STATE OF UTTARANCHAL & ORS.versusC.S.R.K.S. MEDICAL HEALTH SERVICES, UTTARANCHAL

    '.


                        [2014] 10 S.C.R. 1190


A                STATE OF UTTARANCHAL & ORS.
                                   v.
              C.S.R.K.S. MEDICAL HEALTH SERVICES,
                            UTTARANCHAL
                 (Civil Appeal No. 7696 of 2009 etc.)
B                        OCTOBER 16, 2014.
         [JAGDISH SINGH KHEHAR AND ARUN MISHRA, JJ.]

         Uttaranchal Government Servants (Criterion for
C    Recruitment by Promotion) Rules, 2004:

          Rule 1(3) - Promotion from Group 'D' post to Group 'C'
     post - Held: Promotional posts under consideration do not
     require consultation with Public Service Commission and, as
     such, the 2004 Rules would apply to promotional avenues
0
     under consideration.

          Rule 2 - Overriding effect - Held: Rule 2 of the 2004
     Rules leaves no room for any doubt that the 2004 Rules have
     an overriding effect, notwithstanding anything to the contrary
E    contf!ined, in any other Service Rules promulgated under Art.
     309 _of the Constitution of India - All the other Rules brought
     to the notice of the Court had been notified prior to the
     Notification of the 2004 Rules (notified on 15.06.2014) -
     Thus viewed, the 2004 Rules have an overriding effect on
F    other Rules.

        Rules 1(3) and 4 - Promotion from Group 'D' post to
  Group 'C' post - Criterion - 'Seniority to the rejection of unfit'
  - Government Orders dated 17. 7. 2004 and 8. 11. 2004 set
G aside by High Court holding the same as violative of Rule 4
  - Held: Inter se merit is inconsequential for promotions under
  Rule 4 of the 2004 Rules, insofar as promotions from Group
  'D' service to the lowest ranks of ministerial posts in Group
   'C' service, are concerned - Rule 4 postulates seniority as
H                                1190
 STATE OF UTIARANCHAL v. C.S.R.KS. MEDICAL HEALTH 1191
              SERVICES, UTTARANCHAL

the basis for promotion, but it also provides that promotions       A
would be made subject to the "rejection of unfit" - If the G. Os.
dated 17. 7. 2004 and 8. 11. 2004 were the basis of determining
the fitness of employees concerned, for onward promotion and
for adopting measures for 'rejection of the unfit' then the two
G. Os. would squarely fall within the purview of r. 4 of 2004       B
Rules - G.Os. dated 17.07.2004 and 08.11.2004 are upheld
- Service Law.

    The instant appeal arose out of the order of the High
Court by which it set aside the Government Orders dated             C
17.7 .2004 and 8.11.2004 as violative of Rule 4 of the
Uttaranchal Government Servants (Criterion for
Recruitment by Promotion) Rules, 2004.

     Allowing the appeal, the Court
                                                                    D
     HELD: 1.1. A perusal of Sub-rule (3) of Rule 1
explicitly mandates that the Uttaranchal Government
Servants (Criterion for Recruitment by Promotion) Rules,
2004 would regulate promotion to such posts with
reference to which consultation with the Public Service             E
Commission is not required. The promotional posts
under consideration do not require consultation with the
Public Service Commission, and as such, the 2004 Rules
would apply to the promotional avenues under
consideration. [para 4] [1194-F-G]
                                                                    F
    1.2. Rule 2 of the 2004 Rules leaves no room for any
doubt, that the 2004 Rules have an overriding effect,
notwithstanding anything to the contrary contained, in
any other Service Rules promulgated under Art. 309 of
the Constitution of India. All the other Rules brought to G
the notice of the Court had been notified prior to the
Notification of the 2004 Rules (notified on 15.06.2014).
Thus viewed, the 2004 Rules have an overriding effect on
the other Rules. [para 5) [1195-C-D]
                                                          H
    1192    SUPREME COURT REPORTS              [2014) 10 S.C.R.


