Service matter - Diploma Holder - Degree Holder - Engineers - acquisition of AMIE qualification - promotion - challenged against the orders of High court - Apex court held that we find merit in these appeals and they are accordingly allowed to the extent of reversing the views of the
High Court in respect of Question no.2 as noted by the Division Bench in the common judgment under appeal. We hold that the Project Engineers (Junior) recruited on the basis of diploma, upon their acquiring the qualification of ‘AMIE’, are not entitled to count their experience of service prior to acquisition of such qualification for the purpose of
eligibility for promotion to the post of Project Engineer (Senior) against the 20% quota fixed for promotion of degree holder Project Engineers (Junior). In order to claim promotion against such 20% quota the three years’ experience of service must be acquired after obtaining the qualification or degree of AMIE. We direct the Board and its authorities to treat the writ petitions filed in the High Court as disposed of in the light of our aforesaid views and to
determine the controversies raised in the writ petitions in that light by granting relief to the eligible persons expeditiously and preferably within 4 months, without upsetting the transactions which had taken place earlier and were not under challenge in the writ petitions. In other words, the regular promotions made in the past prior to 1992, which were not subject matter of writ petitions filed in 1992 will not be re-opened on account of views expressed in this judgment. In the facts and circumstances of the case, there shall be no order as to costs.=
“Diploma
Holder” and “Degree Holder” Engineers in the matter of eligibility for
further promotion.
All the appellants belonged to the category of degree
holder engineers appointed as Project Engineers (Junior) in the service
of Rajasthan Housing Board (for sake of brevity referred to as ‘the Board’).
The contesting
respondents also held the same post but initially only as diploma holder
who later acquired qualification of AMIE which is admittedly equivalent to
degree in Engineering.
Since all the appeals arise out of a common judgment passed by a Division
Bench of the Rajasthan High Court at Jaipur Bench and the facts as well as
issues of law are common, all the appeals have been heard together and are
being disposed of by this common judgment. =
Whether the Division Bench of the High Court has erred in holding that the
Diploma Holder Project Engineers (Junior) upon acquiring degree /
qualification of ‘AMIE’ would be entitled to count their experience of
service prior to acquisition of such qualification for the purpose of
eligibility of 3 years total experience of service for promotion to the
post of Project Engineer (Sr.) in the quota fixed for Degree Holders?
Whether the Division Bench has erred in setting aside the direction of the
learned Single Judge for preparing two separate seniority lists for Diploma
Holders and Degree Holders for the purpose of promotion in their respective
quotas?=
we find merit in these appeals and
they are accordingly allowed to the extent of reversing the views of the
High Court in respect of
Question no.2 as noted by the Division Bench in
the common judgment under appeal.
We hold that the Project Engineers
(Junior) recruited on the basis of diploma, upon their acquiring the
qualification of ‘AMIE’, are not entitled to count their experience of
service prior to acquisition of such qualification for the purpose of
eligibility for promotion to the post of Project Engineer (Senior) against
the 20% quota fixed for promotion of degree holder Project Engineers
(Junior).
In order to claim promotion against such 20% quota the three
years’ experience of service must be acquired after obtaining the
qualification or degree of AMIE.
We direct the Board and its authorities to treat the writ petitions filed
in the High Court as disposed of in the light of our aforesaid views and to
determine the controversies raised in the writ petitions in that light by
granting relief to the eligible persons expeditiously and preferably within
4 months, without upsetting the transactions which had taken place earlier
and were not under challenge in the writ petitions. In other words, the
regular promotions made in the past prior to 1992, which were not subject
matter of writ petitions filed in 1992 will not be re-opened on account of
views expressed in this judgment.
In the facts and circumstances of the case, there shall be no order as to
costs.
2014 - Sept. Month - http://judis.nic.in/supremecourt/filename=41882
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 8479-8482 OF 2014
[Arising out of S.L.P.(C)Nos.19220-19223 of 2007]
K.K. Dixit & Ors. etc. …..Appellants
Versus
Rajasthan Housing Board & Anr. etc. …..Respondents
J U D G M E N T
SHIVA KIRTI SINGH, J.
Leave granted.
These appeals are further additions to the long list of service matters
decided by High Courts and this Court resolving disputes between “Diploma
Holder” and “Degree Holder” Engineers in the matter of eligibility for
further promotion. All the appellants belonged to the category of degree
holder engineers appointed as Project Engineers (Junior) in the service
of Rajasthan Housing Board
(for sake of brevity referred to as ‘the Board’). The contesting
respondents also held the same post but initially only as diploma holder
who later acquired qualification of AMIE which is admittedly equivalent to
degree in Engineering.
Since all the appeals arise out of a common judgment passed by a Division
Bench of the Rajasthan High Court at Jaipur Bench and the facts as well as
issues of law are common, all the appeals have been heard together and are
being disposed of by this common judgment.
At the outset, two important issues raised by way of questions of law in
these appeals need to be noticed so that subsequent discussion of facts and
law may be of help in answering both the issues/questions in controversy.
The issues are :
Whether the Division Bench of the High Court has erred in holding that the
Diploma Holder Project Engineers (Junior) upon acquiring degree /
qualification of ‘AMIE’ would be entitled to count their experience of
service prior to acquisition of such qualification for the purpose of
eligibility of 3 years total experience of service for promotion to the
post of Project Engineer (Sr.) in the quota fixed for Degree Holders?
Whether the Division Bench has erred in setting aside the direction of the
learned Single Judge for preparing two separate seniority lists for Diploma
Holders and Degree Holders for the purpose of promotion in their respective
quotas?
