Holding

The Supreme Court held that the 1981 amendment to the Recruitment and Promotion Rules made the appellant eligible for promotion, and it would be unjust to revert his later appointments, thereby setting aside the High Court's order.

Summary

The appellant, D.K. Sahni, joined Manganese Ore (India) Ltd. in 1966 and was promoted to Chief Mining Engineer in 1980, later to Deputy General Manager and General Manager (T). Superseded officers challenged his promotions, arguing he lacked the educational qualifications prescribed for the Chief Mining Engineer post. The High Court quashed his later appointments, holding his entry into the cadre was illegal. On appeal, the Supreme Court examined the Recruitment and Promotion Rules, 1977, particularly Rule 7, which allows promotion without the educational qualification if the candidate has double the required experience, and considered a 1981 amendment that altered eligibility criteria. The Court found that while Sahni was initially ineligible, the amendment made him eligible from October 1981, and reverting his later promotions would cause gross injustice. Consequently, the High Court's order was set aside and the petition dismissed.

Issues considered

The validity of Sahni's promotion to Chief Mining Engineer under the 1977 Recruitment and Promotion Rules given his lack of prescribed educational qualifications.
Whether the 1981 amendment to the Rules retrospectively rendered Sahni eligible for promotion.
The legality of Sahni's subsequent promotions to Deputy General Manager and General Manager (T) based on his entry into the Chief Mining Engineer cadre.
Whether the High Court's order quashing the appointments should be upheld or set aside.
The appropriateness of invoking Article 136 of the Constitution in this matter.

Subjects

promotioneligibilityrecruitment rulesdepartmental promotionseniorityArticle 136corporate employment

Judgment

}

A D.K. SAHNI
v.
MANAGING DIRECTOR, MANGANESE ORE INDIA; LTD. ~-
AND ORS.

AUGUST 12, 1992
B
[A.M. AHMADI AND K. JAYACHANDRA REDDY, JJ.)

Manganese Ore (India) Recmitment and Promotion Rules,: 1977:
~

c Rules 4 and 7~ining Engineering Cadre--Promotion to the post of
Chief Mining Engineef'-Eligibility criteria-Qualifications pre~cribed for
direct recmitment applicable, failing which double the experience ~pecified to
be fulfilled-Chief Mining Engineer not satisfying the requirement prior to
promotion, but becoming eligible on modification of the relevant entry in the
--
Rules-Whether should be reverted-Whether should seek re-entry into the
D cadre of Chief Engineer on the acquisition of eligibility on modification of A
the relevant entry in the Rules.

The appellant joined the respondent-company in 1966 as Assistant
Mining Manager and rose to the position of Chief Mining Engineer in
1980. Subsequently, pursuant to the selection made by the Departmental
E
Promotion Committee, after interviewing the Chief Mining Engineers, the
appellant who ranked fifth in seniority, was promoted as Deputy General --(,
Manager, in preference to his seniors.

The superseded officers represented to the authorities that since the
F appellant did not possess the requisite educational qualifications
prescribed for appointment as Chief Mining Engineer he could not be
promoted to the next higher post of Deputy General Manager. The reprc·
~
sentation was rejected on the ground that the post of Deputy General
Manager, being an ex-cadre post, the question of the appellant possessing
the requisite qualifications did not arise. Thereupon, one of the super-
G
seded officers filed a· writ petition before the High Court challenging the
appellant's appointment.

During the pendency of the petition the company decided to re- r
structure the Personnel and Technical Department and on the basis of the
H recommendations of a sub-committee, the appellant was appointed as
800
D.K SAHNI v. M.D. MANGANESE ORE ~01

General Manager (T). A

Thereafter, the High Court allowed the Writ Petition filed by one of
the superseded Chief Mining Engineers, holding that the post of Chief
Mining Engineer was a promotional post and since the appellant did not
possess the educational qualifications prescribed for the post or Chief' B
Mining Engineer, his entry into that cadre was not legal and consequently,
his further promotion to the post of Deputy General Manager and later
as General Manager (T) were legally unsustainable. Accordingly, it
quashed the appointment of the appellant as Deputy General Manager
and also General Manager (T) and directed the authorities to pursue a
fresh process of selection in accordance with the rules framed on 6/12th C

- October, 1983.

