SHRI GOVIND PRASADversusSH. R.G. PRASAD AND ORS.

                       SHRI GOVIND PRASAD                                    A
                                 v.
                     SH. R.G. PRASAD AND ORS.

                          NOVEMBER 2, 1993
                                                                             B
             [KULDIP SINGH AND S.P. BHARUCHA, JJ.]

      Service law : United Provinces Service of Engineers (Buildings and
 Roads Branch) Class-II Rules, 1936:

       Executive instructions issued by way of Memorandum dated 7.1.1980 C
 amending the eligibility criteria-Promotion of Junior Engineers as Assistant
 Engineers-Minimum eligibility service reduced from JO years to 7 yean--Ap-
 plicability of the Memorandum to Jr. Engineers/Assistant Engineers in Electri-
 cal and Mechanical branche~Service conditions for all the three Branches
 of Public Works Department, viz. Buildings and Roads, Mechanical and D
 Electrical-Laying down of-i.n ~lear and certain tenn.~Suggestion made to
 State Government. Executive 'Order ofgovemment cannot be made operative
 with retrospective effect.

          In the U.P. State Public Works Department there were no statutory E
,. service rules regulating the recruitment and conditions of service of
   persons appointed to the Electrical and Mechanical Branches. However,
   the Building and Roads Branch was governed by the rules called the
   United Provinces Service of Engineers (Building and Roads Branch)
   Class II, Rules, 1936 framed under the Government of India Act, 1935.
   The 1936 rules, though not applicable in terms to Electrical and F
   Mechanical branches, had always been applied Mutatis mutandis to these
   branches as well. The 1936 rules laid down three eligibility conditions
   for a Junior Engineer to be considered for promotion to the post of
   Assistant Engineer, viz., confirmation as Junior Engin,eer, A.M.l.E./B.E.
    qualification or passing the qualifying examination prescribed by the G
   Government and 10 years experience as Junior Engineer.

        The Government Order dated December 3, 1964 further prescribed
  rules for the qualifying examination in respect of Electrical/Mechanical
  subordinates for promotion to the post of Assistant Engineer in the        H
                                    555
    556                   SUPREME COURT REPORTS [1993) SUPP. 3 S.C.R.

A   EIJ~trical and Mechanical branches o( the Public Works Department.
          The State Government issued office memorandum dated January 7, ·
    1980, amending the formula laid down, making Junior Engineers with 7
    years experience, eligible for being considered for promotion as Assistant
B   Engineer.

           In 1981 the State Government intimated to the Public Service com·
    mission that the. vacancies for the years 1968-69 to 1979-80, in the cadre
    of Assistant Engineers pertaining to the Mechanical and Electrical wings
    of the Public Works Department, were to be filled by promotion. Only those
C Junior Engineers who had put in a minimum of 10 years service as Junior
    Engineer were to be considered. While the interviews were being conducted
    by the Selection Committee, some of the Junior Engineers, who had not
    been included In the eligibillty list, as they had not completed 10 yean as
    Jr. Engineers, challenged the process of selection before the High Court
D on the ground that they were wrongly excluded from the eligibillty list. The
    High Court by an interim order permitted more than 100 candidates, who
    were not in the eligiblllty list, to be interviewed by the Selection Committee
    subject to the ftnal result of the writ petitions. The list of selected can·
   .didates was notifted by the Government on November 7, 1983. Therearter
E large number of Junior Engineers who were omciating as Assistant En·
 • gineers on ad-hoc basis were ordered to be reverted to accommodate the
    Junior Engineers who were selected. The reversion orders were challenged
    before the High Court by way of several writ petitions. The High Court
    stayed the reversion and further stayed appointments from the select list.
F Thereafter, the High Court permitted ad-hoc promotions to. be made on
    the basis of seniority subject to rejection of the unfit.

           Before the High Court the Writ Petitioners contended that there
    being no statutory service rules applicable to the Electrical and Mechani•
    cal branches of the Public Works Department the memorandum which laid
G   down seven years services as an eligibility condition for promotion to the
    post of Assistant Engineer, was to be followed and as such. the wrlt
    petitioners were entitled to be included in the' eligibility list.

