# A.N. SEHGAL AND ORS v. RAJE RAM SHEORAN AND OR.S. APRIL 5, 199 l

- **Citation:** [1991] 2 S.C.R. 198
- **Court:** Supreme Court of India
- **Decided:** 1991
- **Case number:** Civil Writ Petition No. 5371 of 1981
- **Bench:** K.N. Singh, K. Ramaswamy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/a-n-sehgal-and-ors-v-raje-ram-sheoran-and-or-s-april-5-199-l-11143
- **Pages:** 23

## Headnote

Civil Service-Haryana Public Service of Engineers Class l PW D
(Roads and Buildings Branch) Rules, 1966--Ru/es 2( 1), (7), (JO), ( 12),
5, 6, 7, 8, 9, 11, 12-Post of Asst. Executive Engineer, Executive
engineer and Superintending Engineer-Direct recruits and promotees
C -Inter se fixation of seniority-Year of aliotment-Alterability of.
Constitution of India, I950-Articles 14 and I6--Direct recruit
Assistant Executive Engineer to cadre post and ex cadre post-Treatment at par as members of service-Validity of-Rule 2(12)(a),
D Haryana Public Service of Engineer Class I PWD (8oads and Buildings
Branch) Rules, 1966--Whether discriminatory.
Interpretation of Statutes-Proviso of particular provision of a
statute-Construction of-Whether carves out ;,n exception to the main
provision (Haryana Public Service of Engineers, Class I, PWD (Roads
E and Buildings Branch) Rules, 1966--Rule 5(2)(a).
F
G
Haryana Service of Engineers, Class I, PWD (Roads and Buildings Branch) Rules, 1966--Ru/es 2( 1), (3), (7), (IO), ( 12)(a), 5(2)(a),
8, 9, (2), ll, 12, (3), (5), (6), (7)-Hatnionious collstruttion-Reasdns
indicated.
The appellants, 'the promotees' from Class II Service were promoted as Executive Engineers by relaxing five years length of service as
Class II Engineers in officiating capacity on various dates between
January 6, 1969 to May 29, 1971. Only the appellant no. 1 and two
others were confirmed as Executive Engineers w.e.f. July 11, 1973,
December 11, 1974 and December 9, 1975 respectively.
The respondent No. 1 was recruited and appointed directly as
Asstt. Executive Engineer w.e.f. October 25, 1971. He was also given
relaxation of the length of service of five years as Asstt. Executive
Engineer and was promoted as Executive Engineer on October 8, 1973
H and was confirmed w.e.f. December 22, 1976.
198
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SEHGAL v. SHEORAN
199
All the appellants except one M.R. Gupta were further promoted
as Superintending Engineers on different dates between 1980 to 1984
whereas the respondent no. 1 was promoted as Superintending Engineer
on March 4, 1987.
A
The appellant no. I was further promoted as Chief Engineer The
validity of the promotion of respondent no. 1 to the post of Chief
B
Engineer was challenged.
The respondent no. I who was shown junior to the appellants, filed
Writ Petition seeking a writ of mandamus directing the second respondent, State Government, to constider his case for promotion as
Superintending Engineer from the date on which the respondents were
promoted assigning the seniority over the appellants and the consequential reliefs.
c
On reference, a Division Bench of the High Court held that
respondent no. 1 was a member of the service from the date of his initial
appointment as Asstt. Executive Engineer and the appellants and the
D
proforma respondents were not memhi!rs of the service and directed the
Single Judge to dispose of the matter on merit, against which, this
appeal on leave was filed.
The appellants contended that the appellants being promoted as
Executive Engineers against regular vacancies, which were neither a
E
stop-gap arrangement nor fortuitous, and being continued in service
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without any break from the respective dates of their promotion, they
wert members of the service in a substantive capacity as Executive
Engineers from the respective dates of promotion; that since the respondent no. 1 was recruited as Asstt. Executive Engineer w.e.f. August 30,
1971 long after the promotion of the appellants, the appellants were F
seniors to the respondent no. 1 as Executive Engineers, as Proviso to
Rule 5(2) entitles them to remain in a substantive capacity as Executive
Engineers since requisite number of qualified Asstt. Executive
Engineers were not available for promotion; that in view of their contin-
'lt
ous officiation as Executive Engineers in terms of Rule 2(12)(a) of the
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rules, they most be deemed to be the members of the service from the
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dates of promotion and, therefore, they were seniors to the re

## Text

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A
B
A.N. SEHGAL AND ORS.
v.
RAJE RAM SHEORAN AND OR.S.
APRIL 5, 199 l.
[K.N. SINGH AND K. RAMASWAMY, JJ.]
Civil Service-Haryana Public Service of Engineers Class l PW D
(Roads and Buildings Branch) Rules, 1966--Ru/es 2( 1), (7), (JO), ( 12),
5, 6, 7, 8, 9, 11, 12-Post of Asst. Executive Engineer, Executive
engineer and Superintending Engineer-Direct recruits and promotees
C -Inter se fixation of seniority-Year of aliotment-Alterability of.
