judgement:
tion (Criminal) No. 270 of 1988.
(Under Article 32 of the Constitution of India).
Parmanand Katara in person.
A.D. Singh, U.R. Lalit (N.P.).
R.B. Misra.
Ms. A. Subha shini, B.R. Agarwala, Ms. Sushma Manchanda, Ms. Suman Rasto gi and Ms. 1000 Indu Malhotra (N.P.) for the Respondents.
The following Judgments of the Court were delivered RANGANATH MISRA, J.
The petitioner who claims himself to be a 'small human right activist and fighting for the good causes for the general public interest ' filed this applica tion under Article 32 of the Constitution asking for a direction to the Union of India that every injured citizen brought for treatment should instantaneously be given medi cal aid to preserve life and thereafter the procedural criminal law should be allowed to operate in order to avoid negligent death and in the event of breach of such direc tion, apart from any action that may be taken tot negli gence, appropriate compensation should be admissible.
He appended to the writ petition a report entitled 'Law helps the injured to die ' published in the Hindustan Times.
In the said publication it was alleged that a scooterist was knocked down by a speeding car.
Seeing the profusely bleed ing scooterist, a person who was on the road picked up the injured and took him to the nearest hospital.
The doctors refused to attend on the injured and told the man that he should take the patient to a named different hospital locat ed some 20 kilometers away authorised to handle medico legal cases.
The samaritan carried the victim, lost no time to approach the other hospital but before he could reach, the victim succumbed to his injuries.
The Secretary, Ministry of Health & Family Welfare of the Union of India, the Medical Council of India and the Indian Medical Association were later impleaded as respond ents and return to the rule has been made by each of them.
On behalf of the Union of India, the Under Secretary in the Ministry of Health & Family Welfare filed an affidavit appending the proceedings of the meeting held on 29.5.
1986 in which the Director General of Health Services acted as Chairman.
Along with the affidavit, decisions of papers relating to the steps taken from time to time in matters relating to matters relevant to the application but confined to the Union Territory of Delhi were filed.
A report in May, 1983, submitted by the Sub Committee set up by the Home Department of the Delhi Administration on Medico Legal Centers and Medico Legal Services has also been produced.
The Secretary of the Medical Council of India in his affida vit referred to clauses 10 and 13 of the Code of Medical Ethics drawn up with the approval of the Central Government under section 33 of the Act by the Council, wherein it had been said: "10 .
Obligations to the sick: 1001 Though a physician is not bound to treat each and every one asking his services except in emergencies for the sake of humanity and the noble traditions of the profession, he should not only be ever ready to respond to the calls of the sick and the injured, but should be mindful of the high character of his mission and the responsibility he incurs in the discharge of his ministrations, he should never forget that the health and the lives of those entrusted to his care depend on his skill and attention.
A physician should endea vour to add to the comfort of the sick by making his visits at the hour indicated to the patients.
The patient must not be neglected: A physician is fee to choose whom he will serve.
He should, however, respond to any request for his assistance in an emergency or whenever temperate public opinion expects the service.
Once having undertaken a case, the physician should not neglect the patient, nor should he withdraw from the case without giving notice to the patient, his relatives or his responsible friends sufficiently long in advance of his withdrawal to allow them to secure another medical attendant.
No provi sionally or fully registered medical practi tioner shall wilfully commit an act of negli gence that may deprive his patient or patients from necessary medical care.
" The affidavit has further stated: "The Medical Council of India therefore ex pects that all medical practitioners must attend to sick and injured immediately and it is the duty of the medical practitioners to make immediate and timely medical care avail able to every injured person whether he is injured in accident or otherwise.
It is also submitted that the formalities under the Criminal Procedure Code or any other local laws should not stand in the way of the medi cal practitioners attending an injured person.
It should be the duty of a doctor in each and every casualty department of the hospital to attend such person first and thereafter take care of the formalities under the Criminal Procedure Code.
The life of a person is far more important than the legal formalities.
In view of this, the deponent feels that it is in 1002 the interest of general human life and welfare that the Government should immediately make such provisions in law and amendments in the existing laws, if required, so that immediate medical relief and care to injured persons and/or serious patients are available without any delay and without waiting for legal for malities to be completed in the presence of the police officers.
The doctor attending such patients should be indemnified under law from any action by the Government/police authori ties/any person for not waiting for legal formalities before giving relief as a doctor would be doing his professional duty; for which he has taken oath as medical practition er.
It is further submitted that it is for the Government of India to take necessary and immediate steps to amend various provi sions of law which come in the way of Govern ment Doctors as well as other doctors in private hospitals or public hospitals to attend the injured/serious persons immediately without waiting for the police report or completion of police formalities.
They should be free from fear that they would be unneces sarily harassed or prosecuted for doing his duty without first complying with the police formalities . .
It is further submit ted that a doctor should not feel himself handicapped in extending immediate help in such cases fearing that he would be harassed by the Police or dragged to Court in such a case.
It is submitted that Evidence Act should also be so amended as to provide that the Doctor 's diary maintained in regular course by him in respect of the accident cases would be accepted by the courts in evidence without insisting the doctors being present to prove the same or subject himself to cross examina tion/harassment for long period of time.
" The Indian Medical Association which is a society registered under Act 21 of 1860 through its Secretary has stated in the affidavit that the number of deaths occurring on account of road accidents is on the increase due to lack of timely medical attention.
