Holding

Appellants are entitled to promotion and seniority from the date of their initial appointment, and respondents may raise issues despite not having filed an appeal.

Summary

The appellants were recruited as Tracer Draftsmen between 1974‑76 under a government relaxation of the qualification requirements in Rule 6(i) of the Himachal Pradesh PWD Draftsmen and Tracers Rules, 1961. They were placed in the seniority list in 1977 before passing the departmental examination, qualified in 1980, and were promoted to Assistant Draftsmen. Respondents, who were appointed later with the full qualifications, challenged the appellants' appointment, seniority and promotion. The Tribunal held the promotion illegal and deleted the appellants from the seniority list; the High Court allowed the promotion but limited seniority to the date of passing the examination. The Supreme Court allowed the appeal, holding that the relaxation for Tracer appointments sufficed for promotion to Assistant Draftsman and that seniority should be reckoned from the date of the initial appointment, not from the examination date. The Court also affirmed that a non‑appealing party may raise issues against a judgment even though it did not file an appeal.

Issues considered

The effect of the 1973 relaxation of Rule 6(i) on eligibility for promotion to Assistant Draftsman
Whether seniority of appointees recruited under relaxed qualifications should be counted from the date of initial appointment or from the date of passing the departmental examination
Whether a party that did not file an appeal can challenge or support a judgment on grounds adverse to it

Legislation cited

Code of Civil Procedure, 1908s. Order 41 Rule 22

Subjects

senioritypromotionrelaxation of qualificationsdepartmental examinationnon‑appealing partyadministrative lawpublic service rules

Judgment

A JAGDISH KUMAR AND ORS.
v.
STATE OF H. P. AND ORS.

NOVEMBER I I, 2005

B [ARIJIT PASAYA T AND C.K. THAKKER, JJ.]

Hlmachal Pradesh PWD Subordinate Services Class /fl Draftsmen and
Tracers Recruitment and Promotion Rules 1961-Rules 6 and 14-Rules
C providing for educational and technical qualifications-Respondents
possessing the qualification at the time of appointment-Relaxation of Rule
by Government Order in 1973-Appellants appointed as Tracers under relaxed
conditions during the years 1974- 76-Their names included in the seniority
list in 1977-Appellants qualifying in the departmental examination held in
1980, ranked senior to respondent and promoted as assistant draftsmen-
D Respondents challenging the appointment, seniority and promotion of
appellants-Tribunal holding the promotion to be illegal and directing
deletion of their names from seniority list-High Cou;t holding the appellants
to be eligible for promotion but directed reckoning of their inter-se seniority
from the date they qualified at the departmental examination-Allowing the
E appeal, held, appellants were entitled to be placed in the seniority list from
the date of their initial appointments.

Code of Civil Procedure, 1908-0rder 41 Rule 22-Supreme Court-
Practice and Procedure-Issues that respondent can raise-Right of
Respondent to support the judgment of the High Court without preferring an
F appeal on the ground found against him-Held, respondents can question
the correctness of the view adverse to them even though they have not filed
an appeal-Power of Supreme Court in this respect not fettered by absence
of provision like Order 41 Rule 22 of Civil Procedure Code.

The appellants were recruited as Tracers Draftsmen during the years
G 1974-76 under the relaxed conditions in the Rules. They qualified in the
departmental examination held in 1980. Respondents appointed after 1977
were possessed of the requisite qualification. Appellants were ranked senior \

to respondents in the seniority list circulated in 1980 and were promoted as
assistant draftsmen. Respondents challenged the appellants' appointment as
I

H 202
JAGDISH KUMAR v. ST ATE OF H.P. 203
Tracers, placement in the seniority list above them and promotion. Tribunal A
held that appellants were not eligible for promotion and directed deletion of
their names from seniority list. On a writ petition, the High Court held that
though the appellants were eligible for regular promotion, their inter-se
seniority was to be reckoned w.e.f. the date they qualified at the departmental
examination. In appeal to this Court it was contendf'd that after having held
that the appellants were qualified and eligible to be appointed as Draftsmen, B
the view regarding their placement in the seniority list expressed by the High
Court is clearly unt~nable and the respondents having not questioned the
correctness of the High Court judgment are estopped from questioning the
legality of promotion as decided by th~ High Court.

