issued
     by the Haryana Public Service Commission, in the year 1969. A decision
     had been taken by the State of Haryana to relax the minimum qualification
H
             D.K. JAIN v. STATE OF HARYANA [N.P. SINGH, J.]             109

in favour of those ex-military personnel, who had served the nation, during A
the emergency, while appointing to the posts of Assistant Engineer in
Haryana State Engineer Service, Class II, of Public Works Department. In
respect of the respondents, not only the minimum qualification prescribed
for the Assistant Engineer was relaxed but they were also given seniority,
taking into account the period while they were in military service in
accordance with the provisions of the Punjab Government National B
Emergency (Concession) Rules 1965 (hereinafter referred to as 'the
National Emergency Rules). The said respondents were the holders of
diploma only. But in view of Rule 3 (iii) of the National Emergency Rules,
on basis of the certificates granted by the appointing authority that they had
acquired by experience or otherwise qualifications equivalent to those
prescribed for the post of Assistant Engineers, they were appointed as C
Assistant Engineers although being diploma holders.

    Rule 2 says that for the purpose of those rules, the expression 'military
service' means enrolled or commissioned service in any of the three wings
of the Indian Armed Forces (including service as a Warrant Officer)
rendered by a person during the proclamation of emergency on 26.10.1962. D
Rule 3 (iii) with which we are concerned is as under :

              "3. (iii) In case a person who has rendered military service
              does not possess the minimum qualifications prescribed for
              any service or post, he shall be deemed to possess these
              qualifications if the appointing authority certifies that such a E
              person has acquired by experience or otherwise qualifications
              equivalent to those prescribed for that service/post."

The relevant part of Rule 4 :

              "4. Increment, seniority and pension- Period of military        F
              service shall count for increments, seniority and pension as
              under:

              (ii) Seniority : The period of military service mentioned in
              clause (i) shall be taken into consideration for the purpose of
              determining the seniority of a person who has rendered G
              military service."

    Different States have framed rules under Article 309 of the
Constitution of India similar to the National Emergency Rules, in order to
give benefit of seniority to persons, who were commissioned in armed
forces when the nation was faced with foreign aggression. Such persons        H
    110                   SUPREME COURT REPORTS              (1994] SUPP. 6 S.C.R

A   offered themselves to serve the nation by joining the armed forces at a time
    when the nation was in peril. In this background they have been treated as a
    separate class for extending the benefit in the matter of relaxation of
    qualification, seniority, increment and pension. They belong to a separate
    class even in the light of Articles 14 and 16 of the Constitution. Reference
    in this connection may be made to the judgments of this Court in the cases
B   of Dhan Singh v. State of Haryana, [1990] Supp. 3 SCR 423, Union of
    India v. Dr. S. Krishna Murthy, (1990) 1 SLJ 67 and Narender Nath
    Pandey v. State of UP., AIR (1988) SC 1648 = (1988] 3 SCC 527 and in
    the case of Ram Janam Singh v. State of Uttar Pradesh and Anr. J.T.,
    (1994) l SC 187. The High Court rightly dismissed the Writ Petition filed
    on behalf of the appellants, questioning the validity of the order of the State
c   Government, counting the period of military service for the purpose of
    seniority in accordance with the National Emergency Rules. We find no
    reason to interfere with the order of the High Court dismissing the Writ
    Petition No. 1277of1988 filed on behalf of the appellants.

        In the Writ Petition No. 3184 of 1988 filed on behalf of the
D   respondents, it was claimed that although they were diploma holders, still
    the Amended Rules 6 and 9 shall not be bar for their being considered for
    the posts of Superintending Engineer. The relevant part of the Amending
    Rules of 1986:

                  "1. (1) These rules may be called the Punjab Service of
E                 Engineers, Class I, PWD (Public Health Branch), Haryana
                  First Amendment Rules, 1986.

                   (2) They shall be deemed to have come into force with effect
                 · from the 2nd June, 1961.

