Common Order: (A.V. Sesha Sai, J.)
1. The only issue that falls for consideration and resolution in this batch of Writ Petitions is -
“Whether the seniority of an employee in a particular category needs to be reckoned from the date of initial appointment in the said category or from the date from which he/she acquires the qualification to hold the higher category of post?”
2. Petitioners as well as the unofficial respondents are presently working as Agricultural Extension Officers Grade-II in the Department of Horticulture, Government of Andhra Pradesh. Petitioners entered into service with Diploma qualification, whereas the unofficial respondents entered into service with Degree qualification. The next higher category is Agriculture Officer and is governed by the Andhra Pradesh Agricultural Service Rules.
3. The present issue cropped up pursuant to an order passed by the Andhra Pradesh Administrative Tribunal (hereinafter called ‘the Tribunal’) in O.A. No.1222 of 2017 filed by certain Agricultural Extension Officers who entered into the service with Degree qualification in agriculture. The Tribunal, by way of an order dated 03.05.2017, disposed of the said O.A. with a direction to consider their representation. Pursuant to the said order, the Government issued Memo bearing No.2438/Agrl.I(2) /2017 dated 12.05.2017, which reads as follows:
"A copy of the reference cited along with its enclosures is sent herewith to the Director of Agriculture, A.P., Guntur and he is informed that as per the orders in vogue, the candidates who were acquired Diploma in Agrl., as well as B.Sc. (Agrl.), are eligible for appointment as Agricultural Extension Officers in the Department with the qualification of B.Sc. (Agrl.) and with the qualification of Diploma. Later, certain individuals, who were recruited with Diploma, have acquired their B.Sc. (Agrl.) qualification as in-service candidates.
2. Instances have come to the notice of the Govt., with regard to disputes between the A.E.Os., who were appointed with B.Sc. (Agl.) and the A.E.Os., who were recruited with Diploma and later prosecuted their B.Sc. (Agrl.) as in-service candidates, with regard to the seniority and further promotion as Agricultural Officers. The Head of the Department calculating the seniority of the A.E.Os., recruited with Diploma in Agriculture and subsequently acquired B.Sc. (Agrl.) Degree, from the date of their appointment as A.E.O., for promotion to the category of Agricultural Officer. Certain candidates who were recruited with B.Sc. (Agrl.) Degree are constantly representing the Govt./ various forums wherein they have requested to count seniority for promotion to the rank of Agricultural Officer, from the date of acquiring the required qualification of B.Sc. (Agrl.) to the category of A.O., who have appointed as A.E.O. with Diploma qualification.
3. In Memo, dt.17.04.2017, the Director of Agriculture has communicated a seniority list of A.E.Os., by placing certain individuals who were appointed with Diploma in Agriculture and later prosecuted their B.Sc., (Ag.) as in-service candidates, as per their original appointment date as A.E.O., for the purpose of promotion as Agricultural Officers though they have acquired the requisite qualification of B.Sc. (Agrl.) subsequently. Aggrieved by the above seniority list, certain A.E.Os., have filed objections before the Government and later they have approached the Hon’ble A.P. Administrative Tribunal by filing O.A.No.1222/2017 with a prayer to consider their objections.
4. The Hon’ble Tribunal in its orders dt.03.05.2017, has directed the 1st respondent i.e., Government, to pass appropriate orders on the appeal / objections of the applicants within a period of 4 weeks from the date of receipt of the orders.
5. He is also informed that the Hon’ble Supreme Court of India in C.A.Nos.8479-8482 of 2014 between K.K.Dixit & others Vs. Rajasthan Housing Board and another, have observed the following:
"We find merit in these appeals and they are accordingly allowed to the extent of reversing the views of the High Court in respect of question No.2 as noted by the Division Bench in the common judgment under appeal. We hold that the Project Engineers (Junior) recruited on the basis of diploma, upon their acquiring the qualification of AMIE are not entitled to count their experience of service prior to acquisition of such qualification for the purpose of eligibility for promotion to the post of Project Engineer (Senior) against the 20% quota fixed for promotion of degree holder Project Engineers (Junior). In order to claim promotion against such 20% quota, the three years’ experience of service must be acquired after obtaining the qualification or degree of AMIE."
6. Accordingly, after careful examination keeping in view the orders of the Hon’ble A.P. Administrative Tribunal and also the orders of Hon’ble Supreme Court of India, Government hereby clarified that the A.E.Os., who were appointed with in-service candidates, are eligible for promotion to the next category, i.e., Agricultural Officer from the date of their acquiring the requisite qualification i.e., B.Sc. (Agrl.) Degree and their seniority for the purpose of promotion shall be counted from the date of their acquiring the B.Sc. (Agrl.) qualification.
7. The Special Commissioner of Agriculture, A.P., Guntur is, therefore, requested to revise the seniority list of the A.E.Os. and after finalization of the seniority list, based on the above clarification, effect the promotions to the category of Agricultural Officers."
4. Certain Agricultural Extension Officers, who got initially appointed with Diploma and who secured Degree qualification at a later point of time, invoked the jurisdiction of the Tribunal by way of filing Original Applications under Section 19 of the Administrative Tribunals Act, 1985. Applicants in O.A. Nos.2886 of 2018, 546 of 2019, 550 of 2019 and 128 of 2018 are the petitioners in W.P. Nos.1648 of 2019, 8106 of 2019, 8062 of 2019 and 3775 of 2019 respectively. The Tribunal, by way of the orders impugned in the above said Writ Petitions, except O.A. No.128 of 2018 (against which W.P. No.3775 of 2019 is filed), dismissed the said Original Applications on the ground that the applicants should respond to the provisional seniority list with their objections and on the ground of availability of alternative remedy.
5. Though the petitioners in W.P. Nos.1311 of 2019 and 3879 of 2019 are also aggrieved by the same impugned action, they did not approach the Tribunal before filing the said Writ Petitions before this Court. This Court does not propose to reject those Writ Petitions on the ground of availability of alternative remedy under Section 19 of the Administrative Tribunals Act, 1985, as it is not in dispute that the Andhra Pradesh Administrative Tribunal is not functioning as on date.
6. Heard Sri K.G. Krishna Murthy, learned senior counsel, representing Sri K.Rammohan, learned counsel for the writ petitioners in W.P. Nos.1648 of 2019, 8062 of 2019 and 8106 of 2019, Sri D.Y.Karunakar Dayanidhi, learned counsel for the writ petitioners in W.P. No.1311 of 2019, and Sri G.Jayaprakash Babu, learned counsel for the petitioners in W.P. Nos.3775 of 2019 and 3879 of 2019, the learned Government Pleader for the official respondents in all the Writ Petitions and Sri J.Sudheer and Smt. T.V.Sridevi, for the unofficial respondents-Graduate (Degree) holders right from the inception, apart from perusing the material available on record.
7. It is contended by Sri K.G. Krishna Murthy that the Tribunal grossly erred in dismissing the Original Applications on the ground of failure of the applicants to avail the alternative remedy, by totally ignoring the fact that the applicants assailed not only the provisional seniority list dated 19.11.2018 issued by the Commissioner of Agriculture but also the Memo dated 12.5.2017 issued by the State Government which is the basis for the Commissioner to issue the impugned provisional seniority list. It is further contended that having regard to the provisions of Rules 4 & 6 of the Andhra Pradesh Agricultural Service Rules, 1997 notified vide G.O.Ms.No.16, Agriculture and Co-operation (FPI) Department, dated 21.1.2000 and Rule 33 of the Andhra Pradesh State and Subordinate Service Rules, the impugned action cannot be sustained; that the official respondents erred in taking a view that the seniority of Agriculture Extension Officers for promotion as Agriculture Officer is required to be reckoned from the date of acquisition of the qualification of degree in agriculture; that the judgment of the Hon’ble Supreme Court in the case of K.K. Dixit & others v. Rajasthan Housing Board & another (2015) 1 SCC 474), cannot be applied as the contingencies which arose in the said judgment are not present in the cases on hand, and in view of the other judgments of the Hon’ble Supreme Court which are both anterior and posterior to the same.
Sri K.G.Krishna Murthy, in support of his submissions and contentions, places reliance on the following judgments;
(i) In M.Dakshayani v. State of Karnataka & another (2018) 16 SCC 172);
(ii) In Anil Kumar Gupta & others v. Municipal Corporation of Delhi & others (2000) 1 SCC 128);
(iii) In M.B.Joshi & others v. Satish Kumar Pandey & others (1993 Supp (2) SCC 419);
(iv) In State of Andhra Pradesh v. B.Prashanth & others (2001 (5) ALD 473);
(v) In G.Shravan Kumar Reddy v. State of Andhra Pradesh & others (2005 (3) ALD 732);
(vi) In State of Orissa & others v. Prasana Kumar Sahoo (AIR 2007 SC 2588);
(vii) In Siddabloina Laxminarayana v. Government of Andhra Pradesh (2014 (5) ALD 114);
(viii) In P.S.Ghalaut v. State of Haryana & others (1995) 5 SCC 625);
(ix) In Bimlesh Tanwark v. State of Haryana & others (2003) 5 SCC 604);
(x) In Suresh Chandra Jha v. State of Bihar & others (2007) 1 SCC 405);
(xi) In Government of Andhra Pradesh v. A.P.Jaiswal & others (2001) 1 SCC 748);
(xii) In B.Premchand & others v. Mohan Koikal & others (AIR 2011 SC 1925);
8. Sri Dayanidhi and Sri G Jayaprakash Babu, Advocates, also vehemently attacked the view taken by the official respondents and totally supported the version of the learned senior counsel, Sri K.G.Krishna Murthy.
9. Per contra, Sri J.Sudheer, learned counsel for unofficial respondents, who are the degree holders right from the inception, contends that the contentions advanced on behalf of the writ petitioners are neither sustainable nor tenable in the eye of law; that the stand of the authorities that the seniority of the Agriculture Extension Officers for promotion to the category of Agricultural Officer is required to be reckoned only from the date of acquisition of degree qualification and the service rendered prior to the same cannot be counted for the seniority; that the official respondents are perfectly justified in relying upon the judgment of the Hon’ble Supreme Court in K.K. Dixit’s case (1 supra) as the same was rendered on the basis of the Larger Bench judgments rendered earlier.
To bolster his submissions and contentions, the learned counsel relies on the following judgments;
(i) In K.K. Dixit & others v. Rajasthan Housing Board & another (1 supra);
(ii) In Shailendra Dania & others v. S.P. Dubey & others (2007) 5 SCC 535);
(iii) In Challa Jaya Bhaskar & others v. Thungathurthi Surender & others (2010) 13 SCC 348);
(iv) In Chandravathi P.K. & others v. C.K. Saji & others (2004) 3 SCC 734);
(v) In Indian Airlines Limited & others v. S.Gopala Krishnan (2001) 2 SCC 362);
(vi) In Vijay Singh Deora & others v. State of Rajasthan & another (1997) 3 SCC 118);
(vii) In N.Sureshnathan & another v. Union of India & others (1992 Supp (1) SCC 584);
(viii) In Roop Chand Adlakha & others v. Delhi Development Authority & others (1989 Supp (1) SCC 116);
(ix) In Union of India & others v. Deo Narain & others (Judgment rendered by the Hon’ble Apex Court in Civil Appeal No.8017 of 2003, dated 15.09.2008);
10. Smt. T.V.Sridevi, learned counsel, while totally supporting and adopting the arguments of Sri J.Sudheer, contends that the post of Agriculture Officer is a post which needs to be filled up by way of transfer from the category of Agricultural Extension Officers, and seniority is not the sole criteria and the post of the Agriculture Officer is a selection post and is to be filled up by way of merit and ability as such Rule 33 of the Andhra Pradesh State and Subordinate Service Rules cannot be applied. In support of her submissions and contentions, she relied on the following decisions.