Allowing the appeal, the Court
c
HELD : 1.1. For being eligible to be considered for appointment as
Assistant Dtaftsman, the requirements are indicated in Rule 6 (ii). Once the
requirement of passing diploma of Draftsman Course is relaxed in terms of
Rule 6 (i) for appointment as Tracer, there is no necessity for again having D
relaxation for being considered as Assistant Draftsman. That contingency is
already taken care of when relaxation is given for appointment as Tracer.
Otherwise, a person who has been found eligible to be appointed as a Tracer
will not be considered for promotion as Assistant Draftsman, even though
there is no illegality attached to the appointment as Tracer. Such a view would
go against the logic ofrelaxation for appointment as Tracer. (215-B-C] E
1.2. The appointment itself takes effect from the date of appointment
and in the event of not passing the examination the consequences would follow.
But that cannot be a ground to hold that there was no appointment in the eye
of law till examination is passed. The Government also recognized this position F
as is evident from declaration of the seniority list on 14.10.1977 wherein the
appellants were included in the seniority list though they had not cleared the
examination by that time as no examination was held. In the eye of law th~
appointment of the appellants was from the date of their initial appointment
which of course was conditioned with the requirement of passing the
departmental examination. The appellants are entitled to be placed in th~ G
seniority list from the date of their initial appointment and not from the date
on which they passed the departmental examination. [215-D-E; 216-B\

2. The stand of respondents that even though they have not filed an appeal~
they can question the correctness of the view adverse to them, on the facts of
H
204 SUPREME COURT REPORTS [2005] SUPP. 5 S.C.R.

A the present.case, needs to be accepted. It is to be noted that in Ramanbhai's
case and Shri Thepfulo 's case, it was held by this Court that in" appropriate
cases" this Court can permit a non-appealing party to support the impugned
judgment even upon grounds which were negatived in that judgment. The Court
has to consider whether in the case before it the non-appealing party should
be permitt~d to do so. On the factual background highlighted above, we
B consider this to be case where the respondents should be permitted to do so.
(211-F-G)

Ramanbhai Ashabhai Patel v. Dabhi Ajitkumar Fulsinji and Ors., (1965]
1 SCR 712; Management of Northern Railway Co-operative Society Ltd v.
C Industrial Tribunal, Rajasthan, Jaipur and Anr., (1967] 2 SCR 476; Shri
Thepfulo Nakhr Angani v. Smt. Ravaluei@ Rano M Shaiza, (1971) 1 SCC
431 and J.K.Cotton Spinning and Weaving Mills Co. Ltd. v. Collector of
Central Excise, (1998] 3 SCC 540; relied on.

Vashist Narain Sharma v. Dev Chandra AIR (1954) SC 513; Baru Ram
D v. Prasanni AIR (1959) SC 93 and Ramanbhai Ashabhai v. Dabhi Ajitkumar
Fulsinji, AIR (1965) SC 669, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2708 of2002.

From the Judgment and Order dated 23 .5 .2000 of the Himachal Pradesh
E High Court in C.W.P. No. 178of1998.

WITH

C.A. No. 2709 of2002.

F Jitendra Sharma and Sunil Gupta, P.N. Jha, Ms. Minakshi Vij, Anil Nag,
Varinder Kumar Sharma, Amit Kumar, Rajeev Kumar Bansal, Vivek Vishnoi,
B.K. Pal, J.S. Attri and Ms. Shivani Thakur for the appearing parties.

