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PETITIONER: BHAGIRATHDAN

       Vs.

RESPONDENT: STATE OF RAJASTHAN AND ORS.

DATE OF JUDGMENT14/08/1992

BENCH: BHARUCHA S.P. (J) BENCH: BHARUCHA S.P. (J) THOMMEN, T.K. (J)

CITATION:  1992 AIR 1949            1992 SCR  (3) 882  1992 SCC  (4)  64        JT 1992 (4)   533  1992 SCALE  (2)179

ACT:      Civil  Service-Mines  and  Geology  Department-Post  of Deputy    Drilling    Engineer-Promotion-Requirements-Better educational  qualification whether obviates  the  prescribed practical  experience-Non-mentioning of performance of  what work  from time to time in the pleadings before  the  Court- Affidavit at last  moment of hearing in Supreme Court-Effect of.      Rajasthan  Mines  and Geological Service  Rules,  1960- Schedule-Entry 6-Post of Deputy Drilling Engineer-Promotion- Requirements-Better   educational    qualification   whether obviates the prescribed practical Experience-Absence of what work performed in the pleadings before the  Courts-Affidavit at last moment of hearing in Supreme Court-Effect of.

HEADNOTE:      The  appellant  in  C.A.  Nos.  2946-47  of  1992   was appointed as an Assistant Engineer in the State Woolen  Mill on  18.7.1992.  On 12.12.1975, upon being  declared  surplus therein,  he  was  appointed  as  an  Assistant   Mechanical Engineer  in the Mines and Geology Department of  the  State Government (the first respondent).      On  25.9.1973, the appellant in C.A. No. 2948  of  1992 was  appointed  as an Assistant Mechanical Engineer  in  the Mines and Geology Department.      On  30.9.1977,  two posts of Deputy  Drilling  Engineer fell vacant. The appellants filed writ petitions in the High Court  praying  that  the State Government  be  directed  to consider  their  cases for promotion to the post  of  Deputy Drilling Engineer and, if found suitable, to be so  promoted with effect from the date upon which the vacancies occurred. The appellant also challenged the appointments of the  third and fourth respondents to take charge of the vacant posts of Deputy Drilling Engineer on the ground that the  respondents were much junior to them.      The promotions to the post of Deputy Drilling  Engineer were regu-                                                        883 lated by Entry 6 of the Schedule to the Rajasthan Mines  and Geological Service Rules, 1960. It was amended on  20.5.1977 and again on 11.8.1982.

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    On  17.2.1984  the  State Government  issued  an  order banning promotions to the post of Deputy Drilling  Engineer, for the period 20.5.1977 to 31.3.1983.      On  7.3.1984,  the writ petitions were  allowed,  inter alia,   holding  that  the  appellants  were  eligible   for promotion  to the post of Deputy Drilling Engineer  as  they possessed  the necessary qualification and  experience.  The Single  Judge of the High Court rejected the  contention  of the  respondents  that the amendment to the Entry 6  of  the Schedule was retrospective in operation and held that it did not debar the appellants from being considered for promotion against vacancies existing before 6.11.1982.      Appeals  were  filed by the  respondents.  Pending  the disposal of the appeals, on 17.12.1986, the third and  fourth respondents  were promoted to the posts of  Deputy  Drilling Engineer  upon a temporary basis and they were confirmed  on 19.12.1987. On the same day, the appellants were promoted to the post of Mechanical Engineer.      The  Division  Bench  of the High  Court  rejected  the contention  of  the appellants that the experience  of  five years prescribed  thereby was only for  diploma-holders  and there was no requirement of any experience of drilling or of maintenance of drilling machines for degree-holders and  set aside the judgment of the Single Judge.      The  present  appeals  were  filed  by  special   leave challenging  the judgment of the Division Bench of the  High Court.      The  appellants  contended that it was clear  from  the Entry 6 of the Schedule that there was no necessity of  five year’s experience of drilling or of maintenance of  drilling machines   in  the  case  of  degree-holders  such  as   the appellants;  that  the  experience of five  years  that  was prescribed was only in respect of diploma-holders; and  that the  appellants possessed the necessary experience  of  five years in the maintenance of drilling machines.                                                        884      Dismissing the appeals, this Court      HELD  :  1.01.  The  qualification  that  an  Assistant Drilling Engineer or an Assistant Mechanical Engineer had to possess for being promoted to the post of   Deputy  Drilling Engineer was (a) a diploma in Mechanical Engineering and (b) five  year’s  experience of drilling or  of  maintenance  of drilling machines. The qualification prescribed was two-fold : educational and practical experience. A better educational qualification  does not obviate the need for the  prescribed practical experience.                                                    (887F)      1.02.  The  Entry  6  of the  Schedule  speaks  of  the practical experience that each Assistant Mechanical Engineer must  possess  to qualify him for promotion to the  post  of Deputy  Drilling  Engineer,  it  does  not  say  that  every Assistant  Mechanical Engineer of five years standing  would qualify for such promotion.[888F]      1.03.  The  acquisition of a  qualification  cannot  be equated  with  practical  experience.  The  fact  that   the appellant  (in  C.A.  No. 2948 of  1992)  had  acquired  the additional  qualification  does not ipso facto lead  to  the conclusion  that  he  had or must  have  had  the  requisite practical  experience  prescribed  in the  Entry  6  of  the Schedule. [889D]      1.04.  Neither  before the Division Bench  nor  in  the Special Leave Petitions have the appellants stated what work they  did  from  time to time  since  their  appointment  as Assistant Mechanical Engineers. Such an averment would  have shown  with  precision whether or not they had  five  years’

