Important point
In appropriate cases Supreme Court can permit a non-appealing party to support the impugned judgment even upon grounds which were negatived in that judgment.

Headnote:Himachal Pradesh PWD Subordinate Services Class III Draftsman and Tracers Recruitment and Promotion Rules, 1961—Rules 6 and 14—Educational and Technical qualifications of candidates for posts of Tracers, Assistant Draftsmen—Requisite qualification for post of Tracers was that candidate must have passed matriculation examination as well as Draftsman Course from recognised institution—For the post of Assistant Draftsman, requisite qualification of matriculation as well as Diploma of Draftsman Course with an experience of minimum three years was provided—By order dated 31.10.1973 Government relaxed Rule 6 for appointment of Tracer—Appellants were appointed tracers under relaxed conditions—Respondents 3 to 18 possessed qualification of Diploma in Draftsman Course—Departmental examination was provided for unqualified Tracers Draftsman by Chief Engineer vide order dated 19.2.1980 and appellants qualified the examination in 1980—Appellants were ranked senior in seniority list to respondents 3 to 18—Appellants were promoted as Assistant Draftsmen —Respondents challenged appellant’s appointment as Tracers, placement in seniority list above them and their promotion—Tribunal held appointment of appellants as Tracers illegal but on ground of equity their demotion was held to be not desirable—High Court held that, appellants were eligible for regular promotion as Assistant Draftsmen but their inter se seniority to be reckoned with effect from date they qualified the departmental examination—Appeal—Whether respondents having not filed appeal against judgment of High Court could be permitted to challenge appointment and promotion of appellants? Yes—Whether inter se seniority of appellant could be fixed from date they qualified departmental examination? No.
       Held : Therefore, the stand of respondent Nos. 3 to 18 that even though they have not filed an appeal, they can question correctness of the view adverse to them, on the facts of the present case, needs to be accepted. It is to be noted that in Ramanbhai’s case (supra) and Shri Thepfulo’s case (supra); it was held by this Court that in “appropriate cases” this Court can permit a non-appealing party to support the impugned judgment even upon grounds which were negatived in that judgment. The Court has to consider whether in the case before it the non-appealing party should be permitted to do so. On the factual background highlighted above, we consider this to be case where the respondent Nos. 3 to 18 should be permitted to do so. (Para 11)
       A combined reading of letter dated 31.10.1973 and the office order dated 19.2.1980 shows that the latter is not really relatable to Rule 14. On the contrary, it is in continuation of the earlier letter of the Government. That being so, the challenge of the respondent Nos. 2 to 18 to the power of the Chief Engineer to provide for the departmental examination is without merit. Further question is whether any relaxation was necessary while giving promotion as Assistant Draftsman. For being eligible to be considered for appointment as Assistant Draftsman, the requirements are indicated in Rule 6(ii). Once the requirement of passing diploma of Draftsman Course is relaxed in terms of Rule 6(i) for appointment as Tracer, there is no necessity for again having relaxation for being considered as Assistant Draftsman. That contingency is already taken care of when relaxation is given for appointment as Tracer. Otherwise, a person who has been found eligible to be appointed as a Tracer will not be considered for promotion as Assistant Draftsman, even though there is no illegality attached to the appointment as Tracer. Such a view would go against the logic of relaxation for appointment as Tracer. The only other question which needs to be adjudicated is the stand of the respondents that the appointment had become really effective on the date of passing the departmental examination. This plea is equally untenable on account of the fact that the appointment itself takes effect from the date of appointment and in the event of not passing the examination the consequences follow. But that cannot be a ground to hold that there was no appointment in the eye of law till examination is passed. The Government also recognized this position as is evident from declaration of the seniority list on 14.10.1977 wherein the appellants were included in the seniority list though they had not cleared the examination by that time as no examinations were held. In the eye of law the appointment of the appellants was from the date of their initial appointment which of course was conditioned with the requirement of passing the departmental examination. Undergoing any training with the ITI was subsequently substituted by the requirement of passing the departmental examination. A feeble attempt was made to show that at no point of time the authorities have adduced any material to show that the ITI had declined to impart training and, therefore, the substitution of ITI training by the requirement of passing the departmental examination is illegal. The stand is untenable. This plea is only to be noted to be rejected because of the High Court’s finding in clear terms which is as follows:
       “It is not in dispute that on the concerned Authorities of I.T.Is expressing their inability to provide three months training to the petitioners and other similarly situated persons, the Chief Engineer decided to hold departmental examination by prescribing syllabus for the said examination vide his office order dated 19.2.1980 (Annexure P-3), which the petitioners qualified as per Notification dated 24.5.1980 and in December, 1980.”
       Above being the position, the appellants are entitled to be placed in the seniority list from the date of their initial appointment and not from the date on which they passed the departmental examination. (Paras 15 to 18)