The Judgment of the Court was delivered by

G ARIJIT PASAYA T, J. In these appeals challenge is to the legality of the
judgment rendered by a Division Bench of the Himachal Pradesh High Court
holding that though the appellants were eligible for regular promotion as
Assistant Draftsmen, their inter-se seniority was to be reckoned with effect
from.th.e date they qualified at the departmental examinations. The judgment
of the Himachal Pradesh State Administrative Tribunal (in short the 'Tribunal')
H holding that they were not eligible for promotion was held to be not correct.
JAGDISH KUMAR v. STATE OF H.P. [PASAYAT,J.] 205
Background facts in a nutshell are as follows: A
The appellants were recruited during the period 1974-76 as Tracer
Draftsmen. Respondent nos. 3 to 18 were appointed on such posts during the
period from 1976 to 1980. Rules governing appointments of Tracers are covered
by Himachal Pradesh P.W.D. Subordinate Services Class Ill Draftsman and
Tracers Recruitment and Promotion Rules, 1961 (in short 'Rules'). The B
educational and technical qualifications of the candidates for the posts of
Tracers, Assistant Draftsmen and others are provided under Rule 6 of the
Rules. Respondent nos. 3 to 18 possessed the qualification of Diploma in
Draftsman course. According to Rule 6(i) the requisite qualification for the
post of Tracers was that the candidate must have passed matriculation C
examination of a recognized University or above as well as passed the
Draftsman Course from a recognized Institution or as a plan printing machine
operator with an experience of four years. For the post of Assistant Draftsman
the requisite qualification of matriculation as well as a Diploma of Draftsman
Course from a recognized Institution with an experience of minimum three
years was provided. Five footnotes are appended under Rule 6 and footnote D
N0.5 which has significance in the present dispute related to the Government's
power to relax any of the provisions of the Rules with respect to any class
or category of persons or posts, if it was considered necessary or expedient '
to do so for reasons to be recorded in writing and in consultation with the
Himachal Pradesh Public Service Commission. By order dated 31.10.1973 E
Government relaxed Rule 6 so far as it related to appointment of Tracers
Draftsman. In place of Draftsman Course, training from Industrial Training
Institute (in short the 'ITI') for three months after service for one year or such
period as the Chief Engineer may decide after assessing performance of the
candidate was provided. Under the relaxed conditions the appellants were
appointed. A seniority list was circulated on 14. I 0. I 977 showing position as F
on 31. l 0.1975. The names of the appellants were included in the seniority list.
By that time the respondent nos. 3 to 18 had not been appointed. On I 9.2. I 980
the Chief Engineer provided for departmental examination for the unqualified
Tracers Draftsman on the ground that ITI had refused to impart training.
Therefore, a departmental examination was provided and it was substituted G
for the training by the ITI. The appellants appeared at such departmental
examination and qualified in I 980. In the seniority list circulated on 2.6.1980
the appellants were ranked seniors to the respondent nos. 3 to 18. On.
I 9.8.1980 the appellants were promoted as Assistant Draftsmen. Writ petitions
were filed by the respondent nos. 3 to 18 challenging the appellants'
appointments as Tracers Draftsmen, placement in the seniority list above H
206 SUPREME COURT REPORTS [2005) SUPP. 5 S.C.R.

A them and promotion as Assistant Draftsmen. On constitution of the Tribunal,
the writ petitions were transferred for disposal by it. On 5.9.198 l the Rule 6(ii)
which related to the posts of Assistant Draftsman was amended and the
qualification of Diploma in Draftsman Course was substituted as follows:

"6(ii) Assistant Draftsman: He has passed the Matriculation examination
B of a recognized University or above as well as passed the Diploma of
Draftsman course from a recognized institution with an experience of
minimum three years; provided that the unqualified Tracer Draftsman
working in the H.P. P.W.D. will also be eligible for promotion as ADM
after passing the Departmental Examination and rendering 5 years

c continuous service in the Deptt. since the date of their joining the
Deptt. as unqualified TOM and such promotees would be considered
as qualified ADM for further promotion."

