PETITIONER:
STATE OF MADHYA PRADESH & ANR.
Vs.
RESPONDENT:
DHARAM BIR
DATE OF JUDGMENT: 08/06/1998
BENCH:
S. SAGHIR AHMAD, G.B. PATTANAIK
ACT
HEADNOTE
JUDGMENT
JUDGMENTS.SAGHIR AHMAD, J. 1. "No, mere experiential knowledge is no equivalent to a Degree in Engineering" is our positive answer to the negative argument that respondent, though not possessing the requisite qualification, be held to be validly holding the post of principal, ITI, on the basis of the experience. 2. The facts, the questions raised and the findings thereon are recorded hereinafter. 3. The respondent was appointed as Senior Instructor on 3.12.1957 and was promoted as Supervisor Instructor on 13.12.1959. Thereafter he was promoted as Foreman and then as Group Instructor. 4. On 15.6.1976, respondent was promoted as Principal, class II, for a period of six months or till the candidates duly selected by the Public Service Commission for that post were available (whichever was earlier). The post of Principal, Class II was a newly created post and was not included in the M.P. Industrial (Gazetted) Service Recruitment Rules, 1965 and since the mode of appointment or recruitment Rules, 1965 and since the mode of appointment or recruitment on that post was not prescribed till about 1985, the respondent continued to work on that post at different places where he was transferred from time to time. 5. On 28.6.1985, Madhya Pradesh Industrial Training (Gazetted) Service Recruitment Rules 1995 (for short, Rules), made by the State Government under Article 302 of the Constitution, were published. These Rules replaced the M.P. Industrial (Gazetted ) Service Recruitment Rules, 1965. The new Rules provided that the post of principal, Grade Ii, would be filled up by direct recruitment to the extent of 75 per cent and by promotion to the extent of 25 per cent. The manner of recruitment by way of promotion was indicated in Rules 13 to 18. 6. After the Rules were made and duly promulgated, a meeting of the Departmental promotion Committee was held in November, 1985 to consider the eligible candidates for regular promotion on the post of principal, Class II. Since the respondent did not possess a Degree or Diploma in Engineering prescribed under the Rules for the post of Principal, Class II, the Committee found him fit only for the post of Vice Principal and, therefore, by order dated 12.06.1986, he was promoted and appointed as Vice- Principal, Industrial Training Institute, Bhilai. 7. It is this order which constitutes the basis of this protracted litigation as the respondent who was already working as Principal, Class II characterises the said order as an order of reversion. 8. The respondent challenged this order in a Writ Petition filled before the M.P. High Court which was transferred to the M.P. State Administrative Tribunal, Jabalpur, and the Tribunal, by its judgment dated 19.4.1994, allowed the petition with the finding that the requirement of possessing the educational qualification of a Degree or Diploma in Engineering for the post of Principal was applicable only to direct recruitment and not to promotions and as such the respondent who, admittedly, did neither possess a Degree nor a Diploma in Engineering, was still entitled to be promoted as Principal, Class II. 9. It is the logic of this apparently illogical reasoning which is to be scrutinised by us in this appeal. 10. Appointments, either by direct requirement or by promotion, on the post of Principal, Class I or class II as pointed out earlier, are made in accordance with the provisions of the Rules promulgated in 1985, Rule 7 which deals with "appointment to the Service" provides as under:-
" 7. Appointment to he service.- An
appointment to the service, after
commencement of these rules, shall
be made by the Government and no
such appointment shall be made
except after selection by one of
the methods of recruitment
specified in rule 6." 11. Method of recruitment has been indicated in Rule 6 which is quoted below:-
" 6. Method of recruitment.- (1)
Recruitment to the service after
the commencement of these unless,
shall be by the following methods;
namely,:-
(a) By direct recruitment through
selection;
(b) By promotion of the members of
the Service as specified in Column
(2) of the Schedule IV;
(c) By transfer of the persons
substantively appointed on the
specified posts in the specified
service.
(2) The number of the persons
recruited under clauses (b) and (c)
of sub-rule (1) shall not at any
time exceed, the percentage as
shown in Schedule II of the number
of duty posts.
