Holding

The 1936 Rules were subsisting, and an interview cannot serve as the qualifying examination; a qualifying examination must be a written test, making the office order dated 11‑Feb‑2003 contrary to the Rules.

Summary

The Diploma Engineers Sangh, representing diploma‑holder Junior Engineers, challenged a 2003 office memorandum that prescribed an interview as the qualifying examination for promotion to Assistant Engineer under the Uttar Pradesh Service of Engineers (Building and Roads Branch) Class II Rules, 1936. The petitioners argued that the 1936 Rules were still in force and required a written qualifying examination, not an interview, for promotion. The Supreme Court examined whether the 1936 Rules existed at the time of the office order, the effect of the order if the Rules subsisted, and the proper meaning of "qualifying examination" under Rule 9(ii) read with Rule 5(iv). The Court held that the 1936 Rules were indeed subsisting, that the office order was inconsistent with those Rules, and that a qualifying examination must be a written test providing identical questions to all candidates. Consequently, the Court upheld the High Court’s quashing of the office order and directed the government and UPPSC to conduct a written qualifying examination within four months. The appeal was dismissed.

Issues considered

Whether the Uttar Pradesh Service of Engineers (Building and Roads Branch) Class II Rules, 1936 were in existence at the time the office order dated 11‑Feb‑2003 was issued
What is the effect of the office order if the 1936 Rules were subsisting
What is the meaning of "qualifying examination" prescribed under Rule 9(ii) read with Rule 5(iv) of the 1936 Rules
Whether an interview can be considered a "qualifying examination" for promotion under the Rules
Whether the office order violates the Rules and constitutional principles of equality and non‑arbitrariness

Subjects

service lawpromotionqualifying examinationinterviewU.P. Service Rulesseniority‑cum‑meritadministrative lawrule interpretation

Judgment

. --k

(
j
DIPLOMA ENGINEERS SANGH A
v.
STATE OF U.P. AND ORS.

MARCH 20, 2007

[H.K. SEMA AND R.V. RA VEENDRAN, JJ.] B

~
Service Law:

U.P. Service of Engineers (Building and Roads Branch) Class II Rules,
1936-Rules 5 (iv) and 9 (ii)-Promotion of Diploma Junior Engineers to c
the post of Assistant Engineers-By Office Memorandum dated 11.2.2003
provided promotion to Diploma Junior Engineers by only holding interview
as qualifying examination-legality of-Held: Office orc!-er dated 11.2.2003
is contrary to 1936 Rules-Interview cannot be the method of ascertaining
fitness-Qualifying examination refers to written examinacion- 1936 Rules D
were in existence when office order was issued-Office order did not supercede
"(
or override Rule 9(ii) but merely purported to be a prescription of the
!>-
'qualifying examination' by the Governor.

Words and Phrases: Qualifying examination-Meaning of- Jn the
context of Rule 9 (ii) of the U.P. Service of Engineers (Building and Roads E
Branch) Class 1 Rules 1936.

U.P. Service of Engineers (Buildings & Roads Branch ) Class II Rules,
1936 were amended by 1987 Amendment Rules and 1997 Amendment Rules
>. and it provided for separate quotas for promotion. The Amendment Rules of
--,
1987 and 1997 were challenged. The diploma holder Junior Engineers sought F
mandamus directing the State Government to consider them for promotion to
the post of Assistant Engineer in accordance with the 1936 Rules (as amended)
High Court allowed writ petition challenging the Amendment Rules; however
it dismissed the writ petition of the diploma holder Junior Engineers. It held
that the 1987 and 1997 Amendments were invalid and deemed not to have
G
come into force. In view of the aforesaid order, the State Government issued
the office order dated 11.3.2003 proposing to promote Diploma-holders Junior
Y'· Engineers to the post of Assistant Engineers under the 1936 Rules by holding
'interview 'as qualifying examination.