The appellants were promoted on regular basis to the posts of Assistant
Draftsmen under the amended Rule 6(ii) on 2.l l.1981. On 14.7.1994 the original
D applications filed by the respondent nos. 3 to 18 were allowed. The Tribunal
held that the appointment of the appellants as Tracers Draftsmen was illegal
as they were neither qualified Tracer Draftsman nor qualified Assistant
Draftsman. However, on the ground of equity demotion was held to be not
desirable. It quashed their inclusion in the seniority list dated 2.6.1980 and the
promotions on 19 .8.1980 to the higher posts of Assistant Draftsmen. It directed
E that the respondent nos. 3 to 18 were to be considered for promotion as
Assistant Draftsmen with effect from 18.8.1980. Review Petition filed by the
appellants before the Tribunal was dismissed. Writ Petitions were filed by the
appellants before the High Court, which, by the impugned order gave directions
as noted above and moulded the reliefs.
F Learned counsel for the appellants submitted that after having held that
. the appellants were qualified and eligible to be appointed as Draftsman, the
view regarding their placement in the seniority list expressed by the High
Court is clearly untenable.

G On the contrary, learned counsel for the respondent nos. 3 to 18
submitted that though they have not filed any appeal challenging the view
of the High Court to the effect that the appellants were eligible to be appointed
as Draftsmen yet while supporting the view regarding the placement in the
seniority list, challenge to their eligibility for the appointment as Tracers
Draftsmen is legally permissible. It is submitted that the Chief Engineer had
H no power to provide for departmental examination for the unqualified Tracers
JAG DISH KUMAR v. STATEOFH. P. [PASAYAT,J.) 207

Draftsmen. Rule 14 could be traced as a source of power. It is for the Chief A
El}gineer to exercise the power. But this will have no application to a case
covered by Rule 6. Further more, for the promotion as Assistant Draftsman
there was no relaxation in tenns of Rule 6(i) and, therefore, the promotion itself
could not have been given.

Learned counsel for the appellants submitted that the respondents B
having not questioned the correctness of the judgment rendered by the High
Court are estopped from questioning the legality of promotion as decided by
the High Court.

We shall first deal wit)J, the question as to whether a party before the
High Court can support the judgment on the ground found against him by C
the High Court. In Ramanbhai Ashabhai Patel v. Dabhi Ajitkumar Fulsinji
and Ors., [1965] I SCR 712 it was, inter alia, held as follows:

"Before Mr. Patel referred to the finding of the High Court regarding
the validity of the second respondent's nomination paper Mr. S.T. O
Desai appearing for the appellant raised a preliminary objection to the
effect that the first respondent was not competent to challenge the
correctness of the finding as he had not preferred an appeal therefrom.
In support of the contention record upon the decision of this Court
in Vashist Narain Sharma v. Dev Chandra and Ors., That also was
an appeal arising out of an election matter. Learned counsel for the E
respondent had tried to support the decision of the Tribunal on
grounds which had been found against the appellant by the Tribunal.
This Court did not permit him to do so on the ground that the
provisions of the Code of Civil Procedure have no application to
appeals brought by special leave under Art. 136 of the Constitution
and observed:
F
"We have no appeal before us on behalf of the respondents and
we are unable to allow that question to be re-agitated."

That judgment was relied upon on behalf of the appellant in Sri Baru
Ram v. Shrimati Prasanni & Ors., Mr. Doabia who appeared there for G
the respondents challenged the correctness of the earlier decision but
this Court observed:

"Prima facie there appears to be some force in this contention;
but we do not think it necessary to decide this point in the
present appeal. Mr. Aggarwal's objection assumes that respondent H
208 SUPREME COURT REPORTS [2005] SUPP. 5 S.C.R.

