Holding

The promotion of the respondent to Executive Engineer was valid as the State Government lawfully exercised its power to relax the service and examination requirements under the relevant rules.

Summary

The appellants, two Class II engineers, challenged the promotion of Bhagwan Das Sardana, a direct recruit to Assistant Executive Engineer, to Executive Engineer (Class I) in the Haryana PWD (Public Health Branch). They argued that the promotion violated Rule 9(3)(a) requiring five years' service as Assistant Executive Engineer, Rule 15 requiring a departmental examination, and Rule 11 requiring completion of a two‑year probation. The State Government had exercised the second proviso of Rule 9(3) and Rule 22 to relax the five‑year service requirement and considered Sardana’s earlier departmental exam in the Buildings and Roads Branch sufficient, also waiving the probation period. The Supreme Court held that the Government’s relaxation was within its statutory powers and that the prior examination satisfied the qualification requirement, while probation was not a pre‑condition for promotion. Consequently, the Court found no legal infirmity in the promotion and dismissed the appeal.

Issues considered

Whether the State Government could validly relax the five‑year service requirement under Rule 9(3)(a) for promotion to Executive Engineer.
Whether failure to pass a fresh departmental examination in the Public Health Branch invalidated the promotion.
Whether non‑completion of the two‑year probationary period as Assistant Executive Engineer barred promotion.

Legislation cited

Haryana Service of Engineers (Class I) PWD (Public Health Branch) Rules, 1961s. Rule 11, s. Rule 15, s. Rule 22, s. Rule 5, s. Rule 9

Subjects

promotionservice rulesrelaxation of rulesdepartmental examinationprobationpublic service lawadministrative lawHaryana

Judgment

K.K. KHOSLA & ANR.
A
v.
STATE OF HARYANA & ORS.

FEBRUARY 20, 1990 *'
B [K.N. SINGH, T.K. THOMMEN AND N.M. KASLIWAL, JJ.]

Haryana Service of Engineers Class I PWD (Public Health
Branch) Rules, 1961: Rules 5, 9, 11, 15 & 22-Promotion to the post of ~~
Executive Engineer Class I-Relaxation of Rules in favour of an
Assistant Executive Engineer-Validity of.
c Rule 5 of the Haryana Service of Engineers Class I PWD (Public ~
Health Branch) Rules 1961 requires 50 per cent of the posts of Execu·
tive Engineers to be filled by promotion from members of Class II
Service. Rule .9(3) renders a member of service ineligible for promotion
to the rank of Executive Engineer unless he render.s five years' service ~·
D as an Assistant Executive Engineer, and has passed the departmental
examination. The first proviso thereto grants preference to an Assistant
Executive Engineer over an eligible Class II Officer in the matter of
promotion. The second proviso empowers the Government to reduce
the period of five years' service as an Assistant Executive Engineer.
Rule ll prescribes two years' probation In case of direct recruits to the
Service. Rule 15 requires officers appointed to the Service to pass de· ~
E
partmental examination within such period as may be prescribed unless
they have already done so. Rule 22 empowers Government to relai< the
requirement of Rules In cases of undue hardship.
c
·. Respondent No. 3, a direct recruit to the post of Assistant Execu·
live Engineer in the Public Health Branch, was promoted to the post of ~-
F
Executive Engineer, Class I Service, defeating the cl11lm of the appel·
-~
lants, members of Class II Service of Enlllneers In the said Department.
I'hey assailed his appointment by means of a writ petition under Article
~l.6 · of the Constitution on the ground that the respondent was not
eligible for promotion as he had not rendered five years' service as an
a Assistant Executive Engineer and further he had not passed.the depart·
mental examination which was the minimum requisite qualification for
promotion to the post of Executive Engineer. Before the High Court the
State Government's plea was that It had relaxed the requirement of Rule
9(3)(a) not only to respondent No. 3 but to other omcers also. The High ~
Court_ dismissed the writ petition o.n the view that there was no
H infirmity In the Government's order 11ranting exemption to respondent
No. 3.
464
K.K. KHOSLA v. STATE OF HARYANA 465

In appeal, in addition to the pleas raised before the High Court, it
A
was further submitted that respondent No. 3 was not eligible for promo-
tion as he had not completed two years' probationary period as
Assistant Executive Engineer on the date of his promotion.

Dismissing the appeal, the Court,

HELD: l. There was. no legal infirmity in the promotion of
respondent No. 3. The State Government had granted relaxation to
him by reducing the period of service under clause (a) to Rule 9(3)
in exerdse of its power under the second proviso to the said Rule. This
relaxation was granted as he was the only officer in the department who
was a direct recruit to Class I Service. In addition to. that, Rule l l
further confers power on the State Government to grant relaxation with
regard to the operation of the Rules. The Government's order granting
relaxation in favour of respondent No. 3 was sustainable under Rule 22
also. [468B-D]

J.C. Yadav & Ors. v. State of Haryana & Ors., [1990] 1SCR470, Q
referred to.