In the appeal before this Court on behalf of the appellant it was'
contended that under Rule 7 of the Recruitment and Promotion Rules,',
J 1977 it had been made clear that the educational qualification would not , D
be insisted upon in deciding the promotion of a departmental eandidate, ,
that according to the said rule, the appellant was only required to show ,
that he had the requisite experience for entry by promotion into the higher .
post, and so when the appellant was promoted as Chief Mining Engineer '
he was merely required to possess the requisite qualification for qualified '
candidates and nothing more and, similarly, for entry to the cadre of ' E
Deputy General Manger also he had merely to show that he had satisfied
the experience criterion and was not required to show that he possessed

- the educational qualification prescribed for direct recruitml'nt, that by
subsequent office orders dated 22nd January 1982 and 1/12th October,
198.'J certain modifications were made in the Annexure to the Recruitment F
and Promotion Rules, 1977 pertaining to the qualifications and experience
-'r_. in respect of the posts of Chief Mining Engineer (Production/Planning)
and Deputy General Manager (T), that once the appellant was shown to
possess the first class Mine Manager's Certificate and the prescribed
experience be was eligible to be considered. for promotion as Deputy G
General Manager rqardless of Whether-or not he held the position of
Chief Mining Ellgineer and that in any case the appellant could not be
asked to revert since be had held the post since quite some time, that since
the appellant had secured the First Class Mine Manager's Certificate, he
possessed the requisite educational qualification and, therefore, it was not
necessary for him to possess dquble the experience prescribed for those H
802 SUPREME COURT REPORTS [1992] 3 S.C.R;

A without the required educational qualification; that even if it was assumed
that the appellant was not qualified to be promoted to the post of the Chief
Mining Engineer in April, 1980, he, at any rate, became eligible for promo-
tion on the modification of the relevant entry in the Annexure with effect
from 17th October, 1981 and even if his promotion was regularised or
deemed to have been regularised by the company from the said date, he
B was entitled to be considered for further promotion in the cadre of Deputy
General Manger and later General Manager (T) of the company.

While suppo1'ting the appellant's contentions, on behalf of the
management it was submitted that under Rules 7(c) and (d), the power to
C relax the minimum experience or to resort to direct recruitment was reserved
to the management and hence if the experience requirement fell short, it
must be deemed to have been relaxed, and that it always treated the appellant
as eligible for being promoted to the higher posts of Deputy General
Manager and General Manager (T).

D On behalf of the superseded officers it was contended that the
appellant did not answer the requirement of both the educational,
qualification and expe1ience to be promoted as Chief Mining E;ngineer as
well as Deputy General Manager and later General Manager (T) and
hence he was a usurper and was not entitled to the protection of this .
E Court, and that once the Court held that the initial entry of the candidate
was in violation of the promotional criteria, bis entry must be treated as
void and unless the DPC reconsidered bis case for promotion along with
.others his entry in the cadre could not be regularised on a deeming fiction;
that no such case was put up before the High Court and, therefore, this
- Court should not permit it to be placed for the first time in proceedings
F under Article 13~ of the Constitution and that Article 136 jurisdiction
must be exercised sparingly.

Disposing of the appeals, this Court,

HELD : 1.1. Under the rule position as it existed at the. date of the
G appellant's promotion to the post of Chief Mining Engineer, i.e. on 19/21st
April, 1980, the appellant was not eligible for appointment to the said post
by promotion. However, on the change brought abo'ut in the relevant entry
by the order of 22nd January, 1982 with effect from 17th October, 1981,
the appellant became· eligible for promotion and even if his placement ln
H the cadre of Chief Mining Engineer is reckoned from that date he was
D.K. SAHNI v. M.D. MANGANESE ORE 803

clearly eligible for upward promotion. [815 E] A
1.2. The appellant's promotion made under the order of 19th April,
1980 was sought to be undone only after his promotion to the higher post.
There is no charm in directing the reversion of the appellant for a short
period from 21st April, 1980 to 16th October, 1981 when it is found that
under the revised or modified criteria he was elegible for appointment as B
Chief Mining Engineer on 17th October, 1981. He was placed junior to
others and even if he is considered !!S promoted with effect from 17th
·October, 1981, he would continue to rank junior. He was selected for the
higher post on merit though he was junior to others. Therefore, it is not a

- case where he had received weightage because he was shown senior wllen
the DPC selected him for the higher post. He has served on the promotion
post of Deputy General Manager (T) since July, 1983. In the circumstan-
c

ces, it would be harsh and shocking to revert him after so many years oµly
on the ground that he must seek re-entry in the cadre of Chief Mining
Engineer with effect from 17th October, 1981, when he acquired eligibility D
on the modification of the relevant entry in the annexure to the Rules.
[816A-D]

2.1. Schedule I appended to the Recruitment and Promotion Rules,
1977 of the Managanese Ore (India) Ltd. indicates the posts in the Mining
Engineering Cadre of the company carrying a scale of pay of Rs. 500-800 E
and above. The post of Chief Mining Engineer in the pay scale of Rs.1800-
2250 is a cent per cent promotion post and is to be filled in by selection.
The educational qualifications and experience set out in Column 7, whh:h
is meant for direct recruitment are (1) degree or equivalent diploma in
Mining from a recognised University or Institute, (2) 1st Class Miµe F
Manager's· Certificate of competency under Metalliferous Mines Regula-
tions, and (3) at least 15 years' experience of which 7 years in a respon-
sible position in an underground Mine such as Senior Mining Engineer or
Deputy Planning and Design Engineer. In Column 8 meant for indicati~g
the grade from which promotion will be made it is stated "Senior Mining G
Engineer". Thus, a Senior Mining Engineer or a Mine Engineer could be
promoted as Chief Mining Engineer. [811D, F-H, 812A]