A should have preferred a petition for special leave to appeal
against the finding of the High Court on the issue in question;
if that be so, the application made by her for leave to urge
additional grounds can be converted into a petition for special
leave to appeal against the said finding, and the delay made
..
in filing the same can be condoned."
B
It is obvious that the Division Bench followed the earlier Division
Bench only-because it has considered itself bound by it. It seems
to us, with respect, that the earlier decision does not correctly represent
the true legal position. For, as soon as special leave is granted there
is an appeal before this Court and while dealing with such an appeal
c this Court exercises its civil jurisdiction. It is true that the rules framed
by this Court in exercise of its rule making powers do not contain any
provision analogous to Order XLI, Rule 22 of the Code of Civil
Procedure which permits a party to support the judgment appealed
against upon a ground which has been found against him in that
D judgment. The provision nearest to it is the one contained in 0. XVIII,
r. 3 of the Rules of this Court which requires parties to file statement
of cases. Sub-rule (1) of that rule provides that Part I of the statement
of the case shall also set out the contentions of the parties and the
points of law and fact arising in the appeal. further provides that in
Part II a party shall set out the propositions of law to be urged in
E support of the contentions of the party lodging the case and the
authorities in support thereof. There is no reason to limit the provision
of this rule only to those contentions which deal with the points
found in favour of that party in the judgment appealed from. Apart
from that we think that while dealing with the appeal before it this
F Court has the power to decide all the points arising from the judgment
appealed against and even in the absence of an express provision like
0. XLI, r. 22 of the Code of Civil Procedure it can devise the appropriate
procedure to be adopted at the hearing. There could be no better way
of supplying the deficiency than by drawn upon the provisions of a
general law like the Code of Civil Procedure and adopting such of
G those provisions as are suitable. We cannot lose sight of the fact that
normally a party in whose favour the judgment appealed from has
been given will not be granted special leave to appeal from it.
Considerations of Justice, therefore, require that this Court should in -
appropriate cases permit a party placed in such a position to support
the judgment in his favour even upon grounds which were negatived
H
JAGDISHKUMAR v. STATEOFH.P. [PASAYAT,J.] 209
in that judgment. We are, therefore, of the opinion that in Vasisht A
Narain Sharma 's case too narrow a view was taken regarding the
powers of this Court and we over-rule the preliminary objection of Mr.
S. T. Desai."
=I
(Underlined for emphasis)
..,;;•
B
The position was re-iterated in Management of Northern Railway Co-
operative Society Lrd. v. Industrial Tribunal, Rajasthan, Jaipur and Anr.,
[1967] 2 SCR 476.

' In Shri Thepfulo Nakhr Angani v. Smt. Ravaluei @ Rano M. Shaiza,
~
[ 1971] 1 sec 431 it was noted as follows: c
"3. Mr. S.V. Gupte learned counsel for the appellant tried to

- distinguish that decision on two grounds, viz. (I) that the decision in
question was rendered in an appeal to this Court by Special Leave and
as such the jurisdiction of this Court was much wider than that
conferred on this Court by Section 116 (A) of the Representation of D
t~e People Act, 195 l and (2) that the scope of an appeal under Section
116(A) before its amendment in 1966 was different than from its scope
at present. We are unable to accept either of these two contentions.
In the above decisions, it was ruled that this Court has power to
decide all the points arising from the judgment appealed against and E,
• even in the absence of an expressed provision like Order XLI, Rule
22 of the Code of Civil Procedure, this Court can devise appropriate
procedure to be adopted at the hearing and there could be no better
way of supplying the deficiency than by drawing upon the provisions
•t of a general law like the Code of Civil Procedure and adopting such
of those provisions as are suitable. The decision of the Court did not F
rest either on the ground that the appeal before it was brought by
special leave of this Court or on the interpretation of Section I 16(A)
as it then stood. The reasons behind the rule laid down by this Court
are found at page 725 of the report. Therein it is observed:
It is true that the rules framed by this Court in exercise G
of its rule making powers do not contain any provision analogous
to Order XLI, Rule 22 of the Code of Civil Procedure which
-.. permits a party to support the judgment appealed against upon
a ground which has been found against him in that judgment.
The provision nearest to it is the one contained in Order XVIII,
H
210 SUPREME COURT REPORTS (2005) SUPP. S S.C.R.