A      2.1. There can be no doubt whatsoever that inter se
  merit is inconsequential for promotions under Rule 4 of
  the 2004 Rules, insofar as promotions from Group 'D'
  service to the lowest ranks of ministerial posts in Group
  'C' service, are concerned. The real mandate of the said
8 Rule  is, that for the posts under reference seniority would
  regulate onward promotion, however, subject to the
  condition of suitability, inasmuch as, promotions are to
  be made on the basis of seniority, subject to the
  "rejection of the unfit". If the Government Orders dated
C 17.07.2004 and 08.11.2004 were the basis of determining
  the fitness of concerned employees for onward
  promotion and for adopting measures for "rejection of
  the unfit" then the two Government Orders would
  squarely fall within the purview of Rule 4 of the 2004
  Rules. Otherwise, they would be in conflict therewith.
0 [para 7 and 10] [1196-A-D; 1200-E]

       2.2. It was the endeavour of the Government to
  determine fitness of Group 'D' employees, for onward
  promotion to the lowest rank of ministerial posts in Group
E 'C' service. Group 'D' posts comprise of posts in the
  nature of Peons, Messengers, Chaukidars, Malis,
  Farrashes, Sweepers, Watermen, Bhistis, Tindals,
  Thelamen, Recordfilters, Peon-Jamadars, Daftris, Book-
  binders, Cyclostyle Operators, Farrash-Jamadars,
F Sweeper-Jamadars and Head Malis. The nature of duties
  of these posts are too well-known. Merely because an
  employee while holding a Group 'D' post has been
  discharging the duties of the said post, it cannot be
  presumed that he/she is suitable for onward promotion
G to a ministerial post. It is, therefore, that while determining
  the issue of onward promotion to ministerial posts, the
  State Government issued inter alia two Government
  Orders dated 17.7.2004 and 8.11.2004. Thereby, it would
  be possible to determine the fitness of those who fulfilled
H the conditions of eligibility for promotion. The said
 STATE OF UTIARANCHAL v. C.S.R.K.S. MEDICAL HEALTH 1193
              SERVICES, UTIARANCHAL

Government Orders squarely fall within the ambit of                 A
competence of the appointing authority, to determine the
minimum fitness standards postulated under Rule 4 of
the 2004 Rules. The two Government Orders dated
17 .07 .2004 and 08.11.2004 are upheld. The impugned
orders passed by the High Court are, therefore, set aside.          B
[para 11-12) [1200-F-H; 1201-A-D]

    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
7696 of 2009.

    From the Judgment & Order dated 4.3.2006 of the High            C
Court of Uttaranchal at Nainital in Special Appeal No. 9 of 2006.

                             WITH

C.A. Nos. 972, 973, 974 & 975 of 2010.
                                                                    D
     Rachana Srivastava, Utkarsh Sharma, Anuvrat Sharma for
the Appellants.

      Mahendra Anand, V. Shekhar, Sushil Kumar Jain, Kuldeep
S. Parihar, H.S. Parihar, Manoj Gorkela, Shashi Kiran,              E
Nagendra Singh, Vishwa Pal Singh, Varinder Kumar Sharma
for the Respondent.

    C.S.R.K.S. Medical Health Services, Uttaranchal
(Respondent-in-person).
                                                                    F
    The Judgment of th Court was delivered by

    J.S.KHEHAR, J. 1. Heard learned counsel for the parties.

    2. The applications for impleadment are dismissed as no
ground for impleadment is made out.                                 G

    3. The State of Uttaranchal (now Uttarakhand) is in appeal
against a number of orders passed in a bunch of cases on
04.03.2006. The issue which was the subject matter of
consideration before the High Court pertains to the criterion for   H
    1194     SUPREME COURT REPORTS                 [2014] 10 S.C.R.


A   promotion from Group 'D' service, to the lowest ranks of
    ministerial posts in Group 'C' service. Even though, various
    Rules were framed from time to time delineating the manner
    and method for onward promotion from Group 'D' service to
    the lowest ranks of ministerial posts, yet we are satisfied, that
s   insofar as the present controversy is concerned, the same
    would be regulated by the Uttaranchal Government Servants
    (Criterion for Recruitment by Promotion) Rules, 2004
    (hereinafter referred to as the '2004 Rules'). The aforestated
    Rules were notified on 15.06.2004. Rule t of the 2004 Rules
c   reads as under:

        "1. Short title Commencement and Extent-(1) These rules
        may be called, the Uttaranchal Government Servants
        (Criterion for Recruitment by Promotion) Rules, 2004.
              I

D        (2) They shall come into force at once.