In exercise of the powers conferred by Section 53 of the Rajasthan Housing
Board Act, the Board made Rajasthan Housing Board Employees Conditions of
Recruitment and Promotion Regulations, 1976 (hereinafter referred to as
‘the Regulations’). Chapter II of the Regulations contains Clauses (6) to
(10) providing for Conditions of Recruitment and Promotion. Clause (6)
provides the manner of filling up the posts created from time to time. In
the context of absorption of employees working in the Board on deputation,
the word ‘category’ has been used in the context of posts created and
vacant. Clause (7) provides as follows :
“(7) The ratio of direct recruitment and promotion of employees in the
service of the Board and qualification and experience required for various
posts will be in accordance with the ‘Schedule’ appended to these
Regulations.”
Clause (9)(A) of the Regulations pertains to promotion and provides as
under :
“(9)(A) Promotion
In respect of first promotion to higher post, promotion of eligible person
shall be made on the basis of seniority-cum-merit. Second promotion shall
be made on the basis of merit and seniority-cum-merit in the promotion of
50:50.”
Clause (9)(B) provides that “seniority lists for each category of employees
will be prepared and maintained.” Clause (10) pertains to ‘seniority’ and
reads thus:
“(10) Seniority :
Amongst the persons recruited in the same year, the promotees will rank
senior to those who will be appointed by direct recruitment. Amongst the
promotees those who are appointed on the basis of seniority cum merit with
rank senior to those who are appointed on the basis of merit with due
regard to seniority. The inter se seniority of those appointed on the
basis of merit will be in accordance with their relative seniority in the
lower cadre.”
6. Chapter III of the Regulations contains Miscellaneous Provisions and
includes Clause (12) which empowers the Board to issue general instructions
not inconsistent with the Act and the Rules and Regulations made thereunder
for the purpose of removing doubt, lacuna, inconsistency or anomaly which
may arise in interpreting the Regulations or in giving effect to them or in
putting them to application. The Regulations contain various schedules as
appendices. In the case at hand “Schedule Technical” alone is of
significance and that shows the post of Project Engineer (Junior) at the
entry level. 97% of this post is to be filled by direct recruitment and 3%
by Board employees. The basic qualification required is a Degree or Diploma
in Civil Engineering. The next post in hierarchy, promotion to which is
under issue, is Project Engineer (Senior). The source of recruitment for
this post is 50% by direct recruitment, 20% by promotion of degree holder
and 30% by promotion of diploma holder. For direct recruitment, the
essential qualification is a Degree in Civil Engineering in First Division
with at least one year’s experience in design and construction of building.
The 50% posts to be filled up by promotion of Project Engineer (Junior)
require further minimum experience and qualification as laid down in Column
6 of the Schedule Technical. Since the contesting respondents have laid a
great amount of emphasis on several words prescribing the minimum
experience and qualification required for promotion, the provisions of
relevant Column No.6 are extracted hereinbelow :
”Post to be filled in by promotion from amongst the P.E.Jr.’s who are
degree holders with 3 years total experience of service.
Post to be filled in by promotion from P.E.Jr.’s who are diploma holders
with 7 years total experience of service. (137.20)
Govt. approved Dt.25.2.2000 w.e.f. 9.12.87
Or
Qualification recognized by the State Govt. to be equivalent to Degree in
Civil Engineering.”
7. There are four higher posts in the hierarchy above the post of
Project Engineer (Senior). All of them are required to be filled up only
by promotion and require a Degree in Engineering in Civil, except the post
of Resident Engineer just above that of Project Engineer (Senior) which
requires filling up “75% by degree holder and 25% by diploma holder by
granting promotion to eligible Project Engineer (Senior)”. Column 6 of the
Schedule Technical provides minimum experience and qualification for
promotion to the post of Resident Engineer as (i) Degree Holder with 5
years’ experience and (ii) Diploma Holder with 13 years experience. A
diploma holder, as noticed earlier, is not qualified for any further
promotion.
8. From the facts available on record it appears that initially only
diploma holders were appointed under the Regulations to the post of Project
Engineer (Junior) and on their acquiring the certificate of AMIE while in
service they were to be given benefit of their past service as diploma
holders in the ratio of 3:7, i.e., 3 years of their service with AMIE was
treated as 7 years of service as diploma holder for the purpose of
eligibility for promotion. This benefit of past service in the prescribed
ratio was on account of a Resolution of the Board dated 17.4.1979 which
records that “the present practice of placing the Diploma Holder Engineers
who have cleared AMIE examination in the bottom of the list of Degree
Holders, is appropriate. But it has also been decided that their
experience should be determinant in the ratio of 3:7 (3 years degree
holders equal to 7 years diploma holders)”. Some diploma holders who were
initially appointed as Project Engineers (Junior) purely on ad-hoc basis
were not only regularized by the Board vide Order dated 18.5.1987 but they
were also given benefit of their past service like the regularly appointed
diploma holders and together with the latter category they also gained ad-
hoc promotion to the post of Project Engineer (Senior) in the year 1992.
In the meantime, pursuant to an advertisement of March 1988 issued by the
Board, the appellants as degree holders applied and on selection, were
appointed to the post of Project Engineer (Junior) on 18.3.1989. It
appears that a common Provisional Seniority List of Project Engineer
(Junior) including diploma, AMIE and degree holders had been issued on
11.8.1989 and although appellants had objected to the said seniority list,
promotions were granted by the Board to few diploma holders on ad-hoc basis
in January and February 1992, as noted above.
9. Appellants – K.K. Dixit and some others preferred writ petition
challenging the Resolution of the Board dated 17.4.1979, the joint
Provisional Seniority List dated 11.8.1989 and ad-hoc promotion of the
Diploma Holders with AMIE. The writ petition was allowed by a learned
Single Judge on 7.7.1993 after deciding only the issue relating to counting
of experience and holding that only such service could count for
eligibility for promotion which was rendered by the ad-hoc Project Engineer
(Junior) after regularization. It was held that their experience as ad-hoc
appointees shall not be taken into consideration.