A rule 3 of the Rules of this Court which requires parties to file -.
statement of cases. Sub-rule (I) of that Rule provides that Part-
! of the statement of the case shall also set out the contentions
of the parties and the points of law and fact arising in the appeal.
It further provides that in Part-II a party shall set out the
propositions of law to be urged in support of the contentions of
B the party lodging ~he case and the authorities in support thereof.
There is no reason to limit the provision of this Rule only to.
those contentions which deal with the points found in favour of
that party in the judgment appealed from. Apart from that we
think that while dealing with the appeal before it, this Court has
c the power to decide all the points arising from the judgment
appealed against and even in the absence of an express provision
like Order XLI, Rule 22 of the Code of Civil Procedure it can
devise the appropriate procedure to be adopted at the hearing.
There could be no better way of supplying the deficiency than
by drawing upon the provisions of a general law like the Code
D of Civil Procedure and adopting such of those provisions as are
suitable. We cannot lose sight of the fact that normally a party
in whose favour the judgment appealed from has been given will
not be granted special leave to appeal from it. Considerations of
justice, therefore, require that this Court should in appropriate
E cases permit a party placed in such a position to support the
judgment in his favour even upon on grounds which were •
negatived in that judgment. "

In J.K. Cotton Spinning and Weaving Mills Co. Ltd. v. Collector of
Central Excise, [l 998] 3 SCC 540 it was noted as follows:
F
"25. A three Judge Bench of this Court in Vashist Narain Sharma v.
Dev Chandra, AIR ( 1954) SC 513 did not permit a respondent in an
appeal filed by Special Leave under Article 136 to support the decision
I
challenged in the appeal on a ground which h:id been found against +
him. The Court held that the corresponding provision in the Civil
G Procedure Code had no application to an appeal filed by special leave ..
under Article 136.

26. The aforesaid decision was cited before another three-Judge Bench
in the case of Baru Ram v. Prasanni, AIR (1959) SC 93 where it was
.
I
I-
not dissented from. But in the light of the decision of the Constitution
H Bench of this Court in Ramanbhai Ashabhai v. Dabhi Ajitkumar
JAGDISHKUMARv. STATEOFH.P. [PASAYAT.J.] 211

Fulsinji, AIR ( 1965) SC 669 the ratio adopted in the earlier mentioned A
two decisions is no more in. vogue. The Constitution Bench held that
this Court has power to decide all points arising from the impugned
judgment and even in the absence of an express provision like Order
41, Rule 22 CPC, this Court can devise' appropriate procedure to be
adopted at the hearing. The observatfons of the Bench which are B
. •:la •
re Ievant now are the fioIIowing: ·
"There could be no better way of supplying the deficiency
than by drawing upon the provisions of a general law like the
Code of Civil Procedure and adopting such of those provisions
~ are suitable. We cannot lose sight of the fact that normally a C
party in whose favour the judgment appealed from has been
given will not be granted special leave to appeal from it.
Consideration ofjustice, therefore, require that this Court shall
in appropriate cases permit a party placed in such a position
to support the judgment in his favour even upon grounds which
were negatived in #lat judgment. We are therefore of the opinion D
that in Vashisht Narayan Sharma case, too narrow a view was
taken regarding the powers of this Court.....".
(underlined for emphasis)

27. We, therefore, concede that the respondents cannot be precluded E
in this appeal from canvassing fro.reversal of a finding contained in
the impugned judgment despite its end result being in their favour."

Therefore, the stand of respondent nos. 3 to 18 that even though they
have not filed an appeal, 'they can question correctness of the view adverse
to them, on the facts of the present case, needs to be accepted. It is to be F
noted that in Ramanbhai 's, case (supra) and. Shri Thepfulo 's, case (supra), it
was held by this Court that in "appropriate cases" this Court can permit a
non-appealing party to support the impugned judgment even upon grounds
which were negatived in that judgment. The Court has to consider whether
in the case before it the non-a!Jpealing party should be permitted to do so.
On the factual background highlighted above, we consider this to be case G
where the respondent nos. 3 to 18 should be permitted to do so.

The two rules referred to by the learned counsel for the parties are
Rules 6 and 14. They read as follows:
H
212 SUPREME COURT REPORTS [2005] SUPP. 5 S.C.R.