2.2. The qualification and experience set out in Column 7 being for
direct recruitment would not ordinarily apply where the post is requirt)d
to be filled by promotion by selection. Rule 7 makes this position clear. It H
804 SUPREME COURT REPORTS (1992) 3 S.C.R.

in no uncertain terms says that educational qualifications should not be ~
A
insisted upon in deciding the promotion of a departmental candidate
provided be possesses twice the experience stipulated for a qualified
candidate. [8128]

2.3. On a plain reading of Rule 7 with the instance quoted therein it
B is clear that if a Senior Mining Engineer or a Mine Manager does not
possess the educational qualifications set out in Column 7 for direct
recruitment as Chief Mining Engineer, be must have double the ex- )---
perience requirement set out in that column to be eligible for promotion
to the higher post. In other words, going by direction in Rule 7, a Senior
c Mining· Engineer/Mine Manager, who does not possess the educational
qualification for entry into the Chief Mining Engineer's Cadre, niust show
that be possessed experience of thirty years in the department. [812F-G]
-
2.4. lndisputably, the appellant who bad joined the service in 1966 .A.
D bad not put in thirty years of service when he was promoted as Chief
Mining Engineer. However, certain modifications were made in the An·
nexure attached to the Recruitment and Promotion Rules, with effect from
17th October, 1981 vide office order of22.l.1982. Column 8 of the modified
entry reads as Senior Mining Engineer with (a) Degree in Mining of a
recognised University/Institute or equivalent, (b) 1st Class Mine
E Manager's Certificate of competency under Metalliferous Mines Regula- -~
tions (UR) and (c) 3 years service in company in the scale of Rs.1500-2000.
Thus, under the modified entry the eligibility criteria for direct recruits
remains the same except for a slight change in the experience criterion, ~

viz., the requirement of e~rience of 7 years in a responsible position in
F an underground mine bas been dispensed with. The significant change,
however, brought about in Column 8 is to state the educationaVexperience
qualifications for promotion separately. The experience criterion for
~ ..
promotion under the modified entry is reduced to three years service in
tfte company in a post carrying a scale of Rs.1500-2000; Therefore, under
the revised entry a Senior Mining Engineer possessing the educational
G qualification at (a) and (b) and experience of three years 11ervice in the
company on a post carrying a scale of Rs. 1500·2000 ~me eligible for
~
promotion to the post of Chief Mining Engineer. Under Rule 7(a) of the
Recruitment and Promotion Rules a Senior Mining Engineer who does not
possess the requisite educational qualification, but possesses double the
H prescribed experience, i.e. experience of six years service in the company
D.K. SAHNI v. M.D. MANGANESE ORE [AHMADI, J.] 805

on a post carrying a pay scale of Rs. 1500-2000, would be eligible for A
promotion to the post of Chief Mining Engineer. [812G, 814D•~,815A·Bl:

Narender Chadha & Ors. v. Union of India & Ors., (1986] 2 SCC 157
and Ujagar Singh & Anr. etc. etc. v. State (Delhi Administration) etc. etc.,
(1979] 4 sec 530, referred to.
B
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2933-34,
and 2942-43 of 1992.

From the Judgment and Order dated 18.7.89 & 30.1.90 of the Bombay,

- High Court in W.P.No. 2681/84 & CA.No. 2259 of 1989.

K.K. Venugopal, Ashok H. Desai, V.A. Bobde and R.K. Jain, P.
'

Sreedhran Nair, T.G.N. Nair, S. Sukumaran and P.N. Misra for the appear- ·
1
c

ing parties.

The Judgment of the Court was delivered by
D
AHMADI, ~· Sped.~~ leave in all the matters granted.

The appellant, D.K. SM1li1 p~gan his service career in 1966 as an
Assistant Mining En~eer and r()s~ ~~ the position of Chief Mining En-
·~ _ gineer on his promotion to that post in 1980. The Board of Directors of ,E
f the Company at its 143rd meeting on 22nd March, 1983 resolved to ,
upgrade three posts of Chief Mining Engineers to the level of Deputy ,
General Managers. At that point of time amongst the Chief Mining En-
gineers of the Company, the appellant in the order of seniority ranked after
(1) A.H. Dharmadhikari (2) S. Kum~r (3) G.N. Misra and (4) T.N. Prasad.
A high powered Departmental Promotion Committee (DPC) was ap- F
r- pointed to select candidates from amongst Chief Mining Engineers for
placement in the upgraded posts of Deputy General Managers. This Com-
mittee interviewed candidates and made its selection. Meanwhile A.H.
Dharmadhikari was promoted to the post of Deputy General Manager in
the vacancy arising on the demise ofK.V.P. Singh. Pursuant to the selection
made by the DPC the appellant was promoted and appointed as Deputy G
General Manager in preference to his seniors. S.Kumar and others, there-
fore, filed a Writ Petition No. 2533 of 1983 challenging the appointment of
the appellant. However, in the meantime S.Kumar was promoted in due
course as Deputy General Manager whereupon he withdrew the Writ
Petition. The other two, G.N. Misra and T.N. Prasad represented to the It
I