2. The respondent's promotion to the post of Executive Enginee<
was not rendered illegal merely because he had not undergone depart-
mental examination in the Public Health Branch. He had been working
as Sub-Divisional Engineer in the Publie Works Department (Buildings E
and Roads Branch) for a period of 6-1/2 years prior to his recruitment
to the post of Assistant Executive Engineer in the Public Health Branch
and during that period he had passed departmental examinati-On. The

' syllabus prescribed for the departmental examination in the Buildings
and Roads Branch as well as in the Public Health Branch was almost the
same. The Government was satisfied that there was no necessity for him.
to pass the examination again. [469B; 468E-G; 469A]

3. Non-completion of probationary period of two years on the
f

post of Assistant Executive Engineer by respondent No. 3 did not affect
the validity of his promotion to the post of Executive Engineer under the
Rules. There is no specific provision in the Rules requiring completion G
of probationary period for the purposes of promotion within the
Service. It was relevant only for the purpose of confirmation in Class I
Service. [469E; C-D J

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 653
Gf 1981. H
466 SUPREME COURT REPORTS [1990] 1 S.C.R.

A From the Judgment and Order dated 11.8.80 of the Punjab and
Haryana High Court in C. W.P. No. 1192 of 1980.

M.K. Ramamurthy and Jitender Sharma for the Appellants ..

Rajinder Sachar, Govind Mukhoty, Dr. Shankar Ghosh,
B Mahabir Singh, S.C. Patel, T.C. Sharma, C.V. Subba Rao, C.M.
Nayyar, P.P. Singh and S.K. Verma for the Respondents.
\.._,
The Judgment of the Court was delivered by

SINGH, J. This appeal is directed against the judgment and
order of a Division Bench of the Punjab 'and Haryana High Court
c dated 11th August, 1980 dismissing the appellants' writ petition under
Article 226 of the Constitution challenging validity of the appointment
of Bhagwan Das Sardana, respondent No. 3 to the post of Executive
Engineer in Public Works Department (Public Health Branch).

D The post of Executive J;ngineer in Public Works Department
(Public Health Branch) in the State of Haryana is borne on Class I
Engineering Ser\!ice, recruitment to which is made by direct recruit·
ment and promotion under the provisions of the Haryana Service of
Engineers Class !PWD (Public Health Branch) Rules, 1961 (herein·
after referred to as 'the Rules'). Under Rule .'>, 50% of the posts of
E Executive Engineers in Class I are required to be filled by direct
recruits while the remaining 50% posts are to be filled by promotion
from members belonging to Class II service. Rule 8 provides for con·
stitution of a Committee for making selection for promotion to the
post of Executive Engineer. The list so prepared is forwarded to the
State Public Service Commission and on its approval the State Govern-
F men! is required to make the appointments. Rule 9 lays down that
promotion shall be made by selection on the basis of merit and suita-
bility in all respects. Rule 9(3) lays down that a member shall not be
eligible for promotion to the rank of Executive Engineer, unless he has
rendered five years' service as an Assistant Executive Engineer, and
has passed the departmental examination as provided in Rule 15. The
G first proviso to the Rule lays down that an Assistant Executive
Engineer found suitable for promotion shall be given preference over
an eligible Class II officer. The second proviso to Rule 9(3) confers
power on the Government to ·reduce the period of five years' service as
an Assistant Executive Engineer. Rule 11 lays down that an officer
appointed to the service shall remain on probation for a period of two
H years in case of direct recruitment. Rule 15 lays down that officers
K.K. KHOSLA v. STATE OF HARYANA [SINGH, J.l 467

appointed to the service unless they have already done so, shall pass A
departmental examination and within such period as may be pres-
cribed by the Government. Under the proviso to Rule 15( 1) the
Government is empowered to extend the period within which an
officer may pass the departmental examination. Rule 22 confers power
on the Government to relax the requirements of Rules if it is satisfied
that the operation of any of these Rules causes undue hardship in any B
! particular case.
·-'"
The appellants S/Shri K.K. Khosla and L.C. Goyal were holding
the post of Sub-Divisional Engineers PWD (Public Health Branch) in
the State of Haryana in Class II Service of Engineers. They were
considered for promotion to the post of Executive Engineer, Class I
Service. The Selection Committee, on scrutiny of cases of eligible C
Class II officers prepared a select list for promotion. The list so
prepared contained the names <'f nine officers including the two appel-
lants but ultimately the appellants were not appointed by promotion to
the post of Executive Engineer instead other seven officers belonging
to Class II Service were promoted and in addition to that Bhagwan D
Das Sardana, respondent No. 3 a direct recruit was also appointed on
the re~ommendation of the Public Service Commission. Aggrieved, the
appellants filed a writ petition in the High Court challenging the vali-
dity of the appointment of respondent No. 3 on the ground that he had
not rendered five years' service as an Assistant Executive Engineer
and had not passed the departmental examination which was the E
minimum requisite qualification for promotion to the post of Execu-
tive Engineer in Class I Service. On behalf of the State Government, it
was pleaded that the State Government had relaxed the requirement
of Rule 9(3)(a) with regard to five years' period of service not only to
respondent No. 3 but to other officers also. The High Court dismissed
the writ petition on the finding that there was no infirmity in the F
Government's order granting exemption to respondent No. 3 and his
promotion and appointment to the post of Executive Engineer did not
suffer from any legal infirmity. The appellants have challenged the
view taken by the High Court in the instant appeal.