A "6. Educational and Technical Qualifications of Candidates:-

No person shall be appointed to the service unless in the case of
appointment to. the post of:-

(i) Tracers: He has passed the matriculation examination of a recognized
B University or above as well .~up,~ssed the Draftsman Course from a
recognized Institution or as a plan printing machine operator with an
experience of four years.

(ii) Assistant Draftsman: He has passed the matriculation examination
of a recognized University or above as well as passed the diploma of .. ,
C Draftsman Course from a recognized Institution with an experience of
minimum three years.

(iii) Junior Architectural Draftsman: He has passed the matriculation
examination. of a recognize University or above as well as passed the
Diploma of Draftsman Course or passed second year of Architectural
D Course from recognized Institution.

(iv) Divisional Head Draftsman: He has passed the matriculation
examination of a University or above as well as the Diploma of
Draftsman Course from a recognized Institution with experience of
minimum of 6 years or Diploma in Civil Engineering from a recognized
E Institution.

(v) Senior Architectural Draftsman:

xxxx xxxxxxx
(vi)· Circle Head Draftsman: He has· passed the matriculation
F examination of a recognised University or above as well as passed the
Diploma of Draftsman Course from a recognized Institution with I 0
years experience or diploma in Engineering from a recognized Institution
with three years experience or degree in Engineering from recognized
Institution.

G (vii) Circle Draftsman in Chief Engineer's Office: He passed the
matriculation examination of a recognized University or above as.well
as passed the Diploma of Draftsman Course from a recognized .
Institution with 12 years experience after qualifying or diploma in Civil
Engineering from a recognized Institution with 5 years experience or
· Degree in Civil Engineering from a recognized Institution.
H
JAGDISH KUMARv. STATEOFH. P. [PASAYAT,J.] 213
Note: In relation to posts of Senior Architectural Draftsman, Circle A
Head Draftsman and Circle Draftsman in Chief Engineer's Office, refer
in Rule 6(v), 6(vi) and 6(vii).

I. Age and qualification in case of direct recruit will be relaxable as
the discretion of the Commission in case of candidate otherwise well
~~ B
2. Age limit for direct recruits will be reckoned from the last date fixed
for receipt of application by the Commission.

3. Knowledge of customs, manners and dialects of Himachal Pradesh
and suitability for appointment in the peculiar condition prevailing in C
the Himachal Pradesh shall be desirable qualifications.

4. Selection for appointment to these posts in case of direct recruits
shall be made on the basis of viva voce test, if the Commission so
consider necessary or expedient, by a written test, the standard/
syllabus etc. of which will be determined by the Commission or a D
practical test.

5. Where the Government is of the opinion that it is necessary or
expedient to do so, it may by order for reasons to be recorded in
writing and in consultation with the Himachal Pradesh Public Service
Commission relax any of the provIB.i.Q!lS of these rules with respect to E
any class or category of persons or posts.

Desirable Qualification:

The candidate should possess the knowledge of customs, manners
and dialects of Himachal Pradesh and the suitability for appointment F
in the peculiar conditions prevailing in the Himachal Pradesh.

14. Passing of examinations: The members of the service shall have
to qualify examinations or to undergo training as may be prescribed
by the Chief Engineer from time to time for any class of posts in the
service."
G
The Government relaxed the requirement of Rule 6 by order dated
31.10.1973. It reads as follows: ·

"I am directed to refer to your letter No.PWE-125-1/71-(RR)/ESI-
12206 dated 29.5.1973, on the subject noted above and to convey the H
214 SUPREME COURT REPORTS (2005) SUPP. S S.C.R.

A approval of the Government to the relaxation of the condition of
qualification for the post of Tracer Draftsman prescribed in the H.P.PWD
Subordinate Services Class Ill, Draftsman and Tracers, Recruitment
and Promotion Rules, 1961 to the executants that candidates who
have passed matriculation examination of the recognized institutions
or equivalent examination with drawing as one of the elective subject
B may be recruited against the post of Tracer Draftsman. Such candidates
shall be required to undergo training in one of the I.T.ls at least for
a period of 3 months after completing one year service or as may be
prescribed by the Chie Engineer after assessing the performance of
such candidates. This relaxation has, however, been given as a special
c case keeping in view the non-availability of trained hands in the State.

