Holding

The proviso to Rule 11‑A is to be read harmoniously with the main rule, allowing relaxation of the experience requirement only when no fully qualified candidate is available, and therefore the respondents must be considered for promotion.

Summary

The case concerned promotion of senior clerks belonging to Scheduled Tribes in Gujarat civil services. Several posts reserved for STs were vacant because no candidates possessed the full experience prescribed in Rule 11‑A of the Gujarat Civil Services Classification and Recruitment (General) Rules, 1985. The respondents, having completed at least two‑thirds of the required experience, invoked the proviso to Rule 11‑A seeking promotion, but the Government denied the benefit. The Gujarat Civil Services Tribunal and the Gujarat High Court ordered that the respondents be considered for promotion under the proviso. On appeal, the petitioners argued that giving effect to the proviso would render the main part of Rule 11‑A redundant. The Supreme Court held that the proviso is a supplementary power to relax the experience requirement only when a fully qualified candidate is unavailable and must be read harmoniously with the main rule. Consequently, the petition was dismissed and the respondents were entitled to be considered for promotion.

Issues considered

Whether the proviso to Rule 11‑A renders the main part of the rule redundant if applied in every case
Whether the appointing authority must consider candidates who have completed two‑thirds of the prescribed experience for promotion under the proviso
How the rule and its proviso should be interpreted under the principle of harmonious construction

Legislation cited

Gujarat Civil Services Classification and Recruitment (General) Rules, 1985s. Rule 11-A

Subjects

service lawpromotionreservationScheduled Tribesstatutory interpretationRule 11-Aprovisoharmonious constructionGujarat civil services

Judgment

A SALES TAX COMMISSIONER ETC. ETC.
v.
B.G. PATEL ETC. ETC. ...,
JANUARY 3, 1995

B [K. RAMASWAMY AND N. VENKATACHALA, JJ.]

Service Law : Gujarat Civil Services Classification and Recruitment
(General) Rules, 1985-Rule 11-A and Proviso-Number of pos~s reserved
+
for Scheduled Tribes remaining unfilled due to lack of persons possessed of
c minimum experience as prescribed in the rule-Respondents, belonging to
Scheduled Tribes, having completed the period of service specified in the
proviso-Held, proviso enables appointing authority to relax the rule-Respon-
dents to be considered for promotion.

Interpretation of Statutes: Hannonious construction-Rule prescribing
D minimum qualifying service for promotion-Proviso providing for relaxation
of rule to two-thirds of qualifying period where a person having prescribed
·"'-
minimum experience not available-Held, proviso does not have the effect of
rendering the main part of rule redundant-Proviso and rule should be
hannoniously read.
E
A number of posts reserved for STs remained unfilled due to lack of
persons possessing the experience prescribed for promotions under Rule
11-A of the Gujarat Civil Services Classification and Recruitment
(General) Rules, 1985. The Proviso to Rule 11-A provides that where no
persons are available possessing the requisite experience, the appointing
F
authority may consider for promotion persons who have experience of no >
less than two-thirds of the period specified in the rule. The respondent-
senior clerks who belonged to the Scheduled Tribes represented to the
Government to accord them the benefit of the Proviso. The Government's
denial was challenged in the Gujarat Civil Services Tribunal which
G directed the Government to consider the. cases for promotion of the
respondents, giving them the benefit of the Proviso. The order was con-
firmed by the High Court. .. _

On appeal, it was contended for the petitioner that the interpretation
H adopted by the Tribunal and the High Court would render the main part
22
SALES TAX COMMNR. v. B.G. PATEL 23

of Rule 11-A redundant, and the Proviso would become operative in each A
case.

Dismissing the appeal, this Court

HELD: 1. Rule 11-A of the Gujarat Civil Services Classification and
Recruitment (General) Rules, 1985 is the normal rule. The proviso only B
enables the appointing authority to relax the rule where no candidate is
available fulfilling the minimum experience prescribed in the rule. It is not
disputed that a number of posts reserved for Scheduled Tribes remained
unfilled due to lack of persons possessed of the minimum experience
specified in the rule. Instead of dereserving the post for non-availability, C
the proviso would enable the appointing authority to relax the period of
experience prescribed in the rule, and consider the claims of the respon-
dents, who have completed the period specified in the proviso, for appoint-
ment by promotion. [25-D-H, 26-B]

2. The p~titioner has taken a technical view of the matter and D
committed an illegality by failing to exercise the power under the proviso
to Rule 11-A. [26-B]
• 3. If the contention of the State is accepted, the proviso would be
rendered otiose and ineffective. The proviso and the main part of the rule
are to be harmoniously read together and interpreted to give effect to the E
object of the provision. (25-F, D]

4. The Tribunal and the High Court were right in holding that the
cases of the respondents require to be considered for promotion. (26-B]

CIVIL APPELLATE JURISDICTION: Special Leave Petition (C) F
Nos. 1383-92 of 1995.

From the Judgment and Order dated 22.11.93 of the Gujarat High
Court in S.C.A. No. 12748-57 of 1993.

Anip Sachfhey for the Petitioners. G
The following Order of the Court was delivered :

Delay condoned.