F                 2. In the Punjab Service of Engineers, Class-I, P.W.D.
                  (Public Health Branch), Rules 1961, (hereinafter called the
                  said rules), in rule 6, for clauses (a) and (b), the following
                  clauses shall be substituted, namely:-

                  "(a) In case of appointment by direct recruitment, possesses
G                 one of the University degrees or other qualifications
                  prescribed in Appendix 'B' to these rules;

                  (b) in the case of an appointment by promotion from Class II
                  Service, has in addition to the qualifications provided in
                  Clause (a) eight years completed service and has passed the
H                 departmental examination prescribed under rule 15;
             D.K. JAIN v. STATE OF HARYANA [N.P. SI1'iGH, J.]              111

              Provided that the Government may waive off the requirement A
              of qualification mentioned in clause (a), for appointment to
              the service by promotion from Class-II Service, in case of a
              particular officer;

              Provided further that the Government may relax the
              condition of eight years service in the case of an officer who     B
              has completed five years service;

              Provided further that such an officer shall earn the first
              increment as an Executive Engineer on the completion of
              nine years service.
                                                                                 c
              Explanation: For the purpose of computing eight years
              service, the service in Class-II as well as in Class-I, shall be
              counted.

              3. In the said rules, in Rule 9, in sub-rule (1) for the existing
              proviso, the following proviso shall be substituted, namely:- D

              "Provided that a member of the Service who does not possess
              one of the University degrees or other qualifications
              prescribed in Appendix B to these rules, shall not be eligible
              for promotion to the post of Superintending Engineer or
              above, till he has acquired the requisite qualifications."     E
     The Amending Rules were brought in force with effect from 2.6.1961.
The High Court has taken the view that it was not open to amend the Rules
retrospectively with effect from 2.6.1961 even on basis of the judgment of
the Constitution Bench of this Court, in the case of B.S. Vadera v. Union of F
India, AIR (1969) SC 118. It was pointed out that in the facts and
circumstances of the present case if the Rules are enforced retrospectively it
shall effect the vested right of the officers concerned as such shall be
violative of Articles 14 and 16 of the Constitution. During the hearing of
the appeals, none of the parties have questioned that part of the judgment of
the High Court and they have proceeded on the assumption that the Rules G
shall be deemed to be prospective in nature i.e. they shall be deemed to
have come in force with effect from 26.9.1986, the date of the Notification.
This stand has been taken because of the fact that all posts of
Superintending Engineer became vacant after the Amending Rules had
come in force.                                                                 H
    1~2                • SUPREME COURT REPORTS               [1994] SUPP. 6 S.C.R

A         In view of Amended Rule 6 (b) in the case of appointment by
    promotion from Class II Service to Class I Service, the person concerned
    should have qualifications provided in clause (a) i.e. a University Degree or
    other qualifications prescribed in Appendix "B" to the said Rules. The
    proviso to Rule 6 says that the Government may waive off the requirement
    of qualification mentioned in clause (a) for appointment to the service by
B   promotion from Class II Service to Class I Service, in case of a particular
    officer. Posts of the Executive Engineer and the Superintending Engineer
    are Class I posts in Punjab Service of Engineers. There is no dispute that
    respondents were promoted from the posts of Assistant Engineer to the
    posts of the Executive Engineer, under the old Rules by relaxing the
    requirement of Degree as the qualification for the post of Executive
c   Engineer. It appears that while appointing the respondents as Assistant
    Engineers in Class II Service, Rule 3 (iii) of the National Emergency Rules
    were applied; whereas while promoting from the posts of Assistant
    Engineer to the posts of Executive Engineer in the year 1976 with effect
    from 1972 relaxation in respect of degree was granted in terms of Rule 6 as
    it stood then.
D
         Now the question is whether on basis of the relaxation given in respect
    of qualification regarding holding of degree to the respondents at the stage
    of their initial appointment as Assistant Engineers and at the stage of
    promotion from the posts of Assistant Engineer to the Executive Engineers,
    in terms of Rule 3 (iii) of the National Emergency Rules and proviso to
E   Rule 6 of the Punjab Service of Engineers, Class I, PWD (Public Health
    Branch), Rules, 1961 respectively will enure to their benefit even while
    they are to be considered for promotion to the posts of Superintending
    Engineer and the bar prescribed by proviso to Rule 9 which was introduced
    by aforesaid Amending Rule of 1986 shall not be applicable in their case.