Yours faithfully,

Sd/-
(B.D. Shaunak)
D Under Secretary (PW)
To the. Govt. of HP"
The Chief Engineer vide his office order dated 19 .2.1980 noted as follows:
"With the approval of the Himachal Pradesh Government c0nveyed
E vide their letter No. I- I59171-PWD-A dated 31.10.1973 the certain posts
of Tracer Draftsmah'\vere filled up in this Department by the unqualified
candidates who had posted Matric with drawing as one of the elective
subject.
It has now been decided to hold departmental examination on
F 14.4.1980 for such unqualified Tracer Draftsman/Draftsman working in
this Department. There will be two papers in the said examination; one
on the subject of construction of buildings and road. Etc. and the
second for estimating etc. The syllabus will be as per enclosure
attached and may be given vide circulation.

G Sd/-
(I.D. Mirchandani)
Chief Engineer,
HP, PWD, Simla-I"
A combined reading of letter dated 31. I0.1973 and the office order dated
H 19.2.1980 shows that t.he latter is not really relatable to Rule 14. On the
JAGDISHKUMAR v. STATEOFH. P. [PASAYAT,J.] 215
.. contrary, it is in continuation of the earlier letter of the Government. That A
being so, the challenge of the respondent nos. 2 to 18 to the power of the
Chief Engineer to provide for the departmental examination is without merit.

Further question is whether any relaxation was necessary while giving
promotion as Assistant Draftsman. For being eligible to be considered for
appoi~tment as Assistant Draftsman, the requirements are indicated in Rule B
6 (ii). Once the requirement of passing diploma of Draftsman Course is relaxed
in terms of Rule 6(i) for appointment as Tracer, there is no necessity for again
having relaxation for being considered as Assistant Draftsman. That
contingency is already taken care of when relaxation is given for appointment
as Tracer. Otherwise, a person who has been found eligible to be appointed
as a Tracer will not be considered for promotion as Assistant Draftsman, even
c
though there is no illegality attached to the appointment as Tracer. Such a
view would go against the logic of relaxation for appointment as Tracer.
:;
The only other question which needs to be adjudicated is the stand of
the respondents that the appointment had become really effective on the date D
of passing the departmental examination. This plea is equally untenable on
account of the fact that the appointment itself takes effect from the date of
appointment and in the event of not passing the examination the consequences
follow. But that cannot be a ground to hold that there was no appointment
in the eye of law till examination is passed. The Government also recognized
this position as is evident from declaration of the seniority list on 14.10.1977 E
wherein the appellants were included in the seniority list though they had not
cleared the examination by that time as no examinations were held. In the eye
of law the appointment of the appellants was from the date of their initial
appointment which of course was conditioned with the requirement of passing
the departmental examination. Undergoing any training with the ITI was F
subsequently substituted by the requirement of passing the departmental
examination. A feeble attempt was made to show that at no point of time the
authorities have adduced any material to show that the ITI had declined to
impart training and, therefore, the substitution of ITI training by the requirement
of passing the departmental examination is illegal. The stand is untenable.
This plea is only to be noted to be rejected because of the High Court's G
finding in clear terms which is as follows:

"It is not in dispute that on the concerned Authorities of LT.Is
expressing their inability to provide three months training to the
petitioners and other similarly situated persons, the Chief Engineer
H
/
216 SUPREME COURT REPORTS [2005) SUPP. 5 S.C.R.

' A decided to hold departmental examination by prescribing syllabus for
the said examination vide his office order dated 19.2.1980 (Annexure
P-3), which the petitioners qualified as per Notification dated 24.5.1980
and in December, 1980."

Above being the position, the appellants are entitled to be placed in the .
B seniority list from the date of their initial appointment and not from the date
on which they passed the departmental examination. The appeals are allowed
but with no order as to costs.

KG. Appeal allowed.