Constitution of India, I950-Articles 14 and I6--Direct recruit
Assistant Executive Engineer to cadre post and ex cadre post-Treatment at par as members of service-Validity of-Rule 2(12)(a),
D Haryana Public Service of Engineer Class I PWD (8oads and Buildings
Branch) Rules, 1966--Whether discriminatory.
Interpretation of Statutes-Proviso of particular provision of a
statute-Construction of-Whether carves out ;,n exception to the main
provision (Haryana Public Service of Engineers, Class I, PWD (Roads
E and Buildings Branch) Rules, 1966--Rule 5(2)(a).
F
G
Haryana Service of Engineers, Class I, PWD (Roads and Buildings Branch) Rules, 1966--Ru/es 2( 1), (3), (7), (IO), ( 12)(a), 5(2)(a),
8, 9, (2), ll, 12, (3), (5), (6), (7)-Hatnionious collstruttion-Reasdns
indicated.
The appellants, 'the promotees' from Class II Service were promoted as Executive Engineers by relaxing five years length of service as
Class II Engineers in officiating capacity on various dates between
January 6, 1969 to May 29, 1971. Only the appellant no. 1 and two
others were confirmed as Executive Engineers w.e.f. July 11, 1973,
December 11, 1974 and December 9, 1975 respectively.
The respondent No. 1 was recruited and appointed directly as
Asstt. Executive Engineer w.e.f. October 25, 1971. He was also given
relaxation of the length of service of five years as Asstt. Executive
Engineer and was promoted as Executive Engineer on October 8, 1973
H and was confirmed w.e.f. December 22, 1976.
198
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SEHGAL v. SHEORAN
199
All the appellants except one M.R. Gupta were further promoted
as Superintending Engineers on different dates between 1980 to 1984
whereas the respondent no. 1 was promoted as Superintending Engineer
on March 4, 1987.
A
The appellant no. I was further promoted as Chief Engineer The
validity of the promotion of respondent no. 1 to the post of Chief
B
Engineer was challenged.
The respondent no. I who was shown junior to the appellants, filed
Writ Petition seeking a writ of mandamus directing the second respondent, State Government, to constider his case for promotion as
Superintending Engineer from the date on which the respondents were
promoted assigning the seniority over the appellants and the consequential reliefs.
c
On reference, a Division Bench of the High Court held that
respondent no. 1 was a member of the service from the date of his initial
appointment as Asstt. Executive Engineer and the appellants and the
D
proforma respondents were not memhi!rs of the service and directed the
Single Judge to dispose of the matter on merit, against which, this
appeal on leave was filed.
The appellants contended that the appellants being promoted as
Executive Engineers against regular vacancies, which were neither a
E
stop-gap arrangement nor fortuitous, and being continued in service
~
without any break from the respective dates of their promotion, they
wert members of the service in a substantive capacity as Executive
Engineers from the respective dates of promotion; that since the respondent no. 1 was recruited as Asstt. Executive Engineer w.e.f. August 30,
1971 long after the promotion of the appellants, the appellants were F
seniors to the respondent no. 1 as Executive Engineers, as Proviso to
Rule 5(2) entitles them to remain in a substantive capacity as Executive
Engineers since requisite number of qualified Asstt. Executive
Engineers were not available for promotion; that in view of their contin-
'lt
ous officiation as Executive Engineers in terms of Rule 2(12)(a) of the
•
rules, they most be deemed to be the members of the service from the
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dates of promotion and, therefore, they were seniors to the respondent
no.1.
The respondents contended that unless the appellants were
appointed substantively to the cadre posts they could not be members.
of the service. The respondent no. I became a member of the serH
200
SUPREME COURT REPORTS
I 1991] 2 S.C.R.
A vice from the date of his initial appointment as Asstt. Executive
Engineer, therefore, he was senior to the appellants and proforma
respondents.
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As agreed hy the parties, this Court declare the law on the interpretation of the rules and leave the matter for the State Govt. to decide
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the inter se seniority on merits. Disposing the appeal, it is.