Judgment

Arijit Pasayat, J.—In these appeals challenge is to the legality of the judgment rendered by a Division Bench of the Himachal Pradesh High Court holding that though the appellants were eligible for regular promotion as Assistant Draftsmen, their inter-se seniority was to be reckoned with effect from the date they qualified at the departmental examinations. The judgment of the Himachal Pradesh State Administrative Tribunal (in short the ‘Tribunal’) holding that they were not eligible for promotion was held to be not correct.

2. Background facts in a nutshell are as follows:

The appellants were recruited during the period 1974-76 as Tracer Draftsmen. Respondent Nos. 3 to 18 were appointed on such posts during the period from 1976 to 1980. Rules governing appointments of Tracers are covered by Himachal Pradesh P.W.D. Subordinate Services Class III Draftsman and Tracers Recruitment and Promotion Rules, 1961 (in short ‘Rules’). The educational and technical qualifications of the candidates for the posts of Tracers, Assistant Draftsmen and others are provided under Rule 6 of the Rules. Respondent Nos. 3 to 18 possessed the qualification of Diploma in Draftsman course. According to Rule 6(i) the requisite qualification for the post of Tracers was that the candidate must have passed matriculation examination of a recognized University or above as well as passed the Draftsman Course from a recognized Institution or as a plan printing machine operator with an experience of four years. For the post of Assistant Draftsman the requisite qualification of matriculation as well as a Diploma of Draftsman Course from a recognized Institution with an experience of minimum three years was provided. Five footnotes are appended under Rule 6 and footnote No. 5 which has significance in the present dispute related to the Government’s power to relax any of the provisions of the Rules with respect to any class or category of persons or posts, if it was considered necessary or expedient to do so for reasons to be recorded in writing and in consultation with the Himachal Pradesh Public Service Commission. By order dated 31.10.1973 Government relaxed Rule 6 so far as it related to appointment of Tracers Draftsman. In place of Draftsman Course, training from Industrial Training Institute (in short the ‘ITI’) for three months and service for one year or such period as the Chief Engineer may decide after assessing performance of the candidate was provided. Under the relaxed conditions the appellants were appointed. A seniority list was circulated on 14.10.1977 showing position as on 31.10.1975. The names of the appellants were included in the seniority list. By that time the respondent Nos. 3 to 18 had not been appointed. On 19.2.1980 the Chief Engineer provided for departmental examination for the unqualified Tracers Draftsman on the ground that III had refused to impart training. Therefore, a departmental examination was provided and it was substituted for the training by the ITI. The appellants appeared at such departmental examination and qualified in 1980. In the seniority list circulated on 2.6.1980 the appellants were ranked seniors to the respondent Nos. 3 to 18. On 19.8.1980 the appellants were promoted as Assistant Draftsmen. Writ petitions were filed by the respondent Nos. 3 to 18 challenging the appellants’ appointments as Tracers Draftsmen, placement in the seniority list above them and promotion as Assistant Draftsmen. On constitution of the Tribunal, the writ petitions were transferred for disposal by it. On 5.9.1981 the Rule 6(ii) which related to the posts of Assistant Draftsman was amended and the qualification of Diploma in Draftsman Course was substituted as follows:

“6(ii) Assistant Draftsman: He has passed the Matriculation examination of a recognized University or above as well as passed the Diploma of Draftsman course from a recognized institution with an experience of minimum three years; provided that the unqualified Tracer Dra

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2005 Supreme(SC) 1474

Important pointIn appropriate cases Supreme Court can permit a non-appealing party to support the impugned judgment even upon grounds which were negatived in that judgment.

Cases Referred (4)

Important point
In appropriate cases Supreme Court can permit a non-appealing party to support the impugned judgment even upon grounds which were negatived in that judgment.