10. The writ petitioners preferred a review petition praying for passing
of judgment on the other two grievances raised in the writ petition. The
first grievance was that seniority list of degree holders and diploma
holders on the post of Project Engineer (Junior) should be prepared
separately. The other grievance was that in view of the Resolution No.6
dated 17.4.1979 those diploma holders who passed AMIE examination while in
service, should be placed below the degree holders of that year. Both the
aforesaid claims or grievances were based upon the plea that as per
recruitment rules there is separate quota for the degree holders and also a
separate quota for diploma holders. The learned Single Judge, by Order
dated 21.9.1993, allowed the review petition to the extent of directing
that the Board shall prepare separate seniority lists for degree holders
and diploma holders Project Engineer (Junior) and such of the Project
Engineers (Junior) who have passed AMIE examination while in service, shall
be placed lowest in that year in the seniority list of degree holder
Project Engineers (Junior).
11. Aggrieved by the judgment dated 07.07.1993 passed by the learned
Single Judge in the writ petition and also against order dated 21.9.1993
passed by the learned Single Judge in Review Petition, some of the affected
diploma holders preferred D.B. Spl. Appeal (C) No.67 of 1993 and 64 of 1993
respectively. Five other matters including D.B. Civil Writ Petition Nos.20
of 1993 and 7063 of 1993 were also tagged with the Special Appeals. They
were heard together and partly allowed by a common judgment dated 25.5.2007
which is under challenge in these appeals preferred by those who had
entered Board’s service as degree holders on the post of Project Engineers
(Junior). Since these appeals arise from only four out of seven matters
decided by the Division Bench of the High Court, it is not necessary to
indicate details of the remaining three matters which were also disposed of
by the common order under appeal.
12. By the judgment under appeal, the High Court has decided three
questions under controversy between the parties. The High Court has
summarized the three questions thus :
“1. Whether the Project Engineer (Junior) who were initially appointed on
ad-hoc/officiating/urgent temporary basis, upon being screened and made
members of service with reference to clause 3 of the Note below ‘Schedule
Technical’ of the Rajasthan Housing Board Employees Condition of
Recruitment and Promotion Regulations, 1976 are entitled to count the
period of service rendered in that capacity for the purpose of seniority
and experience for eligibility of promotion to the post of Project Engineer
(Senior) as provided for in column No.6 of Sr. No.2 in the ‘Schedule
Technical’ of Regulations of 1976?
2. Whether the Project Engineers (Junior) recruited on the basis of
diploma, upon their acquiring the qualification of ‘AMIE’, are entitled to
count their experience of service prior to acquisition of such
qualification for the purpose of eligibility of ‘three years total
experience of service’ for promotion to the post of Project Engineer
(Senior) as provided for in column No.6 of Sr. No.2 of ‘Schedule Technical’
of Regulations of 1976?
3. Whether according to the Regulations of 1976 the diploma holders Project
Engineers (Junior) on acquiring the qualification of ‘AMIE’ are liable to
be placed in the seniority list of Project Engineers (Junior) below degree
holders available as on the date of their acquiring such qualification and
further whether according to the Regulations of 1976, a separate seniority
list of Project Engineers (Junior) based on their educational
qualification, viz.-degree and diploma, is required to be maintained?”
On behalf of the appellants, learned counsel Ms. Shobha led the arguments.
It was categorical stand of the appellants that since Question no.1 was
decided against the ad-hoc/officiating category of Project Engineer
(Junior) and no one from that category has preferred any appeal, hence
answer to that question has attained finality. Learned counsel for the
appellants has seriously assailed the findings given against the appellants
in respect of Question nos.2 and 3.
According to the High Court the Resolution of the Board dated 17.04.1979
affirming the alleged practice of placing the diploma holder engineers who
have cleared AMIE examination in the bottom of the list of degree holders
and giving them benefit of their experience in service as diploma holders
only in the ratio of 3:7 is neither justified by past practice nor by the
Regulations. It was also held that the learned Single Judge erred in
directing the Board to prepare two separate seniority lists. Thus the
Division Bench answered Questions nos.2 and 3 against the appellants by
reversing the effect of order passed by the learned Single Judge in review
and also by granting the benefit of entire past service once a diploma
holder cleared AMIE examination.
Before deciding the two main issues raised on behalf of the appellants as
noticed earlier, it may be useful to note certain subsequent developments
which are not in dispute. Pursuant to the impugned order of the High Court
the Board issued a provisional common seniority list on 30.06.2007 and
withdrew the Resolution dated 17.04.1979 on 06.07.2007. A final common
seniority list was issued on 27.08.2007 and according to appellants it was
prepared without deciding their objections. Provisional promotions have
been granted to several persons to the post of Project Engineer (Senior)
who cleared AMIE examination while in service and were allegedly much
junior to the appellants with respect to the date of acquiring eligibility
for such promotions. The Special Leave Petitions giving rise to the
present appeals were preferred in this Court on 25.09.2007 or soon
thereafter. While issuing notice in one such matter, on 26.10.2007 this
Court directed that no coercive steps shall be taken in the meantime. On
19.07.2010, 200 posts of Project Engineer (Junior) were upgraded to the
post of Project Engineer (Senior) and 31 such posts were abolished. As a
consequence of upgradation, on 12.08.2010, 168 persons holding the post of
Project Engineer (Junior) came to acquire the upgraded post of Project
Engineer (Senior).