HELD: 1. Appointment to a post in accordance with the rules is a
condition precedent and no one can claim appointment to a post or
promotion, as of right, hut has a right to be considered in accordance
with the rules, Appointment by promotion or direct recruitment, therec fore, must be in accordance with the rules so as to become a member of
the service in a substantive capacity. Seniority is to be fixed in accordance with the principle laid down in the rules. [213G-214A]
2. The promo tee has right to confirmation in the cadre post as
per Rule 11( 4) if a post is available to him within his quota or at a later
D
date under rule 5(2) read with rule 11(4) and gets appointment under
rule 8(11). His seniority would be reckoned only from the date of the
availability of the post and the year of allotment, he shall be next below
to his immediate senior promotee of that year or the junior most of the
previous year of allotment whether officiating or permanent occupying
the post within 50% quota. [214G-215A]
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3. A direct recruit on promotion within his quota, though later to
the promotee is interposed in between the periods and interjects the
promotee's seniority; snaps the links in the chain of continuity and
steals a march over the approved promotee probationer. [215B]
F
4. Mere officiating appointment by promotion to a cadre post
outside the quota; continuous efficiation therein and declaration of probation would not clothe the promotee with any right to claim seniority
over the direct recruits. The necessary conclusion would, therefore, be
that the direct recruit shall get his seniority with effect from the date of
the year of the allotment as Asstt. Executive Engineer which is not
G
alterable. Wheres the promotee would get his seniority w.e.f. the date
of the availability of the posts withm 50% quota of the promotees. [2150]
5. The seniority of the promotee from Class II service as Executive Engineer shall be determined with effect from the date on which the
cadre post was available to him and the seniority shall be determined
H accordingly. [215F]
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SEHGAL v. SHEORAN
201
6. Under the Rules 'determination of seniority would lie made
only after the promotee becomes a member of the service'. Therefore the
year of allotment must be determined having regard to (i) l!Vailability of
the cadre post within quota; (ii) satisfactory completion of the probation, and (iii) appointment to the post in the substantive capacity in
term of Rules 12(6) and (7) read with Rule 11(4) and Rule 8(12). Any
other construction would be contrary to ihe avowed object of the rules
as a whole. [218B-C]
7. There is neither invidious discrimination nor arbitrariness in
Rule 2(12)(a) offending Arts. 14 & 16. The differentiation drawn between direct recruit and the promotee bears rational relation to the
object of Rule 2(12). [219H]
8. The Government of Haryana to determine the cadre posts, if
not already done, regularly from time to time including the post created
due to exigencies of service in terms of Rule 3(2) read with appendix 'A'
and allot the posts in each year of allotment as contemplated under rule
12 read with Rule 5(2)(a) and issue orders appointing snbstantively to
the respective posts within the quota and determine the inter se seniority between the appellants promotees and the direct recruits in the
respective quota cadre posts of Executive Engineers etc. within four
months from the date of receipt of this judgment. The inter se seniority
of promotees and direct recruits shall be determined accordingly. [220D-E I
M.S. Mighlani v. State of Haryana & Anr., [1983] 1 SLR 421;
J. c. Yadav v. State of Haryana., [1990] 2 SCC 189; K.K. Khosla v.
State of Haryana, [1990] 2 SCC 199; V.B. Badami, etc. v. State of
Mysore, [1976] l SCR 815; K.C. Joshi & Ors. etc. v. Union of India &
Ors., [1990] 29 Scale 951-referred to.
R.P. Khanna v. S.A.F. Abbas & Ors, [1973] 3 SCR 548 at 557
C-J; Baleshwar Dass & Ors. v, State of U.P. & Ors. etc., [1981] l SCR
449 at 463; B.S. Yadav v. State of Haryana, [1980] 1 SCR 1024; The
Direct Recruit, Clall II Engineering Officers' Association v. State of
Maharashtra & Ors., [1990] 2 SCC 715 at 745-Distinguished .
9. It is a cardinal rule of interpretation that a proviso to a
particular provision of a stature only embraces the field which is
covered by the main provision. It carves ont an exception to the main
provision to which it has been enacted by the proviso and to no other.
The proper function of a proviso is to except and deal with a case which
wonld otherwise fall within the general language of the main enactment,
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202
SUPREME COURT REPORTS
I 1991] 2 S.C.R.
and its effect is to confine to that case. Where the language of the
main enactment is explicit and unambiguous, the proviso can have no
repurcussion on the interpretation of the main enactment, so as to
exclude from it, by implication what clearly falls within its express
terms. [211E-F]
IO. The scope of the proviso is to carve out an exception to the
main enactment and it excludes something which otherwise would have
been within the rule. It bas to operate in the same field and if the
language of the main enactment is clear, the proviso cannot be torn
apart from the main enactment nor can it he used to nullify by implication what the enactment clearly says nor set at naught the real object of
the main enactment, unless the words of the proviso are such that it is
its necessary effect. [2 llG-H]
11. In interpreting the rules, effect must be given lo allow everyone
drawn from the sources to have their due share in the service and
chances of involvement to effectively discharge the duties of the posts
honestly and efficiently with dedication. Any wanton or deliberate de viation in the implementation of the rules should be curbed and snubbed
and the roles must be strictly bnplemented to achieve the above
purpose. If wanton doviations are allowed to be repeated, it would
breed indi~cipline among the services and amounts to undue favour to
some and denial of equality for many for reasons known or unknown
subverting the purpose of the rules. [213F]
'
12. Rules 2(1), 2(3) 2(7), 2(10). 2(12)(a) 5(2)(a) 8, 9(2), 11, 12(3),
12(5) to 12(7) to be construed harmoniously. lest the legislative animalion would be defeated and the rules would be rendered otiose and
surpluses. It would also adversely effect the morale and efficiency of the
service. [21SC]
13. With a view to have efficient and dediicated services accountable to proper implementation of Govt. policies, it is open and is constitutionally permissible for the State, to infuse into the services, both
talented fresh blood imbued with constitutional commitments, enthusiasm, drive and initiative by direct recruitment, blended with matured
wealth of experience frOIO the subordinate services. [2UG]
14. It is permissible to com;titute an integrated service of persons
recruited from two or more sources, namely, direct recruitment,
promotion from subordinate service or transfer from other services.
