IMPORTANT POINT
‘Qualification examination’ in the context of promotion refers to an examination which when passed, qualifies or makes the candidate eligible for promotion. The purpose of a qualifying examination is not to determine the comparative inter se merit of the candidates.

Headnote:SERVICE LAW—U.P. Service of Engineers (Building and Roads Branch) Class-II Rules, 1936 As Amended—Rules 5(iv) and Rule 9(ii)—Promotion to post of Assistant Engineer from the post of Junior Engineer—Eligibility—Office Memorandum dated 11-2-2003 exempting the diploma junior engineers from undergoing and passing the qualifying examination—It provided for assessment of their eligibility only by holding viva voce—Prescription of a “qualifying examination’ by the Governor as contemplated under Rule 9(ii)—Whether ‘interview’ can be considered as ‘qualifying examination’ for purpose of promotion—(No)—Whether High Court was justified in holding that office order dated 11-2-2003 is contrary to the Rules and interview cannot be the method of ascertaining fitness—(Yes)—Whether 1936 Rules were in existence at the time when the office order dated 11-2-2003 was issued—(Yes).
       Held : Only Rules 3(c), 5 and 6 inserted by 1969 Rules and Rule 23 inserted by 1971 Rules were quashed. It is therefore evident that the 1936 Rules continued to exist at the time when the Office Order dated 11.2.2003 was issued. This was also the understanding of the Government inasmuch as the impugned Office order dated 11.2.2003 itself was issued in exercise of the power under Rule 9(ii) read with Rules 5(iv) of the 1936 Rules.(Para 7)
       Under the Rules, recruitment to the post of Assistant Engineer is through more than one source. We are not concerned with the source of direct recruitment in this case. Rule 5(iv) provides for recruitment by promotion of members of the Sub-ordinate Engineering Services who have shown exceptional merit. Rule 9(ii) provides that no officer shall be promoted to the service under Rule 5(iv) unless he has passed such qualifying examination as the Governor may prescribe, or possesses the technical qualification prescribed in clause (i) of that Rule. Admittedly, the Diploma Holders working as Junior Engineers do not possess the technical qualification prescribed in Rule 9(i). Therefore, for promotion, they will have to pass the qualifying examination. Earlier, the procedure was that members belonging to the sub-ordinate engineering services who had completed a certain number of years and who were recommended by their superior officers on the ground of exceptional merit were permitted to appear in an examination to qualify for promotion to the post of Assistant Engineers. Those who secured prescribed minimum percentage of marks in such qualifying examinations were promoted to the post of Assistant Engineer. (Para 13)
       ‘Qualifying examination’ in the context of promotion refers to an examination which when passed, qualifies or makes the candidate eligible for promotion. The purpose of a qualifying examination is not to determine the comparative inter se merit of the candidates. When the minimum prescribed marks are secured in the qualifying examination, it confers eligibility on those who secure the minimum marks in such an examination in the order of seniority. Therefore, when a ‘qualifying examination’ is provided, it presupposes that the questions will be identical and all candidates shall have identical opportunity to answer the same questions and pass such examination to secure eligibility. This can only be by means of a written examination and not an ‘interview’. Therefore, in the absence of any specific provision prescribing interview as the means of ascertainment of fitness for promotion, ‘interview’ cannot generally be considered to be a qualifying examination nor can it take the place of a qualifying examination. ‘Qualifying examination’ in the circumstances would necessarily refer to a written examination. We therefore uphold the decision of the High Court (though for different reasons) that the officer order dated 11.2.2003 is contrary to the Rules and interview cannot be the method of ascertaining fitness. (Para 17)