(i) In State of Gujarat & others v. Arvindkumar T.Tiwari & another (Judgment rendered by the Hon’ble Apex Court in Civil Appeal No.6468 of 2012, dated 14.09.2012);
(ii) In State of Karnataka v. M/s.Hansa Corporation (1980 (0) SCJ Online (SC) 426);
11. In order to consider and resolve the issue on hand, it would be highly essential and imperative to refer to the Rules which govern the subject posts. The posts of Agriculture Officers are governed by the Andhra Pradesh Agricultural Service Rules, 1997 notified vide G.O.Ms.No.16, Agriculture and Co-operation (FP-I) Department, dated 21.1.2000. The relevant provisions are Rules 4 and 6 of the said Rules, which read as under:
"4) MINIMUM SERVICE FOR PROMOTION:- No person shall be eligible for appointment by transfer unless he has put in not less than 3 three years of service in the category from which appointment by transfer is made.
a) No person shall be eligible for appointment to the post of Agriculture Officer by direct recruitment unless he possesses a degree of Bachelor of Science in Agriculture of a recognized University in the State or any other University recognized by Indian council of Agricultural Research.
b) No person shall be eligible for appointment to the post of Agril. Officer by transfer or promotion unless he possesses a degree of Bachelor of Science in Agriculture of a recognized University in the State or any other University recognized by Indian Council of Agricultural Research."
12. It would be very much evident from a reading of the said Rules that on completion of three years’ service in the category of Agriculture Extension Officer, one gets the eligibility to hold the post of Agriculture Officer as per Rule 4. Apart from the said three years’ service as Agriculture Extension Officer, they should also hold a degree in agriculture. The said qualification and eligibility are mandatory as per the 1997 Rules. While referring to the said provisions of law, it is the case of the applicants that the Agriculture Extension Officers, in order to claim the post of Agriculture Officer, are required to have 3 years’ service in the category of Agriculture Extension Officer and should also possess the Degree in Agriculture, and their seniority needs to be reckoned from the date of initial appointment as Agriculture Extension Officers but not from the date posterior to acquiring the degree qualification. It is the further case of the applicants that as per Rule 33 of the A.P. State and Subordinate Service Rules also, they are entitled to have their seniority reckoned from the date of initial appointment.
13. On the contrary, vehemently opposing the said stance of the applicants, the case of the individuals who entered into the service as Agriculture Extension Officers initially with degree qualification is that the seniority of Agriculture Extension Officers needs to be reckoned from the date of acquiring the degree qualification.
14. For the purpose of having a just conclusion, it would be necessary to refer to the judgments cited by either side. First this Court proposes to refer to the judgments cited on behalf of the applicants who were initially appointed with diploma and thereafter acquired degree.
15. Judgments cited on behalf of the applicants/writ petitioners –––
In M.Dakshayani’s case (2 supra), the Hon’ble Apex Court at paragraphs 10 to 13, held as under:
"10. The teaching experience of three years as a Lecturer for the promotion to the post of Assistant Professor is in addition to the Post-Graduate qualification. It does not appear from the scheme of the Rules that the experience of three years should be after acquisition of Post-Graduate Degree. In Anil Kumar Gupta (supra), this Court considered a similar Rule where the essential qualification was a degree and two years professional experience. It was held that the experience of two years after obtaining the degree was not required.
11. The Rules pertaining to promotion as Superintending Engineer fell for interpretation before this Court in A.K. Raghumani's case (supra). The requirement of the Rule was that the Executive Engineer and Surveyor of Works should possess a Degree in Civil/Mechanical Engineering or its equivalent from a recognized institution with 6 years regular service in the grade. The word "with" was interpreted by this Court as follows:
7. The word "with" has been defined in the New Shorter Oxford Dictionary (1993), diversely the meaning depending on the context in which it is used. But when it is used to connect two nouns it means: "Accompanied by; having as an addition or accompaniment. Frequently used to connect two nouns, in the sense 'and' -- 'as well'."
8. Applying the definition to the eligibility criteria it is clear that it requires the prescribed educational qualification and 6 years' experience as well. Given the plain meaning of the phrase, the Court would not be justified in reading a qualification into the conjunctive word and imply the word "subsequent" after the word "with".
12. The High Court was right in relying upon the judgment in A.K. Raghumani's case (supra) to hold that the Rule in the instant case does not require three years teaching experience after acquisition of Post-Graduate Degree. The eligibility criteria for promotion as Assistant Professor are Degree in Medicine, Post-Graduation qualification in Ophthalmology and three years teaching experience as Lecturer. A plain reading of the qualification prescribed for promotion as Assistant Professor would make it clear that three years teaching experience as Lecturer along with a Post-Graduation Degree is sufficient. There is no requirement of three years experience after a person acquires Post- Graduation Degree.
13. There is yet another reason for our conclusion that three years experience as Lecturer for promotion to the post of Assistant Professor need not be after completion of the Post-Graduate Degree. The Recruitment Rules prescribe qualifications for appointment to the posts of Lecturer, Assistant Professor and Associate Professor. The qualifications for appointment to the posts of Assistant Professor and Associate Professor are different. The teaching experience that is required for promotion to the post of Associate Professor and Reader is three years after acquiring Post-Graduate qualification. Whereas, the qualification for promotion to the post of Assistant Professor is teaching experience of not less than three years as a Lecturer. A comparison of the qualifications prescribed for promotion to the posts of Associate Professor and Assistant Professor would make it clear that the prescription of experience after acquisition of Post-Graduate qualification required for promotion to the post of Associate Professor is not part of the qualifications required for promotion as Assistant Professor. A conscious omission of the condition of experience after acquiring Post-Graduate Degree in the qualifications for Assistant Professor supports our view that three years experience as a Lecturer is sufficient. It need not be after completion of Post-Graduation."
In Anil Kumar Gupta’s case (3 supra), the Hon’ble Apex Court at paragraphs 16 to 33, held as under:
"16. On those contentions, the points that arise for consideration are as follows:
(1) Whether the respondents can justify the final order of the High Court on other grounds upon principles referable to Order 41, Rule 22 of the C.P.C. without filing an appeal in time?
(2) Whether, while deciding whether the respondents had two years' experience, the experience gained while holding diplomas could also be counted in addition to the experience gained after obtaining degree?
(3) Whether, in some cases, Justice Jain was right in excluding the period of experience gained before the publication of result, or experience gained before issuance of the certificate of experience?
(4) Whether, on the basis of the answers to Points 2 and 3, the respondents were eligible for appointment as Assistant Engineers?
17. In view of the recent judgment of this Court in Shri Ravindra Kumar Sharma v. The State of Assam, MANU/SC/0561/1999 : AIR1999SC3571 , it is, in our opinion, open to the respondents to attack the adverse findings arrived at or observations made by the High Court, even if the respondents had not filed a separate appeal against that part of the judgment. Hence, the respondents can contend that the finding or observations that their appointments were tainted was not correct. We have also condoned the delay in filing the Special leave petition (CC. 3960/99) and therefore, for both reasons, it will be open to them to attack the said finding in the appeals of the appellants or as appellants in their own Civil appeal arising out of SLP (CC. 3960/99). Point 1 is decided accordingly.
18. On this question, the learned senior counsel Sri P.P. Rao for the selected candidates contended that the experience of the respondents while holding Diploma has to be counted in addition to the period of experience which they obtained after getting their degrees. Reliance in this behalf was placed upon M.B. Joshi v. Satish Kumar Pandey, MANU/SC/0684/1993 : (1994)ILLJ414SC and D. Stephen Joseph v. Union of India, MANU/SC/0678/1997 : 3SCR1040 . On the other hand, learned senior counsel for the appellants, Sri Rakesh Dwivedi, Sri Ravinder Sethi and Sri S.B. Sanyal contended that the experience of the respondents while holding diploma, could not be counted. They relied upon N. Suresh Nathan v. Union of India, MANU/SC/0101/1992 : AIR1992SC564.
19. We may point out that in the present case, the relevant provisions applicable and the notification dated 30.6.89 inviting applications refer to essential qualification as (i) Degree and (ii) 2 years' 'professional' experience. As stated earlier, experience upto 2 years is the minimum and those above 2 years, get 1/2 marks each year's experience ranging between 3 to 12 years, the maximum marks being 5 for experience.
20. We may at the outset state that the provision regarding experience speaks only of "professional experience" for two years and does not, in any manner, connect it with the degree qualification. In our view, the case on hand is similar to Subhash v. State of Maharashtra, where, while considering Rule 3(e) of the relevant Recruitment Rules, namely, the Maharashtra Motor Vehicles Department (Recruitment) Rules, 1991, this Court pointed out that the Rule 3(e) which required one year experience in registered Automobile Workshop did not make any difference between acquisition of such experience prior to or after the acquisition of the basic qualification.
21. It is true, in N. Suresh Nathan's case, the experience of a candidate while holding diploma was not counted. There the relevant rules stated:
“Section Officers possessing a recognised Degree in Civil Engineering or equivalent with three years' service in the grade failing which Section Officers holding Diploma in Civil Engineering with six years' service in the grade.”
22. This Court based its decision initially on the practice obtaining in the department over a long number of years when the rules were understood as requiring full service of three years after obtaining the degree. On that basis it was held that service was not to include service while holding a diploma. Suresh Nathan's case was, however, distinguished in M.B. Joshi's case. In the latter case the relevant rule referred to (i) Diploma holder Sub Engineers completing 12 years of service 35% (ii) Draftsman & Head Draftsman completing 12 years of service (iii) Graduate Sub-Engineers completing 8 years of service 10%. The Court was concerned with category (iii). It was pointed out that the Rule did not contemplate any equivalence between a degree with particular number of years of service as in N. Suresh Nathan's case. It was observed that the Rules in M.B. Joshi's case:
"clearly provide that the diploma holders having obtained a degree of engineering while continuing in service as Sub-Engineers shall be eligible for promotion to the post of Asst. Engineer in 8 years of service and quota of 10 per cent posts has been earmarked for such category of persons".
The judgment in M.B. Joshi's case supports the case of the respondents.
23. The above ruling in M.B. Joshi was followed in D. Stephen's case. In that case, this Court again distinguished N. Suresh Nathan's case. This Court however cautioned that any practice which was de hors a Rule could be no justification for the department to rely upon. Such past practice must relate to the interpretation of a rule in a particular manner. This Court then followed M.B. Joshi's case as being one where the language of the rule was specific that
"if a particular length of services in the feeder post together with educational qualification enables a candidate to be considered for promotions, it will not be proper to count the experience only from the date of acquisition of superior educational qualification because such interpretation will violate the very purpose to give incentive to the employee to acquire higher education".
This decision in D. Stephen's case also supports the case of the respondents.