          The High Court set aside the selection solely on the ground that
H   the Junior Engineers with seven years service to their credit, having not
                      G. PRASAD v. R.G. PRASAD                          557

 ~en Included in the eligibility list the selection was illegal. It accepted   A
                                          0

 the contention that the memorandum superseded .all earlier executive
 Instructions /precedents in the matter of promotions from Junior En·
 gineers to Assistant Engineers and as such had reduced the eligibility
 criterion of ten years service to that of seven years service with effect
 from July 1, 1978.                                                            B
      The present appeals and petitions relate to the said judgment of the
 High Court.

       Disposing of the matters, this Court.,

        HELD: 1.1 Neither the memorandum dated 7.1.1980 nor any other
                                                                               c
  Government order has specifically modified or amended the Government
  order dated December 3, 1964. Even otherwise, a bare look at the contents
  of the memorandum shows that it contained a policy decision of the
  Government which was to be implemented in the future. The memorandum
  did not state that it was applicable to the Electrical and Mechanical        D
  branches. Para 5 therein stated that "provision shall be made in accord·
  ance with the above said decision in the service rules". Admittedly, there
. were no service rules regarding Electrical and Mechanical branches. It
  can, therefore, be legitimately inferred that the memorandum was meant
  only for the Building and Roads branch which was governed by the 1936        E
  rules. Even if it is assumed that the memorandum was meant for all the
  three branches, it could not operate in respect of Building and Roads
  Branch till the time the 1936 rules were amended and since the Govern-
  ment was uniformly applying the 1936 rules to all the three branches, the
  memorandum could not be read to be applicable to the Electrical and          F
  Mechanical branches. [563•H, 564·A·D]

        1.2 Para 3 of the memorandum gives deeming effect· from July 1,
 1978 • to the provisions in paras i and 2 of the memorandum. An executive
 order of the Government cannot be made operative with retrospective
 effect. Thus the memorandum contained various proposals which were to         G
 be incorporated in the statutory rules. (564-D·E]

      1.3 The scheme of the memorandum clearly show that it did not lay
 down conditions of service for any of the branches of the Public Works .
 Department. The contents of the said memorandum were the various H
     558                   SUPR~ME COURT REPORTS           (1993) SUPP. 3 S.C.R.

, A policy decisions taken by the Government from time to time which were to
     be implemented in future by making necessary provisions in the
     relevant rules or by amending the existing executive instructions. The
     memorandum does not talk of electrical or mechanical branches in any
     mam:1er. [564-G-H]
 B         G~pal Krishna Goel v. State of Uttar Pradesh Civil Misc. Writ No.
     2001 of 1983 decided on March 20, 1984; approved.

         (During the pendency of these matters the operation of the judgment
   of the High Court under challenge and also all reversions were stayed by
 C this Court. 12 posts were permitted to be filled by the State Government
   and the State Government was allowed to make ad-hoc appointments by
   following the· rule of seniority subject to unfitness. In view of its decision,
   this Court gave certain directions to the State of U .P. as regards selectioDi
   seniority and regularisation of the Asstt. Engineers. It also suggested that
 D the State of U .P. may at its discretion, lay down in clear and certain terms
   the conditions of service in respect of the three branches of Public Works
   Department, viz., Buildings and Roads, Mechanical and Electrical, either
   by executive instructions or statutory rules.)

 E           CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3868 of
     1984.

          From the Judgment and order dated 3.8.1984 of the Allahabad High
     Court in W.P. No. 37of1984.

 F                                       With

           W.P.(C) No. 56/89, C.A. No. 4985/84, S.L.P. (C) No.1416/85, C.A.
     Nos. 1602/85, 250/85, 251/85, 48S/85 and I.A. Nos. 8 & 9190, Con. Pet. No.
     226/90 in C.A. No. 3868/84.     \

 G        P.P. Rao, M.R. Sharma, R.K. Jain, D.V. Sehgal, Ms. Lalit Mohini
    Bhat, Ms. Kiran Jathanand, S.R. Bhat, N.R. Nath, Ani1 Kumar Gupta,
    Pankaj Kalra, AK. Srivastava, D.K. Garg, Dileep Tandon, J.M. Khanna,
   ·R.K. Khanna, Raju Ramachandran, R.B. Mishra, Manoj Swarup, Ms.
    Lalitha Kohli, K.R. Nagaraja, S.A. Syed, AK. Sanghi and Setia for the
 H appearing parties.
            G. PRASAD v. R.G. PRASAD (~LDIP SINGH, J.)                    559