        (3) They shall apply to a recruitment by promotion to a post
        or service for which no consultation with the Public Service
        Commission is required on the principles to be followed
        in making promotions under the Uttaranchal Public Service
E
        Commission (Limitation of Functions) Regulations, 2003,
        as amended from time to time."

        4. A perusal of Sub-rule (3) of Rule 1 explicitly mandates
  that the 2004 Rules would regulate promotion to such posts with
F reference to which consultation with the Public Service
  Commission is not required. It is not a matter of dispute, that
  the promotional' posts under consideration, do not require
  consultation with the Public Service Commission, and as such,
  the 2004 Rules would apply to the promotional avenues under
G consideration.

        5. Rule 2 of the 2004 Rules is also of material relevance.
  During the course of hearing, learned counsel for the rival
  parties invited our attention to different Rules framed under
H Article 309 of the Constitution of India, promulgated in the years
 STATE OF UTIARANCHAL v. C.S.R.KS. MEDICAL HEALTH 1195
 SERVICES, UTIARANCHAL [JAGDISH SINGH KHEHAR, J.]

1985, 1994 and 2004 (besides the 2004 Rules). It is, therefore,       A
that Rule 2 of the 2004 Rules assumes significance. The same
is being extracted hereunder:

     "2. Overriding effect- These rules shall have effect
     notwithstanding anything to the contrary contained in any        B
     other service rules made by the Governor under the
     proviso to Article 309 of the Constitution, or Orders, for the
     time being in force."

     A perusal of Rule 2 of the 2004 Rules leaves no room for
any doubt, that the 2004 Rules have an overriding effect,             C
notwithstanding anything to the contrary contained, in any other
Service Rules promulgated under Article 309 of the Constitution
of India. Suffice it to state, that all the other Rules brought to
our notice, had been notified prior to the Notification of the 2004
Rules (notified on 15.06.2014). Thus viewed, it is imperative         D
for us to conclude, that the 2004 Rules have an overriding effect
on the other Rules, to.which our attention was invited, during
the course of hearing.

     6. Insofar as the present controversy is concerned, the
same shall have to be determined with reference to Rule 4 of          E
the 2004 Rules. The above Rule, was also the only Rule relied
upon by the High Court, while adjudicating upon the
controversy. Rule 4 aforementioned is being reproduced below:

     "4. Criterion for Recruitment by Promotion- Recruitment by       F
     promotion to the post of Head of Department, to a post
     just one rank below the Head of Department and to a post
     in any service carrying the pay scale the maximum of
     which is Rs.18,300 or above shall be made on the basis
     of merit, and to the rest of the posts in all services to be     G
     filled by promotion, including a post where promotion is
     made from a Non-gazetted post to a Gazetted post or from
     one service to another service, shall be made on the basis
     of seniority to the rejection of the unfit."
                                                                      H
    1196      SUPREME COURT REPORTS·              [2014] 10 S.C.R.


A       7. There can be no doubt whatsoever that inter se merit
  is inconsequential for promotions under Rule 4 of the 2004
  Rules, insofar as promotions from Group 'D' service, to the
  lowest ranks of ministerial posts in Group 'C' service, are
  concerned. This is for the reason because the promotions under
B reference are neither to the post of Head of Department nor to
  a post just one rank below the post of Head of Department. It
  is also not the case of either of the parties that the scale of the
  posts concerned bring the same out of the purview of Rule 4
  of the 2004 Rules. The real mandate of the said Rule is, that
c for the posts under reference seniority would regulate onward
  promotion, however, subject to the condition of suitability.
  Inasmuch as, promotions are to be made on the basis of
  seniority, subject to the "rejection of the unfit". It is in the
  aforesaid background, that we shall determine the validity of
D two Government Orders. Firstly, the order dated 17.07.2004
  was assailed before the High Court, in Special Appeal No.10
  of 2006 (arising out of Writ Petition No.945 of 2004). The
  aforesaid Government Order dated 17.07.2004, is the subject
  matter of consideration in Civil Appeal No.975 of 2010. The
E aforesaid Government Order dated 17.07.2004 is being
  extracted hereunder:
        "From
        Joint Director(Education)
        Kumaon Division
F       Nainital.
         To

          District Education Officer Nainital/Almora/Pithoragarh/
         Udhamsingh Nagar/Bageshwar/Champawat

G        Letter No.Pra-3/4006-25/04-05 Dated 17.07.04

         Subject: Regarding Promotion of Class-IV Employees
         (Group-'D') on the Post of Junior Clerks in Subordinate
         offices Ministerial Staff Class-Ill (Group-'C').
H
STATE OE ljTTARANCHAL v. C.S.R.K.S. MEDICAL HEALTH 1197
SERVICES, UTTARANCHAL [JAGDISH SINGH KHEHAR, J.]