24. Therefore, on the language of the notification dated 30.6.89, we are of the view that the 2 years professional experience need not entirely be experience gained after obtaining the degree.
25. It is true that in one of the counter-affidavits in CWP 606/1985, the MCD took the view that the experience ought to be after acquiring degree. But the clarification of the UPSC dated 13.9.85 addressed to the MCD made it clear that the entire service including the service rendered before obtaining degree was to be taken into consideration. This letter has, in fact, been relied upon by the learned Single Judge of the High Court for holding that service rendered before acquiring the degree was to be counted.
26. For the aforesaid reasons, we hold that the service rendered by the Diploma holders before obtaining degree can also to be counted.
Point 3 and 4:
27. The dispute regarding ineligibility centers round 18 candidates before us. Here, there are two categories. In regard to some of them, Justice Jain held that they were beyond 30 years by the cut off date while in regard to others he held that they did not have the required professional experience of two years.
28. So far as the first category is concerned, they were all MCD employees earlier and age was relaxable as per the advertisement. Further, in view of the 'consent' between parties in the High Court and before us, those who were selected by the MCD in spite of exceeding 30 years and who otherwise were held by Justice Jain as having secured the necessary marks, are to be retained. There is no difficulty so far as these persons are concerned.
29. Coming to the second category, so far as Dalip Ramnani was concerned, rejection of his case by Justice Jain was based mainly upon the suspicion regarding the genuineness of two certificates of ICMCP Ltd., Gurgaon as regards his experience. Now, the High Court has held that Justice Jain was wrong in suspecting these certificates. On that finding of the High Court, the position will be that he will have to be treated as having more than two years experience, for the entire period often months from 1.4.86 to 31.1.87 in ICMCP will have to be counted rather than only two months and 14 days in ICMCP as done by Justice Jain. According to Justice Jain, his experience otherwise came down to 1 year, 7 months, 1 day. If, therefore, the entire ten months and not merely 2 months, 14 days period is taken into consideration, that will add up 7 months, 16 days, more making the experience 2 years, 2 months, 17 days.
30. Coming to Sri R.K. Ailawadi, Justice Jain held that he got his degree on 29.7.87, the marks sheet is dated 24.7.87. Justice Jain considered his experience in Bhasin Construction Co. for the period 17.87 to 22.8.88 as 1 year, 1 month, 22 days and as JE in MCD from 23.8.88 to 31.7.89 as 11 months, 9 days, in all 2 years, 1 month, 1 day. Justice Jain excluded the experience prior to 24.7.87. Similarly, in the case of Naresh Gupta, the marks certificate is dated 24.7.87 and the service in Aggarwal & Co. is from 15.6.87 to 30.11.88 (1 year, 5 months, 16 days) and as JE in MCD is from 1.12.88 to 31.7.89 (8 months). If the service from 15.6.87 to 23.7.87 is not to be considered, the candidate will be ineligible.
31. The issue relating to Mr. Ailwadi and Mr. Naresh Gupta is a common issue. In the case before us, the words used in the rules and notification are 'professional experience' of two years. The narrow question is whether the experience gained after the examination and before the publication of results, can be taken into account. We may point out that this issue does not concern itself with a question sometimes raised in relation to cases where the result of the examination is not declared before the date of advertisement or last date of receipt of application and is announced after such date. Such cases may stand on a different footing. We are aware that, in regard to those cases, there are various rulings of this Court as to which is the crucial date. Here we are not concerned with such an issue because the advertisement is of 1989 and long before that in all the cases, the degree results were announced and degree certificates/marks sheets were also obtained. We are here concerned with a limited question as to whether the experience gained after campus selection, i.e., after final examination in BE was over and before publication of result of BE examination/or marks certificate, could be treated as 'professional experience'.
32. In the context of the advertisement in this case and the facts - including the rival pleas as to 'consent' in the High Court, we are disinclined to hold that the experience rendered before actual announcement of results is to be excluded. We are dealing with a case in which no argument as the one raised before us was advanced in the High Court on this issue. Added to this, the rival claims as to 'consent' of parties in the High Court remain. We are, therefore, not inclined to disturb the conclusion of the High Court so far as these two officers are concerned.
33. Justice Jain has found Sri Dinesh Yadav, Sunil Kumar, Saminder Negi, Ramesh Kumar, A.K. Mittal and S.K. Mehta eligible by counting their experience while they held Diploma. These officers passed BE or AMIE later but long before the advertisement. Our decision on Point 2 holds good and Justice Jain was right in counting their predegree service."
In M.B.Joshi’s case (4 supra), the Hon’ble Apex Court at paragraphs 12 to 16 held as under:
"12. In the cases before us 50 per cent of the posts of Assistant Engineers has to be filled by direct recruitment of persons having degree of graduation in engineering. The remaining 50 per cent of the vacant posts are to be filled by promotion from the lower cadre of Sub-Engineer and Draftsman. Out of this 50 per cent, 35 per cent quota is fixed for diploma-holders who have completed 12 years of service on the post of Sub-Engineer, 5 per cent quota for Draftsman who have completed 12 years of service and the remaining 10 per cent with which we are concerned has been kept for such Sub-Engineers who during the continuation of their service obtained a degree of graduation or equivalent in engineering and in that case the period of service is reduced from 12 years to 8 years. The Rules in our case do not contemplate any equivalence of any period of service with the qualification of acquiring degree of graduation in engineering as was provided in express terms in N. Suresh Nathan's case making three years service in the grade equivalent to degree in engineering. In our opinion, in the Rules applicable in the cases before us clearly provide that the diploma-holders having obtained a degree of engineering while continuing in service as Sub- Engineers shall be eligible for promotion to the post of Assistant Engineer in 8 years of service and quota of 10 per cent posts, has been earmarked for such category of persons.
13. If we accept the contention of Mr. Ashok Sen, it would defeat the very scheme and the purpose of giving incentive of adding educational qualification by diploma-holders while continuing in service in case the period of 8 years is counted from the date of obtaining graduate degree in engineering. It may be noted that no such argument was raised even from the side of the respondents before the Tribunal. If such interpretation as now sought to be advanced by Mr. Ashok Sen, learned senior counsel is accepted, no relief could have been granted to the respondent Satish Kumar Pandey. We would illustrate the above position on admitted facts that Shri Satish Kumar Pandey had joined as Sub- Engineer on 23.8.1980, but had acquired the degree of engineering in May, 1987. In that situation, Mr. Satish Kumar becomes eligible only in May 1995 and he could not be considered as eligible in December 1989 when these Sub-Engineers were considered for promotion as Assistant Engineers. Even otherwise, if this period of 8 years is counted from the date of acquiring degree then this incentive of adding the qualification during the continuation of service and getting the advantage of acceleration in promotion in 8 years would for all practical purposes become nugatory and of no benefit.
14. It is further important to note that in the cases before us, the Government itself has been adopting the practice and making promotion as contended by the appellants and we are upholding such practice. In N. Suresh Nathan's case also this Court had upheld the practice followed by the Government. It is also well- settled principle of service jurisprudence that in the absence of any specific rule, the seniority amongst persons holding similar posts in the same cadre has to be determined on the basis of the length of service and not on any other fortuitous circumstance.
15. Though, in the cases of special leave petitions filed by Shri Ram Sharan Gupta and Ors. v. The State of M.P. and Ors. and Shri N.N. Asthana and Anr. v. Shri Harish Kumar Ahuja and Ors., the parties belonged to the Irrigation Department of the State of Madhya Pradesh and were governed with different set of rules, but the controversy arising in these cases is amply covered with the view taken by us and determined in the manner indicated above.
16. In these circumstances mentioned above, we are clearly of the view that the Tribunal was wrong in determining the seniority from the date of acquiring degree of engineering and it ought to have been determined on the basis of length of service on the post of Sub-Engineer and the State Government was right in doing so and there was no infirmity in the orders passed by the Government. In the result, we allow these appeals, st aside the orders of the Tribunal dated 15.10.1991. 28.11.1991 and 17.9.1991 and uphold the orders passed by the Government. in all these cases. In the facts and circumstances of the case, no order as to costs."
In B.Prashanth’s case (5 supra), a Division Bench of this Court at paragraph No.4 held as under:
"4. Rules 1, 2, 11 of Annexure IV to Rule 29(2) of the Andhra Pradesh Ministerial Service Rules read:
"1. Appointment to the service may be made to the category of Senior Assistants in the Revenue Department by direct recruitment of person for employment as Probationary Revenue Inspectors in any district.
2. Such appointment shall be made once in a year for each district and not more than one such appointment shall be made in a district on each occasion.
11. (i) For every such person there shall be reserved a substantive vacancy arising in the permanent cadre of the category of Senior Assistants in the Revenue Department in the district concerned after his appointment; and such person shall, on satisfactorily completing the prescribed period of his probation, be promoted as a full member of the service in that category with effect from the date on which the vacancy arose.
(ii) If no such vacancy has arisen and been reserved for him, he shall, on satisfactorily completing the prescribed period of his probation, be appointed to an acting, temporary or officiating vacancy in the permanent cadre of the category of Senior Assistants in the Revenue Department in the district concerned; and shall be appointed to be a full member of the service in any substantive vacancy next arising on that cadre."
In our considered opinion, clause (i) of Rule 11 of Annexure IV is quite precise, clean, plain and unambiguous and it does not admit more than one meaning. In the instant case, there is no controversy on facts. The admitted facts are that the 1st respondent in each of these writ petitions claims to have been appointed as Probationary Revenue Inspector against the substantive vacancies arising in the permanent cadre of the category of Senior Assistants in the Revenue Department on completion of the prescribed period of probation. In view of these admitted facts and by force of the phrase "with effect from the date on which the vacancy arose" occurring in Rule 11(i), it becomes quite clear that the 1st respondent in each of these writ petitions should be deemed to have been appointed as Probationary Revenue Inspector from the date on which the respective vacancies against which the petitioners were appointed arose. It is true that Rule 11(i) as such does not deal with seniority at all. It is also not the argument of Sri J. Manohar Rao, that Rule 11(i) deals with seniority and seniority has to be determined in terms of that rule. The learned Government Pleader is quite right in saying that the appropriate rule to determine seniority is Rule 33 of the A.P. State and Subordinate Service Rules only. The language employed in Rule 33 of the A.P. State and Subordinate Service Rules, is also quite clear and unambiguous. The seniority of a person in a service, class, category or grade has to be determined with reference to the date of his first appointment. The crucial phrase in clause (a) of Rule 33 of the A.P. State and Subordinate Service Rules is "the date of his first appointment". The question is how this phrase should be understood and interpreted. The question to be considered is as regards the 1st respondents who are appointed as Probationary Revenue Inspectors under Rule 11(i), what is the date of their first appointment within the meaning and purport of Rule 33(a)? Can it be said that the actual date on which the office orders are issued appointing the respondents as Probationary Revenue Inspectors is "the date of their first appointment" within the meaning of that phrase occurring under section 33(a) or the date of appointment envisaged under the deeming clause incorporated in Rule 11(i) of the rules. When Rule 11(i) in unmistakable term mandates that whenever substantive vacancies arising in the permanent cadre of the category of Senior Assistants in Revenue Department are filled up under Rule 11(i), those persons should be deemed to have been appointed with effect from the date on which the vacancies arose. In that view of the matter, while determining the seniority of the Probationary Revenue Inspectors appointed under Rule 11(i), in terms of 33(a) of the A.P. State and Subordinate Service Rules, the date on which those Probationary Revenue Inspectors are deemed to have been appointed should be the date of their first appointment within the meaning of that phrase occurring under Rule 33(a). Therefore, the view taken by the learned Tribunal that before applying the Rule 33(a) of the A.P. State and Subordinate Service Rules, the authorities should appoint the Probationary Revenue Inspectors strictly in accordance with the provisions of para 11(i)(ii) of Annexure IV to Rule 29(2) of the A.P. Ministerial Service Rules is unexceptionable, and it is in consonance with the rule position. The Government order G.O. Ms. No. 607, General Administration (Services-A) Department, dated 6-11-1992 is of no help to the petitioners herein. We say this because, in the first place, this G.O. was not in existence when the contesting respondents were appointed as Probationary Revenue Inspectors under para 11(i)(ii) of Annexure IV to Rule 29(2) of the A.P. Ministerial Service Rules. Secondly, the said G.O. cannot be said to be clarificatory in nature. We say this because, as per the preamble to the Government order, the Government of Andhra Pradesh after noticing several conflicting judicial pronouncements, thought it fit to enact the rule under the proviso to Article 309 of the Constitution with non-substantive clause, to give a quietus to the then existing uncertainly. It reads:
"Ad hoc rule:--Notwithstanding anything contained in the relevant Special Rules or the Ad hoc Rules for the State and Subordinate Services, the quota/rota, if any prescribed in the said Special Rules/Ad hoc Rules shall apply only for determining the number of vacancies earmarked for recruitment by promotion and appointment by transfer and for direct recruitment are not for determining their inter se seniority. Their inter se seniority shall be determined in accordance with General Rule 33(a) and (b) of the State and Subordinate Service Rules."