Promotee from subordinate service generally would get few chances of
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SEHGAL v. SHEORAN [RAMASWAMY. 1.l
203
pr11motion to higher echol_ans of services. [212H[
15. Avenues and facilities for promotion to the higher services to
the less privileged members of the subordinate service would incukate
in them· dedicatio11 t0> excel their latent capabilities to man the cadre
posts. [213A]
16. Talent is not ·the privilege of few but equal avenues made
;ivai!able would explore C01111!Jl!n man's capabilities overc11ming en.
yironmental adversity and open up full opportunities to develop O!le's
capabilities to shoulder higher responsibilities without succumbing t9
dispondence. Eq11ally talented young men/women of great promise
)Vould enter into service IJy direct recruitment when chances of pr11motions are attractive. [21311]
c
17. The chances of promotion would also enable a pr()motee to
imbue involvement in the performa11ce of tl\e duties, obviate fr0stration ·
and eliminate proclavity to corrupt practices, lest one would tend to
become corrupt, sloven and mediocre and a dead wood, In other )Vords, p
equal opportunity would harness the human resources to a!Jgment the
effeciency of the service and nndue emphasis on either would upset the
scales qf eq11ality germinating the seeds 9f degeneration. [2130 I
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4094
pf 1984.
E
From the Judgment and Order dated 9.7.1984 of the Punjab &
Haryana High Court in Civil Writ Petition No. 5371 of 1981.
P.P. Rao, Sr. Adv. and Janendra Lal for the Appellants.
S.C. Gupta, Rajinder Sachhar, Sudarshan Goyal, Vivek Bhandari, S.C. Patel, Mahabir Singh and C.M. Nayar(NP) for the
Respondents.
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The Judgment of the Court was delivered by
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K. RAMASWAMY, J. The appellants and tile proforma respondents, thirty in numbers are employed in the Punjab Servic" of
Engineers•, Class II. The Governor, in exercise of the power under
proviso t:i Art. 309 of the Constitution of India framed the Punjab
Service of Engineers, Class I, P.W.D. (Roads and Buildings) Rt!les,
1960, for short 'the Rμles' constituting the Punjab Seryiq' of
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SUPREME COURT REPORTS
I 1991] 2 S.C.R.
A
Engineers, Class I, P.W.D. (Roads and Buildings Branch). After the
formation of State of Haryana w.e.f. November· I, 1966, the rules are
called Haryana Service of Engineers, Class I, P.W.D. (Roads and
Buildings Branch). The services consist of Asst!. Executive Engineers,
Executive Engineers, Superintending Engineers, and Chief EngiB
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neers, as may be specified by the Government of Haryana from time to
time (Rule 3(1). The recruitment to the service is made by the government as per Rule 5(1); (a) by direct recruitment; (b) by transfer from
any other services of the State Covt. or of the Union of India; and (c)
by promotion from Haryana Engineers, Class II Service. The appellants for short 'the promotees" from Class II Service were promoted as
Executive Engineers by relaxing five years length of service as Class II
Engineers in officiating capacity on various dates between January 6,
1969 to May 29, 1971, Three of them, namely, A.N. Sehgal, Raj
Kumar and H.C. Sethi were confirmed as Executive Engineers w.e.f.
July 11, 1973, December 11, 1974 and December 9, 1975 respectively.
The rest are yet to be confirmed. Raje Ram Sheoran was recruited and
appointed directly as Asstt. Executive Engineer w .e .f. October 25,
197 I. He too was given relaxation of the length of service of five years
as Asst!. Execμtive Engineer and was promoted as Executive Engineer
on October 8, 1973. He was confirmed w.e.f. December 22, 1976. All
the appellants except M.R. Gupta were further promoted as Superintending Engineers on different dates between 1980 to 1984 and Mr.
Sheoran was promoted as Superintending Engineer on March 4, 1987.
A.N .. Sehgal was further promoted as Chief Engineer. Equally Mr.
Sheoran was also promoted as Chief Engineer but the validity was
challenged and it is not necessary to refer any further as it is subject
matter of proceedings in the High Court.
R.R. Sheoran who was shown junior to the appellants, filed Writ
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Petition No. 5371/81 and sought a writ of mandamus directing the
second respondent, State Government to consider his case for promotion as Superintending Engineer from the date on which the respondents were promoted; to quash the gradation list; to assign the seniority over the appellants and the consequential reliefs. On reference, a
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Division Bench of the High Court by its judgment dated July 9, 1984
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agreed with the ratio laid down in M.S. Mighlani v. State of haryana &
Anr., [1983] 1 S.L.R. 421 and held that R.R. Sheoran was a member
of the service from the date of his initial appointment as Asstt. Executive Engineer and the appellants and the proforma respondents are not
members of the service and directed the learned Single Judge to dispose of the matter on merit. This appeal on leave arises against the
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judgment of the Division Bench.
