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2006(2) JLJ 220
R.V. Raveendran, C.J. and Shantanu Kemkar, J.
Mukesh Kumar Manhar and another v. State of M.P. and others
Writ Petition No. 3817 of 2003;
Decided on 2.8.2005.
The following questions arise for consideration:
(i) Whether the provision prescribing the mode of recruitment by promotion to the post of "Assistant Architect" is invalid as being repugnant to the provisions of Architects Act, 1972?
(ii) Whether the promotion of respondents No.3 to 5 as "Assistant Architect Class II" requires interference with a direction to consider petitioners for the said posts? [Para 5
Held: Section 35 provides that a person who is registered as an Architect shall get preference for appointment as an Architect ‘under the Central or State Government (and in any other local and other authorities) This statutory preference given to Architects is obviously because of their specialised knowledge. To ignore such specialised knowledge and to ignore the statutory preference and appoint non-Architects to perform architectural functions, to repeat, will not be in public interest. [Para 15
(i) The State Government (first respondent) shall cease using. the nomenclature "Assistant Architects" or "Architects" in regard‘ to posts for which the qualification of "Registered Architect" is not prescribed. It shall also cease designating those who are not registered Architects under the Architects Act, 1972, as "Architects" or "Assistant Architects".
(ii) If the State Government wants to continue the nomenclature of "Assistant Architect" or "Architects", then while prescribing the qualification for appointment or promotion to such posts, the requirement that they shall be "Registered Architects" under the Architects Act, 1972, shall be added.
(iii) The State shall give preference to Registered Architects (under the Architects Act, 1972) for appointment to any post of Architect (that is, post involving architectural functions) as provided in section 35(2) of the Architects Act- 1972. Writ Petition No. 114 of 1996 (Gauhati) relied on. [Para 19
(2) Constitution of India -- Art. 226 n prescription of qualification for promotion under rules n no interference can be made unless shown to be opposed to the provisions of any statute or manifestly arbitrary. (2003) 2 SCC 632 followed. [Para 7
¼1½ okLrqfon~ vf/kfu;e] 1972 && /kkjk 35 ¼2½ rFkk 37 ¼1½ && e-iz- yksd fuekZ.k bathfu;fjax ¼jktif=r½ lsok HkrhZ fu;e] 1969 && vuqlwph 1 ¼lu~ 1991 esa ;Fkk la‘kksf/kr½ && vf/kfu;e dh /kkjk 35 esa okLrqfon~ dh fu;qfDr dks ojh;rk nh xbZ gS && jftLVªhd`r O;fDr fu;qDr djuk yksd fgr esa gS && vjftLVªhd`r O;fDr fu;eksa ds v/khu inksUur fd;k tk ldrk gS ijarq *lgk;d okLrqfon~* ;k *okLrqfon* dh laKk dk mi;ksx ugha fd;k tk ldrkA fuEufyf[kr iz‘u fopkjkFkZ mn~Hkwr gkssrs gSa %
(i) D;k inkSUufr }kjk **lgk;d okLrqfon~** ds in ij HkrhZ dk <ax fofgr djus dk mica/k okLrqfon vf/kfu;e] 1972 ds mica/kksa ds fo#) gksus ds dkj.k vfof/kekU; gS \
(ii) D;k **lgk;d okLrqfon~ f}rh; Js.kh** ds :i esa izR;FkhZ Ø- 3 ls 5 dh inksUufr esa] mDr inksa ds fy, ;kphx.k ij fopkj fd, tkus ds funs‘k lfgr] gLr{ksi visf{kr gS \ vfHkfu/kkZfjr % /kkjk 35 esa micaf/kr gS fd tks O;fDr okLrqfon ds :i esa jftLVªhd`r gS mls dsanzh; ;k jkT; ljdkj ds v/khu ¼rFkk fdlh vU; LFkkuh; vkSj vU; izkf/kdj.k esa½ okLrqfon~ ds :i esa fu;qfDr ds fy, ojh;rk nh tk,xhA okLrqfon~ dks nh xbZ ;g dkuwuh ojh;rk lqLi"Vr% muds fo‘ks"k Kku ds dkj.k gSA esa nksgjkuk pkgw¡xk fd ,sls fo‘ks"k Kku dh mis{kk djuk vkSj dkuwuh ojh;rk ij /;ku ugha nsuk rFkk okLrqf‘kYih; d`R;ksa ds ikyu ds fy, okLrqfonksa ls brj O;fDr fu;qDr djuk yksd fgr esa ugha gksxkA ¿ iSjk 15À
(i) jkT; ljdkj ¼izFke izR;FkhZ½ }kjk mu inksa ds laca/k esa ftlds fy, **jftLVªhd`r okLrqfon~** dh vgZrk fofgr ugha gS] **lgk;d okLrqfon~** ;k **okLrqfon~** dh laKk dk mi;ksx can fd;k tk,A mlds }kjk mUgsa Hkh **okLrqfon** ;k ** lgk;d okLrqfon** inkfHkfgr fd;k tkuk Hkh can fd;k tk, tks okLrqfon~ vf/kfu;e] 1972 ds v/khu okLrqfon~ ds :i esa jftLVªhd`r ugha gSA
(ii) ;fn jkT; ljdkj **lgk;d okLrqfon~** ;k okLrqfon~** dh laKk dk;e j[kuk pkgrh gS rc bu inksa ij fu;qfDr ;k inksUufr ds fy, ik=rk fofgr djrs le; ;g vis{kk tksM+h tk, fd og okLrqfon vf/kfu;e] 1972 ds v/khu **jftLVªhd`r okLrqfon~** gksaA
