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O.P Lather And Others v. Satish Kumar Kakkar And Others
Factual and Procedural Background
Three vacancies for the post of Executive Engineer arose in the Haryana Electrical Inspectorate on 29-12-1998. Satish Kumar Kakkar (the first respondent) filed CWP No. 9655 of 1999 before the Punjab and Haryana High Court, asserting that he alone possessed the requisite qualifications and seniority for promotion. The High Court agreed, declaring that O.P. Lather (third respondent in that petition) lacked the prescribed “degree or diploma in Electrical Engineering from a recognised university” and directing that promotions be made strictly under the 1997 Service Rules.
On 07-10-1999 the Government of Haryana issued an executive order clarifying that a three-year Diploma in Electrical Engineering awarded by the State Board of Technical Education, Haryana, and approved by the AICTE, shall be treated as equivalent to a diploma from a recognised university. Relying on that clarification, the State promoted O.P. Lather, P.D. Sharma and Daya Nand to Executive Engineer on 26-10-1999.
Kakkar challenged those promotions in CWP No. 15317 of 1999, contending that the clarification amounted to an impermissible amendment of the statutory rules and could not operate retrospectively. The Division Bench quashed the promotions and ordered consideration of Kakkar’s claim. The promoted officers and the State of Haryana appealed to the Supreme Court.
Legal Issues Presented
- Whether the Government of Haryana’s executive order dated 07-10-1999, treating diplomas awarded by the State Board of Technical Education as equivalent to diplomas from a recognised university, was a valid clarification or an impermissible amendment of the Haryana Electrical Inspectorate (Group A) Service Rules, 1997 framed under Article 309.
- If valid, whether that clarification could be applied to vacancies that arose prior to 07-10-1999 so as to sustain the promotions made on 26-10-1999.
Arguments of the Parties
State of Haryana & Promoted Officers (Appellants)
- No university in Haryana awards a diploma in Electrical Engineering; diplomas are issued only by institutions affiliated to the State Board of Technical Education.
- The 1997 Rules expressly allow promotion on the basis of a “degree or diploma … or its equivalent.” The executive order merely clarifies what constitutes an equivalent diploma and therefore supplements, rather than amends, the Rules.
- Kakkar himself holds the same State Board diploma (and an AMIE qualification not granted by a university), so rejecting the clarification would negate his own eligibility as well.
- Rules 17 and 18 of the 1997 Rules permit relaxation or special provisions, supporting the Government’s power to issue the clarification.
Satish Kumar Kakkar (Respondent)
- The vacancies arose before 07-10-1999; promotions must therefore be governed by the Rules as they stood then, under which the appellants lacked the requisite qualification.
- The executive order effectively amends the statutory Rules and, being issued only by executive fiat, is ultra vires Article 309.
- Retrospective alteration of qualification requirements would impair vested rights and is impermissible under Supreme Court precedent.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| State of Haryana v. Shamsher Jang Bahadur (1972) 2 SCC 188 | Government may, by administrative instructions, supplement statutory rules when the rules are silent, provided the instructions are not inconsistent with those rules. | Relied on to hold that the 07-10-1999 executive order merely supplements the 1997 Rules by defining “equivalent” diploma, and does not amend or contradict them. |
| Sant Ram Sharma v. State of Rajasthan, AIR 1967 SC 1910 | Administrative instructions cannot amend statutory rules but may fill gaps. | Cited within Shamsher Jang Bahadur to reinforce the above principle. |
| T.R. Kapur v. State of Haryana, 1986 Supp SCC 584 | Retrospective amendments cannot take away vested rights. | Court distinguished the present clarification from a retrospective amendment, finding no vested right of Kakkar was impaired. |
| University of Mysore v. C.D. Govinda Rao, AIR 1965 SC 491 | Courts should defer to expert bodies on academic qualifications. | Used to justify judicial restraint in questioning the Government’s determination of equivalent technical qualifications. |
Court's Reasoning and Analysis
1. The 1997 Rules permit promotion of candidates holding a “degree or diploma … or its equivalent.” Because no university in Haryana awards such diplomas, strict insistence on a university-awarded diploma would render the rule nugatory and deny promotion prospects to the entire cadre of Assistant Engineers.
2. The executive order of 07-10-1999 clarifies that State Board diplomas, approved by AICTE, satisfy the “equivalent” clause. Drawing on Shamsher Jang Bahadur and Sant Ram Sharma, the Court held that administrative instructions may supplement statutory rules to fill practical gaps, so long as they are consistent with the rules. The clarification neither alters the text nor conflicts with the Rules; it merely operationalises them.
3. The High Court’s approach—restricting promotions to qualifications nominally unattainable in the State—was deemed erroneous. The executive order is clarificatory, not an amendment, and therefore applicable to ongoing promotion processes, including vacancies that arose before its issuance.
4. Invoking T.R. Kapur, the Court observed that no vested rights were withdrawn; rather, an otherwise eligible class (diploma-holders) was affirmed. Academic-qualification determinations lie predominantly within the domain of expert bodies; following University of Mysore v. Govinda Rao, judicial interference is unwarranted absent inconsistency with statutory norms.
5. The appellants were senior to Kakkar in the cadre of Assistant Engineer and, once the equivalence of their diplomas was recognised, met all eligibility criteria. Consequently, their promotions conformed to the Rules.
Holding and Implications
Appeals Allowed; High Court judgments set aside. Promotions of O.P. Lather, P.D. Sharma and Daya Nand as Executive Engineers affirmed.
Immediate effect: the appellants retain their posts as Executive Engineers, while Kakkar’s claim is rejected. Broader implication: The decision confirms that an executive clarification may define “equivalent” qualifications under Article 309 rules where necessary to give practical effect to those rules, without amounting to a statutory amendment. No new doctrine was created, but existing principles on administrative supplementation of service rules were reinforced.