The above rule is not brought into force with retrospective effect. Therefore, it cannot be applied in the case of the 1st respondent-employees."
In G.Shravan Kumar Reddy’s case (6 supra), a Division Bench of this Court at paragraphs 19 and 20 held as under:
"19. It is not in serious controversy that the writ petitioner and the unofficial respondent had been allotted to the respective Districts/ District Units and they were appointed to the Units concerned and their regularisation in the cadre of Mines Inspector was done by the respective appointing authorities, the Assistant Directors of Mines and Geology, in accordance with the general Rules 23 and 25. Rule 34 of the A.P. State and Subordinate Services Rules, 1996 reads as hereunder:
Preparation of integrated or common seniority list of persons belonging to different units of appointment: Where an integrated or common seniority list of a particular class, or category or grade in any Service belonging to different units of appointment has to be prepared for the purpose of promotion or appointment by transfer to a class or category having different units of appointment or for any other purpose, such an integrated or common seniority list shall be prepared with reference to the provision of Sub-rule (a) of Rule 33, provided that the seniority list of the persons inter se belonging to the same units shall not be disturbed.
Explanation:--The principle specified in this rule shall be applicable even where a common integrated list is required to be prepared for categories in different services, classes or categories.
Rule 5 of the Special Rules issued in G.O.Ms. No. 215, dated 13-5-1970 dealing with Probation reads as hereunder:
"The person appointed to the post shall from the date on which he joins duty be on probation for a total period of two years on duty within a continuous period of three years".
Rule 33 of the A.P. State and Subordinate Services Rules, 1962 deals with seniority and Rules 33(b) reads:
"The appointing authority may, at the time of passing an order appointing two or more persons simultaneously to a service, fix either for the purpose of satisfying the rule of reservation of appointments or for any other reason the order of preferences among them, and where such order has been fixed, seniority shall be determined in accordance with it.
Provided that for the purpose of promotion to the next higher category of Gazetted posts, inter se seniority of persons recruited direct to the subordinate services during the period commencing on the 1st November, 1956 and ending with 31st December, 1973 separately in Andhra and Telangana regions, shall be determined by the ranking assigned by A.P. Public Service Commission in the common ranking or by the competent authority as the case may be, after following the rule of reservation".
In the light of the Special Rules issued in G.O.Ms. No. 215, dated 13-5-1970 referred to supra, the services of the writ petitioner and others had been regularized in accordance with the said Rules and the General Rules, in their respective Units of appointment by the concerned appointing authorities. It is also not in serious controversy that the seniority in the category of Inspector of Mines had been settled long prior to 12 years and after such long lapse of time a representation is made by 3rd respondent to disturb the said seniority on the ground of his merit obtained in A.P. Public Service Commission. It is pertinent to note that the effect of the representation and the impugned show-cause notice is to alter the dates of regularisation after a lapse of 12 years after the writ petitioner had been promoted to two higher categories i.e., Technical Assistant and also Royalty Inspector. The regularisation orders had been issued in the light of Rule 5 of the Rules under G.O.Ms. No. 215, dated 13-5-1970 and also in accordance with the General Rule 23(a) of A.P. State and Subordinate Services Rules, 1962 as the said Rules were operative during the said period. The A.P. State and Subordinate Services Rules of 1996 came into force long subsequent thereto and on the strength of the amended Rules also, the present representation had been made by the 3rd respondent to disturb the seniority already fixed which would result in unsettling the seniority fixed long back. No doubt, submissions at length were made to the effect that it is only at the stage of show cause notice and hence at this stage inasmuch as opportunity had been given to file objections, all the objections if any can be raised before the 2nd respondent and hence it would not be appropriate to interfere with the Memo issued by the 2nd respondent at this stage.
20. As can be seen from the respective pleadings of the parties and also the material available on record and the impugned order of the Tribunal, several of the facts are not in controversy. Seniority was fixed in the respective District Units and the fact that the writ petitioner and the 3rd respondent are in different District Units also is not in serious controversy. Subsequent thereto some promotions also had been given and ultimately for the reason that for further promotions his chances would be affected, at this point of time, the 3rd respondent thought of making the present representation. In P. Mohan Reddy v. E.A.A. Charles, MANU/SC/0108/2001 : 1SCR1068 while deciding the aspect of seniority, the Apex Court held that the right to get seniority determined as per rules in force at the time of his recruitment vests in an employee and redetermination of seniority on the basis of amended seniority rule can be done only if amended rule is given retrospective effect and seniority not to be changed over and over again as and when there are changes of criteria. Reliance also was placed on Dasari Satyanarayana v. Bapayya and Anr., MANU/AP/0100/1963 : AIR1963AP148 to show that a writ of certiorari of this nature can be issued in view of the fact that the 2nd respondent lacks jurisdiction to issued show-cause notice impugned in the O.A. In B.S. Bajwa and Anr. v. State of Punjab and Ors. 1998 (1) Supreme 217 it was held that in service matters the question of seniority not to be reopened after lapse of a reasonable period because that results in disturbing the settled position which is not justifiable. No doubt an attempt was made to distinguish these decisions on facts. In Narravula Kotam Raju v. Regional Deputy Director of Fisheries, Kakinda and Ors., MANU/AP/0372/2001 : 2001(3)ALD649 the Division Bench held that inter se seniority of employees would be governed by Rules existing at the relevant point of time and the inter se seniority of respective candidates fixed after due notice and after considering the objections raised and as per the Rules then existing cannot be reopened after a long lapse of time by reason of subsequent amendment of relevant Rule or insertion of new Rule particularly when candidates were promoted to more than one post meanwhile. Reliance also was placed on M. Shyam Sunder and Ors. v. Government of A.P. and Ors., MANU/AP/0630/2001 : 2001(6)ALD87 (D.B.) wherein it was held that altering the date of regularisaton as well as seniority of promotee engineers contrary to the earlier G.Os.259 and 260 which have been sustained earlier by the High Court as well as Supreme Court is illegal and the Government cannot exercise powers of review for the second time under paragraph 13 of the Presidential Order and the impugned order is violative of the principles of natural justice. Reliance also was placed on Union of India and Ors. v. Upendra Singh 9 SC SR 542."
In Prasana Kumar Sahoo’s case (7 supra), the Hon’ble Apex Court at paragraph No.13 held as under:
"Even a policy decision taken by the State in exercise of its jurisdiction under Article 162 of the Constitution of India would be subservient to the recruitment rules framed by the State either in terms of a legislative act or the proviso appended to Article 309 of the Constitution of India. A purported policy decision issued by way of an executive instruction cannot override the statute or statutory rules far less the constitutional provisions.
In A. Umarani v Registrar, Cooperative Societies and Others [(2004) 7 SCC 112], this Court has held;
"45. No regularisation is, thus, permissible in exercise of the statutory power conferred under Article 162 of the Constitution if the appointments have been made in contravention of the statutory rules."
In Siddabloina Laxminarayana’s case (8 supra), a Division Bench of this Court at paragraphs 15 and 16 held as under:
"15. The main contention on behalf of nontribals is that these two memos are per se arbitrary and illegal and contrary to G.O.Ms. No. 3, dated 10- 01-2000, which provide that all posts of teachers in the schools situated in scheduled areas in the State of Andhra Pradesh shall be filled in by local Scheduled Tribe candidates only. There cannot be any dispute that executive instructions or Government orders cannot override the statutory rules. Executive or administrative instructions usually comprise directions or policy matters issued by the State in exercise of its executive power. Article 162 of the Constitution lays down what is the extent of the executive power of the State.
16. Learned counsel for the respondents relied on a decision reported in State of Uttaranchal v. Alok Sharma and Others MANU/SC/0591/2009 : 2009 (5) SCJ 368, wherein it was observed that statutory rule cannot be modified or altered by reason of an executive instructions far less by way of a circular letter. In State of M.P. v. G.S. Dall and Flour Mills MANU/SC/0191/1991 : AIR 1991 SC 772, it is held thus:
The second ground on which the Full Bench has sought to invoke the instructions is also not correct. Executive instructions can supplement a statute or cover areas to which the statute does not extend. But they cannot run contrary to statutory provisions or whittle down their effect.
From the above definition, it is clear that executive instructions may supplement but not supplant statutory rules. In B.N. Nagarajan v. State of Karnataka MANU/SC/0450/1979 : AIR 1979 SC 1676, it is held thus:
Apart from repelling the contention that regularisation connotes permanence, these observations furnish the second reason for rejection of the argument advanced on behalf of the promotees and that reason is that when rules framed under Art. 309 of the Constitution of India are in force, no regularisation is permissible in exercise of the executive powers of the Government under Art 162 thereof in contravention of the rules. THE regularisation order was made long after the Probation Rules, the Seniority Rules and the Recruitment Rules were promulgated and could not therefore direct something which would do violence to any of the provisions thereof. Regularisation in the present case, if it meant permanence operative from the 1st of Nov. 1956, would have the effect of giving seniority to promotees over the direct recruits who, in the absence of such regularization, would rank senior to the former because of the Seniority Rules read with the Probation Rules and may in consequence also confer on the promotes a right of priority in the matter of sharing the quota under the Recruitment Rules. In other words, the regularisation order, in colouring the appointments of promotees as Assistant Engineers with permanence would run counter to the rules framed under Art. 309 of the Constitution of India. What could not be done under the three sets of Rules as they stood, would thus be achieved by an executive flat. And such a course is not permissible because an act done in the exercise of the executive power of the Government, as already stated, cannot override rules framed under Art. 309 of the Constitution.
