Holding

The clarificatory order is a valid supplemental clarification, not an amendment, and can be applied to the promotions, which are therefore valid.

Summary

The dispute concerned promotions to Executive Engineer in the Haryana Electrical Inspectorate (Group‑A) Service. The service rules required a degree or diploma in Electrical Engineering from a recognised university or its equivalent. The appellants held diplomas issued by the State Board of Technical Education, which the High Court held were not equivalent and thus ineligible for promotion. The State Government later issued a clarificatory order treating those diplomas as equivalent to university diplomas and promoted the appellants. The High Court refused to give the order retrospective effect, quashing the promotions. The Supreme Court held that the order was a permissible clarification, not an amendment of the rules, and could be applied to the vacancies; it did not impair any vested rights. Consequently, the promotions were upheld and the appeals were allowed.

Issues considered

Whether the State Government's clarificatory order treating State Board diplomas as equivalent to university diplomas amounts to an amendment of the Haryana Electrical Inspectorate (Group‑A) Service Rules, 1997.
Whether such a clarificatory order can have retrospective effect for promotions that arose before its issuance.
Whether retrospective amendment of service rules can impair vested rights under Article 309 of the Constitution.
Whether the High Court erred in refusing to recognise the clarification for the purpose of promotion.

Legislation cited

Constitution of Indias. Article 309

Subjects

service lawpromotionservice rulesArticle 309clarificatory orderretrospective effectvested rightsequivalence of qualificationsadministrative clarification

Judgment

O.P. LATHER AND ORS. A
v.
SATISH KUMAR KAKKAR AND ORS.

FEBRUARY 2, 2001

[S. RAJENDERA BABU AND K.G. BALAKRISHNAN, JJ.] B

Service law:

Haryana Electrical Inspectorate (Group-A) Service Rules, 1997: Rules
17, 18 and Appendix B. Promotion-From Assistant Engineer to Executive C
Engineer-Requisite qualification-Degree or Diploma in Electrical
_..,,,.- Engineering from a recognised university-High Court in an earlier decision
held that Diploma in Electrical Engineering awarded by State Board of
Technical Education was not equivalent to the one from a recognised
un:versity-Subsequently, the State Government issued an order that such
Diploma was equivalent to a Diploma from a recognised university- D
Promotions to Executive Engineers were accordingly made-Validity of-
Held: The order is c/arificatory in nature and does not amount to an
amendment-Without the clarification Assistant Engineers not entitled to be
promoted as they are not holders of Diploma in Electrical Engineering from
a recognised university-Hence, promotions validly· made. E
The respondent filed a writ petition before the High Court claiming
that he alone was entitled to be promoted as Executive Engineer since the
appellants did not possess the qualification of Diploma in Electrical
Engineering from a recognised university as laid down in Appendix B to the
Haryana Electrical Inspectorate (Group-A) Service Rules, 1997 framed under F
Proviso to Article 309 of the Constitution. The High Court allowed the writ
petition on the ground that the appellants held-Diploma in Electrical
Engineering awarded by the State Board of Technical Education, which was
not a Diploma in Electrical Engineering from a recognised university.
G
- ;t..: Subsequently, the State Government issued a clarificatory order
whereby it was held that the Diploma in Electrical Engineering awarded by
the State Board of Technical Education be treated as equivalent to the Diploma
in Electrical Engineering from a recognised university. Consequently, the
appellants were promoted as Executive Engineers.
827 H
828 SUPREME COURT REPORTS (2001) 1 S.C.R.

·A The respondent filed a writ petition challenging the aforesaid promotion
of the appellants. The High Court allowed the writ petition and held that by
virtue of the amendment of Rules, no retrospective effect could be given to
the clarificatory order and as the vacancies had occurred prior to the coming
into force of the amended rules, the appellants were not entitled to be promoted
B to the posts of Executive Engineers. Hence this appeal.

Allowing the appeal, the Court

HELD : 1.1. Under the Haryana Electrical Inspectorate (Group-A)
Service Rules, I 997 it is specifically stated that a Degree or Diploma in
C Electrical Engineering from a recognised university or its equivalent would
be the requisite qualification for promotion to the cadre of Executive Engineers.
In the Rules, some of the recognised universities are also mentioned and
admittedly, these institutions are not awarding any Diploma. There is nothing
wrong in the appointing authority issuing a clarification as to what would be
the equivalent qualification for the purpose of appointment. [832-D-F[
D
1.2. The clarificatory order issued by the State Government was only
supplemental to the rules already framed under the Proviso to article 309 of
the Constitution. It does not have the effect of altering the Rules nor is it
inconsistent therewith. The relevant rule in fact provides that Diploma holders
are entitled to be promoted to the cadre of Executive Engineers. If this rule,
E without. the present clarification, were allowed to operate, no officers in the
cadre of Assistant Engineers would be entitled to get promotion, as they are
not holders of Diploma from a recognized university. (833-C-D[

State of Haryana v. Shamsher Jang Bahadur, [1972) 2 SCC 188; T.R.
Kapur v. State of Haryana, [1986[ Supp. SCC 584 and University of Mysore
F v. C.D. Govinda Rao, [1964[ 4 SCR 575, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1012-1013
of 2001.