  Sir,                                                           A

        With reference to above, and in pursuance of the
  instructions issued by the Director of Education,
  Uttaranchal, Dehradun vide his letter No.Pra-1/5302-03/04-
  05 dated 07.06.2004 and letter No.Pra-1/Pri.Promotion/ B
  5496-97/04-05 dated 08.06.2004 and the Government
  Order No./885/Karmik-02/03 dated 02.09.2003, the
  Schedule and programme for taking necessary action for
  promotion of Class-IV employee of your division on the post
  of Junior Clerk, is being forwarded herewith.
                                                                 c
         You are requested to get the forms duly filled up and
  submitted by the eligible Class-IV empl9yees of your
  district so that all the eligible class-IV employees may
  submit relevant information as per the format.
                                                             D
   1.     Only those Class-IV employees shallbe eligible to
          apply who have minimum qualification of high
          school or equivalent and have regularly worked for
          5 years in the Education Department and is
          substantively appointed.                           E
   2.     The time schedule for holding examination for
          promotion of Class-IV employees on the post of
          Junior Clerk is being forwarded herewith to enable
          you to take further necessary action accordingly.
                                                                 F
    (a)   Date of submission of certified copy of the
          confidential report of the past 5 years submitted
          before the District Education Officer. 08.08.2004

    (b)   Date of submission of list (in triplicate) compiled at
                                                                 G
          District Level of the forms received and the
          Confidential Reports with details After Verification
          in respect of High School pass Candidates
          separately In the Office of Joint Director, Education,
          Kumaon Manda! Office.                     14.08.2004
                                                                 H
    1198     SUPREME COURT REPORTS               [2014] 10 S.C.R.


A          (C)   Date and place to hold examination.
                  22.08:2004Government Inter College, Nainital
                 (There will be one question paper in Written
                 Examination with two parts 1 - Hindi Essay, 2.
                 General Knowledge. Each question paper will
8                consist of 15 Marks). Total 30 marks.

              You are requested to inform to all concerned in your
        District in all offices/colleges. The notice may be pasted
        o~ the notice board to ensure that no eligible employee is
        deprived of the opportunity of the promotion.
c
              The information to be compiled at District Level
        should be prepared in AS paper in the Computer and a
        floppy may also be forwarded with this information.

              It may be ensured that while compiling information
D
        that serial number of the compiled information and the
        compiled format are in same seriatum.
                                                             Sd/-
                                               Dan Singh Rautela
E                                        Joint Director(Education)
                                     Kumaon Division, Nainital"
         8. The second order, assailed before the High Court was
    dated 08.11.2004. The same came up for consideration before
    the High Court in Civil Appeal No.9 of 2006 (arising out of Writ
F   Petition No.78 of 2005). The above Government Order dated
    08.11.2004 is being extracted hereunder:

        "From
                 Additional Director
G                Medical & Health
                 Kumaon Manda!, Nainital.
        To
                 The Chief Medical Officer/
                 Chief Medical Superintendent
H
STATE OF UTIARANCHAL v. C.S.R.K.S. MEDICAL HEALTH 1199
SERVICES, UTIARANCHAL [JAGDISH SINGH KHEHAR, J.]

          Almora, Pithora.garh, Udhamsingh Nagar/                 A
          Nainital/Balaswar/Champawat.
          No.E-4/2004/1770-22 dated 8.11.2004.

   Sub: To provide opportunity to appear in typing test to
   those candidates who did not appear earlier in the typing      B
   test in the written examination conducted for promotion
   from class IV to the post of junior clerk.

   Sir,

   As per direction of Director General, Medical Health and C
   Family Welfare, Uttaranchal, Dehradun vide his letter no.IV
   category/37/2002/26233 dated 25.10.2004, those class IV
   employees who appeared in written examination of
   captioned mentioned promotion and who could not appear
   in the typing test conducted earlier, are being given another D
   opportunity to appear in typing test.