F         It is the stand of the respondents that once the minimum qualification
    prescribed for the posts of Assistant Engineer i.e. degree was relaxed in
    exercise of the power under Rule 3 (iii) of the National Emergency Rules at
    the stage of their appointment as Assistant Engineers, it shall be deemed
    that their diploma was treated to be equivalent to degree. By a statutory
    fiction they will be deemed to be the holders of degree although in fact they
G   were holders of diploma only and this benefit which was extended to them
    for having served the nation during the emergency shall be available to
    them till their date of superannuation. Rule 3 (iii) of National Emergency
    Rules says " ......................... he shall be deemed to possess these
    qualifications if the appointing authority certifies that such a person has
    acquired by experience or otherwise qualifications equivalent to those
H
             D.K. JAIN v. STATE OF HARYANA [N.P. SINGH, J.]              113

prescribed for that service/post." In respect of role of a deeming clause A
reference was made to the several judgments pointing out hovy the Courts
are required to give full effect to such statutory fiction ignoring the realities
and factual position. Recently in the case of M Venugopal v. The
Divisional Manager, LIC of India, Machilipatnam, A.P., JT {1994) I SC
281 = [1994] 2 SCC 323, this Court after making reference to the well
known case of East and Dwellings Co. Ltd v. Finsbury Borough Council, B
{1952) A.C. 109 (B), pointed out that if one is bidden by a statute to treat an
imaginary state of affairs as real, the Courts unless prohibited from doing
so, shall also imagine as real the consequences and incidents wbich
inevitably shall flow.

     At this stage it shall be proper to determine the scope of Rule 3 (iii). C
Rule 3 (iii) According to us it does not purport to provide that a person who
has rendered military service, although he does not possess the minimum
qualification prescribed for any service or post, he shall be deemed to
possess the said qualifications throughout, while in service. Reading the
Rule 3 (iii) in proper con!ext, it only provides that in case a person, who has
rendered military service, does not possess the minimum qualification D
prescribed for any service or post, he shall be deemed to possess the
qualification "if the appointing authority certifies that such a person has
acquired by experience or otherwise qualifications equivalent to those
prescribed for that service/post." [emphasis supplied]. In other word$, on
basis of the certificate of the appointing authority that such person has
acquired by experience or otherwise qualifications which are equivalent to · E
those prescribed for that service or post, such person shall be deemed to
possess the qualifications in question. The words 'equivalent to those
prescribed for that service or post' are relevant because on basis of the
certificate granted by the appointing authority that such person was
possessing equivalent qualifications to the prescribed one for the service F
and post, he shall be deemed to possess the qualifications prescribed. The
Rule does not say that although such a person does not possess the
prescribed qualifications, as he has rendered military service, it shall be
deemed that he has been possessing the prescribed qualifications.
According to us, on the basis of the certificate granted by the appointing
authority, the concerned person shall be deemed to possess the G
qualifications equivalent to the qualifications prescribed for being
appointed to the service and the post. It cannot be held that on basis of that
certificate it shall be deemed that such a person possesses the qualifications
in -questions. It is well settled that a statutory fiction cannot be extended
beyond the purpose. In the case of Bengal Immunity Co. v. State of Bihar,
AIR (1955) SC 661 = [1955] 2 SCR 603, this Court said:-                         H
    '114                   SUPREME COURT REPORTS               (1994] SUPP. 6 S.C.R

A                   "Whichever view is taken of the Explanation it should be
                    limited to the purpose the Constitution makers had in view
                    when they incorporated it in clause (1 ). It is quite obvious
                    that it created a legal fiction; Legal fictions are created only
                    for some definite purpose."

B       In the case of Commissioner of Sales Tax, U.P. v. Modi Sugar Mills
    Ltd, AIR (1961) SC 1047 = [1961] 2 SCR 189 again it was said:

                    "A legal fiction must be limited to the purposes for which it      .
                    has been created and cannot be extended beyond its                 '
                    legitimate field."
c          In the.case of Braithwaite and Co. v. E.S.l. Corpn., AIR (1968) SC 413
    = [1968] l SCR·771, it was said:

                    "A legal fiction is adopted in law for a limited and definite
                    purpose only and there is no justification for extending it
                    beyond the purpose for which the legislature adopted it."
D
        The same was also pointed .out in the case of KS. Dharmadatan v.
    Central Government, AIR (1979) SC 1495 = [1979] 3 SCR 832.