JUDGMENT

H.K. Sema, J.—The challenge in this appeal is to the order dated 16.7.2004 passed by the division bench of the High Court of Allahabad in Civil Misc. Writ Petition No. 9127 of 2003 quashing the Office Memorandum dated 11.2.2003 as being violative of Rule 5(iv) and Rule 9(ii) of the Rules of U.P. Service of Engineers (Building and Roads Branch) Class-II Rules, 1936 (hereinafter referred to as the 1936 Rules). The Office Memorandum was challenged by the graduate junior engineers on the ground that the aforesaid circular has the effect of exempting the diploma junior engineers from undergoing and passing the qualifying examination for promotion from the post of Junior Engineer to the post of Assistant Engineer as it provided for assessment of their eligibility only by holding viva voce, and therefore, illegal. Aggrieved by the order of the High Court this appeal has been preferred by the diploma holder junior engineers. The present controversy revolves around the question as to whether the office order dated 11.2.2003 runs into the teeth of the 1936 Rules.

2. The following questions have been posed before us for determination:

(a)Whether the 1936 Rules were in existence at the time when the office order dated 11.2.2003 was issued?

(b)If the 1936 Rules were subsisting, what is the effect of the office order dated 11.2.2003?

(c)What is the meaning of the words “qualifying examination” prescribed under Rule 9(ii) of the Rules read with Rule 5(iv) of the Rules?

(a)Whether the 1936 Rules were in existence at the time when the office order dated 11.2.2003 was issued?

3. Before we proceed further on this question we may point out that it was not the case of the appellant either before the High Court or before this Court that 1936 Rules had ceased to be in existence. Before the High Court it was the contention of the appellant that the 1936 Rules empowered the Governor of the State to grant relaxation and therefore the Office Order dated 11.2.2003 was nothing but grant of relaxation from the rigours of Rule 5(iv) read with Rule 9(ii) of the 1936 Rules. The High Court also noted that it was nobody’s case that Rule 9(ii) ceased to exist nor had anyone challenged its validity. Even before this Court, the questions of law that have been raised are:-

(A)Whether the writ petitioner had locus standi to challenge the Office Memorandum dt. 11.2.2003 issued by the State Government for purpose of the promotion of Diploma Holder’s Junior Engineers from the post of Junior Engineers to the post of Assistant Engineers according to U.P. Service of Engineers (Building and Roads Branch) Class-II Rules, 1936?

(B)Whether qualifying test as prescribed in the 1936 rules, for the purpose of promotion from Junior Engineer to Assistant Engineer meant merely written examination or any type of test like interview etc.?

(C)Whether the High Court failed to correctly interpret the provisions of 1936 Rules for the purpose of the promotion from the post of Junior Engineer to Assistant Engineer?

(D)Whether the Doctrine of desuetude is applicable when the promotions were being made for 30 years without holding any qualifying test as prescribed in the 1936 Rules, and the subsequent modified Service Rules ?

In the grounds also no plea was taken that the 1936 Rules were not in existence. Having realised this difficulty, Mr. Vijay Hansaria, learned senior counsel for the appellant, filed I.A.No.6 of 2006 seeking permission to urge additional grounds. The stand taken in the additional ground is that since this Court struck down the amended Rules 3(c), 5 and 6 inserted by the 1969 Amendment to the 1936 Rules, and Rule 23 which was substituted by the 1971 Amendment, in P.D. Aggarwal vs. State of U.P. (1987) 3 SCC 622), the 1936 Rules ceased to exist in entirety. Technically speaking such somersaulted contention cannot be accepted at this stage and on this score alone the appeal deserves to be dismissed. Be that as it may, we have permitted the appellant to urge the additi

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2007 Supreme(SC) 385

IMPORTANT POINT‘Qualification examination’ in the context of promotion refers to an examination which when passed, qualifies or makes the candidate eligible for promotion. The purpose of a qualifying examination is not to determine the comparative inter se merit of the candidates.

Cases Referred (15)

IMPORTANT POINT
‘Qualification examination’ in the context of promotion refers to an examination which when passed, qualifies or makes the candidate eligible for promotion. The purpose of a qualifying examination is not to determine the comparative inter se merit of the candidates.