   Therefore, a list of such candidates is enclosed herewith.
   You are requested to inform intimation to this effect to all
   those employees mentioned in the said list of your district    E
   wherever they are posted that a typing test is being
   conducted on 4.12.2004 at 11.00 a.m. in the office of
   Additional Director, Medical Health and Family Welfare,
   Kumaon Division, Nainital. The concerned candidate
   should appear at 10.00 a.m. in the concerned division          F
   alongwith an identity card or a certificate issued by the
   Medical lncharge.

   A notice to this effect may be published in Dainik Jagran
   and Amar Ujala also so that no candidate is deprived of
   such opportunity.                                              G
                                                          sd/-
                                                    H 8 Bhatt
                                          Additional Director''

                                                                  H
    1200     SUPREME COURT REPORTS                 [2014] 10 S.C.R.


A        9. The High Court while disposing of the bunch of cases
    on 04.03.2006, set aside both the Government Orders dated
    17.07.2004 and 08.11.2004, by holding that they violated the
    mandate contained in Rule 4 of the 2004 Rules. The question
    to be determined by us is, whether the mandate of Rule 4 of
B   the 2004 Rules, was indeed breached by the aforestated two
    Government Orders.

         10. In its determination, the High Court was of the view,
    that Rule 4 of the 2004 Rules postulates only one criterion for
C   promotion, namely, seniority. And that, seniority was the only
    relevant factor for determining onward promotion from Group
    'D' service
              \
                 to the lowest ministerial posts of Group 'C' service.
    Keeping in view the facts and circumstances of the present
    controversy, we are of the view that the High Court erred in
    recording the aforesaid determination. Whilst there can be no
D   doubt that Rule 4 postulates seniority as the basis for onward
    promotion, but the Rule also provides, that promotions would
    be made subject to the "rejection of the unfit". If the Government
    Orders dated 17.07.2004 and 08.11.2004 were the basis of
    determining the fitness of concerned employees for onward
E   promotion and for adopting measures for "rejection of the unfit"
    then the two Government Orders would squarely fall within the
    purview of Rule 4 of the 2004 Rules. Otherwise, they would be
    in conflict therewith.

F        11. We have extracted hereinabove both the Government
    Orders. We are satisfied that it was the endeavour of the
    Government to determine fitness of Group 'D' employees, for
    onward promotion to the lowest rank of ministerial posts in
    Group 'C' service. We say so because, it is apparent to us,
G   that Group 'D' posts comprise of posts in the nature of Peons,
    Messengers, Chaukidars, Malis, Farrashes, Sweepers,
    Watermen, Bhistis, Tindals, Thelamen, Recordfilters, Peon-
    Jamadars, Daftris, Book-binders, Cyclostyle Operators,
    Farrash-Jamadars, Sweeper-Jamadars and Head Malis. The
    nature of duties of the posts referred to hereinabove, are too
H
 STATE OF UTIARANCHAL v. C.S.R.K.S. MEDICAL HEALTH 1201
 SERVICES, UTIARANCHAL [JAGDISH SINGH KHEHAR, J.]

well-known. Merely because an employee while holding a                A
Group 'D' post has been discharging the duties, of the nature
referred to above, it cannot be presumed that he/she is suitable
for onward promotion to a ministerial post. It is, therefore, that
while determining the issue of onward promotion to ministerial
posts, the State Government issued inter alia the above two           B
Government Orders extracted hereinabove. Thereby, it would
be possible to determine the fitness of those who fulfilled the
conditions of eligibility for promotion. We are satisfied that the
aforesaid two Government Orders squarely fall within the ambit
of competence of the appointing authority, to determine the           c
minimum fitness standards postulated under Rule 4 of the
2004 Rules.

     12. In view of the above, we are satisfied that th·e
impugned orders passed by the High Court, whereby, the
above two Government Orders were quashed, deserve to be               D
set aside. The two Government Orders dated 17.07.2004 and
08.11.2004 are her~by upheld. The instant appeals are
accordingly allowed. The impugned orders passed by the High
Court are therefore set aside.

Rajendra Prasad                                    Appeals allowed.