In the affidavit it has further stated: "The second reason is on account of the pre vailing police rules and Criminal Procedure Code, which necessitate the fulfilment of several legal formalities before a victim can be rendered medical aid.
The rationale behind this com 1003 plicated procedure is to keep all evidence intact.
However, time given to the fulfilment of these legal technicalities sometimes takes away the life of a person seriously injured.
Members of public escorting the injured to the nearest hospital are reluctant to disclose their name or identity as he is detained for eliciting information and may be required to be called for evidence to Courts in future.
Similarly, the private practicing doctors are harassed by the police and are, therefore, reluctant to accept the roadside casualty.
It is submitted that human life is more valuable and must be preserved at all costs and that every member of the medical profession, may, every human being, is under an obligation to provide such aid to another as may be necessary to help him survive from near fatal accidents.
" The Committee under the Chairmanship of the Director General of Health Services re ferred to above had taken the following deci sions: "1.
Whenever any medico legal case attends the hospital, the medical officer on duty should inform the Duty Constable, name, age, sex of the patient and place and time of occurrence of the incident, and should start the required treatment of the patient.
It will be the duty of the Constable on duty to inform the con cerned Police Station or higher police func tionaries for further action.
Full medical report should be pre pared and given to the Police, as soon as examination and treatment of the patient is over.
The treatment of the patient would not wait .for the arrival of the Police or com pleting the legal formalities. 2, Zonalisation as has been worked out for the hospitals to deal with medico legal cases will only apply to those cases brought by the Police.
The medico legal cases coming to hospital of their own (even if the incident has occurred in the zone of other hospital) will not be denied the treatment by the hospital where the case reports, nor the case will be referred to other hospital be cause the incident has occurred in the area which belongs to the zone of any other hospi tal.
The same police formalities as given in para 1 above will be followed in these cases.
1004 All Government Hospitals, Medical Institutes should be asked to provide the immediate medical aid to all the cases irre spective of the fact whether they are medico legal cases or otherwise.
The practice of certain Government institutions to refuse even the primary medical aid to the patient and referring them to other hospitals simply because they are medico legal cases is not desirable.
However, after providing the pri mary medical aid to the patient, patient can be referred to the hospital if the expertise facilities required for the treatment are not available in that Institution." (underlining are ours) To the said affidavit of the Union of India also, the minutes of the 10th Meeting of the Standing Committee on Forensic Medicine (a Committee set up by the Ministry of Home Affairs of the Government of India) held on 27.4.1985 have been appended.
These minutes show that the Committee was a high powered one consisting of the Director General, the Joint Secretary of the Ministry of Health of the Govern ment of India, a Professor from the All Indian Institute of Medical Sciences, the Professor of Forensic Medicine from Maulana Azad Medical College, New Delhi, the Director & Professor of Forensic Medicine, Bhopal, the Deputy Director, Central Forensic Science Laboratory, Calcutta and certain officers of the Ministry.
The proceedings indicate that the Director Generals of Police, Tamil Nadu and Uttar Pradesh were also members of the Committee.
From the proceedings it appears that the question of providing medico legal facili ties, at the upgraded primary health centers throughout the country was under consideration but the Committee was of the opinion that time was not ripe to think of providing such facilities at the upgraded primary health centers.
One of the documents which forms part of the Union of India 's affidavit is the copy of a letter dated 9th of May, 1978 which indicates that a report on some aspects of Medico Legal Practice in India had been prepared and a copy of such report was furnished to the Health Secretaries of all the States and Union Territories more than eleven years back.
From these documents appended to the affidavit of the Union of India, it is clear that the matter has been engag ing the attention of the Central Government as also of the Governments of the States and the Union Territories for over a decade.
No improvement of the situation,, however, is perceptible and the problem which led to the filing of this petition seems to exist in hospitals and private nursing homes and clinics throughout the country.
1005 In course of the hearing, we directed the petitioner to place on record for the consideration of the Court and the respondents a draft guideline which could be prescribed to ease the situation keeping the professional ethics in view.
When the same was filed, copies thereof were circulated to the respondents and all parties have been heard on the basis of the guidelines submitted on behalf of the petitioner.
The Medical Council of India has placed on record a copy of the Code of Medical Ethics and counsel has made a statement that there is no prohibition in law justifying the attitude of the doctors as complained.
On the other hand, he stated that it is a part of the professional ethics to start treating the patient as soon as he is brought before the doctor for medical attention inasmuch as it is the paramount obligation of the doctor to save human life and bring the patient out of the risk zone at the earliest with a view to preserving life.
In the affidavit filed on behalf of the Union of India on 3rd August, 1989, it has been said: "There are no provisions in the Indian Penal Code, Criminal Procedure Code, Motor Vehicles Act etc.
which prevent Doctors from promptly attending seriously injured persons and acci dent case before the arrival of Police and their taking into cognisance of such cases, preparation of F.I.R. and other formalities by the Police.
However, the deponent most humbly submits that the respondent shall always abide by the directions and guidelines given by the Hon 'ble Court in the present case.
" There can be no second opinion that preservation of human life is of paramount importance.
That is so on account of the fact that once life is lost, the status quo ante cannot be restored as resurrection is beyond the capacity of man.