      The Judgment of the Court was delivered by                                 A

      KULDIP SINGH, J, Junior Engineers and Assistant Engineers work-
ing in the Electrical and Mechanical wings of the Public Works Depart-
ment in the State of Uttar Pradesh, are involved in this litigation. The State
Government held selection for promotions to the cadre of Assistant En-           B
gineers from amongst the Junior Engineers. The selection was challenged
by way of several writ petitions before the Lucknow Bench of the Al-
lahabad High Court. A Division Bench of the High Court allowed the
bunch-petitions by its judgment dated August 3, 1984 and quashed the
select list notified by the office memorandum dated November 5, 1983.
These appeals and the connected matters are directed against the judg-           C
ment of the High Court.

      We may briefly notice the facts necessary to resolve the controversy.
Building and Roads, Electrical, and Mechanical are the three branches of
the Public Works Department to which the Junior Engineers and the D
Assistant Engineers are appointed. There are no statutory service rules
regulating the recruitment and conditions of service of persons appointed
to the Electrical and Mechanical branches. However, the Building and
Roads branch governed by the rules called The United· Provinces Service
of Engineers (building and roads branch} Class II rules, 1936 (the 1936 B
rules) framed under the Government of India Act, 1935. It is not disputed
that the 1936 rules, though not applicable in terms to Electrical and
Mechanical branches, have always been applied mutatis mutandis. to these
branches as well. The 1936 rules lay down three eligibility - conditions for
a Junior Engineer to be considered for promotion to the post of Assistant
Engineer. These are: the candidate should (1) be confirmed Junior En-
                                                                             F
gineer; (2) be A.M.I.E./B.E. or have passed the qualifying examination
prescribed by the Government and (3) have 10 years experience of service
on the post of Jupior Engineer.

      The Government Order dated December 3, 1964 further prescribes G
rules for the qualifying examination in respect of Electrical/Mechanical
subordinates for promotion to the post of Assistant Engineer (Electri-
cal/Mechanical). These rules, as amended from time to time, provide that
the examination shall be held every alternate year to enable the members
of the subordinate electrical engineering (Electrical overseers) service and H
    560                   SUPREME COURT REPORTS [1993} SUPP. 3 S.C.R.

A the subordinate mechanical engineering (Mechanical overseers) service to
  qualify for promotion to the post of Assistant Engineer (Electrical arid
  Mechanical). The rules also provide the list. of subjects in which the
  candidates are to be examined and the marks to be obtained for qualifying
  the examination. The rules further prQvide that all permanent members of
B the respective subordinate services, whcN1ave completed a total of not less
  than 10 years, including temporary or officiating service, are eligible to
  appear in the examination. Although the Government Order dated Decem-
  ber 3, 1964 states "that the Governor is pleased to make the enclosed rules
  for the qualifying examination of the members ................." but since these
  rules have not been framed under Article 309 of the Constitution of India
c they are only executive instructions laying down the procedure and
  eligibility for the qualifying examination in respect of the two subordinate
  services in the Electrical and Mechanical branches of the Public Works
  Department. These executive instructions, however, clearly show that the
  Government was uniformly applying the eligibility criteria of 10 years
D service as Junior Engineer, for promotion to the post of Assistant Engineer,
  in respect of all the three branches of the Public Work Department.

          The State Government issued office memorandum dated January 7,
    1980, (the memorandum) which is the bone of contention between the
E parties. The said memorandum as reproduced in the impugned judgment
    of the High Court reads as under :

             "The folloWing conditions of eligibility have hither to been required
             for promotion from the post of Junior Engineer to the post of
             Assistant Engineer ;
F
             (1) The candidate should be confirmed (Permanent) on the post
             of Junior Engineer.

             (2) The candidate should be A.M.I.E./B.E. or have passed the
             qualifying examination laid down by the Government.
G
             (3) The candidate should have ten years experience of service on
             the post of Junior Engineer.

