LexDIPLOMA ENGINEERS SANGH versus STATE OF U. P. AND ORS.
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. --k ( j DIPLOMA ENGINEERS SANGH A v. ST A TE OF U .P. AND ORS. MARCH 20, 2007 [H.K. SEMA AND R.V. RA VEENDRAN, JJ.] B ~ Service Law: U.P. Service of Engineers (Building and Roads Branch) Class II Rules, c 1936-Rules 5 (iv) and 9 (ii)-Promotion of Diploma Junior Engineers to the post of Assistant Engineers-By Office Memorandum dated 11.2.2003 provided promotion to Diploma Junior Engineers by only holding interview as qualifying examination-legality of-Held: Office orc!-er dated 11.2.2003 is contrary to 1936 Rules-Interview cannot be the method of ascertaining fitness-Qualifying examination refers to written examinacion- 1936 Rules D were in existence when office order was issued-Office order did not supercede "( or override Rule 9(ii) but merely purported to be a prescription of the !>- 'qualifying examination' by the Governor. Words and Phrases: Qualifying examination-Meaning of- Jn the context of Rule 9 (ii) of the U.P. Service of Engineers (Building and Roads E Branch) Class 1 Rules 1936. U.P. Service of Engineers (Buildings & Roads Branch ) Class II Rules, 1936 were amended by 1987 Amendment Rules and 1997 Amendment Rules >. and it provided for separate quotas for promotion. The Amendment Rules of 1987 and 1997 were challenged. The diploma holder Junior Engineers sought F --, mandamus directing the State Government to consider them for promotion to the post of Assistant Engineer in accordance with the 1936 Rules (as amended) High Court allowed writ petition challenging the Amendment Rules; however it dismissed the writ petition of the diploma holder Junior Engineers. It held that the 1987 and 1997 Amendments were invalid and deemed not to have G come into force. In view of the aforesaid order, the State Government issued the office order dated 11.3.2003 proposing to promote Diploma-holders Junior Y'· Engineers to the post of Assistant Engineers under the 1936 Rules by holding 'interview 'as qualifying examination. 207 H _;,_ \ 208 SUPREME COURT REPORTS [2007] 4 S.C.R,. A The graduate Junior Engineers challenged the Office Memorandum j__ dated 11.3.2003 on the ground that it exempted the diploma junior engineers from undergoing and passing there qualifying examination for promotion only by holding viva voice, and as such was illegal. High Court held the Office memorandum violative of Rule 5(iv) and Rule 9(ii) of the 1936 Rules and B quashed it Hence the present appeal. The question which arose for consideration before this Court were whether the U.P. Service of Engineers (Building and Roads Branch) Class II - Rules 1936 were in existence at the time when the office order dated 11.2.2003 was issued ifthe 1936 Rules were subsisting, what is the effect of the office c order dated 11.2.2003; and what is the meaning of the words "qualifying examination "prescribed under Rule 9(ii) read with Rule 5 (iv) of the Rules. Dismissing the appeal, the Court HELD: 1. The order of the High Court quashing the office order dated D 11.2.2003 and requiring the diploma-holder Junior Engineers to undergo a qualifying examination calls for no interference. First respondent Government and third respondent UP.PSC are directed to conduct the qualifying )' examination in accordance with the U.P. Service of Engineers (Building and ~ Roads Branch) Class II Rules, 1936. (Para 20) (219-H; 220-Af ~- E 2. It is clear that the decision in P.D. Aggarwal's case that only Rules 3(c), 5 and 6 inserted by 1969 Rules and Rule 23 inserted by 1971 Rules were quashed. It is therefore evident that 1936 Rules continued to exist at the time when the Office Order dated 11.2.2003 was issued. This was also the understanding of the Government in as much as the impugned Office order F dated 11.2.2003 itself was issued in exercise of the power under Rule 9(ii) __._ read with Rules 5(iv) of the 1936 Rules. Thus, there is no merit in the ,-- submission that the 1936 Rules were not in e~istence when the office order dated 11.2.2003 was issued (Para 7) (214-F-GJ P.D. Aggarwal v. State of UP., (1987) 3 SCC 622, referred to. G 3. A careful reading of office under order dated 11.2.2003 shows that it does not supercede or override Rule 9(ii) but purports merely to be a prescription of the 'qualifying examination' by the Governor as contemplated ttnder Rule 9(ii). Therefore, the question is not whether the office order dated 11.2.2003 supercedes Rule 9(ii) or not, but whether the off
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