806 SUPREME COURT REPORTS (1992) 3 S.C.R.

A Board pointing out that the appellant did not possess the requisite educa-
tional qualification for appointment as Chief Mining Engineer and conse-
quently he could not' be promoted to the next higher post of Deputy
General Manager. That representation was rejected on the ground that the
post of the Deputy General Manager being an ex-cadre post, the question
of the appellant possessing the requisite educational qualification did not
B arise. Thereupon G.N. Misra filed another Writ Petition No. 2681of1984
under Article 226 of the Constitution challenging the appellant's appoint-
ment. In that petition although the appellant was impleaded as a co-respon-
dent along with the Managing Director and Chairman of the company he
did not choose to enter an appearance, presumably because the company
C was expected to defend its action. Pending the hearing and disposal of the
petition the company decided to restructure the Personal & Technical
department of the company. A sub-committee was entrusted the task to
undertake this exercise and select candidates from amongst the officers of
the company to occupy higher posts that may be created. Accordingly one
D Pillai was appointed as General Manager (P) while the appellant was
selected and appointed as General Manager (T). The Writ Petition No.
2681 of 1984 was allowed by a Di~sion Bench of the High Court on 18th
July, 1989.

The High Court in its impugned judgment points out· that the post
E of the Chief Mining Engineer was a promotion post to be filled in by
selection. The minimum educational qualification for entry into the said
promotional post was (i) a degree or equivalent diploma in mining from a
recognised university or institute and (ii) First Class Mine Manager's
certificate of competency under Metalliferous Mines Regulations. In addi-
tion the candidate was required to have at least 15 years experience of
F which 7 years in a responsible position in an underground mine e.g. Senior
Mining Engineer, Deputy Production Manager or Deputy Planning and
Designing Engineer. The High Court found that the appellant possessed
the required certificate as well as experience but did not possess the
educational qualification for entry into the promotional cadre of Chief
G Mining Engineers. The High Court rejected the management's.contention
that the appellant was qualified to be appointed the Deputy General
Manager because the only requirement for. that post was three years
experience as Chief Mining Engineer which the appellant undoubtedly
possessed. The High Court held:

H "If a person to be considered held a particular post, his entit-
D.K. SAHNI v. M.D. MANGANESE ORE (AHMADI, J.] 807

~ lement to bold that post would also have to be consideted if A
holding that post made him eligible for being eonsidered to the
promotional post of the Deputy General Manager."

The High Court, therefore, held. that since the appellant did not
possess the educational qualification prescribed for the post of Chief
Mining Engineer his entry into that cadre was not legal and conseqJently
B
his further promotions to the post of Deputy General Manager and later
General Manager (T) were legally unsustainable. The High Court also
brushed aside the submission that since the appellant's appointment as
Chief Mining Engineer had never been challenged during the entire tenure

- in that office it should not be permitted to be challenged belatedly by
pointing out that in the cadre of Chief Mining Engineers the appellant was
junior to Mr. G.N. Misra and others and, therefore, there was no need for
them to challenge bis appointment as such but now that their seniority and
c

)- career advancement stand jeopardised, they have a cause of action and are,
therefo~e, entitled to challenge the same. Lastly the High Court bel\i that
since the appellant did not hold a diploma in Mining with a pass which was
D
equivalent to a degree as per Schedule I be was not eligible for the post
of Chief Mining Engineer and hence the exemption stated to have been
granted by the Institute of Engineers (India) is of no consequence what-
soever. On this line of reasoning the High Court allowed the Writ Petition
r and quashed the appointment of the appellant before us as Deputy Gf}neral
Manager and General Manager (T) and directed the authorities to pursue
E
a fresh process of selection in accordance with the rules framed on 6/12th
-. October, 1983. The rule was made absolute accordingly.