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experience  of maintenance of drilling machines.  That  they did  not  so ever even after the  Division  Bench  dismissed their  writ petitions on the very ground must be  considered significant.  [887G-888A]      1.05.  At  the  very last moment  of  the  hearing  the appellant (in C.A. Nos. 2946-47 of 1992) filed an  affidavit which stated that he had been posted at the Central Workshop ever  since  he  was  absorbed  in  the  Mines  and  Geology Department   and  his  job  had  included  the  repair   and maintenance, inter alia, of drilling rigs. This last  minute attempt  to  cure the defect cannot be countenanced  as  the averment  cannot  at  this stage  be  confirmed  or  denied. [889A-B]                                                        885

JUDGMENT:      CIVIL APPELLATE JURISDICTION  : Civil Appeal Nos. 2946- 47 of 1992.      From  the  Judgment and Order dated  28.4.1988  of  the Rajasthan  High Court in D.B. Civil Special Appeals No.  199 and 203 of 1984.                             WITH      Civil Appeal No. 2948 of 1992.      T.S.K.  Iyer, Manu Mridul, R.S. Suri (NP) and S.K  Jain for the Appellant.      Arun  Jaitley,  Aruneshwar  Gupta,  Indra  Makwana  and Rajendra Mal Tatia for the Respondents.      The Judgment of the Court was delivered by      BHARUCHA, J. Leavae to appeal granted.      These   two  appeals  arise  upon  a  common   judgment delivered  by a Division Bench of the Rajasthan  High  Court and  they  can  be decided together. By  that  judgment  the Division  Bench  set  aside the judgment and  order  of  the learned  Single Judge upon the writ petitions filed  by  the appellants in these two appeals and dismissed the same.      The appellant Bhagirathdan (in S.L. Ps (C) Nos.  10451- 52 of 1988) was appointed an Assistant Engineer in the State Woolen  Mill  at  Bikaner  on 18th  July  1972.  Upon  being declared  surplus  therein  he was  appointed  an  Assistant Mechanical  Engineer in the Mines and Geology Department  of the  State  of  Rajasthan (the  first  respondent)  on  12th December  1975. On 25th September 1973 the appellant  Himmat Singh  (in  S.L.P  (C) No.11711 of 1988)  was  appointed  an Assistant  Mechanical  Engineer  in the  Mines  and  Geology Department.      Between  20th May 1977 and 11th August 1982  promotions to  the post of Deputy Drilling Engineer were  regulated  by Entry  6  of  the  Schedule  to  the  Rajasthan  Mines   and Geological Service Rules, 1960, as amended on 20th May 1977. The said Entry read thus :                                                        886 __________________________________________________________________________ _____ Sl. Name of   Method of Minimum qualif- Post of posts from Minimum qua- Re marks No. the Post. recruitm- ication & expe- which appointment  lification &               ent with  rience for dir- by promotion is to experience               percent-  rect recruitme- be made.           required for               age       nt.                                promotion. __________________________________________________________________________ _____ 1      2         3            4                5                6  7