From the above, it is clear that executive instructions cannot override or contradict statutory rules. Where the rules are silent, administrative instructions can be relied upon. The administrative instructions operate when there are gaps in the rules and they are meant for supplementing the rules or legislation."
In P.S.Ghalaut’s case (9 supra), the Hon’ble Apex Court at paragraph No.5 held as under:
"5. The Chief Secretary in his letter obviously was in error in directing to maintain in the roaster the same inter seniority maintained by the Public Service Commission or Selection Committee. If that is given effect to, the roaster points would remain unfilled and rotation therein get disturbed. It is obvious that the interpretation of the Rule by the Chief Secretary was found favour with the Division Bench which was strongly relied upon by the appellant. The order of merit indicated in the second proviso would be applicable only inter se to the general candidates or reserved candidates but gets changed when vacancies are filled up as per roaster and appointments are made thereunder. The High Court, therefore, was right in holding that the 2nd proviso to Rule 13 is inapplicable to the facts and was also right in its finding that when appointments are made to fill up the vacancies in the order of roaster, the order of merit prepared by the Selection Committee get changed. In these circumstances, the appeal is dismissed but without costs."
In Bimlesh Tanwark’s case (10 supra), the Hon’ble Apex Court at paragraph No.52 held as under:
"51. In this case also, although there does not exist any statutory rule but the practice of determining inter se seniority on the basis of the merit list has been evolved on interpretation of the Rules. A select list is prepared keeping in view the respective merit of the candidates. not only appointments are required to be made on the basis of such merit list, seniority is also to be determined on that basis as it is expected that the candidates should be joining their respective posts almost at the same time. Yet again in Chairman, Puri Gramya Bank and Anr. v. Ananda Chandra Das and Ors. MANU/SC/0854/1994 : (1994)6SCC301 this court held:
"It is settled law that if more than one are selected, the seniority is as per ranking of the direct recruits subject to the adjustment of the candidates selected on applying the rule of reservation and the roster. By mere fortuitous chance of reporting to duty earlier would not alter the ranking given by the Selection Board and the arranged one as per roster. The High Court is, therefore, wholly wrong in its conclusion that the seniority shall be determined on the basis of the joining reports given by the candidates selected for appointment by direct recruitment and length of service on its basis."
In Suresh Chandra Jha’s case (11 supra), the Hon’ble Apex Court at paragraph No.8 held as under:
"6. Since there was no rule in operation, obviously the ranking in the merit list was to decide the respective seniority. The ratio in Chairman, Puri Gramya Bank's case (supra) has full application to the facts of the case. Appellant's claim that he was to be treated as senior to the respondent No. 8 was rightly accepted by learned Single Judge. Unfortunately, the Division Bench did not address itself to the specific question and has placed undue stress on the respondent No. 8 having joined earlier."
In A.P.Jaiswal’s case (12 supra), the Hon’ble Apex Court at paragraph No.24 held as under:
"24. Consistency is the cornerstone of the administration of justice. It is consistency which creates confidence in the system and this consistency can never be achieved without respect to the rule of finality. It is with a view to achieve consistency in judicial pronouncements, the courts have evolved the rule of precedents, principle or stare decisis etc. These rules and principles are based on public policy and if these are not followed by courts then there will be chaos in the administration of justice, which we see in plenty in this case. This Court in the case of S.I. Rooplal and Anr. v. Lt Governor through Chief Secretary, Delhi and Ors. MANU/SC/0776/1999 : 1999 7 Scale 466 held thus:
At the outset, we must express our serious dissatisfaction in regard to the manner in which a Coordinate Bench of the tribunal has overruled, in effect, an earlier judgment of another Coordinate Bench of the same tribunal. This is opposed to all principles of judicial discipline. If at all, the subsequent Bench of the tribunal was of the opinion that the earlier view taken by the Coordinate Bench of the same tribunal was incorrect, it ought to have referred the matter to a larger Bench so that the difference of opinion between the two Coordinate Benches on the same point could have been avoided. It is not as if the latter Bench was unaware of the judgment of the earlier Bench but knowingly it proceeded to disagree with the said judgment against all known rules of precedents. Precedents which enunciate rules of law form the foundation of administration of justice under our system. This is a fundamental principle which every Presiding Officer of a Judicial Forum ought to know, for consistency in interpretation of law alone can lead to public confidence in our judicial system. This Court has laid down time and again precedent law must be followed by all concerned, deviation from the same should be only on a procedure known to law. A subordinate court is bound by the enunciation of law made by the superior courts. A Coordinate Bench of a Court cannot pronounce judgment contrary to declaration of law made by another Bench. It can only refer it to a larger Bench if it disagrees with the earlier pronouncement."
In B.Premchand’s case (13 supra), the Hon’ble Apex Court at paragraphs 15, 16, 19 and 33 held as under:
"15. In M/s. Hiralal Ratanlal v. STO MANU/SC/0553/1972 : AIR 1973 SC 1034, this Court observed:
In construing a statutory provision the first and foremost rule of construction is the literaly construction. All that the Court has to see at the very outset is what does the provision say. If the provision is unambiguous and if from the provision the legislative intent is clear, the Court need not call into aid the other rules of construction of statutes. The other rules of construction are called into aid only when the legislative intent is not clear.
16. It may be mentioned in this connection that the first and foremost principle of interpretation of a statute in every system of interpretation is the literal rule of interpretation. The other rules of interpretation e.g. the mischief rule, purposive interpretation etc. can only be resorted to when the plain words of a statute are ambiguous or lead to no intelligible results or if read literally would nullify the very object of the statute. Where the words of a statute are absolutely clear and unambiguous, recourse cannot be had to the principles of interpretation other than the literal rule, vide Swedish Match AB v. Securities and Exchange Board, India MANU/SC/0693/2004 : AIR 2004 SC 4219. As held in Prakash Nath Khanna v. C.I.T. MANU/SC/0134/2004 : 2004 (9) SCC 686, the language employed in a statute is the determinative factor of the legislative intent. The legislature is presumed to have made no mistake. The presumption is that it intended to say what it has said. Assuming there is a defect or an omission in the words used by the legislature, the Court cannot correct or make up the deficiency, vide Delhi Financial Corporation v. Rajiv Anand MANU/SC/1105/2004 : 2004 (11) SCC 625. Where the legislative intent is clear from the language, the Court should give effect to it, vide Government of Andhra Pradesh v. Road Rollers Owners Welfare Association MANU/SC/0653/2004 : 2004(6) SCC 210, and the Court should not seek to amend the law in the garb of interpretation.
19. In other words, once we depart from the literal rule, then any number of interpretations can be put to a statutory provision, each Judge having a free play to put his own interpretation as he likes. This would be destructive of judicial discipline, and also the basic principle in a democracy that it is not for the Judge to legislate as that is the task of the elected representatives of the people. Even if the literal interpretation results in hardship or inconvenience, it has to be followed (see G.P. Singh's Principles of Statutory Interpretations, 9th Edn. pp 45-49). Hence departure from the literal rule should only be done in very rare cases, and ordinarily there should be judicial restraint in this connection.
33. We may mention here that the literal rule of interpretation is not only followed by Judges and lawyers, but it is also followed by the lay man in his ordinary life. To give an illustration, if a person says "this is a pencil", then he means that it is a pencil; and it is not that when he says that the object is a pencil, he means that it is a horse, donkey or an elephant. In other words, the literal rule of interpretation simply means that we mean what we say and we say what we mean. If we do not follow the literal rule of interpretation, social life will become impossible, and we will not understand each other. If we say that a certain object is a book, then we mean it is a book. If we say it is a book, but we mean it is a horse, table or an elephant, then we will not be able to communicate with each other. Life will become impossible. Hence, the meaning of the literal rule of interpretation is simply that we mean what we say and we say what we mean."
14. Judgments cited by the learned counsel for the unofficial respondents——
In K.K.Dixit’s case (1 supra), the Hon’ble Apex Court at paragraph No.34 held as under:
"31. So far as the word 'total' occurring before the words 'experience of service' is concerned, from the circumstances and past history relating to the service, it must be understood in the context of service rendered in regular capacity along with service rendered on ad-hoc or officiating or temporary basis. The word 'total' cannot be construed to mean service rendered either as diploma holder or degree holder. If this had been the intention, the word 'total' would have been included only in the context of three years' total experience of service of degree holders and not in the context of seven years' experience of service as diploma holders. A diploma holder in any case is required to have seven years' experience of service for being eligible for promotion and hence the word 'total' would be otiose or redundant in the aforesaid context. No doubt, the High Court has now clarified and held that service rendered on ad-hoc or officiating basis prior to regularization cannot be counted for acquiring eligibility for promotion and that aspect is no longer under controversy. Hence the use of the word 'with' or 'total' in the relevant Regulation does not make any difference and the judgment in the case of Shailendra Dania (supra) applies to the present case, as contended by learned Counsel for the Appellants."
In Shailendra Dania’s case (14 supra), the Hon’ble Apex Court at paragraphs 43 to 45 held as under:
"43. Taking into consideration the entire scheme of the relevant rules, it is obvious that the diploma-holders would not be eligible for promotion to the post of Assistant Engineer in their quota unless they have eight years' service, whereas the graduate Engineers would be required to have three years' service experience apart from their degree. If the effect and intent of the rules were such to treat the diploma as equivalent to a degree for the purpose of promotion to the higher post, then induction to the cadre of Junior Engineers from two different channels would be required to be considered similar, without subjecting the diploma-holders to any further requirement of having a further qualification of two years' service. At the time of induction into the service to the post of Junior Engineers, Degree in Engineering is a sufficient qualification without there being any prior experience, whereas diploma-holders should have two years' experience apart from their diploma for their induction in the service. As per the service rules, on the post of Assistant Engineer, 50% of total vacancies would be filled up by direct recruitment, whereas for the promotion specific quota is prescribed for a graduate Junior Engineer and a diploma-holder Junior Engineer. When the quota is prescribed under the rules, the promotion of graduate Junior Engineers to the higher post is restricted to 25% quota fixed. So far as the diploma-holders are 'concerned, their promotion to the higher post is confined to 25%. As an eligibility criterion, a degree is further qualified by three years' service for the Junior Engineers, whereas eight years' service is required for the diploma-holders. Degree with three years' service experience and diploma with eight years' service experience itself indicates qualitative difference in the service rendered as degree-holder Junior Engineer and diploma-holder Junior Engineer. Three years' service experience as a graduate Junior Engineer and eight years' service experience as a diploma-holder Junior Engineer, which is the eligibility criteria for promotion, is an indication of different quality of service rendered. In the given case, can it be said that a diploma-holder who acquired a degree during the tenure of his service, has gained experience as an Engineer just because he has acquired a Degree in Engineering. That would amount to say that the experience gained by him in his service as a diploma-holder is qualitatively the same as that of the experience of a graduate Engineer. The rule specifically made difference of service rendered as a graduate Junior Engineer and a diploma-holder Junior Engineer. Degree-holder Engineer's experience cannot be substituted with diploma-holder's experience. The distinction between the experience of degree-holders and diploma-holders is maintained under the rules in further promotion to the post of Executive Engineer also, wherein there is no separate quota assigned to degree-holders or to diploma-holders and the promotion is to be made from the cadre of Assistant Engineers. The rules provide for different service experience for degree-holders and diploma-holders. Degree-holder Assistant Engineers having eight years of service experience would be eligible for promotion to the post of Executive Engineer, whereas diploma-holder Assistant Engineers would be required to have ten years' service experience on the post of Assistant Engineer to become. eligible for promotion to the higher post. This indicates that the rule itself makes differentia in the qualifying service of eight years for degree-holders and 10 years' service experience for diploma holders. The rule itself makes qualitative difference in the service rendered on the same post. It is a clear indication of qualitative difference of the service on the same post by a graduate Engineer and a diploma-holder Engineer. It appears to us that different period of service attached to qualification as an essential criterion for promotion is based on administrative interest in the service. Different period of service experience for degree-holder Junior Engineers and diploma-holder Junior Engineers for promotion to the higher post is conducive to the post manned by the Engineers. There can be no manner of doubt that higher technical knowledge would give better thrust to administrative efficiency and quality output. To carry out technical specialized job more efficiently, higher technical knowledge would be the requirement. Higher educational qualifications develop broader perspective and therefore service rendered on the same post by more qualifying person would be qualitatively different.