             The Government after consulting other Engineering Departments
H            and the Public Service Commission decided on 13.4.1978 after
   G. PRASAD v. R.G. PRASAD [KULDIP SINGH, J.)                   561

promotion to amend the above formula. The amended formula is A
as follows:

"(1) Against the 25% posts reserved for promotion, half of them
would be filled by promoting those Junior Engineers who are
A.M.I.E./B.E. or have passed the prescribed qualifying examina-          B
tion. While the remaining half, as well as those vacancies which
cannot be filled from among A.M.l.E./B.E. or qualifying examina-
tion passed Junior Engineers for want of such candidates being
available, shall be filled by other Junior Engineers who are neither
A.M.l.E./B.E., nor have passed qualifying examination.
                                                                         c
(2) These Candidates who are not A.M./.E/B.E. nor have passed
qualifying examination or should have seven years' experience on the
post of Junior Engineer. This condition of seven years' experience
will not be required for those Junior Engineers who are
A.M.I.E./B.E. or have passed qualifying examination.                     D

(3) The above provision shall be deemed to be effective from
1.7.1978.

(4) The question of revising the promotion quota was also con-           E
sidered and after due consideration, vide G.O. No. 10335/23/4/94-
N.G.n2 dated 7.12.79 "the Government had announced its decision
that out of the available vacancies on the posts of Assistant En-
gineers 25% would be filled promotion of non-graduate Junior
Engineers, while 5% would be filled by promoting A.M.1.E./B.E.
Junior Engineers. If, however A.M.l.E./B.E. Junior Engineers are
                                                                         F
not available in sufficient numbers, then the vacancies allotted to
them shall also be filled by promoting non-graduate Junior En-
gineers. This provision shall be effective in respect of vacancies· of
the year 1970-80 and subsequent years.
                                                                         G
(5) Provision shall be made in accordance with the above said
decision in the service rnles.

(6) The Government Orders issued from time to time in respect
of reservation shall be strictly followed, and the basis of adhoc        H
    562                   SUPREME COURT REPORTS [1993) SUPP.. 3 S.C.R.

A           promotions shall be seniority subject to rejection of the unfit."

          We have set-out the full text of the memorandum in order to ap-
    preciate the nature of the document. The memorandum was relied upon
    before the High Court in support of the contention that the eligibility
B   condition of 10 years service, in respect of Junior Engineers of Electrical
    and Mechanical branches, was reduced to 7 years with effect form July 1,
    1978.

         Regular promotions from amongst the Junior Engineers in the
  .Electrical and Mechanical branches had not been made since 1968- 69. It
C was in 1981 that the State Government intimated to the Public Service
  Commission (Commission) that the vacancies for the years 1968-69 to
  1979-80, in the cadre of Assistant Engineers pertaining to the Mechanical
  and Electrical wings of the Public Works Department, were to be filled by
  promotion. Only those Junior Engineers were considered eligible who had
D put in a minimum of ten years services as Junior Engineer. While the
  interviews were being conducted by the Selection C9mmittee, some of the
  Junior Engineers, who had not been included in the eligibility list, chal-
  lenged the process of selection before the High Court on the ground that
  they were wrongly excluded from the eligibility list. According to them all
  those Junior Engineers who had completed seven years of service, as
E laid-down in the memorandum, were eligible to be considered for selection
  to the post of Assistant Engine~r. The High Court by an interim 0rder
  permitted more than 100 candidates, who were ~ot in the eligibility list, to
  be interviewed by the Selection Committee subject to the final result of
  the writ petitions. The list of selected candidates was notified by the
p government on November 7, 1983. Thereafter large number of Junior
  Engineers who were officiating as Assistant E;Jgineers on ad-hoc basis
  were ordered to be reverted to accommodate the Junior Engineers who
  were selected. The reversion orders were challenged before the High Court
  by way of several writ petitions,. The High Court stayed the reversions and
  further stayed appointments from the select list. On February 28, 1984 the
G High Court permitted ad-hoc promc.tions to be made on the basis of
  seniority subject to rejection of the unfit.

        The contention of the writ petitioners before the High Court ~as that
  there being no statutory service rules applicable to the Electrical and
H Mechanical brl!llches of the Public Works Department the memorandum,
             G. PRASAD v. R.G. PRASAD [KULDIP SINGH, J.]                  563

. which laid down seven years service as an eligibility condition for promo- A
  tion to the post of Assistant Engineer, was to be followed and as such the
  writ petitioners were entitled to be included in the eligibility list. The
  contention was accepted by the High Court.