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SEHGAL v. SHEORAN [RAMASWAMY, J.[
205
The controversy centres round the inter se seniority of the appellants and R.R. Sheoran. For its determination the Rules need interpretation. The counsel for parties agreed that we should decide the
principles on consideration of the Rules and leave the matter for the
State Govt. to determine the inter se seniority by applying the law, so
far as the controversy relating to relaxation of. the length of service is
concerned it is set at rest by this Court in J.C. Yadav v. State of
Haryana, [1990] 2 SCC 189 and K.K. Khosla v. State of Haryana,
[ 1990] 2 SCC 199 by a bench of three Judges to which one of us (K.N.
Singh, J.) was a member. The only question which survives is as to
when 'the appellants' and 'R.R. _Sheoran' became members of the
respective services.
Shri P.P. Rao, learned Senior Counsel for the appellants contends that the appellants were promoted as Executive Engineers
against regular vacancies, which were neither a stop-gap arrangement
nor fortuitous, and they continued in service without any break from
the respective dates of their promotion, therefore, they are members
of the service in a substantive capacity as Executive Engineers from
the respective dates of promotion. He further argued that since Raje
Ram Sheoran was recruited as Asst!. Executive Engineer w.e.f.
August 30, 1971 long after the promotion of the appellants upto B.L.
Goyal, the appellants are seniors to R.R. Sheoran as Executive
Engineers. Proviso to Rule 5(2) entitles them to remain in a substantive capacity as Executive Engineers since requisite number of qualified Asstt. Executive Engineers were not available for promotion. In
view of their continuous officiation as Executive Engineers in terms of
Rule 2(12)(a) of the rules, they must be deemed to be the members of
the service from the dates of promotion and, therefore, they are
seniors to R.R. Sheoran. M/s. Sachhar, learned counsel for the State
and Gupta for R.R. Sheoran on the other hand contended that unless
the appellants were appointed substantively to the cadre posts they
could not be members of the service. R.R. Sheoran became member
of the service from the date of his initial appointment as Asstt. Executive Engineer, therefore, he is senior to the appellants and proforma
respondents and the High Court rightly interpreted Rule 5(2). Since
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the High Court did not enter into the merits of the respective claims of G
the appellants and Sheoran, we express no opinion on merits except,
as agreed by the parties, we declare the law on the interpretation of
the rules and leave it to the State Govt. to decide the inter se seniority
on merits.
It is necessary to have a look into the Rules regulating the
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SUPREME COURT REPORTS
I 1991] 2 S.C.R.
A service. Rule 3( 1) postulates that the service shall comprise of
Assistant Executive Engineers, Executive Engineers, Superintending
Engineers and Chief Engineers. Rule 3(2) read with appendix 'A'
enjoins the State of Haryana to determine the cadre strength of service
each year. Appendix 'A' lays down procedure to determine the cadre
strength of service. The senior posts include Executive Engineers and
B above while the junior scale posts include Asst!. Executive Engineers.
Ex-cadre posts also are contemplated in the respective senior posts
and junior scale posts. Rule 5(1)(a) posits recruitment to the service:
(a) by direct recruitment; (b) by transfer and (c) by promotion from
Class II service. Sub-rule (4) of Rule 5 says that all direct appointments to the service shall be to the post of Asstt. Executive Engineer.
Proviso therein gives power to the government to appoint by direct
C recruitment as Executive Engineers, in exceptional circumstances, for
reasons to be recorded in writing. Rules 6 and 7 prescribe qualifications and method of appointment by direct recruitment. Subrule (3) of
Rule 7 states that appointment to the service shall be made according
to the number of vacancies to be filled by direct recruitment strictly in
D the order of merit as indicated by the Public Service Commission. As
per Rule 11( 1) a direct recruit shall remain on probation for a period
of two years or extended period upto maximum of three years. On
satisfactory completion of probation, the government may confirm
under clause (a) of sub-rule (3) of Rule 11 or to discharge him from
service otherwise. The post of Asst!. Executive Engineer is a junior
E scale post. Under rule 12(3), the year of allotment of an Asst!. Executive Engineer shall be the calander year in which the order of appointment is issued by the government.