(3) Subject to the provisions of
these rules, the method or methods
of recruitment to be adopted for
the purpose of filling any
particular vacancy or vacancies in
the service, as may be required to
be filled during any particular
period of recruitment, and the
number of the persons to be
recruitment, and the number of the
persons to be recruited by each
method shall be determined on each
occasion by the Government in
consultation with the Commission.
(4) Notwithstanding anything
contained in sub-rule (1) if in the
opinion of the Government, the
exigencies, of the service so
requires, the Government may, after
obtaining the approval of the
Government in the General
Administration Department, adopt
such method or methods of
recruitment to the service other
than those specified in the said
sub-rule, as it may by order issued
in this behalf prescribe." 12. Conditions of eligibility of the candidates for direct recruitment are indicated in Rule 8. first part of the rule deals with the requirement of "age". Sub-rule (2) which prescribes educational qualifications is quoted below:-
(2) educational qualifications. -
The candidates must possess the
educational qualification
prescribed for the service as shown
in the Schedule III:
Provided that-
(a) In exceptional cases the
Commission may, on the
recommendations of the Government,
treat any candidate as qualified
for appearing for selection who
though not possessing any of the
qualifications prescribed in this
Clause, has passed examination
conducted by other institutions by
a standard which, in the opinion of
the Commission justifies the
consideration of the candidate for
selection.
(b) Candidates, who are otherwise
qualified but have taken degrees
from foreign Universities not
specifically recognized by the
Government, may; also be considered
for selection at the direction of
the Commission. 13. The educational qualification prescribed in Schedule III is a Degree or Diploma in Engineering. 14. Rule 13 provides for appointment by promotion. Rule 14 provides conditions of eligibility for promotion. Both the Rules are quoted below:
" 13. Appointment by promotion.-
(1) There shall be constituted a
Committee consisting the members
mentioned in Schedule IV for making
a preliminary selection for
promotion of the eligible
candidates.
(2) The committee shall meet at
intervals ordinarily not exceeding
one year.
(3) 15 percent and 18 percent of
the vacancies available for
promotion in such posts in which
the percentage of promotion is 33
1/3 or more as specified in the
Schedule II, shall be reserved for
the candidates belonging to the
Scheduled Castes and Scheduled
Tribes respectively who are
eligible for promotion in
accordance with the provisions of
rule 14.
(4) The procedure for promotion to
the reserved vacancies shall be in
accordance with the instruction
issued by the Government in the
General Administration Department
from time to time."
"14. Conditions of eligibility for
promotion.- subject to the
provisions of sub-rule (2), the
Committee shall, consider the cases
of all those persons, who, on the
first day of January of that year
had completed service of such
number of years, whether in
officiating or substantive
capacity, on the post from which
promotion is to be made as
specified in column (3) of Schedule
IV and are within the zone of
consideration in accordance with
the provisions of sub-rule (2):
Provided that the services of the
released officers of the Emergency
Commission and short Service
Commission after their appointment
in the service, shall be counted
from the date from which, they have
been deemed to have been appointed
in the service in accordance with
the General Administration Deptt.
Memo No. 2266/1987/1 (3) 67 dt. the
21st October, 1967.
Provided further that under this
rule no junior person shall be
considered for Select Grade
Promotion in Preference to the
person senior to him merely on the
basis of his completing the
proscribed service.