207 H
_;,_
\

208 SUPREME COURT REPORTS [2007] 4 S.C.R,.
j__
A The graduate Junior Engineers challenged the Office Memorandum
dated 11.3.2003 on the ground that it exempted the diploma junior engineers
from undergoing and passing there qualifying examination for promotion only
by holding viva voice, and as such was illegal. High Court held the Office
memorandum violative of Rule 5(iv) and Rule 9(ii) of the 1936 Rules and
quashed it Hence the present appeal.
B
The question which arose for consideration before this Court were
whether the U.P. Service of Engineers (Building and Roads Branch) Class II
Rules 1936 were in existence at the time when the office order dated 11.2.2003
was issued ifthe 1936 Rules were subsisting, what is the effect of the office
-
order dated 11.2.2003; and what is the meaning of the words "qualifying
c examination "prescribed under Rule 9(ii) read with Rule 5 (iv) of the Rules.

Dismissing the appeal, the Court

HELD: 1. The order of the High Court quashing the office order dated
11.2.2003 and requiring the diploma-holder Junior Engineers to undergo a
D
qualifying examination calls for no interference. First respondent Government
)'
and third respondent UP.PSC are directed to conduct the qualifying
~
examination in accordance with the U.P. Service of Engineers (Building and
Roads Branch) Class II Rules, 1936. (Para 20) (219-H; 220-Af
~-

E 2. It is clear that the decision in P.D. Aggarwal's case 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 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 in as much as the impugned Office order
dated 11.2.2003 itself was issued in exercise of the power under Rule 9(ii) __._
F read with Rules 5(iv) of the 1936 Rules. Thus, there is no merit in the ,--
submission that the 1936 Rules were not in e~istence when the office order
dated 11.2.2003 was issued (Para 7) (214-F-GJ

P.D. Aggarwal v. State of UP., (1987) 3 SCC 622, referred to.

G 3. A careful reading of office under 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
ttnder Rule 9(ii). Therefore, the question is not whether the office order dated
11.2.2003 supercedes Rule 9(ii) or not, but whether the office order is in
H conformity with Rule 9(ii), as the office order itself states that the Governor
~
DIPLOMA ENGINEERS SANGH v. ST ATE OF U.P. 209
/.
is prescribing the qualifying examination as contemplated under Rule 9(ii) A
This means that the limited question that arises for consideration is whether
interview can be considered as a 'qualifying examination'. IPara 141 [217-D)

4.1. Under the Rules, recruitment to the post of Assistant Engineer is
through more than one source. Rule 5(iv) provides for recruitment by
promotion of members of the sub-ordinate Engineering Services who have B

-·,,. -
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
J

qualification prescribed in clause 9(i) of that Rule. The Diploma Holders
working as Junior Engineers did not possess the technical qualification
prescribed in Rule 9(i) Therefore, for promotion they were to pass the
c
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 Assistant Engineers. Those who secured prescribed D
1 minimum percentage of marks in such qualifying examinations were promoted
}" to the post of Assistant Engineer. (Para 15) (217-F-H; 218-A)

4.2. 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 'seniroity-cum-merit' and 's_eniority-cum-suitability'. E
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 in the feeder
post should be prepared in the order of seniority, and each candidates per the
~
rank in seniority is considered on merit. Whoever is found unfit, is rejected. F
·--.,
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. (Para 161 (218-B-q
;..
G
B. V Sivaiah v. K. Addanki Bbu, [1998( 6 SCC 720, referred to.
,... 4.3. The rule requires a 'qualifying examination' The office order
prescribes' interview' as qualifying examination. ' Qualifying examination'
in the context of promotion refers to an examination which when passed,
H
~