Rule 2(1) defines appointment to the service which includes an
appointment made according to the terms and provisions of the rules
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to an officiating vacancy or to an ex-cadre post provided that an officer
so appointed shall not be deemed to have become a member of the
service as defined in Clause ( 12) of Rule 2. The Asstt. Executive
Engineer means a member of the service in the junior scale of pay,
(Rule 2(2)). Cadre post means permanent post in the service as per
Rule 2(3). 'Class II Service' means the Punjab Service of Engineers,
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Class II, in the Buildings and Roads Branch and includes, for purposes
of promotion to and fixation of seniority in the Class I Service,
Temporary Asst!. Engineers when a suitable Class II Officer is not
available vide Rule 2(5). Direct appointment means an appointment
by open competition but does not include-(a) an appointment made
by promotion; (b) an appointment by transfer of an officer from the
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service of the State Government or of the Onion, (Rule 2(7). Ex-cadre
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SEHGAL v. SHEORAN [RAMASWAMY, i.J
207
post means a temporary post of the same rank as a cadre post vide
Rule 2(10). A member of the service means an officer appointed substantively to a cadre post and includes (a) in the case of a direct
appointment an officer on probation, or such an officer who, having
successfully completed his probation, awaits appointment to a cadre
post vide Rule 2(12)(a).
A reading of the rules dearly indicates that an Asstt. Executive
Engineer appointed by open competition to a substantive vacancy in a
cadre post and put on probation is a member of the service. Equally
such Asst!. Executive Engineer recruited by open competition and
appointment to an ex cadre post and put on probation and who having
successfully completed his probation and awaits appointment to a
cadre post would also become a member of the service. The contention
of Shri P.P. Rao is that an officer appointed substantively to a cadre
post is a direct recruit and the inclusive definition encompasses within
its ambit the promotee and the phrase "such an officer who having
successfully completed his probation and awaits appointment to the
cadre post" is only referable to a promotee. So promotee is also a
member of the service from the date of initial promotion, We may
make it clear at this juncture that in normal service jurisprudence a
direct recruit would always be recruited and appointed to a substantive
vacancy and from the date he starts discharging the duty attached to
the post he is a member of the service subject to his successfully completing the probation and declaration thereof at a later date and his
appointment relates back to the date of initial appointment, subject to
his being discharged from service on failure to complete the probation
within or extended period or termination of the service according to
rules. Equally it is settled law that a promotee would have initial
otficiating promotion to a temporary vacancy or substantive vacancy
and on successful completion and declaration of the probation, unless
reverted to lower posts, he awaiis appointment to a substantive
vacancy. Only on appointment to a substantive vacancy he becomes a
itiember of the service. But confirmation and appointment to a substantive vacancy always an inglorious uncertainty and would take
iinduly long time. Therefore, the confirmation or appointment to a
Substantive capacity would not normally be a condition precedent to
teckon the continuous length. of service for the purpose of seniority.
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G
On the facts of the case and the settled legal position, at first blush the
argument of Shri P .P. Rao carried weight that the appellants would get
their seniority from the respective dates of the initial promotion as
Executive Engineers. But we find that in the instant case the rules
have made departure from the normal service jurisprudence as would H
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SUPREME COURT REPORTS
[ 1991] 2 S.C.R.
appear from the scheme under the rules.
Para l!(b) of appendix 'A' read with Rule 3(2), while determining the cadre strength of the service, adumbrates creation and appointment of Asstt. Executive Engineers (direct recruit) to an ex-cadre
junior scale post in each year. Therefore in a given situation, a direct
recruit appointed to an ex-cadre post, cannot be kept in lurch until he
is appoined to a cadre post so as to become a member of the service.
Obviously to avoid such a hiatus, Rule 2( 12)(a) was introduced. The
main part of Rule 2( 12)(a) declares that an appointee substantively to
a cadre post i.e., permanent post is a member of the service. The
inclusive definition brings an officer 'by direct appointment on probation' who having successfully completed probation and awaits appointment to a cadre post is also a member of the service. Take for instance
if direct recruitment is made to fill in five posts of Asstt. Executive
Engineers of which four are cadre pcists and one ex-cadre post and four
persons are appointed to cadre posts in the order of merit and the last
one to the ex-cadre post. The first four officers appointed on probation
to the substantive vacancies and they are covered by the main part of
Rule 2(12)(a). The fifth one intended to cover the field of operation of
the inclusive definition which says that 'and also includes an officer
directly appointed on probation' 'and such an officer who having
successfully completed his probation, awaits appointment to a cadre
post'. The words 'and such an officer' 'directly appointed' would obviously referable to an Asst!. Executive Engineer directly appointed to
an ex-cadre post; who may be placed on probation and awaits appointment to a cadre post. By operation of the definition clause he also
becomes the member of the service from the date of initial appointment. This view is further fortified by the definition of the 'appointment to the service' in Rule 2( 1) which says that 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.
Rule 2(7) says that direct appointment means appointment by open
competition but excludes 'promotee' or 'transferee'. So a promotee
promoted to an officiating vacancy or on ex-cadre post does not
become member of the service unless he is appointed substantively to a
cadre post. We, therefore, hold that a direct recruit appointed to an
ex-cadre post alone is a member of the service even while on probation
and Rule 2(12)(a) applies to them and it does not apply to promotee
from Class II service.