When the appellant
.
before us learnt of the adverse order againstI him, F
..
be filed a Civil Application No. 2259 of 1989 in the said proceedings
r- praying for a re-bearing on the ground that he had not been served with
the notice of the Writ Petition and, therefore, had no opportunity to defend
himself. The notice of the Writ Petition bad been admittedly served on the
Despatch Clerk in the officer of Manganese Ore (India) Ltd. ThP, appellant
contended (i) the said Despatch Clerk had no authority to accept the G
notice on his behalf and (ii) he had in any case failed to forward it to him.
The High Court rejected this stand taken by the present appellant and held
that the appellant was aware of the service of the notice to the Despatch
Clerk and was in full know of the pendency of the Writ Petition and had
in fact spoken about it to his colleagues. We have perused the order bf the H
)_

808 SUPREME COURT REPORTS [1992) 3 S.C.R.
,...._
A High Court on the said applica~on and we are in complete agreement with
the High Court on th~ view it had taken and the consequential order it
passed rejecting the application. It is unfortunate that the present appellant
made certain inaccurate and untenable averments in the application to
secure a rehearing.
B
Mr. K.K. Venugopal, while assailing the High Court's order dated
18th July, 1989, submitted that under Rule 7 of the Recruitmeqt and
)-
Promotion Rules, 1977, it is made clear that the' educational qualifications
shall not be insisted upon in deciding the promotion of a departmental

c
candidate if he possesses twice the experience stipulated for a qualified
candidate. According to the said rule, counsel submitted, all that .the
appellant was required to ~how was that he had the requisite experience
for entry by promotion into the higher post. So when the appellant was
-
promoted as Chief Mining Engineer, he had merely to possess 'twice the
experience stipulated for a qualified candidate' and nothing more. Similarly ~
D for entry into the cadre of Deputy General Manager also he had merely to
show that he satisfied the experience criterion and was not requiJ:ed to
show that he possessed the educational qualification prescribed for direct
recruits. These rules were brought into force w.e.f. 5th June, 1978. In the
alternative he invited our attention to a letter dated 26/27 November, 1976
of the Institution of Engineers (India), Calcutta, wherein it is stated that
E the Council of the Institution had decided that persons who have passed .,,
First Class Mine Managers' Certificate Examination and possess atleast
five years experience in a responsible position as an Engineer after passing
the certificate examination shall be eligible to apply for admission to =--
corporate Membership of the institution. It further states that after assess- >

F ment of the qualification and experience of Shri D.K. Sahni (the appellant
before us) by the Equivalence Committee of the Institution, Shri Sahni was
~
elected as Associate Member of the Institution by granting him exemption
· from passing Sections A and B examinations which was otherwise essential
to secure such membership. The letter then states that passing of Sections
A and B examinations of the. Institution in any branch of engineering is
G recognised by the Govt. of India as equivalent to passing a degree examina-
tion in engineering in that branch for the purposes of recruitment to
..,...
superior posts and services. This letter which was received by the Chief
Personnel Manager of the Company was forwarded to the appellant by the
fotter dated 6/7th December, 1976. While forwarding the same Shri· A.15.
H Pillai stated:
D.K. SAHNI v. M.D. MANGANESE ORE [AHMADI, J.] 809
~ "In view of what has been stated in this letter, we shall be A
treating your certificate as equivalent to degree." · .

and advised the appellant to submit a formal application to the Ministry bf
Education, Govt. of India, New Delhi, requesting to extend recognition to I
the said equivalence. The Ministry of Education and Social Welfare l;>y B
their communication No.F.RED.0.- 110'13/4/77/7-7 dated 9th June, 19~7
clarified that equivalence was granted to only those who had actually
~ passed Sections A and B examination and not to those who had secured
the Association Membership by securing exemption from passing the said

- examination. But by a subsequent office order No. 6(1) dated 22nd
January, 1982 the Board of Directors made certain modifications in the c
Annexure to the Recruitment and Promotion Rules pertaining to qualificl-
tion/experience prescribed for various posts in Mining anu GeologicalI
cadres which were brought into force from 17th October, 1981. According
~- to the said order the qualification for the post of Chief Mining Engineer
(Production/Planning) was modified to include First Class Mine Manager's D
certificate as sufficient educational qualification and the experience re-
quirement was specified as three years service in the company in the scale of
Rs.1500-2000. By a further Office Order No.20/0FFR/CPM/83-84 dated
1/12th October, 1983 the Board of Directors approved the qualifica-

r· tions/experience for the post of Deputy General Manager (T) as annexute
to the Recruitment and Promotion Rules of the company. The minimum E
educational qualification and experience prescribed hereurider is (i) Di-
gree/equivalent Diploma in Mining Discipline from a recognised I~-
~ stitute/University (ii) First Class Mine Manager's certificate of competence
under M.M.R.(U!R) and (iii) 18 years experience. Mr. Venugopal, there-
fore, submitted that once the appellant was shown to possess the certificate F
' ....,,....... and the prescribed experience he was eligible to be considered for promo-
tion as Deputy General Manager regardless of whether or not he held the
position of a Chief Mining Engineer. Lastly he submitted that in any case the
appellant cannot be asked to revert since he had held the post since quite
some time now. In support of this contention he invited our attention to the
observation in paragraph 26 of the decision in Narender Chadha & Ors. \f'. G
Union of India & Ors., [1986] 2 SCC 157 which reads as under:
~
"We are informed that some of the promotees and direct
recruits who are governed by this decision have been promoted
to higher grades. If as a result of the preparation of the seniority· H
I
)-

810 SUPREME COURT REPORTS [1992) 3 S.C.R.

A list in accordance with the decision and the review of the
promotions made to higher grades any of them is likely to be
reverted such officer shall not be reverted. He shall be con-
tinued in the higher post which he is now holding by creating
a supernumerary post, if necessary to accommodate him. His
further promotion shall however be given to him when it be-
B comes due as per the new seniority list to be prepared pursuant
to this decision."