       The High court also referred to the U.P. Promotion By Selection In         B
 Consultation With Service Commissions (Procedure) Rules, 1970 and came
 to the conclusion that the Government in consultation with t~e Commission
 was justified in adopting the criterion of strict selection on merit for
 promotion to the post of Assistant Engineer.

        We have heard learned counsel for the parties. The High Court has C
 set aside the selection solely on the ground that the Junior Engineers with
 seven years service to their credit, having not been included in the eligibility
 list the selection was illegal. The High Court accepted the contention that
 the memorandum superseded all earlier executive instructions/precedents
 in the matter of promotions from Junior Engineers to Assistant Engineers D
  and as such had reduced the eligibility criterion of ten years service to that
  of seven years service with effect from July 1, 1978. It was on that basis
 that the selection was set aside by the High Court.

       We have given our thoughtful consideration to the arguments of the         E
 learned counsel for the parties. We are not inclined to agree with the
 reasoning and the conclusions reached by the High Court. The history of
 service in the Public Works Department of the State of Uttar Pradesh
 clearly shows that the State Government from the very beginning has been
 regulating the three branches of the Public Works Department with
 uniform conditions of service. It is no doubt correct that the 1936 rules only   F
 relate to the Building and Roads branch but the same rules were being
 made applicable to the other two branches. There is no material what-
 soever on the record to show that at any time prior to the issue of the
 memorandum, the State Government intended to provide separate condi-
 tions of service for the Electrical and Mechanical branches. As stated in        G
 earlier part of this judgment the rules circulated by the Government order
 dated December 3, 1964 regarding qualifying examination in respect of
 subordinate services of Electrical and Mechanical branches clearly stated
 that the eligibility for promotion to the post of Assistant Engineer was ten
 years service as Junior Engineer. Neither the memorandum nor any other           H
                                                              •
      564                   SUPREME COURT REPORTS [1993) SUPP. 3 S.~.R.

· A Government order has specifically modified or amended the Government
   order dated December 3, 1964. Even otherwise a bare look at the conte~ts ·
   of the memorandum shows that it contained a policy decision of the
   Government which was to be implemented in the future. The memorandum
   did not state that it was applicable to the Electrical and Mechanical
 B branches. Para 5 therein stated that "provisions shall be made in accord-
   ance with the above said decision in the service rules". Admittedly, there
   were no service rules regarding Electrical and Mechanical branches. It can,
   therefore, be legitimately inferred that the memorandum was meant only
   for the Building and Roads branch which was governed by the 1936 rules.
 C Even if it is assumed that the memorandum was meant for all the three
   branches, it could not operate in respect of Building and Roads branch till
   that time the 1936 rules were amended and since the Government was
   uniformly applying the 1936 rules to all the three branches, the memoran-
   dum could not be read to be applicable to the Electrical and Mechanical
   branches.
 D
             Para 3 of the memorandum gives deeming effect - from July 1, 1978
      - to the provisions in paras 1 and 2 of the memorandum. It is settled law
      that an executive order of the Government cannot be made operative with
      retrospective effect. It .is. thus, clear that the memorandum contained
.E    various proposals which were to be incorporated in the statutory rules.

            We may examine the memorandum from another angle. The first
    part of the memorandum shows the existing eligibility conditions for
    promotion to the post of Assistant Engineer. Paras 1 and 2 contain the
  F decision which was taken by· the Government on April 13, 1978. Para 4
    gives the decision of the Government which was taken on December 7,
    1979. It was finally stated in para 5 that the decisions in paras 1 to 4 "shall
    be incorporated in the services rules". The scheme of the memorandum
    clearly show that it did not lay down conditions of service for any of the
    branches of the Public Works Department. The contents of the said
  G memorandum were the various policy decisions taken by the Government
    from time to time which were to be implemented in future by making
    necessary provisions in the relevant rules or by amending the existing
    executive instructions. The memorandum does not talk of electrical or
    methahlcal branches in any manner. The High Court fell into patent error
. H fu. treating the memorandum to be laying down the conditions of service of
           G. PRASADv. R.G. PRASAD [KULDIPSINGH,J.]                          565

