Shri Hari Sharma Prem and Another vs Union of India (UOI) and Another

R.S. Pathak, C.J.—The Appellants appeal against the judgment and order of our brother Chet Ram Thakur dismissing their petition under Articles 226 and 227 of the Constitution.

The Appellants, Hari Sharma Prem and Gurdavinder Singh, entered service as Computers in the Labour Bureau of the Ministry of Labour and Employment. Government of India at Simla. The first Appellant entered service in 1959 and the second Appellant in 1962. They are young men of reasonable education, but admittedly neither of them is a graduate.

The post next senior to that of Computer is that of Investigator Grade II. It is a post broadly classified as Central Class III (Non-Clerical). It appears that at the time when the Appellants entered service as Computers, recruitment to Central Class III (Non-Clerical) posts was governed by executive instructions which declared that a University degree was not an essential qualification. By a notification dated 4th October, 1963, the Labour Bureau, Simla (Investigators Grade II) Recruitment Rules, 1963 were promulgated. They provided, as the name shows, for recruitment to the posts of Investigators Grade II. By Rule 4, the method of recruitment, age limit, qualifications and other matters connected therewith were those specified in columns 5 to 13 of the schedule annexed to the rules.

The Appellants claimed promotion to the posts of Investigators Grade II. They have been denied promotion on the ground that they are not graduates. They filed a writ petition in this Court but that has been dismissed. And now they appeal.

The Appellants contend that in the matter of promotion to the posts of Investigators Grade II they are not governed by the Labour Bureau, Simla (Investigators Grade II) Recruitment Rules, 1963, (hereinafter referred to as the Rules of 1963) but by the executive instructions previously issued. The submission is founded on the assumption that the Rules of 1963 provide for direct recruitment only to the posts of Investigators Grade II and, therefore, the previous executive instructions continue to operate so far as promotion to those posts is concerned. It is urged that: "recruitment" means direct recruitment and does not include promotion. When it was pointed out that the schedule refers also to promotion, the Appellants contend that the schedule to that extent is invalid. I see no reason why the word "recruitment" should be narrowed down to direct recruitment. It covers direct recruitment as well as recruitment by promotion.

The Appellants then say that if the Rules of 1963 apply, they must be construed in harmony with the executive instructions operating earlier. It is pointed out that the executive instructions have legal force, and we are referred to Sant Ram Sharma Vs. State of Rajasthan and Another, That case merely lays down that until statutory rules governing promotion are framed the Government can issue administrative instructions regarding the principles to be followed. Now, executive instructions can hold the field only so long as statutory rules to the contrary are not framed. The Rules of 1963 were promulgated, and they contain provisions inconsistent with the executive instructions. That is clear from columns 5 to 11 of the Schedule annexed to the rules. The schedule classifies the post of Investigator as a Glass III non-gazetted, non-ministerial post. The essential educational qualifications in the case of direct recruits are--

University degree with Statistics, Mathematics, Economics, Sociology, Commerce or Social Work as one of the subjects.

The desirable requirements are--

(i) M.A. in any of the above subjects; and

(ii) Experience in social economics, investigation, tabulation and writing of reports.

In the case of those to be considered for the post by way of promotion or transfer, column head 8 queries--

Whether age and educational qualifications prescribed for the direct recruits will apply in the case of promotees/transferees?". And the answer recorded is: "Age: No; Education: Yes". Clearly, in the case of those promoted or transferred, the educational requirements are identical with those directly recruited. The Schedule further lays down that in the case of recruitment by promotion or transfer the area of eligibility in the case of Computers is confined to those who have completed three years of service in the grade. It is, therefore, plain that to qualify for promotion, a Computer must hold a University degree with Statistics, Mathematics, Economics, Sociology or Social Work as one of the subjects, and he must have put in three years of service in the Grade. In my opinion, inasmuch as the Appellants do not hold a University degree, they do not qualify for promotion.

The Appellants next contend that the provision prescribing a period of three years service for the purpose of promotion in the case of Computors constitutes a discriminatory requirement when compared to the case of direct recruits who are free from that requirement. It is pointed out that a direct recruit need have no experience, while experience is required in the case of a Computer. It seems to me that the point raised is wholly academic. If at all, it could have been raised if the Appellants had held a University degree and were refused promotion because they had not completed three years as Computors. Both conditions must be satisfied to qualify for promotion. A Computor must hold a University degree and he should have completed three years of service. If he does not hold a University degree it is needless to consider his period of service.

Finally, the Appellants point out that they have made representations to the Government for relaxing the provisions of the Rules of 1963 with respect to non-graduate Computors and, the Appellants say, the Government is not relaxing those provisions. Apparently, reference is intended to Rule 6 of the Rules of 1963, which empowers the Central Government, if it is of opinion that it is necessary or expedient to do so, to relax any of the provisions of those rules with respect to any class or category of persons. Plainly, power is to be exercised in the subjective discretion of the Central Government. Within the frame work of that power, when and to what extent it should be exercised is not for objective examination by the Courts. Policy and the needs of exigency are amongst the considerations which enter into a determination such as is contemplated by Rule 6. Further, the representations made by the Appellants cannot be attributed to any legal rights in them. No relief can be claimed then on their basis.

No other contention has been raised before us. Our brother Thakur found no substance in the writ petition, and we agree with him.

The appeal fails and is dismissed. In the circumstances, however, there is no order as to costs.

D.B. Lal, J.

I agree.