On account of the present dispute raised by appellants K.K. Dixit and some
others through writ petitions filed in the year 1992, inter alia, against
ad-hoc promotions, the Board has granted only ad-hoc promotions even
subsequently and hence resolution of the dispute appears to be necessary to
enable regularization of those promotions in accordance with law and the
Regulations and also for making regular promotions to the next higher post
of Resident Engineer. The issues under consideration relate only to
eligibility for promotion against respective quotas and not to the
Regulations providing for seniority and promotion.
The issues relating to Question no.3 decided by the High Court are not very
contentious and hence those are taken up first. The learned Single Judge
directed for preparation of two seniority lists, one for the degree holders
and another for diploma holders only with a view to give effect to the
Resolution of the Board dated 17.04.1979 without undertaking the necessary
exercise for finding out whether the Resolution was in consonance or in
conflict with the Regulations. Such exercise was undertaken by the
Division Bench of the High Court which did not approve of the Resolution
and held that it was contrary to the Regulations. It also rightly noticed
that the earlier seniority list was only a common seniority list and there
was no past practice of having any seniority lists.
Learned counsel for the appellants did not dispute the relevant facts
noticed by the High Court on this issue. The High Court noticed that
Schedule Technical and the Regulations provide for only one source of
recruitment for the post of Project Engineer (Junior) that is by direct
recruitment and the same selection process was applicable to both, the
degree holders and the diploma holders and, therefore, only on account of
difference in their academic qualification they could not be treated to be
belonging to two different cadres in absence of any provision for this
purpose in the Regulations. They were to be treated as two channels for
next promotion because of separate quota for each channel and different
eligibility criteria.
On behalf of appellants, a submission was advanced that in Clause (9)(B) of
the Regulations there is a mandate that seniority lists for each “category
of employees” will be prepared and maintained and hence the Board should
treat degree holders and diploma holders as separate category of employees
for preparation of separate seniority lists for each of these categories.
We do not find any merit in this submission. The words “category of
employees” used in Clause (9)(B) in the context of the Regulations can only
mean category of posts held by the employees. The word “category” has been
used in the context of posts only in Clause (6) of the Regulations,
although in the matter of absorption of employees working in the Board on
deputation. Clause (9)(A) which provides for promotion when read together
with the Schedule Technical leaves no manner of doubt that in respect of
first promotion to higher post, i.e., promotion from post of Project
Engineer (Junior) to Project Engineer (Senior), promotion of eligible
person is required to be made on the basis of seniority-cum-merit. The
High Court has rightly held that the cadre of Project Engineer (Junior)
cannot be bifurcated for the purpose of seniority alone, only on the ground
that for promotion to the cadre of Project Engineer (Senior) there is
provision for 20% quota for degree holders and 30% quota for diploma
holders. The practical view of the High Court cannot be faulted that the
Board can legitimately prepare separate eligibility lists of Project
Engineer (Junior) holding degree and those holding diploma. Such
eligibility list could not be mistaken for seniority list which must remain
common based upon merit assessed at the time of selection for recruitment.
Only if the selection process had been different, there could have been any
scope to argue for separate seniority lists. In absence of any legal
stipulation for altering the initial seniority, pre-determined on the basis
of merit at the time of initial selection and date of regular appointment,
the seniority list cannot be altered only because some diploma holder
Project Engineers (Junior) acquired the qualification of AMIE equivalent to
a degree. The three years’ or seven years’ experience of service will
entitle the degree holders and the diploma holders respectively only for
inclusion of their names in the eligibility lists for promotion so as to
work out satisfactorily the provision for different quota for the degree
holders and the diploma holders. Hence, we find no good ground to
interfere with the decision of the High Court in respect of Question no.3.
Further dispute between the parties is in respect of issues arising out of
Question no.2. The primal question which requires to be answered is
whether the diploma holders who acquired the qualification of AMIE during
service should be given the benefit of experience of service rendered by
them as diploma holders for promotion to the post of Project Engineer
(Senior) against the 20% quota for the degree holders or they need to
acquire further three years’ experience of service after acquiring the
qualification of AMIE for availing such benefit.
In the context of issue noticed above, the stand of the appellants is that
there is qualitative difference in the service rendered by a degree holder
and that rendered by a diploma holder and, therefore, the Regulations
provide that the degree holder Project Engineers (Junior) with three years’
service and diploma holder Project Engineers (Junior) with seven years’
service shall be eligible for promotion to the higher post of Project
Engineer (Senior). Their further case is that by providing 20% and 30% of
the posts as quota for the degree holders and diploma holders respectively,
the Regulations have created a water-tight compartment for the two classes
because they are entitled for promotion in their respective quota only.
The fact that separate quota for promotion has been fixed for two different
channels of degree holders and diploma holders, according to appellants, is
a clear indication that the service of three years must be rendered as a
degree holder in order to acquire the eligibility for promotion as is the
case with a diploma holder who acquires eligibility only upon rendering
seven years’ service as a diploma holder. The eligibility criterion of
service experience cannot be read differently when the claim for promotion
is made against a fixed quota. The aforesaid stand of the appellants is
based squarely upon judgment of this Court rendered by a three Judges Bench
in the case of Shailendra Dania & Ors. v. S.P. Dubey & Ors. (2007) 5 SCC
535. For providing further support to the conclusions in the case of
Shailendra Dania (supra), reliance has been placed also upon judgments in
the case of N. Suresh Nathan & Anr. v. Union of India & Ors. 1992 Supp.(1)
SCC 584; Indian Airlines Ltd. & Ors. v. S. Gopalakrishnan (2001) 2 SCC 362;
Challa Jaya Bhaskar & Ors. v. Thungathurthi Surender & Ors. (2010) 13 SCC
348; Chandravathi P.K. & Ors. v. C.K. Saji & Ors. (2004) 3 SCC 734 and
Vijay Singh Deora & Ors. v. State of Rajasthan & Anr. (1997) 3 SCC 118.
