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REPORTABLE

IN THE SUPREME COURT OF INDIA     

 CIVIL APPELLATE JURISDICTION   CIVIL APPEAL No.7696 OF 2009

STATE OF UTTARANCHAL & ORS.                        ......APPELLANTS

VERSUS

C.S.R.K.S. MEDICAL HEALTH SERVICES, UTTARANCHAL  .......RESPONDENT    WITH

CIVIL APPEAL No.972 OF 2010                      CIVIL APPEAL No.974 OF 2010   CIVIL APPEAL No.975 OF 2010   CIVIL APPEAL No.973 OF 2010  

J U D G M E N T 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. 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 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,

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yet we are satisfied, that 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 1 of the 2004 Rules 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. (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  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  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 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 Article 309  of the Constitution of India, promulgated in the years 1985, 1994  and 2004 (besides the 2004 Rules).  It is, therefore, that Rule 2  of  the  2004  Rules  assumes  significance.   The  same  is  being

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extracted hereunder: “2.  Overriding  effect-  These  rules  shall  have  effect  notwithstanding  anything  to  the  contrary  contained in any 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,  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 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 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 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 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.”

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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 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 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 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  aforesaid  Government  Order  dated  17.07.2004 is being extracted hereunder:

“From Joint Director(Education) Kumaon Division Nainital.

To      District Education Officer

Nainital/Almora/Pithoragarh/Udhamsingh  Nagar/Bageshwar/Champawat Letter No.Pra-3/4006-25/04-05   Dated 17.07.04

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Subject:  Regarding  Promotion  of  Class-IV  Employees  (Group-`D’) on the Post of Junior Clerks in Subordinate  offices Ministerial Staff Class-III (Group-`C’). Sir,

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/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.

You are requested to get the forms duly filled  up and submitted by the eligible Class-IV employees of  your district so that all the eligible class-IV employees  may submit relevant information as per the format.

1.  Only those Class-IV employees shall be 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.

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.

(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 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 Mandal Office.       14.08.2004 (C) Date and place to hold examination.  22.08.2004

Government 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 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 on the notice board to ensure that no eligible  employee is deprived of the opportunity of the promotion.

The  information  to  be  compiled  at  District

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Level should be prepared in A5 paper in the Computer and  a floppy may also be forwarded with this information.

It  may  be  ensured  that  while  compiling  information  that  serial  number  of  the  compiled  information and the compiled format are in same seriatum.

Sd/-    Dan Singh Rautela    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  Petition  No.78  of  2005).  The  above  Government  Order  dated  08.11.2004 is being extracted hereunder:

“From Additional Director Medical & Health Kumaon Mandal, Nainital.

To The Chief Medical Officer/ Chief Medical Superintendent Almora, Pithoragarh, Udhamsingh Nagar/ 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  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  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 opportunity to appear in typing test.

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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 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  alongwith  an  identity  card  or  a  certificate  issued by the Medical Incharge. A notice to this effect may be published in Dainik Jagran  and Amar Ujala also so that no candidate is deprived of  such opportunity.

Sd/-   H B Bhatt

 Additional Director”

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 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  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  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

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Orders  dated  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. 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, 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  well-known. Merely because an employee while holding 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 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 minimum fitness standards  postulated under Rule 4 of the 2004 Rules.

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

                                    ...........................J.               (JAGDISH SINGH KHEHAR)  

                 ...........................J.          (ARUN MISHRA)

NEW DELHI; OCTOBER 16, 2014.

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