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__________________________________________________________________________ _____ 6.  Deputy    100% by   ......          1. Asstt. Drilling Diploma in     Drilling  promotion                 Engineer.          Mechanical     Engineer                            2. Asstt. Mechani- Engineering                                         cal Engineer       with 5 years                                                            experience of                                                            maintenance of                                                            drilling machin -                                                            es on the post                                                            mentioned in                                                            col.5 and 7                                                            year’s exper-                                                            ience of dril-                                                            ling in case of                                                            Matriculates .  _________________________________________________________________________ ______      On  30th  September 1977 two posts of  Deputy  Drilling engineer fell vacant. The appellants filed writ petitions in the  Rajasthan High Court praying that the State  Government be  directed  to consider their cases for promotion  to  the post of Deputy Drilling Engineer and, if found suitable,  to be  so  promoted  with effect from the date  upon  which the vacancies occurred.  The  appellants  also  challenged   the appointment  of  the third and fourth respondents  to  these appeals  to  take  charge  of the  vacant  posts  of  Deputy Drilling Engineer on the ground that these respondents  were much junior to them.      On  11th  August 1982, the State  Government  issued  a notification  amending the said Entry 6 of the Schedule  and thereby,  in  column  5,  the  words  "Assistant  Mechanical Engineer"  were  deleted. On 17th February  1984  the  State Government issued an order banning promotions to the post of Deputy Drilling Engineer in the Mines and Geology Department for the period 20th May 1977 to 31st March 1983.      On 7th March 1984 the writ petitions were allowed.  The learned  Single Judge held, inter alia, that the  appellants were  eligible for promotion to the post of Deputy  Drilling Engineer  as they possessed the necessary qualification  and experience.  The  learned judge rejected the  contention  on behalf  of  the respondents that the amendment to  the  said Entry  6 of the Schedule was retrospective in operation  and held,  therefore, that it did not debar the appellants  from being  considered for promotion against  vacancies  existing before  6th  November 1982. The order of the  learned  Judge directed  the State Government to fill the vacancies in  the post of Deputy Drilling Engineer by making a selection  from amongst  persons who were eligible for consideration at  the time when the vacancies occurred.      Appeals  were  filed by the  respondents.  Pending  the disposal of the                                                        887 appeals,  on  17th  December  1986,  the  third  and  fourth respondents were promoted to the post of the Deputy Drilling Engineer upon a temporary basis (which appointments, we  are told at the Bar, were confirmed on 19th December   1987). On the  same day, the appellants were promoted to the  post  of Mechanical Engineer.      By  the  Judgment and order under appeal  the  Division Bench  considered the qualifications of the  appellants  for appointment  to the post of Deputy Drilling Engineer  having regard  to what the said Entry 6 of the Schedule  prescribed during  the  period between 20th May 1977  and  11th  August