210 SUPREME COURT REPORTS [2007] 4 S.C.R.
~
_{_
A qualifies or makes the candidate eligible for promotions The purpose of a
qualifying examination is not to d_etermine 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 question will be
B 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 and 'interview' Therefore, in the
absence of any specific provision prescribing interview as the means of
~
-·
'-..
ascertainment of fitness for promotion, 'interview' cannot generally be
c 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. Therefore the decision of the High
Court (though for different reasons) that the office order dated 11.2.2003 is
contrary to the Rules and interview cannot .be the method of ascertaining
fitness is upheld. [Para 19) (219-E-G]
D
A.P. State Finance Corporation v. C.M Ashok Raju, 11994) 5 SCC 359; y
Anjur Ahmedv. State of Bihar, (1994) l SCC 150; Surinder Singh v. State of ..
Punjab, (198013 SCC 418; Siya Ram v. Union of India, (1998) 2 SCC 566;
Sardar Singh v. State of Punjab, 11991) 4 SCC 555; Lila Dhar v. State of
Rajasthan, [1981) 4SCC159 and Kiran Gupta v. State of UP., (2000)7 SCC
E
7l9, distinguished.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3228 of2005.

From the Judgment and Order dated 16.7.2004 of the High Court of
Judicature at Allahabad in C.M.W.P. No. 9127/2003. -l.
F
,-·
Vijay Hansaria, C.D. Singh, Minakshi Sarma, Sneha Kalita, Dr. Indra
Pratap Singh, Merusagar Samantaray for the Appellant.

Vinod A. Bobde, D.K. Singh, Goswami, Anil Kumar Jha, S. Wasim A.
Qadri, R.K. Dubey, Kamlendra Mishra and Jatinder Kumar Bhatia for the
G
Respodents. ...,.'

The Judgment of the Court was delivered by
Jr
H.K. SEMA, J. I. 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
H
j
k

., DIPLOMA ENGINEERS SANGH v. ST ATE OF U.P. [SEMA . .1.) 211
j.
Civil Misc. Writ Petition No. 9127 of2003 quashing the Office Memorandum A
dated l l .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
B
..,.. 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 c
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? D
., (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? E
(a) Whether the 1936 Rules were in existence at the time when the
office order dated 11.2.2003 was issued?
~

)- 3. 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
F

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 G
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
H
212 SUPREME COURT REPORTS [2007] 4 S.C.R.
4

A 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
B 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
c 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 ?
D
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 -4

counsel for the appellant, filed I.A.No. 6 of 2006 seeking permission to urge
a~ditional 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
E Amendment to the 1936 Rules, and Rule 23 which was substituted by the 1971
Amendment, in P.D. Aggarwal v. State of U.P., [1987] 3 SCC 622, 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 _,,:
F appellant to urge the additional ground, we will deal with the said contentions.
,-·

4. To decide the question, it is esse~tial 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
G 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
H
I
k
DIPLOMA ENGINEERSSANGHv. STATEOFU.P. [SEMA,J.] 213

f, service rules, meaning thereby the 1936 Rules. It may be noted that the A
controversy in P.D. Aggarwa/'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 :-
B

-,J 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
c
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 D
directions given by this Court and as a result no seniority list in the
-r
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. & Ors., 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
E
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.
)-
F
--,.
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 G
-
•'· 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
H
i
::l

214 Sl/PREME COURT REPORTS (2007] 4 S.C.R.

A respectively in the light of the observations made hereinbefore. This __j__

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)
B
5. Thus, this Court proceeded on the premise that the 1936 Rules, except
to the extent struck down remained undisturbed and continued to apply. ......
-1
6. Mr. Hansaria contended that the original Rules 3(c), 5 and 6 which
4(
were material provisions of 1936 Rules were deleted by substitution of
c corresponding new ru!es 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. v. State of Madras [1963] Suppl.2 SCR 435; T.
Devadasan v. Union of India AIR (1964) SC 179; B.N. Tewari v. Union of
India, AIR (1965) SC 1430; Indian Express Newspapers (Bombay) Pvt.ltd v.
D
Union of India [1985]1SCC641; and West U.P. Sugar Mills Assn. v. State of
U.P. [2002] 2 SCC 645, and hosts thereof. On the other hand, Sri Vinod Bobde ~
appearing for the respondents relied on State of Maharashtra v. The Central ~