The patient whether he be an innocent person or be a criminal liable to punishment under the laws of the society, it is the obligation of those who are in charge of the health of the community to preserve life so that the inno cent may be protected and the guilty may be punished.
Social laws do not contemplate death by negligence to tantamount to legal punishment.
Article 21 of the Constitution casts the obligation on the State to preserve life.
The provision as explained by this Court in scores of decisions has emphasised and reiter ated with gradually increasing emphasis that position.
A doctor at the Government hospital positioned to meet this State obligation is, therefore, duty bound to 1006 extend medical assistance for preserving life.
Every doctor whether at a Government hospital or otherwise has the pro fessional obligation to extend his services with due exper tise for protecting life.
No law or State action can inter vene to avoid/delay the discharge of the paramount obliga tion cast upon members of the medical profession.
The obli gation being total, absolute and paramount, laws of proce dure whether in statutes or otherwise which would interfere with the discharge of this obligation cannot be sustained and must, therefore, give way.
On this basis, we have not issued notices to the States and Union Territories for affording them an opportunity of being heard before we accepted the statement made in the affidavit of the Union of India that there is no impediment in the law.
The matter is extremely urgent and in our view, brooks no delay to remind every doctor of his total obligation and assure him of the position that he does not contravene the law of the land by proceeding to treat the injured victim on his appearance before him either by himself or being carried by others.
We must make it clear that zonal regulations and classifica tions cannot also operate as fetters in the process of discharge of the obligation and irrespective of the fact whether under instructions or rules, the victim has to be sent elsewhere or how the police shall be contacted, the guideline indicated in the 1985 decision of the Committee, as extracted above, is to become operative.
We order accord ingly.
We are of the view that every doctor wherever he be within the territory of India should forthwith be aware of this position and, therefore, we direct that this decision of ours shall be published in all journals reporting deci sions of this Court and adequate publicity highlighting these aspects should be given by the national media as also through the Doordarshan and the All India Radio.
The Regis try shall forward adequate number of copies of this judgment to every High Court so that without delay the respective High Courts can forward them to every Sessions Judge within their respective jurisdictions and the Sessions Judges in their turn shall give due publicity to the same within their jurisdictions.
The Medical Council of India shall forward copies of this judgment to every medical college affiliated to it.
Copies of the judgment shall be forwarded to every State Government with a direction that wide publicity should be given about the relevant aspects so that every practicing doctor would soon become aware of the position.
In case the State Governments and the Union Territories which have not been heard file any representation against the direction, they shall have liberty to appear before this Court and ask for appropriate 1007 direction within three months from now.
Applications filed after that date shall not be entertained by the Registry of this Court.
Until altered, this judgment shall be followed.
Before we part with the case, we place on record our appreciation of the services rendered by the petitioner by inviting the attention of the Court to the problem raised in this case.
We must also place on record our appreciation of the cooperation and understanding exhibited by the Union of India in the relevant Ministry, the Medical Council of India and the Indian Medical Association.
No order for costs.
OZA, J. I entirely agree with what has been observed by my learned brother and also agree with the directions indi cated in the Order made by Hon 'ble Shri Justice R.N. Misra but I would like to add: As has been quoted by my learned brother, a high power committee by the Government of India was appointed at a high level and this was long before and the proceedings of 29th May, 1986 have been filed and have also been quoted.
The Medical Council of India alongwith their affidavit have filed Code of Medical Ethics which everyone in the medical profession is expected to follow but still the news item which is the starting point of this petition is of 1988.
The Code of Medical Ethics flamed by the Medical Council was approved on 23rd October, 1970.
This only reveals an unfor tunate state of affairs where the decisions are taken at the higher level good intentioned and for public good but unfor tunately do not reach the common man and it only remains a text good to read and attractive to quote.
It could not be forgotten that seeing an injured man in a miserable condition the human instinct of every citizen moves him to rush for help and do all that can be done to save the life.
It could not be disputed that inspite of development economical, political and cultural still citi zens are human beings and all the more when a man in such a miserable state hanging between life and death reaches the medical practitioner either in a hospital (run or managed by the State) public authority or a private person or a medical professional doing only private practice he is always called upon to rush to help such an injured person and to do all that is within his power to save life.
So far as this duty of a medical professional is concerned its duty coupled with human instinct, it needs no decision nor any code of ethics nor any rule or law.
Still in the Code of Medical Ethics framed by the Medical Council of India Item 13 specifically provides for it.
Item 13 reads as under: 1008 "13.
The patient must not be neglected.
A physician is free to choose whom he will serve.
He should, however, respond to any request for his assistance in an emergency or whenever temperate public opinion expects the service.
Once having undertaken a case, the physician should not neglect the patient, nor should he withdraw from the case without giving notice to the patient, his relatives or his responsible friends sufficiently long in advance of his withdrawal to allow them to secure another medical attendant.
No provi sionally or fully registered medical practi tioner shall wilfully commit an act of negli gence that may deprive his patient or patients from necessary medical care.
" Medical profession is a very respectable profession.
Doctor is looked upon by common man as the only hope when a person is hanging between life and death but they avoid their duty to help a person when he is facing death when they know that it is a medico legal case.
To know the re sponse of the medical profession the Medical Council of India and also the All India Medical Association were no ticed and were requested to put up their cases.