92) The field of selection shall
ordinarily be limited to seven
times of the number of officers to
be included in the select list in
respect of posts to be filled on
the basis of "merit-cum-seniority"
and five times the number of
officers to be included in the
select list in respect of posts to
be filled on the basis of
"seniority-cum-merit";
Provided that if required number of
suitable officers are not available
in the field so determined, the
field may be enlarged to the extent
considered necessary by the
committee by mentioning the reasons
in writing". 15. Rule 15 provides for the preparation of a list of officers found suitable for promotion. Rule 16 requires this list to be sent to the Commission for approval. Once the list is approved by the Commission, it becomes the Select List contemplated by Rule 17. rule 18 provides that appointment to the service shall be made from the Select List and in making appointment of the officers included in the Select List, the order in which their names appear in the select List shall be strictly adhered to except as otherwise provided in the Provision to Sub-rule (1) of Rule 18. Since Rule 14 which sets out the conditions of eligibility for promotion specifically refers to Schedule IV for purposes of indicating the number of years of service which should have been completed by the officer concerned in order to be eligible for promotion, the relevant provisions of Schedule IV are reproduced below:- "SCHEDULE IV (See Rule 13) ----------------------------------------------------------------- Name of the Name of the Minimum Name of the Name of the Department Service or experience service or Members of
post from for post to the
which eligibility which Departmental
promotion Promotion promotion
is to be is to be Committee
made made (1) (2) (3) (4) (5) ----------------------------------------------------------------- Man Power The Madhya Planning Pradesh Depart- Industrial ment Training
(Gazetted
Service
........... ......... ..... ...........
........... ......... ..... ...........
Principal 3 years Dy. Appren- Director,
Class II ticeship Employ-
Adviser ment and
(junior) Training,
Principal, Madhya
class I Pradesh
Member
Group Inst- 3 years Principal
ructor/ Class II
Technical
Assistant /Jr.
Adviser, Appren-
ticeship/Mill
Wright Forman/
Superintendent,
Training provided
that they possess
the technical and
educational
qualifications
specified in
Column(5) of
Schedule III.
Group 10 year Vice-
Instructor/ Principal
Technical
Assistant/
Junior Adviser
Apprenticeship
/Mill Wright
Foreman/
Superintendent,
Technical, not
possessing
Diploma/
Degree
........ .... ............ 16. It is thus specifically mentioned in Schedule IV that Group Instructor/Technical Assistant/Junior Advisor Etc. Who have completed 3 years of service would be eligible for promotion to the post of principal, Class II. the requirement does not stop here. It proceeds further to say, "provided they possess the technical and educational qualification specified in Column (5) of Schedule III". Reading Rules 13 and 14 along with schedule IV as also column (5) of Schedule III, it becomes apparent that in order to be eligible for promotion to the post of principal, Class II, the officer concerned should not only have put in 3 years of service but should also possess the technical and educational qualification set out in Column (5) of schedule III, namely, that they should have either a Degree or Diploma in Engineering. Column (5) of Schedule III which prescribes educational qualifications for direct recruitment thus becomes a part of Schedule IV on the principles of "legislations by reference or incorporation." These qualifications will, therefore, be applicable not only to direct recruitment but also to promotions . 17. Schedule IV also indicates that Group Instructor/Technical Assistant/Junior Adviser Apprenticeship/Mill Wright Foreman, Superintendent, Technical who do not possess Degree or Diploma in Engineering will be eligible only for promotion to the post of Vice-principal provided that they have put in 10 years of service. 18. Thus, the Rules specifically provide for promotion of both the groups, namely, those who hold the Degree or Diploma in Engineering and those who do not possess this qualification. Those who possess Degree or Diploma in Engineering can be promoted to the post of Principal, Class II and other higher posts indicated Schedule IV while those who do not possess such Degree or Diploma can be promoted only up to the post of vice-principal. 19. Admittedly, the respondent does not possess either a Degree or Diploma in Engineering. He possesses Diploma in Craft and consequently was not eligible for promotion to the post of principal, Class II or Class I. 20. The Tribunal failed to notice the relevant provisions of the Service Rules in their true perspective and proceeded to allow the claim of the respondent on an erroneous view that the requirement of possessing a Degree or diploma cannot be applied to appointments by way of promotion. 21. The post of Principal whether it is of Class II or Class I is a post of higher responsibilities. The administrative qualities are mixed and blended with the academic achievements of the candidates and, therefore, it has been specifically provided in the Rules, specially the Schedule appended thereto, that the candidates, whether they are to be appointed by direct recruitment or by promotion, must possess a Degree or Diploma in Engineering. 22. Learned counsel for the respondent contended that since he had already been promoted to the post of principal, Class II and was also placed on the post of principal, Class I before the promulgation of the Rules, his promotion as Principal cannot be disturbed. It is contended that the Rules would apply to a situation where the post was lying vacant and was intended to be filled up after the promulgation of the Rules. It is also contended that having worked on the post of Principal since 1976, he cannot be shifted to the post of Vice-Principal after such a long period of dedicated service on the higher post. These contentions are devoid of merit. 23. It is not disputed that the respondent was promoted to the post of Principal, Class II for a short period of six months or till the availability of candidates duly selected by the commission, whichever was earlier. It is also not disputed and the Tribunal itself has found it as a fact that the respondent was placed on the post of principal only in an ad hoc capacity. Consequently, the post, having not been filled up on a regular basis in accordance with the Rules, was rightly treated by the appellant to be vacant. That being so, the respondent had only ad hoc status which he would continue to hold till it was altered by the appointing authority. 24. Government service is essentially a matter of status rather than a contract. A Constitution Bench of this Court in Roshan Lal Tandon Vs. Union of India (1968) 1 SCR 185 had observed as under:
" It is true that the origin of
Government service is contractual.