K.G Balakrishnan, J.— Leave granted.
2. Aggrieved by the judgment of the Division Bench of the Punjab and Haryana High Court at Chandigarh in CWPs Nos. 9655 and 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 SLPs (Civil) Nos. 4341-42 of 2000] were not entitled to be promoted as Executive Engineers and that the claim of the petitioner in the writ petitions shall be considered.
3. Initially, Satish Kumar Kakkar, the first respondent in these appeals, filed a writ petition (CWP No. 9655 of 1999) claiming that he alone was entitled to be promoted as Executive Engineer and contended that the third respondent therein, namely, O.P Lather, then working as Assistant 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 the Rules. Subsequent to this judgment, the Government of Haryana issued an executive order on 7-10-1999 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. Consequently, the appellants herein, namely, O.P Lather, P.D Sharma and Daya Nand were promoted to the posts of Executive Engineer by proceedings dated 26-10-1999. The order passed by the Government of Haryana on 26-10-1999, was challenged by Satish Kumar Kakkar in a writ petition (CWP No. 15317 of 1999) contending that none of them possessed the requisite qualification for being promoted as Executive Engineer and the Division 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.
4. As per rules framed by the State of Haryana under proviso to Article 309 of the Constitution, 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:
“Sl. No. Designation of posts Academic qualifications and experience, if any, for direct recruitment Academic qualifications and experience, if any, for appointment other than by direct recruit-ment 2. Executive Engineer 1. Degree in Electrical Engineering from a recognised university or its equivalent 1. Degree or diploma in Electrical Engineering from a recognised university or its equivalent. 2. Should have been regularly engaged for a period of at least eight years in the practice of Electrical Engineering of which not less than two years should have been spent in an Electrical or Mechanical Engineering workshop or in generation, transmission or distribution of electricity or in the administration of the Indian Electricity Act, 1910, and the Rules made thereunder in a position of responsibility. 2. Eight years' experience as Assistant Engineer.” (emphasis supplied)
5. As per the above Rules, the requisite academic qualification for promotion to the post of Executive Engineer is a degree or diploma in Electrical Engineering from a recognised university or its equivalent. The appellants have passed diploma in Electrical Engineering from an institution affiliated to the State Board of Technical Education, Haryana, but the diploma acquired by them is not from a recognised university. Therefore, the first respondent contended that they were not entitled to be promoted to the posts of Executive Engineer.
6. The first respondent had joined service in the Haryana Government as Junior Engineer in 1981 and he too is a holder of diploma in Electrical Engineering from Haryana Polytechnic, Nilokheri, which is affiliated to the State Board of Technical Education, Haryana. He was promoted to the post of Assistant Engineer on 2-4-1985 whereas the appellants were promoted during the period 1984-85 to the cadre of Assistant Engineer. Three vacancies of Executive Engineer arose on 29-12-1998. The first respondent claimed that he had passed AMIE Examination in 1995 and was thus entitled to be promoted to the post of Executive Engineer. In the earlier writ petition, viz. CWP No. 9655 of 1999, the Division Bench had held that as the third respondent therein, viz., appellant O.P Lather was only a diploma-holder, and as the diploma 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 Government of Haryana issued a clarificatory order on 7-10-1999 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 CWP No. 15317 of 1999 held that the vacancies arose prior to the issue of the said clarificatory order by the Government 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 Government on 7-10-1999 cannot have retrospective effect. It was held that by virtue of the amendment of Rules, no retrospective effect could be given to the said 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.
7. 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 requisite qualification for the purpose of promotion to the cadre of Executive Engineer is a 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 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 also acquired a three years' diploma in Electrical Engineering granted by the State Board of Technical Education, though he has passed AMIE Examination, which is also not issued from a recognised university. It was submitted that realising this position, the Government of Haryana issued an executive order on 7-10-1999 by way of clarification 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 of Technical Education, Haryana, are duly approved by the All-India Council for Technical Education also.
8. The question that arises for our consideration is whether the clarification issued by the Government of Haryana by an executive order is proper and valid and 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.
9. Normally, the rules framed under the proviso to Article 309, cannot be amended except in accordance with the procedure laid down therein. But in the instant case, the question is whether a clarification issued by the Government 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 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 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 existence nor awarded. It was at this juncture that the Government 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.
10. A similar question came up for consideration in State of Haryana v. Shamsher Jang Bahadur (1972) 2 SCC 188. It was held in para 7 of the judgment as under:
“The first question arising for decision is whether the Government was competent to add by means of administrative instructions to the qualifications prescribed under the Rules framed under Article 309. 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 AIR 1967 SC 1910, (1968) 1 SCR 111 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 and issue instructions not inconsistent with the rules already framed.”
11. In the instant case also, the Government Order passed on 7-10-1999 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 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. If this 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 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 power to the Government to relax the Rules. Rules 17 and 18 of the 1997 Rules thus confer power of relaxation and for making special provisions/special terms and conditions as may be deemed to be expedient.
12. 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 order issued by the Government was only clarificatory in nature and the “equivalent qualification”, which formed part of the Rules was explained by that order.
13. 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 in T.R Kapur v. State of Haryana 1986 Supp SCC 584, (1987) 2 ATC 595, 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 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.”
14. But in the present case, by issuing the clarification no vested rights of 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 Assistant Engineers are entitled to be promoted to the cadre of Executive Engineer. This clarification has been issued by the State Government 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 University of Mysore v. C.D Govinda Rao AIR 1965 SC 491, (1964) 4 SCR 575 it was 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.
15. We do not find any illegality in the order passed by the Government of Haryana promoting the appellants to the posts of Executive Engineer. They are admittedly senior to the first respondent in the cadre of Assistant 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.
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