From the Judgment and Order dated 30.9.99 and 1.2.2000 of the Punjab
G and Haryana High Court in C.W.P. No:9655/99 and C.W.P. No. 15317of1999.
With

C.A. No. 1014 of2001.

H P.P. Rao, P.K. Palli, Raj Kumar Gupta, Mritunjay Kumar Singh, A.N.
r
'

O.P. LATHER v. S.K. KAKKAR [BALAKRISHNAN, J.] 829
Bardiyar, Neeraj Jain, Mahabi"r Singh, Anant V. Palli, Atul Sharma and Rekha A
"y ' Palli for the appearing parties.

The Judgment of the Court was delivered by

K.G. BALAKRISHNAN, J. Leave granted.
B
Aggrieved by the judgment of the Division Bench of Punjab and Haryana
High Court at Chandigarh in C.W.P. No. 9655 of 1999 and C.W.P. No. 15317
of 1999, the present appeals are filed by the party respondents and the State
of Haryana respectively. By the impugned judgment, the Division Bench held
that the contesting party respondents [appellants in the civil appeals arising
from S.L.P.(Civil) Nos. 4341-42 of2000) were not entitled to be promoted as C
Executive Engineers and that' the claim of the petitioner in the writ petitions
shall be considered.

Initially, Satish Kumar Kakkar, the first respondent in these appeals,
filed a writ petition [C.W.P. No. 9655 of 1999) claiming that he alone was
entitled to be promoted as Exe~utive Engineer and contended that the third D
respondent therein, namely, O.P. Lather, then working as Asstt. Engineer,
lacked the requisite educational qualification for promotion as Executive
Engineer. The Division Bench held that the said third respondent did not have
the requisite qualification for promotion to the post of Executive Engineer and
directed that the post of Executive Engineer be filled up in accordance with E
the Rules. Subsequent to this judgment, the Govt. of Haryana issued an
executive order on 7th October, 1999 whereby it was clarified that the Three
Years' Diploma in Electrical Engineering, awarded by the State Board of
Technical Education, Haryana, would be treated as equivalent to Diploma in
Electrical Engineering from a recognised university. Con~equently, the
appellants herein, namely, O.P. Lather, P.O. Shanna and Daya Nand were F
promoted to the posts of Executive Engineer by proceedings dated 26th
October, 1999. The order passed by the Govt. of Haryana on 26th October,
1999, was challenged by Satish Kumar Kakkar in a writ petition [C. W.P. No.
15317 of 1999) contending that none of them possessed the requisite
qualification for being promoted as Executive Engineer and the Division G
Bench of the High Court accepted his contention and quashed the promotions.
The Division Bench also directed to consider the claim of the first respondent
herein for promotion to the post of Executive Engineer. Judgments in these
two writ petitions are challenged before us.

As per Rules framed by the State of Haryana under Proviso to Article H
830 SUPREME COURT REPORTS [200 I] I S.C.R.

A 309 of the Consititution, the ·post of Executive Engineer would be filled up by
direct recruitment as well as by promotion. The relevant portion of the "Haryana
Electrical Inspectorate (Group-A) Service Rules, 1997" is column 3 of Appendix
B of the said Rules. The same is to the following effect :

S. Designation Academic qualifications Academic qualifications
B No. of posts & experience, if any, & experience, if any,
for direct recruitment for appointment other
than by direct recruitment

2. Executive I. Degree in Electrical I. Degree or Diploma in
Engineer Engineering from a recog- Electrical Engineering from
c nised University or its arecognised University or
equivalent. its equivalent.
[emphasis supplied]

2. Should have been regularly 2. Eight years experience as
D engaged for a period of at Asstt.. Engineer.
least eight years in the
practice of electrical engineer-
ing of which not less than two
years should have been spent
E in an electrical or mechanical
engineering workshop or in
generation, transmission or
distribution of electricity or
in the administration of Indian
Electricity Act, l 910, and the
F Rules made thereunder in a
position of responsibility.