Some apprehensions were expressed because of some misun derstanding about the law of procedure and the police regu lations and the priorities in such situations.
On the basis of the affidavit filed by the Union of India and considering the matter it is clear that there is no legal impediment for a medical professional when he is called upon or requested to attend to an injured person needing his medical assist ance immediately.
There is also no doubt that the effort to save the person should be the top priority not only of the medical professional but even of the police or any other citizen who happens to be connected with the matter or who happens to notice such an incident or a situation.
But on behalf of the medical profession there is one more apprehen sion which sometimes prevents a medical professional in spite of his desire to help the person, as he apprehends that he will be witness and may have to face the police interrogation which sometimes may need going to the police station repeatedly and waiting and also to be a witness in a court of law where also he apprehends that he may have to go on number of days and may have to wait for a long time and may have to face sometimes long unnecessary cross examina tion which sometimes may even be humiliating for a man in the medical profession and in our opinion it is this appre hension which prevents a medi 1009 cal professional who is not entrusted with the duty of handling medico legal cases to do the needful, he always tries to avoid and even if approached directs the person concerned to go to a State hospital and particularly to the person who is in charge of the medico legal cases.
We there fore have no hesitation in assuring the persons in the medical profession that these apprehensions, even if have some foundation, should not prevent them from discharging their duty as a medical professional to save a human life and to do all that is necessary but at the same time.
We hope and trust that with this expectation from the members of the medical profession, the policy, the members of the legal profession, our law courts and everyone concerned will also keep in mind that a man in the medical profession should not be unnecessarily harassed for purposes of inter rogation or for any other formality and should not be dragged during investigations at the police station and it should be avoided as far as possible.
We also hope and trust that our law courts will not summon a medical professional to give evidence unless the evidence is necessary and even if he is summoned, attempt should be made to see that the men in this profession are not made to wait and waste time unnecessarily and it is known that our law courts always have respect for the men in the medical profession and they are called to give evidence when necessary and attempts are made so that they may not have to wait for long.
We have no hesitation in saying that it is expected of the members of the legal profession which is the other honourable profes sion to honour the persons in the medical profession and see that they are not called to give evidence so long as it is not necessary.
It is also expected that where the facts are so clear it is expected that necessary harassment of the members of the medical profession either by way of requests for adjournments or by cross examination should be avoided so that the apprehension that the men in the medical profes sion have which prevents them from discharging their duty to a suffering person who needs their assistance utmost, is removed and a citizen needing the assistance of a man in the medical profession receives it.
We would also like to mention that whenever on such occasions a man of the medical profession is approached and if he finds that whatever assistance he could give is not sufficient really to save the life of the person but some better assistance is necessary it is also the duty of the man in the medical profession so approached to render all the help which he could and also see that the person reaches the proper expert as early as possible.
R.S.S. Petition disposed of.

summary/full:
The petitioner, who claims himself to be a human right activist, filed this writ petition in public interest on the basis of a newspaper report concerning the death of a scoot erist who was knocked down by a speeding car.
The report further states that the injured person was taken to the nearest hospital but the doctors there refused to attend on him; that they told that he be taken to another hospital, located some 20 kilometers away, which was authorised to handle medico legal cases; and that the victim succumbed to his injuries before he could be taken to the other hospital.
The petitioner has prayed the directions be issued to the Union of India that every injured citizen brought for treat ment should instantaneously be given medical aid to preserve life and thereafter the procedural criminal law should be allowed to operate in order to avoid negligent death, and in the event of breach of such direction, apart from any action that may be taken for negligence, appropriate compensation should be admissible.
The Secretary, Ministry of Health & Family Welfare of the Union of India, the Medical Council of India, and the Indian Medical Association were later impleaded as respond ents.
Documents relating to the steps taken from time to time in this 998 regard were produced.
by the respondents.
Reference was made to the Code of Medical Ethics drawn up by the Medical Coun cil of India, wherein the need to attend to the injured/serious persons immediately without waiting for the police report or completion of police formalities was recog nised and the Government of India was requested to take necessary and immediate steps to amend various provisions of law which come in the way of government doctors as well as other doctors in private hospitals or public hospitals in this regard.
The proceedings of the meeting held on 29.5.1986 in which the Director General of Health Services acted as Chairman were also referred to.
This Committee had formulated some guidelines.
On behalf of the Union of India it was stated that there was no provision in the Indian Penal Code, Criminal Procedure Code, or the Motor Vehicles Act, etc.
which prevented doctors from promptly attending seriously injured persons and accident cases before the arrival of police.
Disposing of the Writ Petition, this Court, HELD: (1) Article 21 of the Constitution casts the obligation on the State to preserve life.
[1005G] (2) There can be no second opinion that preservation of human life is of paramount importance.
That is so on account of the fact that once life is lost, the status quo ante cannot be restored as resurrection is beyond the capacity of man.
[1005F] (3) The patient whether he be an innocent person or a criminal liable to punishment under the laws of the society, it is the obligation of those who are incharge of the health of the community to preserve life so that the innocent may be protected and the guilty may be punished.
Social laws do not contemplate death by negligence to tantamount to legal punishment.
[1005F] (4) Every doctor whether at a Government hospital or otherwise has the professional obligation to extend his services with due expertise for protecting life.
[1006A] (5) No law or State action can intervene to avoid/delay the discharge of the paramount obligation cast upon members of the medical profession.