On the other hand, counsels appearing for the respondents and representing
the interest of the diploma holders who subsequently acquired the
qualification of AMIE while in service, have made a spirited attempt to
distinguish the facts of Shailendra Dania’s case (supra). According to
learned counsel appearing for the diploma holders there was a difference in
the qualification required of degree holders and diploma holders at the
time of very entry into the service in Shailendra Dania’s case; while
degree holders were eligible to apply only with their educational
qualification for the entry post, the diploma holders were required to have
additional two years’ experience and hence the two were treated to be
qualitatively different in the matter of service experience. In other
words, the submission is that the qualitative difference in the services
rendered by degree holders and diploma holders in Shailendra Dania’s case
was primarily on account of their having different birthmarks which does
not exist in the present case. It is also the case of diploma holders that
the words used in the Regulations laying down eligibility for promotion are
different in the present case because of use of the word ‘total’ before the
clause ‘experience of service’ and hence on a literal interpretation, as is
warranted in the present case, the appellants cannot derive any advantage
from the judgment in the case of Shailendra Dania (supra). Much emphasis
has also been laid on the word, ‘with’ used in the Schedule Technical to
contend that it be read as ‘and’ which will then not permit the cumulative
eligibility criteria to be read as three years’ total experience of service
with degree but only as degree and three years’ total experience of
service. It is further case of the diploma holders that the use of the
word ‘total’ clearly indicates the intent of counting not only experience
of service with degree but also experience of service already gained with
diploma. Mr. Manu Mridul, learned Advocate for some of the respondents, in
support of the aforesaid contentions placed reliance upon judgments of this
Court in the case of Anil Kumar Gupta & Ors. v. Municipal Corporation of
Delhi & Ors. (2000) 1 SCC 128; M.B. Joshi & Ors. etc. v. Satish Kumar
Pandey & Ors. etc. 1993 Supp.(2) SCC 419 and A.K. Raghumani Singh & Ors. v.
Gopal Chandra Nath & Ors. (2000) 4 SCC 30. Appearing on behalf of another
set of respondents in one of the appeals, Mr. Abhishek Gupta, Advocate
placed reliance upon case of Roop Chand Adlakha & Ors. v. Delhi Development
Authority & Ors. 1989 Supp.(1) SCC 116.
Mr. Vijay Hansaria, learned Senior Advocate appeared for the Board and
supported the case of diploma holders by taking a stand that different
service experience of three years and seven years for the purpose of
eligibility have been prescribed for degree holders and diploma holders
respectively not upon any qualitative difference in their experience but
upon difference in the educational qualification alone. Thus, the stand of
the Board before this Court which is diametrically opposite to its stand
before the High Court is that a diploma holder who has service experience
of three years and acquires the qualification of AMIE is qualified under
the Regulations to claim eligibility for promotion in the 20% quota
reserved for degree holders with three years’ experience. Learned advocate
appearing for some of the proforma respondents made it clear that the case
of such proforma respondents who were degree holders is same as that of the
appellants.
Before adverting to the rival submissions on the main issue noted above, in
view of submissions advanced on behalf of some of the respondents as if the
issue arising in these appeals relates to seniority position of individuals
in the seniority list, it is necessary to clarify that the High Court was
neither called upon to decide nor it actually decided any issue directly
relating to inter se seniority of Project Engineers (Junior) or Project
Engineers (Senior) and this Court is also not required to go into the
correctness of any seniority list published by the Board. As noticed
earlier, the main issue falling for determination in these appeals only
relates to what value, if any, is to be given to the service experience of
a diploma holder - turned degree holder - Project Engineer (Junior)
rendered by him as a diploma holder for the purpose of claiming eligibility
for promotion as a degree holder Project Engineer (Junior) against 20%
quota allotted for the degree holders.
Initially there was a serious dispute raised on behalf of appellants
whether the word ‘total’ before the clause ‘experience of service’ in the
context of minimum experience and qualification required for promotion of
Project Engineer (Junior) mentioned in the Schedule Technical is an
illegitimate insertion in this Schedule or whether it was actually existing
in the draft of the Schedule which was approved by the Board and the State
Government. Learned senior counsel appearing for the Board placed before
us the original records and made it clear that the word ‘total’ in the
relevant clauses existed in the original draft of Schedule Technical which
was duly approved. Matter has come to rest at that.
Coming to the rival contentions, it will be useful to refer to the
concerned paragraphs from the judgment in the Shailendra Dania’s case
(supra) along with the relevant facts in order to appreciate the contention
of the appellants that even in absence of the birthmark on account of two
years’ experience for diploma holders to enter into the service, which was
peculiar to the facts of that case, the relevant facts and rule position
are materially similar and hence the law laid down in that case is apt for
deciding the present appeals on the same lines. In Shailendra Dania’s case
the rules provided for filling up 50% of total vacancies in the post of
Assistant Engineer by direct recruitment and the remaining were to be
filled up by promotion by providing specific quota for a graduate Junior
Engineer and a diploma holder Junior Engineer. The eligibility criteria
for promotion of diploma holders Junior Engineers was eight years’
qualifying service and for graduate Engineering degree holders three years’
qualifying service. Further promotion from the post of Assistant Engineer
was to the post of Executive Engineer. For this post, the minimum
qualifying experience for graduate engineers was eight years as Assistant
Engineer and for diploma holders it was ten years in the grade of Assistant
Engineer. However, for the initial post in the hierarchy, that is, post of
Junior Engineer, the selection was only through direct recruitment and the
qualification prescribed was “diploma holders in civil engineering with two
years’ experience”. But there was no bar for persons having degree in
engineering in applying for the post of Junior Engineer and they were not
required to have any prior experience.