As per the above Rules, the requisite academic qualification for promotion
to the post of Executive Engineer is Degree or Diploma in Electrical Engineering
G from a recognised university or its equivalent. The appellants have passed
Diploma in Elect~ical Engineering from an institution affiliated to the State
Board of Technical Education, Haryana, but the Diploma acquired by them is ·ii. -
not from a recognised university. Therefore, the first respondent contended
that they were not entitled to be promoted to the posts of Executive Engineer.

H The first respondent had joined service in the Haryana Govt. as Junior
O.P. LATHER v. S.K. KAKKAR [BALAKRISHNAN, J.] 831

Engineer· in J98 J and he too is a holder of Diploma in ElectriCal Engineering A
from Haryana Polytechnic, Nilokheri, which is affiliated to the State Board of
Technical Education, Haryana. He was promoted to the post of Asstt. Engineer
on 2.4.1985 whereas the appellants were promoted during the periad 1984-85
to the cadre of Asstt. Engineer. Three vacancies of Executive Engineer arose
on 29.12.1998. The first respondent claimed that he had passed A.M.l.E.
Examination in 1995 and was thus entitled to be promoted to the post of B
Executive Engineer. In the earlier writ petition, viz. C.W.P. No. 9655of1999,
the Division Bench had held that as the third respondent therPin, viz., appellant-
0.P. Lather was only a Diploma-holder, and as the Dipk.1ma Certificate obtained
by him was not from a recognised university, he was disqualified to be
promoted to the cadre of Executive Engineer. Subsequent to this, the Govt. C
of Haryana issued a clarificatory order on 7th October, 1999 whereby it was
held that the Diploma in Electrical Engineering awarded by the State Board
of Technical Education, Haryana, and approved by the All India Council for
Technical Education be treated as equivalent to Diploma in Electrical
Engineering from a recognised university. The Division Bench, in its
subsequent judgment in C. W.P. No. 15317 of 1999, held that the vacancies D
arose prior to the issue of the said clarificatory order by the Govt. of Haryana
and, therefore, the promotion to those posts should have been made in
accordance with the then existing rules as the order passed by the Govt. on
7th October, 1999 cannot have retrospective effect. It was held that by virtue
of the amendment of Rules, no retrospective effect could be given to the said E
order and as the vacancies had occurred prior to the coming into force of the
amended rules, the appellants herein were not entitled to be promoted to the
posts of Executive Engineer.

We heard the learned counsel on either side. It is true that as per the
special rules framed under Proviso to Article 309 of the Constitution, the. F
requisite qualification for the purpose of promotion to the cadre of Executive
Engineer is Degree or Diploma in Electrical Engineering from a recognised
university or its equivalent. The learned counsel for the State of Haryana
submitted that there is no university in the State of Haryana which awards
Diploma in Electrical Engineering and that such Diplomas are awarded by G
various recognised institutions which are affiliated to and approved by the
State Board of Technical Education in Haryana. It is argued that the first
respondent had ;o;lso acquired a three years' Diploma in Electrical Engineering
granted by the State Board of Technical Education, though he has passed
A.M.l.E. Examination, which is also not issued from a recognised university.
It was submitted that realising this position, the Govt. of Haryana issued an H
832 SUPREME COURT REPORTS [2001) 1 S.C.R.

A executive order on 7th October, 1999 by way of clarificatfon wherein it is
stated that no university situated in the State of Haryana awards Diploma_ in.
Electrical Engineering and that the Diploma in Electrical Engineering is awarded
only by the State Board of Technical Education, Haryana, and no requirement
of equivalent qualification has been prescribed for such a course (Diploma)
in the State of Haryana; the three years' Diplomas awarded by the State Board
B of Technical Education, Haryana, are duly approved by the All India Council
for Technical Education also.

The question that arises for our consideration is whether the clarification
issued by the Govt. of Haryana by an executive order is proper and valid and
C whether it amounts to amendment of the Rules made under Article 309 of the
Constitution. If it is an amendment to the Rules made under\ Article 309, a
further question arises whether by an executive order, can such rules be
amended.
~ ..
Normally, the Rules framed under the proviso to Article 309, cannot be
D amended except in accordance with procedure laid down therein. But in the
instant case, the question is whether a clarification issued by the Govt. could
be construed as an amendment to the rules. Even under the rules, it is
specifically stated that a Degree or Diploma in Electrical Engineering from a
recognised university or its equivalent would be the requisite qualification for
promotion to the cadre of Executive Engineer. In the Rules, some of the
E recognised universities are also mentioned and admittedly, these institutions
are not awarding any Diploma. The rules say that equivalent qualification also
would be considered. There is nothing wrong in the appointing authority
issuing a clarification as to what would be the equivalent qualification for the
purpose of appointment. When the universities do not offer the Diplomas
F prescribed under the Rules, the rule itself becomes meaningless and nugatory.
Under the Rules, the candidates are asked to produce a certificate which is
neither in existe11ce nor awarded. It was at this juncture that the Govt. issued
a clarification that the Diploma awarded by recognised institutions, which are
affiliated to the State Board of Technical Education in Haryana, would be
considered as equivalent.
G
A similar question came up for consideration in State of Haryana v.
Shams her Jang Bahadur, [1972] 2 SCC 188. It was held in paragraph 7 of the ~-
judgment as under :