The obligation being total, absolute and paramount, laws of procedure whether in statute or otherwise which would interfere with the discharge of this obligation cannot be sustained and must, therefore, give way.
[1006B] 999 (6) The Court gave directions for giving adequate pub licity to the decision in this case by the national media, the Doordarshan and the all India Radio, as well as through the High Courts and the Sessions Judges.
[1006E F] Per G.L. Oza, J. (concurring) (1) The Code of Medical Ethics framed by the Medical Council was approved on 23rd October, 1970.
This only re veals an unfortunate state of affairs where the decisions are taken at the highest level good intentioned and for public good but unfortunately do not reach the common man and it only remains a text good to read and attractive to quote.
[1007D E] (2) It is clear that there is no legal impediment for a medical professional when he is called upon or requested to attend to an injured person needing his medical assistance immediately.
There is also no doubt that the effort to save the person should be the top priority not only of the medi cal professional but even of the police or any other citizen who happens to be connected with the matter or who happens to notice such an incident or a situation.
[1008F] (3) The members of the legal profession, our law courts and everyone concerned will also keep in mind that a man in the medical profession should not be unnecessarily harassed for purposes of interrogation or for any other formality and should not be dragged during investigations at the police station and it should be avoided as far as possible.
[1009C] (4) Law courts will not summon a medical professional to give evidence unless the evidence is necessary and even if he is summoned, attempt should be made to see that the men in this profession are not made to wait and waste time unnecessarily.
[1009D]


judgement:
No. 17238 of 1988.
IN Writ Petition Nos.
630 632 of 1984.
(Under Article 32 of the Constitution of India).
Shanti Bhushan and P.D. Sharma for the Petitioner.
G.L. Sanghi, Mahabir Singh, Rana Ranjit Singh, Srinivas Choudhary, S.K. Mehta and G.K. Bansal for the Respondents.
The Judgment of the Court was delivered by NATARAJAN, J.
This Civil Miscellaneous Petition has been filed with a prayer for appropriate directions being issued to the State of Haryana as under: (a) Issue appropriate directions to the respondents No. 1 and 2 1082 to implement the judgment and order dated 17.12.86 and carry out the directions issued by way of writ of mandamus as prayed to this Hon 'ble Court in its full spirit giving effect to the promotion orders dated 30.12.87, from back dates (deemed dates) or the dates when their juniors were promoted.
(b) Further issue suitable directions to the Respond ents No. 1 and 2 to allow other consequential benefits viz. fixation of pay from deemed dates, payment of arrears, pension and gratuity benefits to all officers figuring in list dated 27.10.85 irrespective of their retirement prior to the order of promotions dated 30.12.87 pronouncement.
(c) Give effective relief to the petitioner Shri Mohinder Singh Kundu in full, irrespective of his retire ment.
(d) Any other suitable orders or directions as this Hon 'ble Court may deem fit and proper in the facts and circumstances set out in the present petition.
To understand the grievance of the petitioners, it is necessary to set out the back ground material and the pro nouncements made in T.R. Kapoor vs State of Haryana, ; and Ashok Gulati vs B.S. Jain, ; in favour of the petitioners.
The petitioners who are Diploma holders initially joined the Class III Engineering Service of the Punjab State in the early fifties and were promoted to Class II service as officiating S.D.Os in the middle sixties and in the case of some of them the said temporary promotion was even earli er.
By a Notification dated 27.10.1985 the petitioners and other similarly situated persons were regularly constituted as Class II service officers with effect from 25.12.1970.
Further avenues of promotion to them were barred because the State Government construed the Service Rules to mean that without a degree in Engineering, a Class II officer cannot be promoted to Class I service.
The said interpretation of the Service Rules was disapproved by this Court in A.S. Parmar vs State of Haryana, [1984] 2 SCR 476.
By reason of that judgment, it followed that a degree in Engineering was not an essential pre requisite for a member of Class II service being promoted to the Class I service.
1083 After the judgment in A.S. Parmar 's case (supra) was rendered, the petitioners filed Writ Petitions under Article 32 of the Constitution seeking writs of mandamus to the State Government to consider the case of the petitioners and the like of them for promotion to the posts of Executive Engineers in Class I service.
On 24.2.1984 an undertaking was given to the Court that the State would consider the claims of all the eligible persons including the petitioners for regular appointment to Class I service and that the exercise would be completed within four months time.
Howev er, two days before the expiry of the said period of four months, the State Government brought an amendment to the Rules with retrospective effect from 10.7.64 so as to make a degree in Engineering an indispensable qualification for an officer in Class II service being promoted to Class I serv ice.
Dismayed by the action of the State Government, the petitioners amended their writ petitions suitably and chal lenged the validity of the amendment to the Rules.
After considering the matter in detail, this Court delivered judgment on 17.12.1986 striking down the impugned amendment to the rules as ultra vires the State Government and in a connected appeal C.A. No. 149 of 1981 Ashok Gulati (supra) this Court directed the State Government to consider the cases of all eligible members of Class II service for promo tion to the post of Executive Engineer in Class I service in accordance with law and to complete the process of .appoint ment within six months ' time.
As the State Government failed to give effect to the said directions within the allotted time of six months, the petitioners filed a contempt petition C.M.P. No. 15430 of 1988 against the State.