44. After having an overall consideration of the relevant rules, we are of the view that the service experience required for promotion from the post of Junior Engineer to the post of Assistant Engineer by a degree-holder in the limited quota of degree-holder Junior Engineers cannot be equated with the service rendered as a diploma-holder nor can be substituted for service rendered as a degree-holder. When the claim is made from a fixed quota, the condition necessary for becoming eligible, for promotion has to be complied with. The 25% specific quota is fixed for degree-holder - Junior Engineers with the experience of three years. Thus, on a plain reading, the experience so required would be as a degree-holder Junior Engineer. 25% quota for promotion under the rule is assigned to degree-holder Junior Engineers with three years' experience, whereas for diplomaholder Junior Engineers eight years' experience is the requirement in their 25% quota. Educational qualification along with number of years of service was recognized as conferring eligibility for promotion in the respective quota fixed for graduates and diploma-holders. There is watertight compartment for graduate Junior Engineers and diploma-holder Junior Engineers. They are entitled for promotion in their respective quotas. Neither a diploma-holder Junior Engineer could claim promotion in the quota of degree-holders because he has completed three years of service nor can a degree-holder Junior Engineer make any claim for promotion quota fixed for diploma-holder Junior Engineers. Fixation of different quota for promotion from different channels of degree-holders and diploma-holders itself indicates that service required for promotion is an essential eligibility criterion along with degree or diploma, which is service rendered as a degree-holder in the present case. The particular years of service being the cumulative requirement with certain educational qualification providing for promotional avenue within the specified quota, cannot be anything but the service rendered as a degree-holder and not as a diploma-holder. The service experience as an eligibility criterion cannot be read to be any other thing because this quota is specifically made for the degree-holder Junior Engineers.
45. As a necessary corollary, we are of the view that the diploma-holder Junior Engineers who have obtained a Degree in Engineering during the tenure of service, would be required to complete three years' service on the post after having obtained a degree to become eligible for promotion to the higher post if they claim the promotion in the channel of degree-holder Junior Engineer, there being a quota fixed for graduate Junior Engineers and diploma-holder Junior Engineers for promotion to the post of Assistant Engineers."
In Challa Jaya Bhaskar’s case (15 supra), the Hon’ble Apex Court at paragraph No.29 held as under:
"29. We do not, therefore, agree with the submissions made on behalf of the Respondents that such candidates, who had obtained lateral transfer from the non-teaching to the teaching line, would be entitled to carry their period of service as non-teaching staff for the purpose of computing their seniority in the cadre of Assistant Professors, since the basic qualification for being appointed as Assistant Professors in the teaching line was a Post- Graduate degree, which the Respondents acquired during the course of their service as Civil Assistant Surgeons and were thereafter transferred to the teaching line. The view of the Tribunal to the contrary cannot be supported having particular regard to the view expressed by this Court in N. Suresh Nathan's case (supra) and in Shailendra Dania's case (supra), wherein the same view which we have taken, was taken by this Court upon holding that those diploma holder Junior Engineers who had obtained degrees while in service were not entitled to count their service prior to obtaining the degree for computing the required period for the purpose of promotion."
In Chandravathi P.K.’s case (16 supra), the Hon’ble Apex Court at paragraphs 31, 32, 41 and 43 held as under:
"31. The Full Bench of the Kerala High Court while deciding the matters which are the subjectmatters of civil appeal No. 884 of 2002, unfortunately did not address itself to the aforementioned question. If its finding to the effect that "for promotion to the post of Assistant Executive Engineer... there is no restriction imposed on the Assistant Engineers who acquired degree while they are in the feeder category for promotion as Assistant Executive Engineer" is correct, the same would make Rule 4(b) of the Kerala Public Health Engineering Service Rules otiose. The said rule has to be read in its entirely. The scheme contained therein must be given its gull effect. The purport and object of such an amendment made in the year 1982 was required to be given deeper consideration. The High Court failed to notice that a conjoint reading of Rule 4 and Rule 5 clearly established that a diploma-holder Assistant Engineer who subsequently acquired a degree qualification would be eligible for promotion as Assistant Executive Engineer, only in the event he fulfills the conditions precedent therefor and not otherwise and in terms thereof namely his case could be considered only after the cases of promotion of those who had been holding such degree qualification have been considered. By reason of acquisition of higher qualification only the diploma-holders would not become entitled to be considered for promotion as they in terms of the rules were to be regarded junior most in the seniority list of the Graduate Assistant Engineers.
32. The Full Bench of the High Court, furthermore, unfortunately construed Rule 4 in isolation without taking into consideration the effect of Rule 5(b) in terms whereof it has clearly been laid down that the vacancies in the category of Assistant Executive Engineers were to be filled up from amongst the Assistant Engineers in the ratio of 75:20:5 from amongst the degree-holders, diploma-holders and certificate-holders. There cannot be any doubt whatsoever that as separate seniority lists were being maintained in respect of the degree-holders, diploma-holders and certificate-holders; once a diploma-holder acquiring a qualification of a degree in engineering opts for being included in the stream of the degree-holders, he would have to be placed at the bottom of the relevant seniority list.
41. It is well settled that classification on the basis of educational qualification is a reasonable one and satisfies the doctrine of equality as adumbrated in Article 14 of the Constitution of India.
43. The State as an employer is entitled to fix separate quota of promotion for the degree-holders, diploma-holders and certificate-holders separately in exercise of its rule making power under Article 309 of the Constitution of India. Such a rule is not unconstitutional. The State may, therefore, in our opinion, cannot be said to have acted arbitrarily by giving an option to such diploma-holders who acquired a higher qualification so as to enable them to either opt for promotion in the category of degree-holder or diploma-holder, such option was to be exercised by the concerned officer only. He, in a given situation, may feel that he would be promoted in the diploma-holders quota earlier than degreeholders quota and vice versa but once he opts to join the stream of the degree-holders, he would be placed at the bottom of the seniority list."
In S.Gopala Krishnan’s case (17 supra), the Hon’ble Apex Court at paragraphs 3 to 5 held as under:
"3. The short point for consideration is as to what is the job requirement of the Junior Operator and they are set out in the employment notice which reads as under:
To drive, position, connect and operate Ground Support Equipments, including driving of transport vehicles. To carry out refueling, oiling, air-charging, battery replacement and daily checks of Group Support Equipment/Vehicles. To perform incidental paper work for recording, reporting incidents/ accidents, operations, maintenance, etc. To assist Operators/Technicians in performance of their jobs. To tow aircraft and other Ground Support Equipment/dolleys, trolleys, etc. as per laid down procedures. To keep current licences/permits required for operation/driving of as laid down from time to time.
Under the relevant rules, the qualification prescribed is as follows:
2.1 S.S.C. or its equivalent with three years Government recognised diploma in Mechanical/Electrical/Automobile Engineering and having two years' experience in equipment operations ^or driving and possessing current heavy vehicle driving licence.
2.2 S.S.C. with I.T.I, certificate or equivalent in Associated Trades of Mechanical/ Electrical/Automobile courses and having five years' experience in equipment operating or driving and possessing current heavy vehicle driving licence.
4. The respondent has obtained the ITI certificate in June 1994 and he had about five years of experience after obtaining the certificate and diploma in Mechanical Engineering was obtained in April 1996. In any event, it is clear that the experience obtained by him falls short of the requisite qualification. This Court in N. Suresh Nathan and Anr. v. Union of India and Ors. MANU/SC/0101/1992 : AIR1992SC564 ; Gurdial Singh and Anr. v. State of Punjab MANU/SC/0494/1995 : 1995CriLJ4171 and Anil Kumar Gupta and Ors. v. Municipal Corporation of Delhi and Ors. MANU/SC/0674/1995 : 2SCR420 , has explained the necessity to obtain experience after obtaining the requisite qualification.
5. When in addition to qualification, experience is prescribed, it would only mean acquiring experience after obtaining the necessary qualification and not before obtaining such qualification. In the case of the respondent, he obtained the ITI certificate in the year 1994 and, therefore, did not possess five years of experience as required under the relevant rule. If his qualification as a diploma holder in Mechanical Engineering is taken note of, he has not completed three years of experience as he got the same in April, 1996 and on relevant date he did not possess such qualification. Indeed in prescribing qualification and experience, it is also made clear in the general information instruction at Item No. 6 that "experience will be computed after the date of acquiring the necessary qualifications". Therefore, when this requirement was made very clear that he should have experience only after acquiring the qualification, the view taken by the High Court to the contrary either by the learned Single Judge or the Division Bench, does not stand to reason."
In Vijay Singh Deora’s case (18 supra), the Hon’ble Apex Court at paragraph No.9 held as under:
"9. The next question is: what is the inter se seniority for the purpose of promotion to the cadre of Assistant Engineers? Since Graduate Engineers were directly appointed substantively from the date when the substantive vacancies became available to them within the 20% quota, their eligibility for promotion as Asstt. Engineer requires to be determined from the date the substantive vacancies became available for them though they might have been appointed earlier on temporary basis. Their qualifying service should be counted accordingly. The qualifying service of all those Group-B officers appointed and fitted into the substantive vacancies from their respective dates of availability of the substantive vacancies should be reckoned from their respective dates of coming into substantive vacancies. If there is any short-fall of qualifying service prescribed for the post of the Asstt. Engineer, the balance period be taken into consideration from their 1/3rd service rendered as diploma- holder Junior Engineers. This should stop upsetting the general seniority determined in that order as laid down earlier. Regarding Group-C officers, their seniority, as stated, is to be reckoned from the date of the appointment by transfer or from the date of availability of substantive vacancy, whichever occurred later. In determining the qualifying service for promotion as Assistant Engineers if there is any shortfall, the one-third of the service rendered by them in the post of Sub-Engineers would be taken into account only for making good the balance of qualifying service but not the entire 1/3rd service to be tagged. In case even one third of service as Sub- Engineers was not sufficient as qualifying service, they would not become qualified for consideration for promotion. This procedure would do justice to all the three Groups and no one would jump over the other and would not illegitimately steal a march over the legitimate right of the other. Otherwise, in effect the qualified graduates would be pushed downwards and unqualified later entrants on acquisition of qualification would steal a march over the qualified. The High Court was not justified in treating amended Rule 6(1A) with retrospective effect, since admittedly it has been given prospective operation. The High Court also was not justified in striking down the latter clause of the rules for computation of one-third service for the purpose of next higher post."