In Shailendra Dania’s case this Court placed strong reliance upon judgment
in the case of N. Suresh Nathan (supra) and explained that the three Judges
Bench decided that case essentially on the interpretation of the rule and
merely found support to that interpretation from the past practice followed
in the Department. In N. Suresh Nathan (supra), the question involved was
similar as in the case of Shailendra Dania (supra) and the present case.
The relevant rule provided for recruitment by promotion from the grade of
Junior Engineers which consisted of two categories, viz., one of degree
holder Junior Engineers with three years’ service in the grade and the
other of diploma holder Junior Engineers with six years’ service in the
grade. There, the quota was 50% from each category. The Court interpreted
the rule in the light of entire scheme to conclude that the period of three
years can commence only from the date of obtaining the degree and not
earlier. The service in the grade as a diploma holder prior to obtaining
degree cannot be counted as service in the grade with a degree for the
purpose of three years’ service as a degree holder. Besides explaining and
following the judgment in N. Suresh Nathan’s case (supra), the judgment in
Shailendra Dania’s case (supra) also considered and distinguished some
later judgments on the basis of difference in facts and rules such as in
the case of M.B. Joshi (supra); D. Stephen Joseph v. Union of India & Ors.
(1997) 4 SCC 753; Anil Kumar Gupta (supra) and A.K. Raghumani (supra).
In the case of Shailendra Dania (supra), this Court also took note of
judgment in the case of Indian Airlines Ltd. (supra) on which the
appellants have also placed reliance. Para 5 of the judgment in the case
of Indian Airlines Ltd. (supra) begins by holding that “when in addition to
qualification, experience is prescribed, it would only mean acquiring
experience after obtaining the necessary qualification and not before
obtaining such qualification”. No doubt, in that case there was specific
general information/instruction that experience will be computed after the
date of acquiring the necessary qualifications. Instead of dilating the
point further it will be useful to extract paragraphs 43 to 45 of the
judgment in the case of Shailendra Dania (supra) which are as follows :
“43. Taking into consideration the entire scheme of the relevant Rules, it
is obvious that the diploma-holders would not be eligible for promotion to
the post of Assistant Engineer in their quota unless they have eight years’
service, whereas the graduate Engineers would be required to have three
years’ service experience apart from their degree. If the effect and intent
of the Rules were such to treat the diploma as equivalent to a degree for
the purpose of promotion to the higher post, then induction to the cadre of
Junior Engineers from two different channels would be required to be
considered similar, without subjecting the diploma-holders to any further
requirement of having a further qualification of two years’ service. At
the time of induction into service to the post of Junior Engineers, degree
in Engineering is a sufficient qualification without there being any prior
experience, whereas diploma-holders should have two years’ experience apart
from their diploma for their induction in the service. As per the service
rules, on the post of Assistant Engineer, 50% of total vacancies would be
filled up by direct recruitment, whereas for the promotion specific quota
is prescribed for a graduate Junior Engineer and a diploma-holder Junior
Engineer. When the quota is prescribed under the Rules, the promotion of
graduate Junior Engineers to the higher post is restricted to 25% quota
fixed. So far as the diploma-holders are concerned, their promotion to the
higher post is confined to 25%. As an eligibility criterion, a degree is
further qualified by three years’ service for the Junior Engineers, whereas
eight years’ service is required for the diploma-holders. Degree with
three years’ service experience and diploma with eight years’ service
experience itself indicates qualitative difference in the service rendered
as degree-holder Junior Engineer and diploma-holder Junior Engineer. Three
years’ service experience as a graduate Junior Engineer and eight years’
service experience as a diploma-holder Junior Engineer, which is the
eligibility criterion for promotion, is an indication of different quality
of service rendered. In the given case, can it be said that a diploma-
holder who acquired a degree during the tenure of his service, has gained
experience as an Engineer just because he has acquired a degree in
Engineering. That would amount to say that the experience gained by him in
his service as a diploma-holder is qualitatively the same as that of the
experience of a graduate Engineer. The Rule specifically made difference
of service rendered as a graduate Junior Engineer and a diploma-holder
Junior Engineer. Degree-holder Engineer’s experience cannot be substituted
with diploma-holder’s experience. The distinction between the experience
of degree-holders and diploma holders is maintained under the Rules in
further promotion to the post of Executive Engineer also, wherein there is
no separate quota assigned to degree-holders or to diploma-holders and the
promotion is to be made from the cadre of Assistant Engineers. The Rules
provide for different service experience for degree-holders and diploma-
holders. Degree-holder Assistant Engineers having eight years of service
experience would be eligible for promotion to the post of Executive
Engineer, whereas diploma-holder Assistant Engineers would be required to
have ten years’ service experience on the post of Assistant Engineer to
become eligible for promotion to the higher post. This indicates that the
Rule itself makes differentia in the qualifying service of eight years for
degree-holders and ten years’ service experience for diploma-holders. The
Rule itself makes qualitative difference in the service rendered on the
same post. It is a clear indication of qualitative difference of the
service on the same post by a graduate Engineer and a diploma-holder
Engineer. It appears to us that different period of service attached to
qualification as an essential criterion for promotion is based on
administrative interest in the service. Different period of service
experience for degree-holder Junior Engineers and diploma-holder Junior
Engineers for promotion to the higher post is conducive to the post manned
by the Engineers. There can be no manner of doubt that higher technical
knowledge would give better thrust to administrative efficiency and quality
output. To carry out technical specialized job more efficiently, higher
technical knowledge would be the requirement. Higher educational
qualifications develop broader perspective and therefore service rendered
on the same post by more qualifying person would be qualitatively
different.
