O.P. Gupta and others vs State of Haryana and others

P.C. Jain, J.—O.P. Gupta and 45 others (Sectional Officers) Capital Project, Chandigarh, have filed the petition under Articles 216 and 227 of the Constitution of India, praying for the issuance of an appropriate writ, order or direction quashing the impugned orders Annexures B,C and D and striking down Rule 14 of the Punjab Public Works Department (Buildings and Roads Branch) Sectional Officers (Engineering) Service (Class III) Rules, 1964 (hereinafter referred to as the new Rules) under which a condition to pass the departmental examination has been illegally imposed, prejudically affecting the conditions of service of the Petitioners.

Briefly the facts as alleged in the petition are that the Petitioners were recruited in the Subordinate Engineering Service of the erstwhile Punjab Government prior to 1st of January, 1965, and their recruitment and conditions of service were governed by the Punjab Public-Works Department (Building and Roads Branch) Subordinate Engineering Service (Recruiment and Conditions of Service) Rules, 1943 (hereinafter referred to as the old Rules) On 26th December, 1964, the old Rules were repealed by the new Rules. Rule 14 of the new Rules provided for the holding of a departmental exmination for the persons appointed to the service and members of the service within three years of their appointment to the service and it was further provided that if a Sectional Officer failed to pass the examination within the prescribed period, he shall not earn his future grade increments till such time as he passes it when the increments shall be released retrospectively.

It is averred that under the old Rules, there was no provision for the holding of any departmental examination of the Sectional Officers nor was any condition imposed on the earning of the grade increments and the Petitioners earned their grade increments regularly as and when the same were due according to their respective dates of entering into service. However, in pursuance of the new Rules, orders were passed and administrative decision had been taken stopping the future grade increments of the Petitioners as they had failed to pass the requisite departmental examination within three years of the commencement of the Rules. It is this decision embodied in Annexures B,C and D which has been challenged by way of this petition being unconstitutional, illegal, arbitrary, and against the principles of natural justice on the grounds stated in the petition.

Written statements has been filed on behalf of the State of Haryana, Respondent No 1 only, by the Secretary, Public Works Department, controverting the material allegations made in the petition A plea has also been raised that the Petitioners were working in the Union Territory Administration, Chandigarh and as such the Haryana State was not a necessary party

Mr. Agnihotri, learned Counsel for the Petitioners, contended that Rule 14 did not apply to the Petitioners as it had no retrospective effect and the Petitioners could not be required to pass the examination as prescribed under this rule in order to earn their future grade increments.

Rule 14 with which we are concerned, is in the following terms:

Departmental Examinations.

(1) Person appointed to the service and members of the Service, unless they have already done, shall within three years of their app ointment to the Service, pass such departmental examination as may be prescribed by the Chief Engineer;

Provided that the Chief Engineer may, for any sufficient cause extend, from time to time, the period for passing the said examination so that the total period for which extension is given does not exceed three years:

Provided further extention shall not be given save with the approval of Government given in consultation with Finance Department.

(2) If a Sectional Officer fails to pass the departmental examination within the prescribed period or within the extended period if any, he shall not earn his future grade increments till such time as he passes it when the increments shall be released retrospectively ;

Provided that he shall not be entitled to get any arrears of the released grade increments for the period during which he could not pass the examination." In Rule 2, words "appointment to the Service" and "Members of the Service" have been defined in the following terms:

(a) "appointment to the Service" includes an appointment made according to the terms and provisions of these rules, to an officiating vacancy or to an ex-cadre post;

(i) "Member of the service" means an officer appointed sub stantively to a cadre post and includes-

(i) in the case of direct appointment, an officer on probation, or such an officer who having successfully completed his probation, awaits appointment to a cadre post;

(ii) in the case of an appointment by transfer, an officer who is on probation or who having successfully completed his probation awaits appointment to a cadre post, provided such officer does not have a lien on a substantive post in any Government Department.

From the bare reading of Rule 14, it will be clear that under this rule person appointed to the Service and members of the Service are required to pass such departmental examination as may be prescribed by the Chief Engineer within three years of their appointment to the Service unless they have already done so. A power has been given to the Chief Engineer to extend, from time to time, the period for passing the said examination for any sufficient cause but such extension shall not be given without the approval of the Government in consultation with the Finance Department. It is further provided under subclause (2) that if a Sectional Officer fails to pass the departmental examination within the prescribed period or within the extended period, he shall be debarred from earning his future grade increments till such time as he passes the examination when the increments shall be released retrospectively. It is also provided that a person would not be entitled to get any arrears of the released grade increments for the period during which he was unable to pass the examination.

The important words on which the fate of this case depends are "shall within three years of their appointment, to the service, pass such departmental examination as may be prescribed by the Chief Engineer". To attract the application of this rule, it is necessary that the examination has to be passed within three years of the appointment to the service or within such extended time as provided in the rule. Therefore, the main point to be determined is whether the Petitioners would be deemed to have been appointed to the Service after the enforcement of the new Rifles. Admittedly, the Petitioners were recruited in the Subordinate Engineering Service long before the enforcement of the new Rules. From the reading of Rule 14 and the definitions referred to above, it cannot be said that the Petitioners would be deemed to have been appointed to the Service after the coming into force of the new Rules. In this rule there is nothing to show that it would have a retrospective effect and apply to the persons who were already in Service, appointed prior to the coming into force of the new Rules. The framers of the new Rules have prescribed a period of three years within which the examination has to be passed. There may be Sectional Officers who are nearing the age of retirement at the time when these Rules have come into force and to apply this Rule to them would lead to absurd results ; they would be debarred from earning the grade increments in case they do not pass the departmental examination as provided in this Rule. To my mind this could never be the intention of the framers of the said rule. Moreover, it does not stand to reason that persons having long experience with satisfactory record of service and having earned their usual increments before, woud be required to take departmental examination to earn their future increments. Accordingly I hold that Rule 14 has no retrospective effect and does not apply to the Petitioners. Consequently this petition is allowed and the impugned orders Annexures B, C and D are quashed. In the circumstances of the case there will be no order as to costs.