IMPORTANT POINT
The High Court was not justified in observing that even without amendment of the statutory Rules, the Class II of the services can be treated as Class I only by way of Notification.

JUDGMENT

Sethi, J.-Leave granted.

2. Aggrieved by the recommendations of the Departmental Promotion Committee held on 14.1.1998 and consequential promotion of respondent No. 3 as Deputy Director (Health Services), the appellant filed a writ petition in the High Court mainly on the ground that the promotee-respondent did not possess the requisite qualifications under the Service Rules applicable in the case. Relying upon  the notification dated 9th April, 1989 which treated PCMS Class II as PCMS Class I, the High Court dismissed the writ petition observing that for the purpose of treating the PCMS Class II as PCMS Class I, there was no necessity of amending the rules. The High Court, however, held that Rule 9A of the Rule applicable in the case provided that for the post of Deputy Director, a person should be member of Class I atleast for a period of 10 years.

3. It is not disputed that service conditions of the appellant and respondent No.3 are governed by the statutory rules made in exercise of the powers conferred upon the Government under Article 309 of the Constitution which are known as Punjab Civil Medical (State Service Class I) Rules, 1972 (hereinafter referred to as "PCMS Class I Rules") . Rule 9 deals with the matters of recruitment and provides that recruitment to any post in service excepting the post of Director (Health Services), Joint Director (Health Services) and Dy. Director (Health Services) be made in the manner prescribed therein. Rule 9A dealing with the appointment to the senior posts provides:

"Appointment to Senior Posts - No person shall be appointed-

(a) to the post of Director, Health Services, unless he has an experience of working on the post of Joint Director, Health Services for a minimum of one year.

(b) to the post of Joint Director, Health Services, unless he has been a member of service for a minimum period of twelve years including two years as Deputy Director, Health Services, and

(c) to the post of Deputy Director Health Services, unless he has been a member of the service for a minimum period of ten years."

4. According to sub-rule (c) of Rule 9A, a person cannot be appointed to the post of Deputy Director unless he has been the member of the service for a minimum period of 10 years. "Service" has been defined as: "Service means the Punjab Civil Medical (State Service Class I).

5. It has not been disputed before us that at the relevant date when the respondent No. 3 was recommended for promotion, he had not completed 10 years of service within the meaning of Rule 9A read with Rule 2(2) of the PCMS Class I Rules. As the respondent No. 3 was not possessing the requisite qualifications on the relevant date, he could not be considered for promotion to the post of Deputy Director, Health Services.

6. We do not agree with the High Court that even without amending the rules, the respondent-State could have declared the PCMS Class II as PCMS Class I. The notification dated 9th April, 1989 reads as:

"In pursuance of the recommendations of the Committee for the removal of anomalies in the Revised Scales of pay of Punjab Civil Medical Services, the President of India is pleased to declare the PCMS (Class II) as PCMS (Class I ). There will be only one service with the nomenclature of PCMS (Class I) with effect from 1.1.1986.

The necessary amendments in the service rules of PCMS (Class II) and PCMS (Class I) will be made separately.

This issues with the concurrence of the Finance Department conveyed vide their I.D. No.10/27/89-FPI, dated 20.3.89." (Emphasis supplied)

A perusal of the notification clearly indicates that the Government itself was aware that the two classes of service cannot be equated or treated alike without amending the rules. There is no dispute that the rules have not been amended so far. The Departmental Promotion Committee, therefore, erred in recommending