In reply to the contempt petition, the State Government stated that the delay in the implemen tation of the Court 's order was due to the stupendous nature of the work involved in the fixation of seniority of more than four hundred officers, their promotions, reversion, claims, and counter claims and their deemed promotions etc.
After taking note of the said explanation, this Court di rected the State to expedite the matter and to complete the process of promotion of Class II officers to class I service within a period of two 'months and ordered the contempt petitions to be listed in the first week of January 1988.
When the contempt petition came up before Court on 4.1.1988, it was represented on behalf of the State Government that the Court 's directions have been complied with and orders of promotion have been issued to the petitioners on 30.12.87 itself.
Acting on 1084 the said representation, this Court passed the following order and discharged the notice in the contempt petition: "in view of this Court 's order dated 17th December, 1986 and the order dated 12th Octo ber, 1987, the officers concerned have been promoted by an order dated 30th December, 1987 and we presume that they will now be posted in consequence of that promotion.
We hope and trust that the State of Haryana will pass posting orders expeditiously.
The Civil Mis cellaneous Petition is disposed of according ly".
It is thereafter the petitioners have come forward with this application for directions.
The contention of the petitioners is that since their placement in Class II serv ice had been made effective with effect from 25.12.1970, though the order therefore was issued on 27.10.1985, they were entitled to be considered for promotion to Class I service as and when they attained eligibility after 25.12.1970 especially in view of the judgment in A.S. Par mar 's case (supra) which held that a degree in Engineering was not an essential pre requisite for members of Class II service being promoted to posts in Class I service.
It is, therefore, stated by the petitioners that in all fairness they must be placed in their rightful position by being given promotion "from back dates or deemed dates or, in any case, the dates when persons junior to them were promoted." According to the petitioners their juniors were given promo tions in the years 1963, 1969, 1970, 1971, 1973, 1976 and 1978.
The petitioners blame the State Government for their non promotion because of the delay in preparing the seniori ty list of Class II officers till 1985 and for closing the doors of promotion to them by wrong interpretation of the Rules and thereafter by making a wrongful amendment to the rules till judgments were rendered in T.R. Kapoor 's case (supra) and Ashok Gulati 's case (supra) on 17.12.1986.
The petitioners would therefore contend that the promotions given to them belatedly on 30.12.1987 do not render full justice to them and the said order is also not fully in compliance with the directions given by this Court in the judgments rendered in the two cases on 17.12.86.
Yet another grievance put forth is that the Government has not given relief to those Class II officers who have retired from service prior to 30.12.1987.
The petitioners therefore seek further directions being issued to the State Government to give them and other similarly placed officers besides those who have already retired from service the benefit of promo tion with effect from back dates or deemed dates as per theft entitlement or atleast from the dates when persons junior to 1085 them were promoted together with all the consequential benefits arising therefrom.
In reply to the petition for directions, three counter affidavits have been filed on behalf of the State of Har yana, one by Shri H.D. Bansal, Financial Commissioner and Secretary to Government, Irrigation & Power Department and the second by Shri H.K. Khosla, Engineer in Chief, Irriga tion Department.
In both the counter affidavits it has been stated that the State has fully complied with, the direc tions of the Court by giving promotion to all the petition ers by order dated 30.12.87 and that the Court, in approval of the action of the Government as proper compliance to the directions given on 17.12.1986, dropped further proceedings in the contempt petition and as such there is no basis for the petitioners to seek further directions from the Court.
The third counter affidavit dated 14.10.88 has been filed by Shri Raj Rup Fuliya, Deputy Secretary to Government of Haryana, Irrigation and Power Department.
Therein the stand taken is that since the petitioners had acquiesced in the interpretation of the Service Rules by the Government till they filed the writ petitions, the petitioners are not entitled to claim promotional benefits with reference to their service in Class II posts from 1970.
It is further stated that in the judgments rendered in T.R. Kapoor vs State of Haryana, (supra) and Ashok Gulati vs B.S. Jain, (supra), this Court had not directed that promotions should be given to the petitioners from back dates or deemed dates or from the dates their juniors were promoted to Class I Service.
Likewise, it is stated that the Court had not directed the State to give the benefit of promotion to per sons who have already retired from service.
The petitioners have controverted the averments in the counter affidavits by means of a rejoinder and have reiter ated their claim for promotion from anterior dates.
In turn Shri Raj Rup Fuliya, Deputy Secretary to the Government has filed a supplemental counter 'affidavit to the rejoinder filed by the petitioners.
In the light of the conflicting stands taken by the parties, it falls for consideration whether the petitioners are entitled to the benefit of promotion from anterior dates i.e. from deemed dates of promotion or from the dates their juniors were promoted as claimed by them or whether the promotions given to them on 30.12.87 by the Government amounts to grant of full relief to the petitioners as per this Court 's judgments dated 17.12.86.
1086 Taking up for consideration the contention of the peti tioners that by reason of their being constituted Class II Officers with effect from 25.12.70, they were entitled to promotion as and when they attained seniority, but the State Government had unjustly deprived them the benefit of promo tion due to wrong interpretation of the Rules, we are unable to accept the plea for more than one reason.
In the first place, the petitioners had acquiesced in the interpretation of the Rules by the State Government all along and it was only after the decision in A.S. Parmar 's case, they chose to move this Court under article 32 of the Constitution to seek promotional benefits.