(iii) jkT; }kjk okLrqfon~ ds fdlh Hkh in ¼vFkkZr~ ftl ij okLrqf‘kYih; d`R; varoZfyr gksa½ ij fu;qfDr ds fy, okLrqfon vf/kfu;e] 1972 dh /kkjk 35¼2½ esa ;Fkk micaf/kr ¼okLrqfon~ vf/kfu;e] 1972 ds v/khu½ jftLVªhd`r okLrqfonksa dks ojh;rk nh tk,A fjV ;kfpdk Ø- 114 lu~ 1996 ¼xqokgkVh½ voayfcrA ¿ iSjk 19À ¼2½ Hkkjr dk lafo/kku && vuq- 226 && fu;eksa ds v/khu inksUufr ds fy, vgZrk fofgr dh tkuk && fdlh dkuwu ds mica/kksa ds fo#) ;k izdVr% euekuk ugha n‘kkZ;k tk, rc rd gLr{ksi ugha fd;k tk ldrkA 2003 ¼2½ ,l lh lh 632 vuqlfjrA ¿ iSjk 7À
Raveendran, C.J. -- 1. The petitioners are registered Architects possessing Decree in Architecture (B. Arch). They are presently employed' respectively as Draughtsman and Head Draughtsman in the office of the Chief Architect-cum-Chief Engineer (RDD), State Public Works Department. They belong to the Madhya Pradesh Public Works Engineering (Gazette) Service constituted under the M.P. Public Works' Engineering (Gazetted) Service Recruitment Rules. 1969 (for short the 'Recruitment Rules'). Their next promotional post is Assistant Architect Class II.
2. The recruitment to the post of Assistant Architect is governed by the Recruitment Rules. Schedule I of the said Recruitment Rules described the post of Assistant Architects as a Class II post. Schedule II to the Rules prescribes the mode of recruitment. Earlier the posts of Assistant Architects were required to be filled 50% by direct recruitment and 50% by promotion. Senior Architectural Draughtsman in the Chief Architect's Office having the requisite minimum educational qualification (Bachelor's Degree in Architecture or the prescribed equivalents) alone were to be considered for promotion as Assistant Architect. The Rules underwent an amendment in the year 1991 and the mode of recruitment was altered as follows "40% by direct recruitment and 60% by promotion" and the promotion was from the posts of Draughtsman/Architect Officers. Significantly, the qualification earlier prescribed for promotion, that is Degree in Architecture, was omitted by the 1991 Amendment Rules. Before the amendment in 1991, it is stated that promotion from the posts of Head Draughtsman/Draughtsman was to the posts of "Assistant Engineer" and not "Assistant Architects".
3. In view of the 1991 Amendment to the Recruitment Rules, all Draughtsman and Architect Officers became eligible for promotion as Assistant Architects, even if they did not possess a degree in Architecture. As a consequence, respondents No.3 to 5 who were' Head Draughtsman, were promoted as "Assistant Architects" by order dated 20.2.2003 though they were not possessing degree in Architecture. If the requirement of degree in Architecture which had been prescribed as a condition for promotion to the post of Assistant Architect, had continued in the Recruitment Rules respondents 3 to 5 though seniors to petitioners in the cadre of Draughtsman, would have been ineligible and petitioners would have stood a chance of being promoted as Assistant Architects.
4. Petitioners submit that having regard to the provision of Architects Act, 1972, only persons possessing a degree in Architecture (or Diplomas recognised as equivalent and enumerated in the Schedule to the said Act) and registered as Architects with the Council of Architecture are entitled to practice as "Architects" and use the title "Architect". As a consequence, it is contended that only "Registered Architects" can be appointed or promoted to the post of "Assistant Architects". It is contended that having regard to the provision of Architects Act, the provision for promotion to the post of "Assistant Architect" under the Rules has to necessarily provide "persons registered as Architects possessing any of the degrees/diplomas in Architecture enumerated in the Schedule to the Architects Act" as an eligibility criterion for promotion. It is submitted that the Recruitment Rules to the extent they fail to prescribe such minimum qualification will be repugnant to Architects Act, 1972, and will be invalid. The petitioners have therefore filed this petition for the following reliefs:
(i) to declare the Recruitment Rules to the extent they relate to promotion to the cadre of Assistant Architect Class II, to be null and void as not being in conformity with the provisions of the Architect Act, 1972.
(ii) to quash the order dated 20.2.2003 by which the respondents No.3 to 5 were promoted as "Assistant Architect Class II" and direct the respondents 1 and 2 to consider them for promotion to the post of
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