Mr. Ashok Desai for the management generally supported the sub-
missions of Mr. Venugopal and said that under Rule 7(c) and (d) the
.C power to relax the minimum experience or to resort to direct recruitment
was reserved to the management and hence if the experience requirement
falls short it must be deemed to have been relaxed.

Mr. R.K. Jain, the learned counsel for respondents Nos. 3 and 4 i.e. A..
D G.N. Misra and A.H. Dharmadhikari, submitted that this was not a fit case
for exercise of power under Article 136 of the Constitution and in any case
the High Court had, in the facts and circumstances of the case, taken a
correct view on a proper appreciation of the relevant rules and hence no
interference was called for. In support of this contention he placed reliance
o~ the observations of this Court in Ujagar Singh & -1-nr. etc. etc. v. State
E (Delhi Administration), etc. etc., (1979) 4 SCC 530 which run thus: ·-r
"It is time that it was realised that the jurisdiction of this Court
to grant special leave to appeal can be invoked in very excep-
tional circumstances. A question of law of general public im-
F portanee or a decision which shocks the conscience of the
Court are some of the prime requisites for the grant of special
leave."

On the merits of the case he supported the view of the High Court
G and submitted that the appellant did not answer the requirement of both
the educational qualification and experience to be promoted as Chief
Mining Engineer as well as Deputy General Manager and later General
Manager (T) and hence he was a usurper and was, therefore, not entitled r
to the protection of this Court. Mr. Jain, therefore, submitted that there is
no .merit in the present proceedings and the same deserves to the dismissed
H with costs.
D.K. SAHNI v. M.D. MANGANESE ORE [AHMADI, J.] 811

From the narration of the facts it becomes clear that the appellant A
~
joined service as an Assistant Mining Engineer in 1966 and was appointed
Mine Manager in 1970. A decade later on 21st April, 1980 he was
promoted as Chief Mining Engineer. The Recruitment and Promotion
Rules, 1977 had come into force with effect from 1978. These rules were
made applicable to all posts in the company except those to be filled in by
the Central Government. The mode of recruitment provided in Rule 4 was
B
(a) direct recruitment from (i) open market (ii) from amongst persons in
the employ of the CentraVState Governments, Government Industrial un-
dertakings, local and other authorities and (iii) from deputationists serving
the company (b) promotion of employees at the Head Office/Projects of

- the company and (c) by borrowing from pool officers from the CSIR and
Ministry of Labour and· Employment. Rule 5 provides the procedure for
direct recruitment and Rule 6 provides the procedure to fill in the vacancy
by deputation/appointment of employees of government and public sector
undertakings. Rule 7 deals with the mode of appointment by promotion.
c

~
Schedule I appended to the Rules indicates the posts in the Mining
D
Engineering cadre of the company carrying a scale of pay of Rs.500-800
and above. Against each post shown in column 2 the method of recruitment .
is indicated in column 4. Where the recruitment is by direct selection as
well as promotion, the percentages have been indicated therein, the
criterion is set out in the next column 5 and the age limit is stated in column
6. Then comes column 7 which prescribes the 'minimum educational .E
r· qualification and experience required for direct recruitment'. Column 8
indicates the grades from which promotion will be made. Column 9
provides for the composition of the D.P.C. The post of Chief Mining
Engineer is shown at serial No.4 in the pay-scale of Rs. 1800-2250. It is a
cent percent promotion post and is to be filled in by selection. The
.F
educational qualifications and experience set out in column 7 which is
' ...,..._ meant for direct recruitment is as under:

"l. Degree or equivalent Diploma in Mining from a recongnised
University or Institute.
G
2. 1st Class Mine Manager's Certificate of Competency under
·~
Metalliferous Mines Regulations.

3. Atleast 15 years experience of which 7 years in a responsible
position in an Underground Mine such as Sr. Mining Engineer · H
812 SUPREME COURT REPORTS [1992) 3 S.C.R.

A or Deputy Planning and Design Engineer." ,.._.
In column 8 meant for indicating the grade from which promotion
will be made it is stated "Sr. Mining Engineer/Mine Manager". It will thus
be seen that a Senior Mining Engineer or a Mine Manager could be
promoted as Chief Mining Engineer. The qualification and experience set
B out in column 7 being for direct recruitment would not ordinarily apply
where the post is required to be filled by promotion by selection. Rule 7
of the 1977 Rules makes the position clear. It in no uncertain terms says
'educatioil&l qualifications shall not be insist~d upon in deciding the
promotion of a department candidate provided he possess twice the ex-
c perience stipulated for a qualified candidate'. And illustratiop. is then
provided as under:
~-

"For instance an Office Superintendent who is not a graduate
nor he has a diploma in P;ersonnel Management shall be con-
sidered for promotion as Asstt. Personnel Officer on1y if he has A.
D worked for 6 years as Office Superintendent."