44. After having an overall consideration of the relevant Rules, we are of
the view that the service experience required for promotion from the post
of Junior Engineer to the post of Assistant Engineer by a degree-holder in
the limited quota of degree-holder Junior Engineers cannot be equated with
the service rendered as a diploma-holder nor can be substituted for service
rendered as a degree-holder. When the claim is made from a fixed quota,
the condition necessary for becoming eligible for promotion has to be
complied with. The 25% specific quota is fixed for degree-holder Junior
Engineers with the experience of three years. Thus, on a plain reading,
the experience so required would be as a degree-holder Junior Engineer.
25% quota for promotion under the rule is assigned to degree-holder Junior
Engineers with three years’ experience, whereas for diploma-holder Junior
Engineers eight years’ experience is the requirement in their 25% quota.
Educational qualification along with number of years of service was
recognized as conferring eligibility for promotion in the respective quota
fixed for graduates and diploma-holders. There is watertight compartment
for graduate Junior Engineers and diploma-holder Junior Engineers. They
are entitled for promotion in their respective quotas. Neither a diploma-
holder Junior Engineer could claim promotion in the quota of degree-holders
because he has completed three years of service nor can a degree-holder
Junior Engineer make any claim for promotion quota fixed for diploma-holder
Junior Engineers. Fixation of different quota for promotion from different
channels of degree-holders and diploma-holders itself indicates that
service required for promotion is an essential eligibility criterion along
with degree or diploma, which is service rendered as a degree-holder in the
present case. The particular years of service being the cumulative
requirement with certain educational qualification providing for
promotional avenue within the specified quota, cannot be anything but the
service rendered as a degree-holder and not as a diploma-holder. The
service experience as an eligibility criterion cannot be read to be any
other thing because this quota is specifically made for the degree-holder
Junior Engineers.
45. As a necessary corollary, we are of the view that the diploma-holder
Junior Engineers who have obtained a degree in Engineering during the
tenure of service, would be required to complete three years’ service on
the post after having obtained a degree to become eligible for promotion to
the higher post if they claim the promotion in the channel of degree-holder
Junior Engineer, there being a quota fixed for graduate Junior Engineers
and diploma-holder Junior Engineers for promotion to the post of Assistant
Engineers.”
On behalf of respondents the difference in qualification at the time of
induction into the service to the post of Junior Engineers as indicated in
paragraph 43 was highlighted to distinguish the present case on the ground
that for induction into the service on the post of Project Engineer
(Junior) there is no requirement that the diploma holders should have two
years’ experience apart from their diploma. Literally, that distinction is
valid but in our considered view the other considerations which were
discussed in paragraph 43 are of much greater significance, particularly
there being specific quota prescribed for graduate Project Engineers
(Junior) and diploma holder Project Engineers (Junior). In the present
case also, as an eligibility criterion, a degree is further qualified by
three years’ service whereas a diploma is further qualified by seven years’
service. These distinctions are of much more vital significance than the
birthmark at the time of induction into service. Absence of such birthmark
in the present case is not material. Such birthmark was only an additional
ground available in the case of Shailendra Dania (supra) but that, in our
considered view, would not make any material difference in coming to the
same conclusion that degree with three years’ service experience and
diploma with seven years’ service experience by itself indicates
qualitative difference in the service rendered as a degree holder and that
rendered as a diploma holder.
As held in paragraph 36 of Shailendra Dania’s case (supra) we are required
to decide the matter on the basis of the entire scheme of the rules, the
facts and circumstances at the relevant time and the rules called in
question, for independently giving meaning to the words, the principle
involved and the past practice, if any. In that view of the matter, the
word ‘with’ occurring before the words, “three years’ service” or “seven
years’ service” has to be given a natural meaning as understood in the
common parlance and in the light of two water tight compartments created
for the two classes for promotion with respective quotas of 20% and 30%, it
must be held that three years’ total experience of service must be service
as a degree holder. This view is fortified by the provision in the
Regulations that for similar promotion a diploma holder has to have seven
years’ total experience of service. The relevant regulation does not
contemplate any reduced total experience for promotion for a diploma holder
who may acquire degree or AMIE qualification while in service. Even on
acquiring such higher qualification the concerned diploma holder is neither
given any advantage vis-à-vis other diploma holders nor is he ousted from
the right of consideration against 30% quota provided for diploma holders.
In such a situation in order to enter into the water-tight compartment of
20% quota for the degree holders with three years’ experience of service, a
diploma holder with AMIE qualification must show that he fulfills the
entire eligibility criterion, i.e., he is a degree holder with three years’
experience of service as a degree holder. Such water-tight compartment and
separate quotas cannot be rendered meaningless so as to affect the prospect
of promotion of the degree holders by inducting into that category a
diploma holder who does not have three years’ experience of service as a
degree holder. In the absence of any such provision in the Regulations, no
equivalence can be permitted in such a situation because even a diploma
holder with seven years’ experience of service is confined to a prospect or
chance of promotion only against 30% quota for the diploma holders.
So far as the word ‘total’ occurring before the words ‘experience of
service’ is concerned, from the circumstances and past history relating to
the service, it must be understood in the context of service rendered in
regular capacity along with service rendered on ad-hoc or officiating or
temporary basis. The word ‘total’ cannot be construed to mean service
rendered either as diploma holder or degree holder. If this had been the
intention, the word ‘total’ would have been included only in the context of
three years’ total experience of service of degree holders and not in the
context of seven years’ experience of service as diploma holders. A
diploma holder in any case is required to have seven years’ experience of
service for being eligible for promotion and hence the word ‘total’ would
be otiose or redundant in the aforesaid context. No doubt, the High Court
has now clarified and held that service rendered on ad-hoc or officiating
basis prior to regularization cannot be counted for acquiring eligibility
for promotion and that aspect is no longer under controversy. Hence the
use of the word ‘with’ or ‘total’ in the relevant regulation does not make
any difference and the judgment in the case of Shailendra Dania (supra)
applies to the present case, as contended by learned counsel for the
appellants.