An Asstt. Executive Engineer, on putting five years of service
H
under rule 9(3)(a) and passing the departmental examination as
SEHGAL v. SHEORAN [RAMASWAMY, J.l
209
required under rule (15), (unless the qualifications are relaxed in exercise of the power under rule (22) of the rules) becomes eligible for
promotion as Executive Engineer. The State Govt. had relaxed the
required length of five years service of the promotees as well as direct
recruits. R.R. Sheoran therefor became eligible to be considered· for
promotion. As per the procedure prescribed in this regard under rule
9(2), he was found fit and suitable and was promoted as an Executive
Engineer w.e.f. October 8, 1973. Though M/s. Sachhar and Gupta
contended that the direct recruit need not undergo the required probation as Executive Engineer, we find no force in the contention. The
normal channel of appointment to the post of Executive Engineer, a
senior post, is by way of promotion to which a direct recruit Asstt.
Executive Engineer is entitled to be considered. On promotion he
shall be on probation for a period of one year as per Rule ll(l)(a), but
the period spent on officiation as Executive. Engineer shall be taken
into account for purposes of completing the period of probation and on
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its successful completion, he shall remain in service as Executive
Engineer. On a conjoint reading of Rule 12(3) and 12(5) it is clear that 0
the year of allotment of the Asstt. Executive I\ngineer in the post of
Executive Engineer, shall be the calendar year in which the order of
appointment as Asstt. Executive Engineer had been made. Thus his
seniority as Executive Engineer, by fiction of law, would relate back to
his date of initial appointment as Asstt. Executive Engineer and in
Juxta position to Class II officers' seniority as Executive Engineer is
E
unalterable. The date of the seniority of Mr. R.R. Sheoran 1971.
The question then is what is the date from .which the seniority of
a promotee as Executive Enginee: shall be reckoned? The contention
of Shri P.P. Rao is that Rule 5(2) reserves 50% of the posts to the
direct recruits but the proviso thereto makes a built in relaxation, F
namely, so long as the required number of direct recruits are not
available to occupy those posts, the promotees are entitled to hold
those posts also. Admittedly except R.R. Sheoran no other direct
recruit was available. The promotees are eligible to occupy all the
cadre posts even in excess of their quota. The seniority has to be
determined from the respective dates of initial officiating promotion. G
Shri Rao' further contention that the phrase 'such an officer appointed
to an officiating post' has reference only to promotees cannot be
accepted for the reasons given earlier. The officer appointed directly is
referable only to Asstt. Executive Engineer and a promotee by operation of Rule 2(7) stands excluded until he is appointed substantively to
a cadre post.
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· SUPREME ,COURT REPORTS
I 1991) 2 S.C.R.
When an officer is appointed substantively to a cadre post, is
the next question. It is settled law that all the rules should be harmoniously construed giving life, force and effect to every part of the rule or
clause or word so that no part would be rendered redundant, ineffectual, nugatory or otiose. Rule 5( 1) regulates recruitment to the
service from three sources, namely, direct recruitment; by transfer and
by promotion from Class II service. Sub-rule (2) thereof prescribes the
ratio between the promotees and others. It says that, "recruitment to
the service shall be so reg1,1lated that the number of posts so fillerf by
promotion from Class II service shall not exceed 50%" of the number
of posts in the service excluding the posts of Asst!. Executive
Engineers; provided that till such time the adequate number of Asst!.
C
Executive Engineers who are eligible and considered fit for promotion
are available, the actual percentage of officers promoted from Class II
service 'may be larger than 50%. A reading thereof clearly manifests
the legislative animation, namely, that the promotees from Class II
service shall not exceed 50% of the posts in the service. The word
'shall' indicates that it is mandatory that the remaining 50% shall be
D kept open only to the Asst!. Executive Engineers who were directly
recruited but later were found eligible and fit for promotion as Executive Engineers. Therefore, unless the government resorts exceptionally with prior permission of Public Service Commission, vide Rule 10
to recruitment by transfer of an officer from other service of the State
Govt. or of the Union, the remaining 50% of the posts as Executive
E Engineers, Superintending Engineers and Chief Engineers shall be
occupied only by the direct recruit Asst!. Executive Engineers. It is
settled law that prescription of quota for recruitment from different
sources is constitutionally a valid rule.
Rule 5(2) limits 50% posts to the promotees from Class II
F
Service and no further, but the proviso to the Rule lays down that till
adequate number of Asst!. Executive Engineers are available, the
rigour of 50% quota may be relaxed and Class II officers may be
promoted in excess of their quota. What is the intendment of the
clause 'the actual percentage of officers promoted from Class II service
may be larger than 50% is the question. The mandate of Rule 5(2) is
G that the officers promoted from Class II service shall in no case exceed
50% of the number of posts in the service. Unless it is relaxed, the
appointment and occupation of the posts by promotees in excess
thereof is irregular or illegal and the government have no power to
promote persons from Class II service to fill in such posts of Executive
Engineers Superintending Engineers and Chief Engineers. It is comH mon knowledge that direct recruitment as Asst!. Executive Engineer
SJJHGAL v. SHEORAN !RAMASWAMY, J.]
