K K KHOSLA Vs. STATC OF HARYANA

JUDGEMENT

(1.) This appeal is directed against the judgment and order of a Division Bench of the Punjab and Haryana High Court 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).

(2.) The post of Executive Engineer in Public Works Department (Public Health Branch) in the State of Haryana is borne in Class I Engineering Service, recruitment to which is made by direct recruitment and promotion under the provisions of the Haryana Service of Engineers Class I PWD (Public Health Branch) Rules 1961 (hereinafter referred to as 'the Rules). Under Rule 5, 50% of the posts of 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 constitution 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 Government is required to make the appointments. Rule 9 lays down that promotion shall be made by selection on the basis of merit and suitability 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 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 years in case of direct recruitment. Rule 15 lays down that officers appointed to the service unless they have already done so, shall pass departmental examination and within such period as may be prescribed by the Government. Under the proviso to Rule 15(l) 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 particular case.

(3.) 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 Class II officers prepared a select list for promotion. The list so prepared contained the name of nine officers including the two appellants 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 Das Sardana, respondent No. 3 a direct recruit was also appointed on the recommendation of the Public Service Commission. Aggrieved the appellants filed a writ petition in the High Court challenging the validity 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 minimum requisite qualification for promotion to the post of Executive 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 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.