Having remained complacent for a long number of years, the petitioners cannot now turn round and say that notwithstanding their inaction, they should be granted promotion from deemed dates on the basis of seniori ty.
Secondly, in the long interval of time that had elapsed before the petitioners chose to file the writ petitions, several o*her Class II Officers holding engineering degrees have been promoted to Class I Service.
The benefits which had accrued to those persons by reason of their promotions cannot now be disturbed or interfered with by giving the petitioners promotions from deemed dates of eligibility for promotion.
In other words, a settled state of affairs among the Class I Promotees cannot be unsettled now.
As already stated, during the pendency of the writ petitions, the State Government gave an undertaking on 24.2.1984 that they would consider the claims of the peti tioners for promotion to Class I service and pass orders in four months ' time.
Subsequently, the State Government went back on its representation and brought about an amendment with retrospective effect to the Rules so as to make a degree in engineering an essential qualification for promo tion to Class I service.
This amendment was struck down by this Court in T.R. Kapoor 's case and it was observed as follows: "Presumably, the State Government adopted this unfortunate course of action taking cue of the observations made by this Court in the con cluding part of the judgment in A.S. Parmar 's case saying that if the Government wish to appoint only persons having a degree in Engi neering to Class I service, it was free to do so by promulgating appropriate rules and that the power to frame such a rule was beyond question.
But the Court never laid down that such a rule may be framed under article 309 of the Constitution with retrospective effect so as to render ineligible Class II officers like the petitioners who were Diploma holders 1087 for further promotion as Executive Engineers in Class I service.
In view of the clear formulation of law interpreting r. 6(b) of the Class I Rules holding that a degree in Engi neering was not an essential qualification for promotion of Class II Officers to the cadre of Executive Engineers in Class I service, there was no occasion for the State Government to issue the impugned notification unless it was with the object of nullifying the decision of this Court in A.S. Parmar 's case".
After thus disapproving the Government 's action, this Court gave directions to the State Government in the connected appeal Ashok Gulati vs B.S. Jain, (supra) to consider the claims of all the eligible Class II officers for promotion to Class I service without reference to their possessing a degree in Engineering.
It is bearing in mind these factors the question whether the promotions granted to the petition ers with effect from 30.12.1987 amounts to sufficient com pliance of the directions of the Court dated 17.12.1986 has got to be examined.
Inasmuch as the petitioners had not asked for mandamus being issued for promotion them to Class I posts from ante rior dates on deemed basis or with reference to the promo tions given to junior persons, and since even if such a prayer had been made, the relief would not have been given for the reasons set out above, this Court appropriately called upon the Government to consider the case of all eligible members of Class II service for promotion to the post of Executive Engineer in Class I service in accordance with law and to complete the process of appointment within six months time.
The direction therefore enjoined the Gov ernment to give promotion to all Class II officers who were eligible for promotion to Class I service after Rule was issued in the writ petitions.
Even before the direction was issued, the Government had conceded the position and that was why the Government had asked for four months time through its counsel to consider the case of all eligible Class II officers and give them promotion.
The combined effect of the striking down of the amend ment to the Rules by the Government and the direction issued to the Government in Ashok Gulati 's case (supra) to consider for promotion the names of all the eligible Class II offi cers would entitle the petitioners to seek the benefit of promotion from 24.6.1984 when the time limit of four months sought for by the State Government to make the promotions came to expire.
But for the unsustainable amendment made to 1088 the Rules, the Government could not have postponed the promotion of the petitioners and other Class II officers similar to them beyond the time limit of four months which expired 24.6.1984.
It would therefore follow that the order of promotion made by the State Government on 30.12.
1987 will not amount to due compliance of the Court 's directions dated 17.12.1986.
The Government cannot take advantage of its own error in making an illegal amendment to the Rules with retrospective effect and postpone the benefit of promo tion to Class II officers.
The Government cannot also take umbrage for its action in giving promotion to the petitioners and other eligible Class II officers with effect from 30.12.1987 either because the directions given on 17.12.1986 did not set out the date from when promotions should be given or because the Court passed orders on 4.1.1989 dropping further proceedings in the contempt petition.
As regards the directions issued on 17.12.1986 to the State Government to give promotions to the Class II officers in accordance with law, they must be construed with reference to the observations made in T.R. Kapoor 's case (supra) that the amendment to the Rule with retrospective effect by the Government "was with the object of nullifying the decision of this Court in A.S. Parmar 's case".
Viewed thus, the Government 's action in giving promo tions to the petitioners and others belatedly on 30.12.1987 cannot be construed as due compliance of the Court 's direc tions.
Once that conclusion is reached the question would then be as to from which date the Government should have given promotions to the petitioners and others in accordance with the directions of the Court.
The latest point of time in which the Government could not and should have given promotions would be the date on which the four months ' time prayed for by the Government on 24.2.1984 to give promotions to the eligible Class II officers came to an end.
The said period on 24.6.1984 and the Government cannot escape its obligation to give promotions to the officers in question with effect from that date.
In so far as the order passed in the contempt applica tion on 4.1.
1988 is concerned, it is needless to say that this Court did not go into the question on that day as to whether the order of promotion passed on 30.12.1987 was in full compliance or only in partial compliance of the Court 's order dated 17.12.1986.