          It was then submitted that once the respondents were appointed as
     Assistant Engineers and promoted to the post of Executive Engineers
E    although they were diploma holders, they cannot be deprived of their right
    to be considered for promotion for the posts of Superintending Engineer. It
    was .pointed out that the. degree holders and diploma holders both are
    -holding the posts of Executive Engineer; they formed one class and
    thereafter they have to be treated as a class and for purpose of promotion to
    the posts of Superintending Engineer they cannot be put under two classes
F
    of Executive Engineers. According to respondents the proviso. to amended
    Rule 9 purports to create a class .within class by imposing a bar on the
    promotion of such Executive Engineers, who .are holders of diploma only,
    which is violative of Articles 14 and 16 of the Constitution. A Constitution
    Bench of this Court in the well known case of State ofJammu and Kashmir
G   v. Triloki Nath Khosa .[1974] 1 SCR 771 has considered this aspect of the
    matter. While pointing out that classification is fraught with the danger, that
    it may produce artificial inequalities and because of that the right to classify
    is hedged with restraints, still it was held that as the rule provided that only
    graduate shall be eligible for promotions to the exclusion of the diploma
    holders, it did not violate Articles 14 and 16 of the Constitution. The
H   grievance that any such rule cannot operate on members of service who
              D.K. JAIN v. STATE OF HARYANA [N.P. SINGH, J.]             115

 have entered· before coming into force of such rules was also negative A
 saying that a rule which classify such employees for promotional purposes,
 undoubtedly operates on those who have already entered in service before
 the framing of the rules but it operates in future in the sense that it governs
 the future right of promotion of those who are already in service. It was also
 said that a classification founded on variant educational qualifications, for
 purposes of promotion to the post of a Executive Engineer, cannot be held B
 to be unjust. Recently a three Judges Bench in the case of P. Murugesan v.
 State of Tamil Nadu, [1993] 2 SCC 340 has pointed out that since the
 decision of the Constitution Bench in Triloki Nath Khosa, the Supreme
 Court has been holding uniformly that even where direct recruits and
 promotees are integrated into a common class, they could for purposes of
 promotion to the higher cadre be classified on the basis of educational C
 qualifications. It was further said that when the rules can be framed barring
 altogether the diploma holders from promotion, the rule making authority
 cannot be precluded from restricting the promotion, because the rule
 making authority having regard to the efficiency of the administration and
 the other relevant circumstances may consider it necessary to bar the
 diploma holders from promotion altogether. According to us, the facts of D
the present case are no way different The appellants and the respondents
 both are Executive Engineers. The appellants are the degree holders,
whereas the Respondents are diploma holders. The cases of the appellants
and the respondents have to be examined in the light of the proviso, which
was introduced in Rule 9 by the Amending Act 1986 aforesaid saying that a E
member of the service who does not possess one of the degree or other
qualifications prescribed in Appendix 'B' to those Rules shall not be
eligible for promotion to the post of Superintending Engineer or above, till
he has acquired the requisite qualifications. Although, the respondents have
served the nation in the hour of peril by offering themselves for service in
the Armed Forces, but it cannot be held that benefit extended to them by F
Rule 3 (iii) of National Emergency Rules on the eve of initial appointment,
has to be extended, even while they are being considered for promotion to
higher post. This is not possible because of the specific bar prescribed by
the proviso to Rule 9 introduced by Amending Rule of 1986, which cannot
be held to be unconstitutional, invalid or violative of Articles 14 and 16 of
the Constifution. The High Court was not justified in ignoring the proviso G
to Rule 9 while coming to the conclusion that the said respondents were
entitled to be considered for the posts of Superintending Engineers.