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1982.  The Division Bench rejected the contention on  behalf of  the  appellants  that  the  experience  of  five   years prescribed  thereby was only for diploma-holders  and  there was  no  requirement  of any experience of  drilling  or  of maintenance  of  drilling machines for  degree-holders.  The Division Bench found that the appellants had not averred  in their writ petitions that they had five years’ experience of drilling  or  of maintenance of drilling  machines  on  30th September 1977,  when  the  two  posts  of  Deputy  Drilling Engineer  fell vacant, or before the amendment of  the  said Entry  6  of the Schedule by deleting the  words  "Assistant Mechanical  Engineer" there from. Accordingly, the  Division Bench set aside the judgment of the learned Single Judge and dismissed the appellants’ writ petitions.      It  was contended before us by learned counsel for  the appellants  that it was clear from the said Entry 6  of  the Schedule  that  there  was  no  necessity  of  five   years’ experience  of  drilling  or  of  maintenance  of   drilling machines   in  the  case  of  degree-holders  such  as   the appellants. The experience of five years that was prescribed was only in respect of diploma-holders. As we read the  said Entry 6 of the Schedule, the qualification that an Assistant Drilling Engineer or an Assistant Mechanical Engineer had to possess  for being promoted to the post of  Deputy  Drilling Engineer was (a) a diploma in Mechanical Engineering and (b) five  years’  experience of drilling or  of  maintenance  of drilling  machines. The qualification prescribed  was  thus. two-fold:  educational  and practical experience.  A  better educational qualification does not obviate the need for  the prescribed practical experience.      It was contended in the alternative that the appellants possessed  the  necessary experience of five  years  in  the maintenance   of  drilling  machines.  Neither  before   the Division Bench judgment nor in the Special Leave                                                        888 Petitions have the appellants stated what work they did from time to time since their appointment as Assistant Mechanical Engineers. Such an averment would have shown with  precision whether   or  not  they  had  five  years’   experience   of maintenance of drilling machines. That they did not so  aver even after the Division Bench dismissed their writ petitions on the very ground must be considered significant.      Reliance  was placed  upon a  pamphlet  issued  by  the Rajasthan  Public  Service  Commission  in  respect  of  the recruitment  of an Assistant Mechanical Engineer. It  stated that  the  candidates’ qualification should be a  degree  in Mechanical   Engineering  and  three   years’experience   in "maintenan ce  and repair of compressor,  tractors.  material handling  equipments and other drilled mining  machineries". The  nature of duties that an Assistant Mechanical  Engineer would have to perform was also stated in the pamphlet, thus: he would have "responsibility for all the machines and other mining equipments of the department at various working sites and  in various stores under his charge and maintenance  and repairs of all the equipments and machineries of mining  and prospecting under his charge". Reliance was also placed upon a  Manual published by the Department of Mines and  Geology, Rajasthan,   regarding  the  functions  and  duties of   its organisation.   That  Manual  states  that  the  duties   of Assistant  Mechanical Engineers include assistance  to  "the Mechanical Engineer in all matters pertaining to maintenance and repair of machinery in the Department". It was submitted that  the appellants had performed these duties and  it  was clear,  therefore,  that  they  had  prescribed    practical experience.

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    The  said  Entry  6  of  the  Schedule  speaks  of  the practical   experience   that  each   Assistant   Mechanical Engineer  must possess to qualify him for promotion  to  the post of Deputy Drilling Engineer; it dose not say that every Assistant  Mechanical Engineer of five years standing  would qualify   for   such  promotion.  The   appellants   should, therefore,  have  averred  what they had  in  fact  done  as Assistant Mechanical Engineers and not relied only upon what Assistant  Mechanical  Engineers might expect to  be  called upon  to do, as set out in the aforementioned  pamphlet  and manual.      In   the  case  of  the  appellant  Bhagirathdan,   our attention was drawn to the averment made by him in reply  to the respondents’ submission that he was not eligible to  the post of Deputy Drilling Engineer in July 1977. Reliance  was placed by him upon the specification of an Assistant                                                        889 Mechanical  Engineer’s  duties  in  general  terms  in   the aforementioned pamphlet but no attempt was made to give  the lie to the respondents’ submission by making a detailed  and precise  specification of his experience in the  maintenance of drilling machines. At the very last moment of the hearing before us Bhagirathdan filed an affidavit which stated  that he has been posted at the Central Workshop ever since he was absorbed in the Mines and Geology Department and his job had included the repair and maintenance, inter alia, of drilling rigs. This last minute attempt to cure the defect cannot  be countenanced  as  the  averment  cannot  at  this  stage  be confirmed or denied.      In regard to the appellant Himmat Singh, our  attention was  drawn to the fact that it was averred by him , and  not denied,  that he had acquired the qualification of  Drilling Engineer  from the  Institution of Engineers,  Calcutta,  in the  year  1976  and had been  permitted  by  the  Assistant Secretary,   Mines,   to  take   that   examination.     The acquisition  of  a  qualification  cannot  be  equated  with practicial  experience.   The  fact that  Himmat  Singh  had acquired  this additional qualification does not ipso  facto lead  to  the conclusion that he had or must  have  had  the requisite practical experience prescribed in the said  Entry 6 of the Schedule.      In  the result, the appeals are dismissed. There  shall be no order as to costs. V.P.R.                                     Appeals dismissed                                                        890