the Electrical and Mechanical branches of the Public Works Department. A
It would be useful to refer to a Division Bench judgment of the Allahabad
High Court in Gopal Krishna Goel v. State of Uttar Pradesh, Civil Misc.
Writ No. 2001 of 1983 decided on March 20, 19~4 wherein the Bench
interpreted the memorandum as under :
                                                                                     B
        "In order to appreciate the rival contentions, it will be necessary
        to have a closer look at the Office Memorandum dated January 7,
        1980 with a view to ascertaining its true nature and import............ ..
        A bare reading of the aforesaid Office Memorandum leaves no
        room for doubt that in truth and substance it is exactly what it
        purports to be namely, a mere memorandum regarding the various               C
        policy decisions, which have been taken by the Government in 1978
        and 1979 and stating that provisions should be made for bringing
        the service rules in accord with the said policy decisions taken by
        the Government with regard to filling up of the quota reserved for
        promotccs from amongst the Junior Engineers. The memorandum                  D
        has not been expressed in the name ·of the Governor nor docs it
        even state that it has been issued by an order of the Government.
        Indeed it expressly asks the concerned, instrumentalities and
        authorities of the Government to make provision for amending the
        service rules so as to bring them in line with the policy decisions          E
        of the Government."

We agree with the above quoted reasoning of the High Court in Gopal
Krishna Goel's case.
                                                                                     F
       This Court during the pendency of these matters stayed the operation
of the impugned judgment of the High Court, and also stayed all reversions.
12 posts were permitted to be filled by the State Government and the State
Government was allowed to make ad hoc appointments by following the
rule of seniority subject to unfitness. ·
                                                                                     G
      As a result of the above discussion we allow the appeals and set aside
the impugned judgment of the High Court. We order as under:

      1. The selection made by the State Government in the year 1983 was
in accordance with law and as such is upheld. The select list notified in the        H
    566                  SUPREME COURT REPORTS [1993] SUPP. 3 S.C.R.

A memorandum dated November 5, 1983 is declared valid and operative.
          2. All the selected candidates listed in the office memorandum dated
    November 5, 1983 shall be deemed to have been appointed, if not already
    appointed, to the posts of Assistant Engineers with effect from the respec-
B   tive dates when they were to be appointed, in the ordina,ry course, on the
    basis of the said selection.

        3. The memorandum did not lay down conditions of service in
  respect of Electrical and Mechanical branches. The memorandum was a
  document. showing the policy decisions of the Government to be imple-
C mented in future.

        4. The Junior Engineers who are holding the posts of Assistant
  Engineers on ad hoc basis shall be treated to having been appointed as ad
  hoc Assistant Engineers from the dates when they would have completed
D ten years of service as Junior Engineers and this shall be the relevant date
  for the purposes of paras 5 and 6 hereafter.

         5. The Junior Engineers who are holding the posts of Assistant
   Engineers on ad hoc basis shall be considered for regularisation in terms
   of the Uttar Pradesh Regularisation of Ad-hoc Promotions (on posts within
E the purview of the Public Service Commission) Rules, 1988 (Regularisation
 - Rules).

         6. The ad hoc promotees, who do not come within the purview of the
  Regularisation Rules, shall be considered for regular appointment through
F the process of selection to be held by the State Government hi accordance
  with the rules and the executive instructions governing the conditions of
  service of the two branches of the Public Works Department. Those
  selected shall be appointed on regular basis from the dates they were
  appt;iinted on ad hoc basis. We further direct that the process of selection
  be completed within four months of the receipt of this judgment and status
G quo shall continue till then.
          7. The conditions of service of the three branches of the Public
    Works Department have not been laid down·with clarity either in the 1936
    rules or in any of the executive instructions issued by the Government from
H   time to time. We commend the State of Uttar Pradesh to lay down the
           G. PRASAD v. R.G. PRASAD [KULDIP SINGH, J.)              567

conditions of service of the three branches of the Public Works Depart-    A
ment in clear and certain terms either by executive instructiqns or by
statutory rules at its discretion.

     These matters are disposed of in the above terms. No costs.

N.P.V.                                              Matters disposed of.




                                                                               •