In fact it is the grievance of the petitioners that the State Government did not communicate to them the orders passed on 30.12.1987 and therefore they had no opportunity to state before Court on 4.1.1988 that the Government had acted mala fide in granting them promotion only with effect from 30.12.1987 and that the said order had been passed only to escape 1089 the consequences of the contempt petition and not for ful filling the directions given by the Court on 17.12.1986 to promote all eligible persons in accordance with law.
We, therefore, direct the State Government to give promotion to all eligible Class II officers with effect from 24.6.1984 and to give them all the consequential benefits arising therefrom.
The benefits of promotion and consequen tial benefits should also be given to all those officers who were eligible for promotion on 24.6.1984 but who have re tired since then.
The Government shall complete the exercise in two months ' time from today.
To this extent the petition for directions will stand or dered.
No costs.

dataset_name: IN-Abs

summary/full:
This is an application filed by the Petitioners seeking directions of the Court for implementation of this Court 's order dated 17.12.86 in its true spirit, in particular, praying that the promotion orders dated 30.12.87 be given effect from the back dates (deemed dates) or the dates when their juniors were promoted.
The circumstances that led to the filing of this application may be stated thus.
The Petitioners were members of the regularly constitut ed class II Engg.
service of the State with effect from 25.12.1970 and were working as Sub Divisional Officers.
Further avenues of promotion to them were barred because the State Government construed the service Rules to mean that without a degree in Engineering, a class II officer could not be promoted to class I service.
The said interpretation of the State Government was disapproved by this Court in the case of A.S. Parmar vs State of Haryana, [1984] 2 SCR 476 as a consequence whereof a degree in Engineering did not remain an essential pre requisite for a member of Class II service for being promoted to Class I service.
After the Judgment in Parmar 's case, the Petitioners filed a Writ Petition in this Court seeking a direction to the State Government to consid er the case of the Petitioners and others similarly situated for promotion to the post of Executive Engineers in Class I service.
On 24.2.84 an undertaking was given to the Court by the State, that the State would consider the claims of all the eligible persons including the petitioners for regular appointment to Class I service within four months.
Instead of granting promotions, the State.
Government amended the Rules with retrospective effect from 10.7.64 so as to make a degree in Engineering as an indispensable qualification for an officer in Class II service for being promoted as Class I officer.
The Petitioners thereupon amended their Writ Peti tion and challenged the validity of 1080 the amendment and the Court by its Judgment dated 17.12.86 struck down the amendment to the Rules as ultra vires the State Government.
In another case involving the same point viz., Ashok Gulati vs B.S. Jain, this Court directed the State Government to consider the cases of all eligible members of Class II service for promotion as Executive Engineers, within six months time.
The State having failed to comply with the Court 's order aforesaid, a contempt petition was flied, which was disposed of by the Court 's order dated 30.12.87 by which time the State had reported to the COurt that the promotions to all concerned eligible officers had since been granted.
The Petitioners have now filed this application contend ing that since their placement In Class II service had been made effective with effect from 25.12.70 though the order therefore was issued on 27.10.85, they Were entitled to be considered for promotion to Class I service as and when they attained eligibility after 25.12.70 especially in view of the Court 's Judgment in Parmar 's case whereby the degree in Engineering was no longer a necessary qualification.
The Petitioners therefore urge that they be placed in their rightful position by giving promotion from back dates or deemed dates, or, in any case, the date when persons junior to them were given promotions.
According to them promotions granted to them belatedly on 30.12.87 did not render true justice to them and that the said order did not fully comply with the Court 's order.
Further a grievance is also made that no benefit has been given to those officers who retired from service during this period.
On the other hand the State contended that it has duly complied with the Court 's order by giving promotions w.e.f. 30.12.87.
The State supported its contention by saying that in approval of its action the Court on 17.12.86 dropped further proceedings in contempt petition which meant that there has been due compliance with the Court 's order.
Disposing of the application with directions this Court, HELD: The combined effect of the striking down of the amendment to the Rules by the Government and the direction issued to the Government in Ashok Gulati 's case to consider for promotion the names of all the eligible Class II offi cers would entitle the petitioners to seek the benefit of promotion from 24.6.84 When the time limit of four months sought for by the State Government to make the promotions came to expire.
But for the unsustainable amendment made to the Rules, the Government could not have postponed the promotions of the 1081 Petitioners and other Class II officers similar to them beyond the time limit of four months which expired on 24.6.84.
It would therefore follow that the order of promo tion made by the State Government on 30.12.87 will not amount to due compliance of the Court 's directions dated 17.12.86.
The Government cannot take advantage of its own error in making an illegal amendment to the Rules with retrospective effect and postpone the benefit of promotion to Class II officers.
[1087G 1088B] The Government cannot also take umbrage for its action in giving promotion to the petitioners and other eligible Class II officers with effect from 30.12.87 either because the directions given on 17.12.86 did not set out the date from when promotions should be given or because the Court passed orders on 4.1.1989, dropping further proceedings in the contempt petition.
[1088C] The State Government was directed to give promotions to all eligible Class II officers with effect from 24.6.84 and to give them all the consequential benefits arising there from.
The court further directed that the benefit of promo tion and consequential benefits should also be given to all those officers who were eligible for promotion on 24.6.84 but who have retired since then.
[1089B]