In N.Sureshnathan’s case (19 supra), the Hon’ble Apex Court at paragraphs 4 and 5 held as under:
"5. In our opinion, this appeal has to be allowed. There is sufficient material including the admission of respondents Diploma-holders that the practice followed in the Department for a long time was that in the case of Diploma-holder Junior Engineers who obtained the Degree during service, the period of three years' service in the grade for eligibility for promotion as Degree-holders commenced from the date of obtaining the Degree and the earlier period of service as Diploma-holders was not counted for this purpose. This earlier practice was clearly admitted by the respondents Diploma-holders in para 5 of their application made to the Tribunal at page 115 of the paper book. This also appears to be the view of the Union Public Service Commission contained in their letter dated December 6, 1968 extracted at pages 99-100 of the paper book in the counter affidavit of respondents 1 to 3. The real question, therefore, is whether the construction made of this provision in the rules on which the past practice extending over a long period is based is untenable to require upsetting it. If the past practice is based on one of the possible constructions which can be made of the rules then upsetting the same now would not be appropriate. It is in this perspective that the question raised has to be determined.
6. The Recruitment Rules for the post of Assistant Engineers in the P.W.D. (Annexure-C) are at pages 57 to 59 of the paper book. Rule 7 lays down the qualifications for direct recruitment from the two sources, namely, Degree-holders and Diploma-holders with three years' professional experience. In other words, a Degree is equated to Diploma with three years' professional experience. Rule 11 provides for. recruitment by promotion from the grade of Section Officers now called Junior Engineers. There are two categories provided therein - one is of Degree-holder Junior Engineers with three years' service in the grade and the other is of Diploma-holder Junior Engineers with six years' service in the grade, the provision being for 50% from each category. This matches with Rule 7 wherein a Degree is equated with Diploma with three years professional experience. In the first category meant for Degree-holders, it is also provided that if Degree-holders with three years' service in the grade are not available in sufficient number, then Diploma-holders with six years' service in the grade may be considered in the category of Degree-holders also for the 50% vacancies meant for them. The entire scheme, therefore, does indicate that the period of three years' service in the grade required for Degree-holders according to Rule 11 as the qualification for promotion in that category must mean three years' service in the grade as a Degreeholder and, therefore, that period of three years can commence only from the date of obtaining the Degree and not earlier. The service in the grade as a Diploma-holder prior to obtaining the Degree cannot be counted as service in the grade with a Degree for the purpose of three years' service as a Degreeholder. The only question before us is of the construction of the provision and not of the validity thereof and, therefore, we are only required to construe the meaning of the provision. In our opinion, the contention of the appellants Degree-holders that the rules must be construed to mean that the three years' service in the grade of a Degree-holder for the purpose of Rule 11 is three years from the date of obtaining the Degree is quite tenable and commends to us being in conformity with the past practice followed consistently. It has also been so under-stood by all concerned till the raising of the present controversy recently by the respondents. The tribunal was, therefore, not justified in taking the contrary view and unsettling the settled practice in the Department."
In Roop Chand Adlakha’s case (20 supra), the Hon’ble Apex Court at paragraphs 10, 11, 18, 21 and 29 held as under:
"10. The principal question that arises in these appeals is whether, where, as here, recruitment to a particular cadre of posts is made, from two different sources, different conditions, based on the differences in educational qualifications, can be prescribed conditioning the eligibility for further-promotion to a higher cadre in service.
11. The High Court, by the judgment now under appeal, has held that such prescription of differential standards-based even on the differences in technical, educational qualifications-is violative of Article 14 and 16 of the Constitution. In reaching such conclusions as it did on the point, the High Court placed reliance on the pronouncement of this Court in Mohammad Shujat Ali v. UOI and Ors. MANU/SC/0371/1974 : (1976)IILLJ115SC , H.C. Sharma and Ors. v. Municipal Corporation of Delhi and Ors. MANU/SC/0330/1983 : (1983)IILLJ454SC and Punjab State Electricity Board, Patiala, and Anr. v. Ravinder Kumar Sharma and Ors. MANU/SC/0481/1986 : (1987)ILLJ115SC and T.R. Kapur and Ors. v. State of Haryana and Ors. MANU/SC/0510/1986 : (1987)IILLJ25SC . The High Court distinguished the decision of this Court in State of Jammu and Kashmir v. Triloki Nath Khosa and Ors. MANU/SC/0401/1973 : (1974)ILLJ121SC.
18. A large number of authorities were cited on either side. We may first examine the cases relied upon by the High Court in support of its conclusion. The inherent distinction between a person with a Degree and one who is merely a Diploma-Holder is much too obvious. But the question that falls for consideration, in the context such as the present one, is whether the differences have a reasonable relation to the nature of the office to which the promotion is contemplated. The idea of equality in the matter of promotion can be predicated only when the candidates for promotion are drawn from the same source. If the differences in the qualification has a reasonable relation to the nature of duties and responsibilities, that go with and are attendant upon the promotional-post, the more advantageous treatment of those who possess higher technical qualifications can be legitimised on the doctrine of classification. There may, conceivably, be cases where the differences in the educational qualifications may not be sufficient to give any preferential treatment to one class of candidates as against another. Whether the classification is reasonable or not must, therefore, necessarily depend upon facts of each case and the circumstances obtaining at the relevant time. When the state makes a classification between two sources, unless the vice of the classification is writ large on the face of it, the person assailing the classification must show that it is unreasonable and violative of Article 14. A wooden equality as between all classes of employees irrespective of all distinctions or qualifications, or job-requirements is neither constitutionally compelled nor practically meaningful. This Court in Central Railway v. A.V.R. Siddhanti MANU/SC/0024/1974 : (1974)ILLJ312SC observed:
A wooden equality as between all classes of employees regardless of qualifications, kind of jobs, nature of responsibility and performance of the employees is not intended, nor is it practicable if the administration is to run. Indeed, the maintenance of such a 'classless' and undiscerning 'equality' where, in reality, glaring inequalities and intelligible differentia exist, will deprive the guarantee of its practical content. Broad classification based on reason, executive pragmatism and experience having a direct relation with the achievement of efficiency in administration, is permissible....
In T. Devadasan v. The Union of India MANU/SC/0270/1963 : (1965)IILLJ560SC and 690 this Court observed:
What is meant by equality in this Article is, equality amongst equals. It does not provide for an absolute equality of treatment to all persons in utter disregard in every conceivable circumstance of the differences such as age, sex, education and so on and so forth as may be found amongst people in general. Indeed, while the aim of this Article is to ensure that invidious distinction or arbitrary discrimination shall not be made by the State between a citizen and a citizen who answer the same description and the differences which may obtain between them are of no relevance for the purpose of applying a particular law reasonable classification is permissible. It does not mean any thing more.
21. In Mohd. Sujat All's case the validity of a prescription of the rules of the State of Andhra Pradesh treating Graduate-Engineers, on the one hand, and engineers with diploma or equivalent qualification, on the other, differently for purposes of promotion arose for consideration. Strictly speaking, the High Court was not right in its under standing of the actual result of the case. The High Court, in para 8 of the judgment observed:
The Supreme Court had then struck down this rule as violative of fundamental rights enshrined in Articles 14 and 16 of the Constitution of India....
29. In Triloki Nath's case diploma-holders were not considered eligible for promotion to the higher post. Here, in the present case, the possession of a diploma, by itself and without more, does not confer eligibility. Diploma, for purposes of promotion, is not considered equivalent to the degree. This is the point of distinction in the situations in the two cases. If Diploma-Holders-of course on the justification of the job requirements and in the interest of maintaining a certain quality of technical expertise in the cadre-could validly be excluded from the eligibility for promotion to the higher cadre, it does not necessarily follow as an inevitable corollary that the choice of the recruitment policy is limited only two choices, namely either to consider them "eligible" or "not eligible". State, consistent with the requirements of the promotional-posts and in the interest of the efficiency of the service, is not precluded from conferring eligibility on Diploma-Holders conditioning it by other requirements which may, as here, include certain quantum of service-experience. In the present case, eligibility-determination was made by a cumulative-criterion of a certain educational qualification plus a particular quantum of service experience. It cannot, in our opinion, be said, as postulated by the High Court, that the choice of the State was either to recognise Diploma- Holders as "eligible" for promotion or wholly exclude them as "not-eligible". If the educational qualification by itself was recognised as conferring eligibility for promotion, then, the super-imposition of further conditions such as a particular period of service, selectively, on the Diploma-Holders alone to their disadvantage might become discriminatory. This does not prevent the State from formulating a policy which prescribes as an essential part of the conditions for the very eligibility that the candidate must have a particular qualification plus a stipulated quantum of service-experience. It is stated that on the basis of the "Vaish Committee" report, the authorities considered the infusion of higher academic and technical quality in the personnel requirements in the relevant cadres of Engineering Services necessary. These are essentially matters of policy. Unless the provision is shown to be arbitrary, capricious, or to bring about grossly unfair results, judicial policy should be one of judicial-restraint. The prescriptions may be somewhat cumbersome or produce some hardship in their application in some individual cases; but they cannot be struck down as unreasonable, capricious or arbitrary. The High Court, in our opinion, was not justified in striking down the Rules as violative of Articles 14 and 16."
In Deo Narain’s case (21 supra), the Hon’ble Apex Court at paragraph No.29 held as under:
"29. In our judgment, the ratio laid down by this Court in Ponnappan clearly lays down the principle formulated in the Government of India's letter dated May 20, 1980 as also in a subsequent communication, dated May 23, 1997 issued by the Ministry of Finance, Department of Revenue. Even otherwise, in our considered opinion, the two concepts, viz. (i) `eligibility' and (ii) `seniority' are quite distinct, different and independent of each other. A person may be eligible, fit or qualified to be considered for promotion. It does not, however, necessarily mean that he must be treated as having requisite `seniority' for entry in the zone of consideration. Even if he fulfils the first requirement, but does not come within the zone of consideration in the light of his position and placement in `seniority' and the second conditions is not fulfilled, he cannot claim consideration merely on the basis of his eligibility or qualification. It is only at the time when `seniority' cases of other employees similarly placed are considered that his case must also be considered. The CAT, in our view, therefore, was not right in applying Ponnappan and in granting relief to the applicants. There is no doubt in our mind that it says to the contrary."
15. Judgments cited by Smt. T.V.Sridevi, learned counsel for the unofficial respondents–––
In Arvindkumar T. Tiwari’s case (22 supra), the Hon’ble Apex Court held at paragraphs 5 to 13 as under:
"5. We have considered the rival submissions made by Learned Counsel for the parties and perused the record.
It is a settled legal proposition that compassionate appointment cannot be claimed as a matter of right. It is not simply another method of recruitment. A claim to be appointed on such a ground, has to be considered in accordance with the rules, Regulations or administrative instructions governing the subject, taking into consideration the financial condition of the family of the deceased. Such a category of employment itself, is an exception to the constitutional provisions contained in Articles 14 and 16, which provide that there can be no discrimination in public employment. The object of compassionate employment is to enable the family of the deceased to overcome the sudden financial crisis it finds itself facing, and not to confer any status upon it. (Vide: Union of India and Ors. v. Shashank Goswami and Anr. MANU/SC/0482/2012 : AIR 2012 SC 2294).