There is an offer and acceptance in
every case. But once appointed to
his post or office the Government
servant acquires a status and his
rights and obligations are no
longer determined by consent of
both parties, but by statute or
statutory rules which may be framed
and altered unilaterally by the
Government. In other words, the
legal position of a Government
servant is more one of status than
of contract. The hall-mark of
status is the and duties imposed by
the public law and not by mere
emolument of the Government servant
and his terms of service are
governed by statute or statutory
rules which may be unilaterally
altered by the Government without
the consent of the employee. It is
true that Art, 311 imposes
constitutional restorations upon
the power of removal granted to the
President and the Governor under
Art, 310. But it is obvious that
the relationship between the
Government and its servant is not
like an ordinary contract of
service between a master and
servant. The legal relationship is
something entirely different,
something in the nature off status.
It is much more than a purely
contractual relationship
voluntarily entered into between
the parties. The duties of status
are fixed by the law and in the
enforcement of these duties society
has an interest. In the language of
jurisprudence status is a condition
of membership of a group of which
powers and duties are exclusively
determined by law and not by
agreement between the parties
concerned. 25. These observations were quoted with approval by another Constitution Bench in Union of India & Anr. vs. Tulsiram Patel, AIR 1985 SC 1416 = 1985 (3) SCC 398 = (1985) Suppl 2 SCR 131. A 9- judge Bench in Delhi Transport Corporation vs. DTC Mazdoor Congress. AIR 1991 SC 101 = 1991 (Supp.1) SCC 600 = (1990) Supp. 1 SCR 142 also approved the principles laid down in Roshan Lal Tandon’s case (supra) that the legal relationship between the Government and its servants is something entirely different. It is much more than a purely contractual relationship and is in the nature of ’status’. 26. Whether a persons holds a particular pos in a substantive capacity or is only temporary or ad hoc is a question which directly relates to his status . It all depends upon the terms of appointment. It is not open to any Government employee to claim automatic alteration of status unless that result is specifically envisaged by some provision in the statutory rules. Unless, therefore, there is a provision in the statutory rules for alteration of status in a particular situation, it is not open to any Government employee to claim a status different than that which was conferred upon him at the initial or any subsequent stage of service. 27. Applying these principles to the instant case, since the respondent, admittedly, was appointed in an ad hoc capacity, he would continue to hold the post in question in that capacity. On the promulgation of Rules, therefore, the post of Principal which he was holding could not be treated to have been filled up on regular basis and had to be treated as vacant. In order to make regular appointment by promotion on that post, the eligible candidates were considered and the respondent, not possessing the required educational qualification, was not found fit or suitable for the post of principal and was consequently directed to the appointed on regular basis as Vice-principal as he was found suitable only for that post principally for the reason that he did not possess a Degree or Diploma in Engineering. 28. It is next contended by the learned counsel for the respondent that although the respondent does not possess a Degree or Diploma in Engineering, he has been working on the post of principal for a long time and since he has acquired sufficient experience on the post he need not, in the circumstances, be disturbed by reverting him as Vice Principal. This plea is also without merits. 29. Rule 8(2), which provides for Educational qualification, is in mandatory terms and it is mentioned therein that "the candidates must possess the educational qualification prescribed for the service as shown in Schedule III." In column 2 of Schedule III, the posts of Principal Class I and principal Class II are mentioned and in column 5 thereof, it is again mentioned in mandatory terms that "the candidates must possess a Degree in Engineering from any recognised University or must possess a Diploma in engineering from any recognised University or Board along with five years’ experience of working in any Training Institute or in any reputed business concern." 