"The first question arising for decision is whether the Government
H was competent to add by means of administrative instructions to the
O.P. LATHER v. S.K. KAKKAR [BALAKRISl-INAN, J.] 833
qualifications prescribed under the Rules framed under Article 309. A
The High Court and the courts below have come to the conclusion
that the Government was incompetent to do so. This Court has ruled
in Sant Ram Sharma v. State of Rajasthan and Another that while the
Government cannot amend or supersede the statutory rules by
administrative instructions, if the rules are silent on any particular
point, the Government can fill up the gaps and supplement the rules B
and issue instructions not inconsistent with the rules already framed."

In the instant case also, the Govt. Order passed on 7th October, 1999
was only supplemental to the Rules already framed under the Proviso to
Article 309 of the Constitution. It does not have the effect of altering the C
Rules nor is it inconsistent therewith. The relevant rule in fact provides that
Diploma holders are entitled to be promoted to the cadre of Executive Engineer.
lfthis rule, without the present clarification, is allowed to operate, no officers
in the cadre of Assistant Engineers would be entitled to get promotion as
they are not holders of Diploma from a recognised university. That would be
a virtual denial of opportunity of promotion to these officers. The rule does D
not intend that the Diploma holders shall not be promoted to the cadre of
Executive Engineer. To obviate this difficulty, the clarification was issued. It
is also pertinent to note that even the 1997 Rules give the power to Govt. to
relax the Rules. Rules 17 and 18of1997 Rules thus confer power of relaxation
and for making special provisions/special tenns and conditions as may be E
deemed to be expedient.

The next question that arises for our consideration is whether the High
Court was justified in holding that the posts had to be filled up in accordance
with the Rules that were in existence at the time the vacancies arose. We do
not think that the stand taken by the High Court is correct. The executive F
order issued by the Govt. was only clarificatory in nature and the 'equivalent
qualification', which formed part of the Rules was exaplained by that order.

It was argued that by amendment of Rules, benefits acquired under the
existing Rules cannot be taken away. It is true that by retrospective amendment
of rules, vested rights cannot be taken away. This view was held by this Court G
in T.R. Kapur v. State of Haryana, [1986) Supp. SCC 584 =AIR (1987) SC 415.
This Court held in Para 16 of the said judgment as follows :

"The rules defining qualifications and suitability for promotion are
conditions of service and they can be changed retrospectively. This
rule is however subject to a well recognised principle that the benefits H
834 SUPREME COURT REPORTS [200 I] I S.C.R.

A acquired under the existing rules cannot be taken away by an
amendment with retrospective effect, that is to say, there is no power
to make such a rule under the proviso to Article 309 which affects or
impairs vested rights."

But in the present case, by issuing the clarification no vested rights of
B any person were taken away or impaired, much less that of the first respondent.
By this clarification, it was made clear that Diploma issued by the State
Technical Education Department would be equivalent to a Diploma issued
from a recognised university. Even without this explanation. both Diploma-
holders and Degree-holders having eight years' service as Asstt. Engineer are
C entitled to be promoted to the cadre of Executive Engineer. This clarification
has been issued by the State Govt. after taking into consideration all relevant
circumstances, including the fact that no university in Haryana grants Diploma
in Electrical Engineering. When expert qualification is fixed by competent
authority. ordinarily court shall not interfere with such matters. In Unh-ersity
of Mysore & Anr. v. C.D. Govinda Rao & Anr., [1964] 4 SCR 575, it was
D observed that normally it is wise and safe for the courts to leave the decision
of academic matters to experts who are more familiar with the problems they
face than the courts generally can be.

We do not find any illegality in the order passed by the Govt. of
Haryana promoting the appellants to the posts of Executive Engineer. They
E are admittedly senior to the first respondent in the cadre of Asstt. Engineer.
We, therefore, set aside the impugned judgments and hold that the promotions
of the appellants are made in accordance with the Rules. All the appeals are
allowed accordingly without, however, any order as to costs.

V.S.S. Appeals allowed.
F