211
or Executive Engine.er; in exceptional circumstances is a tardy process
A
and even after appointment they have to put in five years service. The
....
balance 50% of the posts cannot be kept vacant. With a view to allow
-tthe wheels of the administration moving, the proviso carves out an
;;,
exception and allows the promotees to occupy temporarily the posts in
.•
excess of their quota. In this view the contention of Shri Rao that the
I
seniority as Executive Engineer is to be counted from the date of
Q
~}.
initial temporary pormotion cannot be accepted as it would allow the
iii:
promotees to occupy 100% posts of Executive Engineers, Superin-
"•'
·~t
tending Engineers and Chief Engineers leaving iittle room for Rule
;.
i
5(2)(a) t.o operate in full force. The exception would eat away the flesh
and blood of Rule 5(2)(a) freezing the channel of promotion to the
'
direct recruits to senior posts for a very long time to come. In the
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absence of rule of rotation there may be no chance to a direct recruits
to occupy the senior posts. That does not appear to be the intendment,
i
scope and operation of the proviso. The intendment appears to be that
so long as the direct recruit Asstt, Executive Engineer, eligible and
~
considered fit for promotion is not available, the promotee from Class
~
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II service in excess of the quota is eligible to occupy on officiating
D
, capacity the senior posts, i.e-; Executive Engineers and above. The
moment direct recruits are available, they alone are entitled to occupy
50% of their quota posts and the promotees shall give place to the
direct recruits.
It is a cardinal rule of interpretation-that a proviso to a particular
E
provision of a statute only embraces the field which is covered by the
......
main provision. It carves out an exception to the main provision to
which it has been enacted by the proviso and to no other. The proper
~
function of a proviso is to except and deal with a case which would
~~-
otherwise fall within the general language of the main enactment, and
4
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its effect is to confine to that case. Where the language of the main
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enactment is explicit and unambiguous, the proviso can have l)O
!I
repercussion on the interpretation of the main enactment, so as to
exclude from it, by implication what clearly falls within its express
~
terms.
)..
The scope of the proviso, therefore, is to carve out an exceptio_n
G
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to the main enactment and it excludes something which otherwise
>
would have been within the rule. It has to operate in the same field and
if the langauge of the main enactment is clear, the proviso cannot be
.
.
torn apart from the main enactment nor can it be used to nullify by
implication what the enactment clearly says nor set at naught the real
object of the main enactment, unless the words_ of the proviso are such H
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SUPREME COURT REPORTS
I 1991] 2 S.C.R.
A that it is its necessary effect.
In V.B. Badami, etc. v. State of Mysore, I 1976] 1 SCR 815 deal-
~
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E
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G
H
ing with the problem arising out of quota rule between promotees, this
Court observed that:
"In working out the quota rule, these principles are generally followed. First, where rules prescribe quota between
direct recruits and promotees, confirmation or substantive
appointment can only be in respect of clear vacancies in the
permanent strength of the cadre. Second, confirmed persons
are senior to those who are officiating. Third, as between
persons appointed in officiating capacity, seniority is to be
counted on the length of continuous service. Fourth, direct
recruitment is possible only by competitive examination
which is prescribed procedure under the rules. In promotional vacancies, the promotion is either by selection or on
the principle of seniority-cum-merit, a promotion could be
made in respect of a temporary post or for a specified
period but a direct recruitment has generally to be made
only in respect of clear permanent vacancy either existing
or anticipated to arise at or about the period of probation is
expected to be completed. Fifth, if promotions are made to
vacancies in excess of the promotional quota, the promotions may not be totally illegal but would be irregular. The
promotees cannot claim any right to hold the promotional
posts unless the vacancies fall within their quota. If the
promotees occupy any vacancies which are within the quota
of direct recruits, when direct recruitment takes place the
direct recruits will occupy vacancies within their quota.
Promotees who were occupying the vacancies within the
quota of direct recruits will either be reverted or they will
be absorbed in the vacancies within their quota in the facts
and circumstances of a case".
With a view to have efficient and dedicated services accountable
to proper implementation of Govt. policies, it is open, and is constitutionally permissible for the State, to infuse into the services, both
talented fresh blood imbued with constitutional commitments, enthusiasm, drive and initiative by direct recruitment, blended with matured
wealth of experience from the subordinate services. It is permissible to
constitute an integrated service of persons recruited from two or more
sources, namely, direct recruitment, promotion from subordinate
...
\
r
":+
;.....
4'
,.,
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SEHGAL v. SHEORAN [RAMASWAMY, J.l
213
service or transfer from other services. Promotee from subordinate
generally would get few chances of promotion to higher echolans of
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services. Avenues and facilities for promotion to the higher services to
-'
the less privileged members of the subordinate service would inculcate
in them dedication to excel their latent capabilities to man the cadre
posts. Talent is not the privilege of few but equal avenues made available would explore common man's capabilities overcoming environB
mental adversity and open up full opportunities to develop one's
capabilities to shoulder higher responsibilities without succumbing to
...
despondence.