In Schedule I appended to the Rules the post of Assistant Personnel
Officer is shown at serial No. 18. In column 7 the educational qualification
set out is a degree of a recognised university or a diploma in one of the
disciplines indicated therein. So far as the experience criterion is con-
E cerned it is stated as three years. Now an office Superintendent who does
not possess the educational qualification of a degree or diploma must have
i
atleast six years experience to qualify for promotion as Assistant Personnel
Officer. This much seems to be clear on a plain reading of Rule 7 with the .,_,,.._
instance quoted therein. Therefore, if a Senior Mining Engmeer or a Mine
F Manager does not possess the educational qualifications set out in column
7 for direct recruitment as Chief Mining Engineer, he must have double ,
· the experience requirement set out in that column to be eligible for ~
promotion to the higher post. In other words going by the illustration in
Rule 7 extracted earlier a Senior Mining Engineer/Mine Manager who
does not possess the educational qualification for entry into the Chief
G
Mining Engineer's cadre must show that he possessed experience of thirty
years in the department. Indisputably the appellant who had joined service
in 1966 had not put in thirty years of service when he was promoted as
Chief Mining Engineer in 1980.

H Realising this difficulty Mr. Venugopal fell back on Rule 7(c) which
D.K. SAHNI v. M.D. MANGANESE ORE [AHMADI, J.] 813

reads as under: A
--4 "No employee shall ordinarily be promoted from a lower J>ost
to higher post unless he has served in the lower post for
minimum period of three years. The appropriate Departmental
Promotion Committee; may, however, in special cases andfor
reasons to be recorded in writing, reduce the period of three
B
years mentioned above."

In our view this rule has no application. It lays down a rule of general
application that -an employee seeking promotion to the next higher grade
must have served for atleast three years at the lower level uDiess the D.P.C. c
reduces the said period. This sub-rule has to be read in conjunction with
sub-rule (a) of Rule 7. Read together they convey that ordinarily employees
who have not served in the lower level for atleast three years will not be

- ~-
considered for promotion to the higher level unless the D.P.C. reduces $e
requirement. This rule applies to cases where no experience criterion .is
prescribed or the criterion prescribed is for less than three years but cannot
apply to cases where the criterion prescribed is higher. Much less would',it
apply to cases covered by sub-rule (a) which deals with specific cases whe~e
D

the incumbent does not possess the prescribed qualifications. Where
educational qualifcation;is .to be waived altogether, Rule 7(a) expects that
the incumbent must possess twice the experience prescribed. for those with E
the required educational qualifcation. Therefore, reliance on Rule 7(c) ~
of no avail.

It was, however, submitted that since the appellant had secured the
First Class Mine Manager's Certificate, he possessed the requisite educa- F
tional qualification and, therefore, it was not necessary to possess double
the experience prescribed for those without the requlred educational.
r- qualification. We have already pointed out earlier that by the letter of
26/27th November, 1976 the Institution (){Engineers (India) Calcutta had'
conveyed that person5 possessing such a certificate and having five years,
experience in a responsible postilion as an engineer after acquiring the , G
certificate shall be eligible for admissions to Membership of the Institution.
The Equivalence Committee of the Institution had after evaluating the
- """( qualification and experience of the appellant admitted him as Associate
Member after exempting him from passing the A & B examinations. True .
it is that on receipt of the said letter it was communicated to the appellant H
814 SUPREME COURT REPORTS (1992) 3 S.C.R.

A that his certificate will be treated as equivalent to a degree. But at the same
time the appellant was advised to obtain a formal clearance from the
Ministry of Education extending recognition to the said equivalence. Un-
fortunately for the ~ppellant the Ministry clarified that equivalence could
be granted only to those who had secured the certificate after passing the
B A & B eXaminations and not if exempted from passing the same. Therefore,
the recognition for equivalence proposed to be granted by the company
could not ultimately be granted. The Tribunal rightly points out that 'the
equivalence which was good for the purpose of Institution of Engineers
(India) waS not one which was recognised by the Central Government' and
hence the appellant could not be said to be possessing a Diploma

-
C equivalent to a degree to answer the eductional qualifications prescribed
by the Rules. This approach of the Tribunal is, therefore, unassailable.

We may now turn to office order No. 6(1) dated 22nd January, 1982
wheraby the Board of Directors approved certain modifications in the
Annexure attached to the Recruitment and Promotion Rules. These chan- A,
D ges were made effective from 17th October, 1981. Column 8 of the
modified entry reads as under :

"Sr. Mining Engineer with

(a) Degree in Mining of a recognised University/Institute or
eqdivalent. ._,

(b) 1st Class Mine Manager's Certificate of competency under
Metalliferous Mines Regulations (UR).