30. We have already held above that educational qualifications mentioned in column 5 of Schedule III for the post of Principal class I or Principal class II are also applicable to appointments by promotion and that the applicability of column 5 of Schedule III is not restricted to direct appointments. In this situation, therefore, before a person is eligible for being promoted to the post of Principle class II or Principal Class I, he must possess a Degree or Diploma in Engineering. 31. The plea that the Court should have a "human approach" and should not disturb a person who has already been working on this post for more than a decade also cannot be accepted as the Courts are hardly swayed by emotional appeals. In dispensing justice to the litigating parties, the courts not only go into the merits of the respective cases, they also try to balance the equities so as to do complete justice between them. Thus the courts always maintain a human approach. In the instant case also, this approach has not been departed from. We are fully conscious that the respondent had worked on the post in question for quite a long time but it was only in ad hoc capacity. We are equally conscious that a selected candidate who also possesses necessary educational qualification is available. In this situation, if the respondent is allowed to continue on this post merely on the basis of his concept of "human approach", it would be at the cost of a duly selected candidate who would be deprived of cleared the selection. In fact, it is the "human approach" which requires us to prefer the selected candidate over a person who does not possess even the requisite qualification. The Courts as also the Tribunal have no power to override the mandatory provisions of the Rules on sympathetic consideration that a person, though not possessing the essential educational qualifications. should be allowed to continue on the post merely on the basis of his experience. Such an order would amount to altering or amending the Statutory provisions made by the Government under Article 309 of the Constitution. 32. " Experience" gained by the respondent on account of his working on the post in question for over a decade cannot be equated with Educational Qualifications required to be possessed by a candidate as a condition of eligibility for promotion to higher posts. If the Government, in exercise of its executive power, has created certain posts, it is for it to prescribe the mode of appointment or the qualifications which have to be possessed by the candidates before they are appointed on those posts. The qualifications would naturally vary with the nature of posts or the service created by the Government. 33. The post in question is the post of Principal of the Industrial Training Institute. The Government has prescribed a Degree or Diploma in Engineering as the essential qualification of this post. No one who does not possess this qualification can be appointed on this post. The educational qualification has direct nexus with the nature of the post. The principal may also have an occasion to take classes and teach the students. A person who does not hold either a Degree or Diploma in Engineering cannot possibly teach the students of Industrial Training Institute the technicalities of the subject of Engineering and its various branches. 34. The respondent having worked in an ad hoc capacity on the post of principal might have gained some administrative experience but the same cannot be treated as equivalent to his knowledge in the field of Engineering. A compounder, sitting for a considerably long time with a Doctor practicing in Modern medicine, may have gained some experience by observing the medicine prescribed by the Doctor for various diseases or ailments but that does not mean that he, by that process, acquires knowledge of the Human Anatomy or Physiology or the principles of pharmacology or the field of action of any particular medicine or its side effects. The Compounder cannot, merely on the basis of experience, claim a post meant exclusively for persons having MBBS or other higher degrees in medicine or surgery. The plea of experience, therefore, must fail. Moreover, this would amount to a relaxation of Rule relating to educational qualification. Power to relax the Rule vests exclusively in the Governor as provided by Rule 21. This power cannot be usurped by the Court or the Tribunal. 35. For the reasons stated above, the appeals are allowed, the judgment and order dated 19.4.1994 passed by the M.P. Administrative Tribunal is set aside and the claim petition of the respondent is dismissed but without any order as to costs.