Provinces Manganese Ore Co. Ltd [1977] I SCR 1002, and Bhagat Ram
Sharma v. Union of India [ 1988] Sup. SCC 30, to contend that where the
E 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.
. _.,(
F 7. It is clear that the decision in P.D. Aggarwa/'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 I 936 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
G
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 was 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
H dated 11.2.2003.
-1-
(

DIPLOMAENGINEERSSANGHv. STATEOFU.P. fSEMA,J.] 215
8. The relevant portion of the office order dated 11.2.2003 reads thus : A
"OFFICE ORDER

By the order dated 22.3.2002 in Writ Petition No.42762/2000
Aruvendra Kumar Garg & Ors. v. Govt. of U.P. & Ors., and other
related writ petitions, High Court of Allahabad has set aside the B
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. C
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 D
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 E
umbrella of Part (I), to the post of Asstt. Engineer.

(I) 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: F
j
t
~

9. Rule 5(iv) and 9(ii) of the 1936 Rules, referred to in the said order
dated 11.2.2003 are extracted below :-
G
"5. Source of Recruitment: Recruitment to the service shall be made
by the Government :

xxxxx

S(iv) by promotion of members of the United Provinces Subordinate
H
~~
\

216 SUPREME COURT REPORTS [20071 4 S.C.R.

A 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 r
5(v) unless he has passed such qualifying examination as the Governor
may prescribe, or possesses the technical qualification prescribed in
B clause (i) of this rule."
r
: 10. 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 : l

c "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."

D 11. 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. l 7949/1998 (Atibal •
Singh v. State of UP. and connected cases). On the other hand the diploma
holder Jumor Engineers had filed CMWP No.42762/2000 (Arvendra Kumar
E Garg v. State ofU.P.) 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 l 987 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
F Amendment Rules and l 997 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
G by holding 'interview' as qualifying examination.

12. It is contended by Mr. Hansaria, learned senior counsel for the
--
appellant that Rule 9(ii) contemplates the qualifyi11g examination being ~
prescribed by the Governor; and the Government order dated l l .2.2003 contains
the prescription of the Governor and therefore there is no inconsistency.
H
DIPLOMA ENGINEERS SANGH v. STATE OF U.P. [SEMA. J.] 217
Reliance is also placed on Article 162 of the Constitution relating to the A
J
executive power of the State which enables the Executive to make laws.

13. 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 B
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 guidelfnes 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. C
14. 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 unc!:!r 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 b
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'.

Meaning of the words 'qualifying examination' in Rule 9(ii) E
15. 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 wh9 have shown
>-- exceptio!la! merit. Rule 9(ii) provides that no officer shall be promoted to the F
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. G
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
H
218 SUPREME COURT REPORTS [2007] 4 S.C.R.

A percentage of marks in such qualifying examinations were promoted to the
post of Assistant Engineer.

16. 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'.
B 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
C 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
Babu [1998] 6 SCC 720, this Court observed :

D "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
E 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
F a person to be promoted on the basis of seniority-cum-merit." _,.(

17. 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'.

G 18. 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 v. C.M. Ashok Raju [1994]
H 5 SCC 359; Anjur Ahmed v. State of Bihar [ 1994] 1 SCC 150; Surinder Singh
DIPLOMA ENGINEERS SANGH v. STATE OF U.P. [SEMA,J.1 219

~ v. State of Punjab [ 1980] 3 SCC 418; Siya Ram v. Union of India [ 1998] 2 SCC A
566, and Sardar Singh V. State of Punjab [ 1991] 4 sec 555, to contend that
'interview' alone can be the basis for promotion. Reliance was also placed on
the decisions in Lila Dhar v. State of Rajasthan (1981] 4 SCC 159, and Kiran
Gupta V. State of UP. (2000] 7 sec 719, to contend that for promotions to
senior positions or promotion of persons of matured personality, prescription B
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 C
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. D
19. '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 E
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 F
--. 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 G
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.

20. 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 H
220 SUPREME COURT REPORTS [2007] 4 S.C.R.

A 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
B 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.
c N.J. Appeal dismissed.

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