6. The eligibility for the post may at times be misunderstood to mean qualification. In fact, eligibility connotes the minimum criteria for selection, that may be laid down by the executive authority/legislature by way of any statute or rules, while the term qualification, may connote any additional norms laid down by the authorities. However, before a candidate is considered for a post or even for admission to the institution, he must fulfill the eligibility criteria. (Vide: Dr. Preeti Srivastava and Anr. v. State of M.P. and Ors. MANU/SC/1021/1999 : AIR 1999 SC 2894).
7. The appointing authority is competent to fix a higher score for selection, than the one required to be attained for mere eligibility, but by way of its natural corollary, it cannot be taken to mean that eligibility/norms fixed by the statute or rules can be relaxed for this purpose to the extent that, the same may be lower than the ones fixed by the statute. In a particular case, where it is so required, relaxation of even educational qualification(s) may be permissible, provided that the rules empower the authority to relax such eligibility in general, or with regard to an individual case or class of cases of undue hardship. However, the said power should be exercised for justifiable reasons and it must not be exercised arbitrarily, only to favour an individual. The power to relax the recruitment rules or any other rule made by the State Government/Authority is conferred upon the Government/Authority to meet any emergent situation where injustice might have been caused or, is likely to be caused to any person or class of persons or, where the working of the said rules might have become impossible. (Vide: State of Haryana v. Subhash Chandra Marwah and Ors. MANU/SC/0400/1973 : AIR 1973 SC 2216; J.C. Yadav v. State of Haryana MANU/SC/0159/1990 : AIR 1990 SC 857; and Ashok Kumar Uppal and Ors. v. State of J & K and Ors. MANU/SC/0193/1998 : AIR 1998 SC 2812).
8. The courts and tribunal do not have the power to issue direction to make appointment by way of granting relaxation of eligibility or in contravention thereof. In State of M.P. and Anr. v. Dharam Bir MANU/SC/0397/1998 : (1998) 6 SCC 165, this Court while dealing with a similar issue rejected the plea of humanitarian grounds and held as under:
The courts as also the tribunal have no power to override the mandatory provisions of the Rules on sympathetic consideration that a person, though not possessing the essential educational qualifications, should be allowed to continue on the post merely on the basis of his experience. Such an order would amount to altering or amending the statutory provisions made by the Government under Article 309 of the Constitution.
9. Fixing eligibility for a particular post or even for admission to a course falls within the exclusive domain of the legislature/executive and cannot be the subject matter of judicial review, unless found to be arbitrary, unreasonable or has been fixed without keeping in mind the nature of service, for which appointments are to be made, or has no rational nexus with the o
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bject(s) sought to be achieved by the statute. Such eligibility can be changed even for the purpose of promotion, unilaterally and the person seeking such promotion cannot raise the grievance that he should be governed only by the rules existing, when he joined service. In the matter of appointments, the authority concerned has unfettered powers so far as the procedural aspects are concerned, but it must meet the requirement of eligibility etc. The court should therefore, refrain from interfering, unless the appointments so made, or the rejection of a candidature is found to have been done at the cost of 'fair play', 'good conscious' and 'equity'. (Vide: State of J & K v. Shiv Ram Sharma and Ors. MANU/SC/0216/1999 : AIR 1999 SC 2012; and Praveen Singh v. State of Punjab and Ors. (2000) 8 SCC 436). 10. In State of Orissa and Anr. v. Mamta Mohanty MANU/SC/0110/2011 : (2011) 3 SCC 436, this Court has held that any appointment made in contravention of the statutory requirement i.e. eligibility, cannot be approved and once an appointment is bad at its inception, the same cannot be preserved, or protected, merely because a person has been employed for a long time. 11. A person who does not possess the requisite qualification cannot even apply for recruitment for the reason that his appointment would be contrary to the statutory rules is, and would therefore, be void in law. Lacking eligibility for the post cannot be cured at any stage and appointing such a person would amount to serious illegibility and not mere irregularity. Such a person cannot approach the court for any relief for the reason that he does not have a right which can be enforced through court. (See: Prit Singh v. S.K. Mangal and Ors. MANU/SC/0640/1993 : 1993 (Supp.) (1) SCC 714; and Pramod Kumar v. U.P. Secondary Education Services Commission and Ors. MANU/SC/7404/2008 : AIR 2008 SC 1817). 12. The claim of the Respondent was earlier rejected on the ground that, the family had adequate financial status and the amount of pension being given was actually over and above the limit fixed by the Appellant issuing the guidelines. Subsequently, when the case was reconsidered upon the direction of the court, it was found that the Respondent did not meet the requisite eligibility criteria i.e., 10th standard certificate. Admittedly, the Respondent is 8th standard fail, and thus, he can be considered only as 7th standard pass and we must therefore consider, whether he could have been offered appointment to a Class IV post. 13. Clause 9 thereof, provides that no relaxation in educational qualification(s) for the purpose of giving compassionate appointment to the dependent(s) of a deceased employee, would be permissible. However, such relaxation can be granted if there exists some requirement of minimum qualification(s) with respect to the said post. Clause 11 thereof, provides that a dependent can, in fact, be given appointment on compassionate ground, on the basis of the pass marks obtained by him in the new Secondary School Certificate and in view thereof, as Respondent No. 1 is admittedly only 8th standard (fail), he is therefore, ineligible for the post. Even otherwise, if the direction of the High Court is complied with and the case is considered as per the un-amended provisions in existence prior to 2005, the financial limits fixed therein, would automatically be applicable. His application dated 11.5.1999 reveals that his date of birth is 1.3.1976, and further that he has studied only upto the 8th standard (fail)." In M/s. Hansa Corporation’s case (23 supra), the Hon’ble Apex Court at paragraph No.15 held as under: "15. There is always a presumption of constitutionality of a statute. If the language is rather not clear and precise as it ought to be, attempt of the Court is to ascertain the intention of the legislature and put that construction which would lean in favour of the constitutionality unless such construction is wholly untenable. However, where one has to look at a section not very well drafted but the object behind the legislation and the purpose of enacting the same is clearly discernible, the Court cannot hold its hand and blame the draftsman and chart an easy course of striking down the statute. In such a situation the Court should be guided by a creative approach to ascertain what was intended to be done by the legislature in enacting the legislation and so construe it as to give force and life to the intention of the legislature. This is not charting any hazardous course but is amply borne out by an observation worth reproducing in extenso in Seaford Court Estates Ltd. v. Asher. It reads as under: "Whenever a statute comes up for consideration it must be remembered that it is not within human powers to foresee the manifold sets of facts which may arise, and, even if it were, it is not possible to provide for them in terms free from all ambiguity. The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were. This is where the draftsmen of Acts of Parliament have often been unfairly criticised. A judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give "force and life" to the intention of the legislature. That was clearly laid down (3 Co. Rep. 7b) by the resolution of the judges (SIR ROGER MANWOOD, C.B., and the other barons of the Exchequer) in Heydon's case (1584) 3 Co. Rep. 7a, and it is the safest guide today. Good practical advice on the subject was given about the same time by PLOWDEN in his note (2 Plowd. 465) to Eyston v. Studd (1574), 2 Plowd. 463. Put into homely metaphor it is this: A judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out ? He must then do as they would have done. A judge must not alter the material of which the Act is woven, but he can and should iron out the creases". This view was re-affirmed in Norman v. Norman." 16. The judgments of the Hon’ble Supreme Court in K.K.Dixit’s case (1 supra), Shailendra Dania’s case (14 supra), N.Sureshnathan’s case (19 supra) and Chandravathi P.K.’s case (16 supra), dealt with the situation where the relevant Rules prescribed different ratios for different sets of employees, and in the said factual situation, the Hon’ble Apex Court took a view that the date of acquisition of qualification needs to be taken into account for deciding the seniority of the employees for quotas earmarked for different categories. Therefore, the said judgments would not render any assistance to the case of the respondents herein who are graduates right from the inception. It is absolutely not in dispute that the Rules in the present case i.e. the Andhra Pradesh Agricultural Service Rules notified vide G.O.Ms.No.16, Agriculture and Co-operation (FP-I) Department, dated 21.1.2000, do not provide for such situation and there are no such ratios earmarked in the Rules, governing the case on hand. Therefore, the said judgments would not render any assistance to the unofficial respondents. 17. As referred to supra, in identical situation in the case of Anil Kumar Gupta (3 supra), a three (3) Judge Bench of the Hon’ble Supreme Court and in M.Dakshayani’s case (2 supra), a two Judge Bench, held that the seniority should be reckoned from the date of initial appointment in the feeder category and not from the date of acquisition of qualification. In fact, in M.Dakshayani’s case (2 supra), the Hon’ble Apex Court also considered all the earlier judgments now cited on behalf of the unofficial respondents at paragraph No.7, and having regard to the scheme of the relevant Rules, took the view that the earlier service put in prior to acquiring the qualification should also be taken into consideration. Therefore, this court is bound by the principles laid down in the Three Judge Bench decision of the Apex Court in Anil Kumar Gupta (3 supra), and in M.Dakshayani’s case (2 supra). Having regard to the said judgments and the other judgments cited by the learned counsel for the applicants, it is to be necessarily held that the service put in by the Agricultural Extension Officers from the date of initial appointment as Agricultural Extension Officers is required to be taken into consideration but not the service put in by them from the date of acquisition of qualification of degree. 18. The contention of the learned counsel Smt. T.V.Sridevi that since the instant post is a selection post, merit alone is the criteria, as rightly pointed out by the learned senior counsel Sri K.G.Krishna Murthy, is premature, and the said aspect needs no consideration at this stage for the purpose of adjudicating the issue on hand. The judgments cited by Smt. T.V.Sridevi, learned counsel have no relevance to the case on hand. 19. It is also significant to note that the Rules, governing the subject post, Agriculture Officer, do not make any distinction for consideration of the cases of Agricultural Extension Officers for promotion as Agriculture Officers on the basis of date of acquisition of qualification of degree in agriculture. When the language employed in the relevant Rules is unambiguous and clear, there is no scope for interpreting the same in the manner suggested by the learned counsel, representing the unofficial respondents, who are the Agricultural Extension Officers with degree qualification right from the inception. 20. The Tribunal, instead of putting a quietus for the problem by deciding the issue, as the government issued the Memo directing the Commissioner to act in a particular manner, asked the applicants to avail all the alternative remedies. The said course of action suggested by the Tribunal is highly erroneous and obviously a futile exercise. The above factual and legal situation drives this Court towards an irresistible conclusion that the action impugned in the Original Applications and the orders of the Tribunal impugned in these Writ Petitions cannot be sustained in the eye of law. 21. For the aforesaid reasons, the Writ Petitions are allowed, setting aside the Memo bearing No.2438/Agrl.I(2) /2017 dated 12.05.2017 issued by the State Government and consequently, the respondents are directed to reckon the seniority of the petitioners (Diploma Holders initially) from the initial date of appointment and to proceed further. Miscellaneous applications, if any pending in these Writ Petitions, shall stand closed.