     So far in the appeal arising out of SLP (c) No. 17358/93 filed on behalf
of the State of Haryana against the same judgment, the main grievance
which has been made on behalf of the State in that although all the relevant    H
    116                 SUPREME COURT REPORTS               [1994] SUPP. 6 S.C.R

A   materials had been produced before the High Court to show that
    requirement of Section 82(6) of the Punjab Reorganisation Act, 1966 had
    been complied, with the High Court preferred to rely on the judgments of
    this Court in the case of T.R. Kapur and Ors. v. State of Haryana and Ors.,
    AIR (1987) SC 415 = [1986] (Suppl.) SCC 584. It was pointed out before
    the High Court that unfortunately the relevant documents relating to
B   previous approval of the Central Government could not be produced in the
    case of T.R. Kapur and others v. State of Haryana and others, (supra) and
    because of that this Court observed that State Government never moved the
    Central Government seeking its prior approval to the proposed amendment
    of Rule 6 (b) of the Class I. Rules which was under consideration in that
    case. It was said:
c
                 "Admittedly, there was no Chief Secretaries conference as
                 was held prior to the reorganisation of the States under the
                 States Reorganisation Act, 1956. Nor was there any
                 communication issued by the Central Government conveying
                 its previous approval of the changes in the service conditions
D                which the States of Punjab and Haryana might make in tenns
                 of the proviso to section 82 (6). Punjab Reorganisation Act,
                  1966. Under the States Reorganisation Act, 1956, so also
                 under the Punjab Reorganisation Act, 1966, the power of the
                 Governor to make rules under the proviso to Article 309 of
                 the Constitution had being controlled by the proviso to
E
                 Section 115 (7) of the fonner Act and Section 82 (6) of the
                 latter. It follows that the conditions of service applicable
                 immediately before the appointed day to the case of any
                 person referred to in sub-section (1) or (2) of Section 82 of
                 the Act could not be varied to his disadvantage except with
F                the previous approval of the Central Government. That being
                 so, the impugned notification issued by the State Government
                 purporting to amend Rule 6 (b) of the Class I Rules with
                 effect from July 10, 1964 which rendered members of Class
                 II Service who are diploma holders like the petitioners
                 ineligible for promotion to the post of Executive Engineer in
G                Class I Service making a degree in Engineering essential for
                 such promotion, although they satisfied the condition of
                 eligibility of 8 years' experience in that class of service, must
                 be struck down as ultra vires the State Government being
                 contrary to Section 82 (6), Punjab Reorganisation Act,
                 1966."
H
             D.K. JAIN v. STATE OF HARYANA [N.P. SINGH, J.J               117

     So far as the present case is concerned, the approval of the Central        A
Government given in the year 1968, as re::i_uired by sub-section (6) of
Section 82 of the Punjab Reorganisation Act, 1966 was produced before the
High Court. Before the High Court a copy of the letter dated 27.3.1957
from the Deputy Secretary to the Government of India, Ministry of Home
Affairs to the Chief Secretary to the different State Governments was also
produced in respect of protection of the service condition of State service      B
personnel. In paragraph 3 of the said communication, it was said that the
question whether protection should be given in respect of rules and
conditions applicable to Government servants affected by reorganisation
immediately before the date of reorganisation in the matter of travelling
allowance, discipline, control, classification, appeal, conduct, probation and
departmental promotion was also considered and that the Government of            C
India was of the view that "it would not be appropriate to provide for any
protection in the matter of these conditions."

     According to Mr. Jaitley, who appeared on behalf of the State of
Haryana, in this appeal, in fact the requirement of Section 82 (6) of the
Punjab Reorganisation Act, 1966 has been complied with inasmuch as a             D
decision with .the previous approval of the Central Government has been
taken that no protection is to be given to the Government servants affected
by reorganisation in the matter of departmental promotion. As such when
the Amending Rules make degree a· must for promotion to the post of
Superintending Engineer under the proviso to Rule 9 it cannot be held to be      E
in contravention of the requirement of Section 82 (6) of the Punjab
Reorganisation Act, 1966. None of the counsel appearing for any of the
appellants or respondents in the appeals questioned this factual position
during the hearing of the appeal. It appears that the High Court on perusal
of the materials referred to above was satisfied that requirement of Section
82 (6) of the Punjab Reorganisation Act, 1966 had been complied with and         F
on that ground the Amending Rules cannot be held to be invalid. But the
High Court observed:

              "There may appear to be considerable substance in the
              contention raised but what confronts us is the binding judicial
              precedent of T.R. Kapur's case (supra). What we have before        G
              us is not a choice of following one view of the Supreme
              Court in preference to another, rather what we are, in fact,
              being asked to do, would virtually amount to disregarding a
              judgment of the Supreme Court directly applicable to the
              point in issue, which we are, with respect, not empowered to
              do. We are clearly bound by the judgment in the earlier T.R.       H
     118                   SUPREME COURT REPORTS              [1994] SUPP. 6 S.C.R

A                  Kapur 's case (supra) and in terms thereof we cannot but hold
                   the impugned amendment to be invalid for non-compliance
                   with Section 82 (6) of the Re-organisation Act, 1966. This
                   being so, the writ petitions must clearly be held entitled to be
                   considered for promotion to the post of Superintending
                   Engineers under the unamended rules with effect from the
B                  date when their juniors were so promoted i.e. October 18,
                   1989 and to be entitled to all consequential benefits."

         It need not be pointed out that in T.R. Kapur 's case (supra) the
    Supreme Court held the impugned notification issued by the State
    Government purporting to amend Rule 6 (b) of Class I Rules (18) which
c   rendered number of Class II Service who were Diploma holders ineligible
    for promotion to the post of Executive Engineer in class I service, in view
    of the fact that no order of previous approval of the Central Government
    was produced before the High Court or this Court. But in the present case,
    the different orders as required by Section 82 (6) of the Punjab
    Reorganisation Act, 1966 were produced before the High Court. As such it
D   shall not be proper to hold merely on basis of the observation of this Court
    in TR. Kapur's case (supra) that even the Amending Act of 1986 with
    which we are concerned is also invalid being contrary to Section 82 (6) of
    the Punjab Reorganisation Act, 1966.

           Accordingly, the appeals are allowed and the judgment of the High
E     Court in Writ Petition No. 3184 of 1988 holding that the proviso to Rule 9,
      introduced by Amending Rules 1986 shall not bar, in respect of the
      respondents, for being considered for the post of Superintending Engineers,
      is set aside. The proviso to Rule 9 has to be kept in view while considering
    · the cases of respondents for promotion to the posts of Superintending
      Engineer. The judgment of the High Court in Writ Petition No. 1277 of
F
      1988 filed on behalf of the appellants, challenging the initial appointment
      of the respondents by extending the benefit in Rule 3 (iii) of the National
      Emergency Rules and grant of seniority in terms of Rule 4 thereto is upheld
      and the appeals arising from that part of the judgment are dismissed.
      However, in the facts and circumstances, there shall be no orders as to cost.
G
     A.G.                                                         Appeal allowed.

         N.P. SINGH, J. The Special Leave Petition (C) No. 20680 of 1994 has
    been filed on behalf of R.K. Jain and Anr., who were not impleaded as
    respondents in the writ application filed before the High Court. According
H   to us, there is no occasion to grant permission to them to file the aforesaid
            D.K. JAINv. STATE OF HARYANA [N.P. SINGH, J.]         ll9

Special Leave Petition. They shall also be governed by the judgment A
delivered by this Court in the case of D.K. Jain and Ors. v. State of
Haryana and Ors., (Civil Appeal Nos. 7892-93) of 1994 [arising out of
S.L.P. (C) Nos. 13543-44 of I 993]. The Special Leave Petition is
accordingly dismissed.

SPECIAL LEAVE PETITION (CJ NO. 5367 OF 1994                             B
     The above mentioned Special Leave Petition has been filed on behalf
of State ofHaryana against Prithvi Raj Grover and Ors. We were informed
that the respondents have since retired. Any way, even if they had not
retired, their case would have also been governed by the judgment
delivered by this Court, in the case of D.K. Jain and Ors. v. State of C
Haryana and Ors., (Civil Appeal Nos. 7892-93 of 1994 (arising out of
S.L.P. (C) Nos. 13543-44of1993). Accordingly, the Special Leave Petition
is dismissed.

A.G.                                              Petition Dismissed.