F (c) 3 years service in the company in the scale of Rs. 1500-2000.

. Under the modified entry the eligibility criteria for direct recruits
remains the same except for a slight change in the experience criterion,
viz., the requirement of experience of 7 years in a responsible position in
an underground mine has been dispensed with. The significant change,
G however brought about in. column 8 is to state the educational/experience
qualifications for promotion separately. The experi~nce criteria for promo-
tion under the modified entry is reduced to three years service in the
company in a post carrying a scale of Rs. 1500-2000. Therefore, under the
revised entry a Senior Mining Engineer possessing the educational
H qualification at (a) and (b) and experience of three years service in the
D.K. SAHNI v. M.D. MANGANESE ORE [AHMADI, J.] Sis

company on a post carrying a scale of Rs. 1500-2000 became eligible f~r A
promotion to the post of ehief Mining Engineer. Now, if Rule 7(a) of the
Recruitment and Promotion Rules is invoked a Senior Mining Engineer
who does not possess the requisite educational qualification but possesse5
double the prescribed experience, i.e. experience of six years service in the
company on a post carrying a pay scale of Rs. 1500-2000, would be eligible B
for promotion to the post of Chief Mining Engineer. The. submission of
. Mr. Venugopal was that even if it is assumed that the appellant· was not
qualified to be promoted to the post of the Chief Mining Engineer on
19/21st April, 1980, he at any rate became eligible for promotion on the'
modification of the relevant entry in the Annexure extracted earlier with1

- effect from 17th October, 1981 and even if his promotion is regularised or C
deemed to have been regularised by the company from the said. date, he'
was entitled to be considered for further promotion in the cadre of Deputy
General Manager and later General matiager (T) of the company. Mr.'
Ashok Desai for the company supported this ·line of reasoning and con-
tended that as far as the company is concerned, it always treated the D
appellant as eligible for being promoted to the higher posts of Deputy ·
General Manager and General Manager (T). There is considerable force 1

in this submission. The Tribunal's order does not deal with this aspect of '
the matter. We have agreed with the Tribunal that under the rule position '
as it existed at the date of the appellant's promotion to the post of Chief
Mining Engineer, i.e. on 19/21st April, 1980, the appellant was not eligible E
for appointment to the said post by promotion. However, on the change 1

brought about in the relevant entry by the order of 22nd January, 1981 with
effect from 17th October, 1981, the appellant became eligible for promo-
tion and even if his placement in the cadre of Chief Mining Engineer is
reckoned from that date he was clearly eligible for upward promotion. But, ,F
submitted Mr. Jain, once the Court holds that the initial entry of the
candidate was in violation of the promotional criteria,· his entry must be
treated as void. and unless the DPC reconsiders his case for promotion
along with others his entry in the cadre cannot be regularised on a deeming
1

fiction. He also submitted that no such case was put up before the High ,
Court and, therefore, this Court should not permit it to be placed for the G
first time in proceedings under Article 136 of the Constitution. According
to him the Article 136 jurisdiction must be exercised sparingly and in
support he invited our attention the observations (extracted earlier) from
this Court's decision in Ujagar Singh's case. We are not impressed by t~s
j

816 SUPREME COURT REPORTS (19'12) 3 S.C.R.

A approach. In the first place 1t must be remembered that the appellant's
promotion made under the order of 19th April, 1980 was sought to be
undone only after his promotion to the higher post. Secondly there is no
charm in directing the reversion of the appellant for a short period from
21st April, 1980 to 16th October, 1981 when we find that under the revised
B or modified criteria he was eligible for appointment as Chief Mining
Engineer on 17th October, 1981. He was placed junior to others and even
if he is considered as promoted with effect from 17th October, 1981 he
would continue to rank junior. He was selected for the higher post on merit
though he was junior- to others. Therefore, it is not a case where he had
received weightage because he was shown senior when t~-P~C selected
C him for the higher post. He has served on the promotion post of Deputy
General Manager (T) since July, 1983. Would it not be harsh and shocking
to revert him after so many years only on the ground that he must seek .
. -
re-entry in the_ ~dre of Chief Mining Engineers with effect from 17th
October, 1981 when he acquired eligibility on the modification of the
D relevant entry in the annexure to the Rules. We think it would result in
gross injustice to the appellant. We are, therefore, not impressed by thei
technical objection raised by Mr.Jain.

In the result the appeals insofar as they relate to the impugned order
of the High Court dated 18th July, 1989 are allowed and the said order is
E hereby set aside and the petition which gave rise to the same will stand
dismissed. The appeals insofar as they are directed against the order
passed by the High Court in review dated 30th January, 1990 shall stand
dismissed on the setting aside of the order dated 18th July, 1989. There
will be no order as to costs throughout.

N.P.V. Appeals disposed of.
. ,,...

,.. _