On behalf of the appellants it was urged ihat the promotion and G
appointment of respondent No. 3 to the post of Executive Engineer
was made in utter disregard of the Rules as he had not rendered five
years' service as an Assistant Executive Engineer as required by Rule
9(3)(a) and he had not passed the departmental examination as con-
templated by Rule 15 and lastly he was not eligible for promotion as he
had not completed two years' probationary period as Assistant Execu- H
468 SUPREME COURT REPORTS [1990] 1 S.C.R.

tive Engineer on the date of his promotion.
A
On a careful scrutiny of the Rules and the material on record we y
do not find any merit in the submission made on behalf of the appel-
!ants. No doubt respondent No. 3 had not rendered five years' service
as an Assistant Executive Engineer but the State Government had
B granted relaxation to the respondent No. 3 by reducing the period of
service under Clause (a) to Rule 9(3) in exercise of its power under the
'
proviso to the said Rule. This relaxation was granted as the respondent ~
No. 3 was the only officer in the Department who was a direct recruit
to Class I Service. The State Government had power to grant relaxa-
tion under the second proviso to Rule 9(3) therefore we find no legal
infirmity in the respondent's promotion. In addition to that Rule 22
c further confers power on the State Government to grant relaxation
with regard to the operation of the Rule. The Government's order
granting relaxation in favour of respondent No. 3 is sustainable under
Rule 22 also. The scope of State Government's power to relax opera- -"\··
tion of Rules has been discussed by us.in J.C. Yadav & Ors. v. State of
D . Haryana & Ors., [1990] 1SCR470. On the application of those princi-
pies we find no illegality in the order of the Government granting
relaxation to respondent No. 3, in respect of operation of Rule
9(3)(a).
)..
As regards the departmental examination is concerned, it is true
E that the respondent No. 3 did not pass the departmental examination
afresh in the Public Health Branch. On behalf of the State Govern-
ment it is pointed out that prior to his recruitment to the post of
Assistant Executive Engineer in the Public Health Branch respondent
No. 3 had been working as Sub-Divisional Engineer (SDE) in the
Public Works Department (Building and Road Branch) for a period of
6-1/2 years and during that period he had passed departmental exami-
~
F
nation. In this view the Government did not consider it necessary to ~
require the respondent No. 3 to pass the departmental examination
once again. The Public Health Branch as well as the Building and
Road Branch both belong to the Public Works Department. The
syllabus prescribed for the departmental examination in the Building
G and Road Branch as well as in the Public Health Branch is almost the
same, as except one, all other subjects are common to both the
Branches. The State Government's opinion that since the respondent
No. 3 had already passed a departmental examination while working in .....
the Building and Road Branch, it was not necessary for him to i)ave
passed the departmental examination again was justified though it had
H at an earlier stage directed the respondent No. 3 to pass the depart-
K.K. KHOSLA v. STATE OF HARYANA [SINGH, J.] 469

mental examination again. Later on the Government was satisfied that
since the respondent had already passed the departmental examina-
tion in Building al)d Road Branch, there was no necessity for the
respondent to pass. the examination again. In these circumstances we
hold that respondent's ·promotion to the post of Executive Engineer
was not rendered illegal merely because he had not undergone depart-
mental examination in the Public Health Branch afresh. B

_,.! Respondent No. 3 had been appointed as a direct recruit to the
post of Assistant Executive Engineer on 7.12.1977 on probation for a
period of two years. Before the expir')' of the probation period be was
§elected for promotiqn to the post of Executive Engineer. The appel-
lants' contention that unless the respondent had satisfactorily comp- c
leted the probation period, he could not be promoted to the post of
Executive Engineer, is misconceived. There is no specific provision in
the Rules requiring completion of probationary period for the
purposes of promotion within the service. Under Rule 11 an officer is
required to be appointed on probation, if during the period of proba-
tion his work is not found satisfactory his services are to be dispensed D
with and in the event of his services being found satisfactory he is
entitled to confirmation on the post. It is thus clear that the completion
of the probationary period of respondent was relevant only for the
purpose of confirmation in Class I Service and same was not a pre-
condition for the purpose of promotion within the service. Moreover,
the Government issued an order waiving the probationary period of E
one. year in the respondent's case. Non-completion of probationary
period of two years on the post of Assistant Executive Engineer did
not affect the validity of the respondent's promotion to the post of the
Executive Engineer under the Rules.

~., In view of the above discussion, we find no merit in the appeal F
...,-- and it is accordingly dismissed. There will be no order as to costs.

P.S.S. Appeal dismissed.