This petition for special leave arises from the order of the High Court H
24 SUPREME COURT REPORTS [1995) 1 S.C.R.

A of Gujarat in Special Civil Application Nos. 12748 to 12757 of 1993.

The respondents-senior clerks who belonged to Scheduled Tribes
represented to the Government to accord them the benefit of the proviso
to Rule. llA of Gujarat Civil Services Classification and Recruitment
(General) Rules, 1985 (for short, 'the Rules'). On denial thereof, they
B approached the Gujarat Civil Services Tribunal which by its order dated
5.2.1993 directed the petitioner to consider their cases for promotion giving
them the benefit of the proviso. The Tribunal followed its earlier Full
Bench Judgment and had given direction accordingly. On revision, the
High Court has confirmed the same.
c Shri Dave, the learned counsel appearing for the petitioner has
contended that the interpretation given by the Tribunal and the High
Court, if found acceptable, renders·the main part of Rule 11-A redundant
and the proviso would become operative in every case. Therefore, the
matter requires consideration by this Court. We do not find force in the
D contention.

Sub-rule (1) of Rule 11-A(2) speaks of minimum service of different
classes of employees. It postulates that "where any rule or order relating
to recruitment of promotion to any service or post including the State
Service or subordinate service, possession of experience in a lower services
E or post for a specified period is not prescribed as a condition precedent
to promotion to a Higher service or post, the provisions of sub-rule (2),
shall apply. Sub-rule (2) prescribed the procedure. In case of promotion
from a lower post in class III to a higher post in the same service a
minimum of 5 years service has been prescribed in clause (a) to Rule 11-A
F (2). Similarly, from class III to class II service, experience of 7 years has
been prescribed in clause (b). In clause (c) from a lower post in class II
service to a higher post in the same service, a minimum experience of 5'
years in the post from which a person is to be promoted has been
prescribed. In clause (d) for promotion from Class II service to class I
G service an experience of 8 years in class II service has been prescribed
unless he has experience of 8 years service in class II servi,ce from which
he is to be promoted. The proviso which is relevant for the purpose of this
case, reads thus :

"Provided that where an appointing authority is satisfied that a
H . person having an experience specified in clauses (a), (b), (c) or as
SALES TAX COMMNR. v. B.G. FATEL 25
-.,.. the case may be, (d) is not available for promotion and that it is A
.,. in public interest to fill up the post or service by promotion of a
person having experience for a lesser period. It may for the reasons
to be recorded in writing promote such person who has experience
for a period not less than two thirds of the period specified in
clause (a), (b) (c) or (d) which applies to him".
B
It would thus be clear that clauses (a) to (d) of Sub-rule (2) of Rule 11-A
"
prescribe a minimum experience in a lower post for promotion to a higher
post, but the proviso enables the appointing authority on its satisfaction
that the person required to have the previous experience prescribed under
clauses (a) to (d) is not available for promotion and that in the public c
interest the post or service is required to be filled up by promotion, the
provision postulates that such person has to put in, not less than two thirds
of the period specified in either clauses (a) to (d). Then it enables the
appointing authority for reasons to be recorded in writin~ to promote such
.;;'>
person. It is settled law that the proviso and the main part of the Act or
D
Rule are to be harmoniously read together and interpreted to give effect
to the object of the provision. Rule llA prescribes minimum period of
previous experience in lower post for promotion to a higher post. It is
normal rule. But, where the candidate is not available fulfilling the mini-
mum experience but the exigencies of the administration require filling up
the post or office by promotion and the appointing authority is satisfied E
that such a person has already put in not less than 2/3rd of the period
specified in the relevant clause in sub-rule (2) to Rule 11-A and the
candidate is otherwise eligible for promotion, then power has been given
....
by the proviso to relax the balance period, for reasons to be recorded and
to consider the case for promotion according to rules. If the contention of F
the State is accepted, the reverse would be the order, in other words, the
proviso would be rendered otiose and ineffective. On an harmonious
interpretation, as it was rightly done by the Tribunal and the High Court
that in an appropriate case where the appointing authority is satisfied that
a person having not less than 2/3rd of the period of experience specified
G
+ in the relevant clauses (a) to (d) of Rule ll-A(2) is available and in the
public interest it is necessary to appoint the person by promotion, the
..., proviso enables the appointing authority ~o relax the balance l/3rd period
prescribed by the relevant clauses and make necessary appointment by
promotion. It is seen, as fairly not disputed by Shri Dave, that number of
posts reserved for Scheduled Tribes remained unfilled due to lack of H
26 SUPREME COURT REPORTS h995) 1 S.C.R.

A persons possessed of minimum experience prescribed under sub-rule (2)
of Rule 11-A and the respondents have completed 2/3rd of the period ...
•
specified in the relevant clauses. Instead of dereserving the post for non-
availability, the proviso would enable the appointing authority to relax the
balance period of experience and consider their claims for appointment by
promotion. Instead, the petitioner has taken technical view of the matter
B and committed illegality by failing to exercise the power under the proviso
to Rule 11-A of the Rules. The Tribunal and the High Court, therefore,
were right in holding that the cases of respondents require to b.e considered
for promotion in the light of the interpretation given by them.

The SLP is accordingly dismissed.

U.R. Petition dismissed.

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