The other judgments of this Court in the case of Challa Jaya Bhaskar
(supra); Chandravathi P.K. (supra) and Vijay Singh Deora (supra) also
support the view which we have taken on the basis of Shailendra Dania’s
case (supra). Para 29 of the judgment in the case of Challa Jaya Bhaskar
(supra) clearly shows that in the said case this Court followed the views
expressed in N. Suresh Nathan’s case (supra) and Shailendra Dania’s case
(supra). In the case of Chandravathi P.K. (supra) rules for shifting by
exercise of option from the category of diploma holders to that of degree
holders on acquiring AMIE qualification was in place. In that context, in
paragraph 30 this Court held that diploma holder officer on acquiring
higher qualification during service could opt for promotion from the degree
holders’ quota or from diploma holders’ quota but once he opts for
promotion in the degree holders’ quota, rule of seniority would apply as he
acquired the qualification therefor subsequently. He would be placed at
the bottom of the seniority list and his case could be considered only
after the cases of promotion of those who had been holding such degree
qualification had been considered. In the case of Vijay Singh Deora
(supra) the rule position was different but in paragraph 9 this Court
permitted only a limited recognition of service rendered as diploma holder
Junior Engineers for purposes of eligibility and justified the permitted
procedure on the ground that it would do justice to all the three groups
(as existed in that case) and no one would jump over the other and would
not illegitimately steal a march over the legitimate right of the other,
“otherwise, in effect the qualified graduates would be pushed downwards and
unqualified late entrants on acquisition of qualification would steal a
march over the qualified.”
The judgments relied upon by learned advocate for the respondents have been
noticed above. All those cases were noticed and distinguished or explained
in the case of Shailendra Dania (supra) and we find that none of those
cases are of any help to the respondents. In those cases, either there was
no water-tight compartment and fixed quota for different categories or the
advertisement and rules related only to initial recruitment or the contest
was only between two groups of diploma holders. The judgment in the case
of Roop Chand Adlakha (supra) in fact helps the case of the appellants
because in that case this Court held that different service experience
could be prescribed for conferring eligibility for promotion to the degree
holders and diploma holders and such classification on the basis of
educational qualification is permissible under Articles 14 and 16 of the
Constitution of India.
In the light of aforesaid discussions, we find merit in these appeals and
they are accordingly allowed to the extent of reversing the views of the
High Court in respect of Question no.2 as noted by the Division Bench in
the common judgment under appeal. We hold that the Project Engineers
(Junior) recruited on the basis of diploma, upon their acquiring the
qualification of ‘AMIE’, are not entitled to count their experience of
service prior to acquisition of such qualification for the purpose of
eligibility for promotion to the post of Project Engineer (Senior) against
the 20% quota fixed for promotion of degree holder Project Engineers
(Junior). In order to claim promotion against such 20% quota the three
years’ experience of service must be acquired after obtaining the
qualification or degree of AMIE.
We direct the Board and its authorities to treat the writ petitions filed
in the High Court as disposed of in the light of our aforesaid views and to
determine the controversies raised in the writ petitions in that light by
granting relief to the eligible persons expeditiously and preferably within
4 months, without upsetting the transactions which had taken place earlier
and were not under challenge in the writ petitions. In other words, the
regular promotions made in the past prior to 1992, which were not subject
matter of writ petitions filed in 1992 will not be re-opened on account of
views expressed in this judgment.
In the facts and circumstances of the case, there shall be no order as to
costs.
………………….…………………………………...J.
[FAKKIR MOHAMED IBRAHIM KALIFULLA]
………………….…………………………………...J.
[SHIVA KIRTI SINGH]
New Delhi.
September 05, 2014.
-----------------------
28
High Court in respect of Question no.2 as noted by the Division Bench in the common judgment under appeal. We hold that the Project Engineers (Junior) recruited on the basis of diploma, upon their acquiring the qualification of ‘AMIE’, are not entitled to count their experience of service prior to acquisition of such qualification for the purpose of
eligibility for promotion to the post of Project Engineer (Senior) against the 20% quota fixed for promotion of degree holder Project Engineers (Junior). In order to claim promotion against such 20% quota the three years’ experience of service must be acquired after obtaining the qualification or degree of AMIE. We direct the Board and its authorities to treat the writ petitions filed in the High Court as disposed of in the light of our aforesaid views and to
determine the controversies raised in the writ petitions in that light by granting relief to the eligible persons expeditiously and preferably within 4 months, without upsetting the transactions which had taken place earlier and were not under challenge in the writ petitions. In other words, the regular promotions made in the past prior to 1992, which were not subject matter of writ petitions filed in 1992 will not be re-opened on account of views expressed in this judgment. In the facts and circumstances of the case, there shall be no order as to costs.=
“Diploma
Holder” and “Degree Holder” Engineers in the matter of eligibility for
further promotion.
All the appellants belonged to the category of degree
holder engineers appointed as Project Engineers (Junior) in the service
of Rajasthan Housing Board (for sake of brevity referred to as ‘the Board’).
The contesting
respondents also held the same post but initially only as diploma holder
who later acquired qualification of AMIE which is admittedly equivalent to
degree in Engineering.
Since all the appeals arise out of a common judgment passed by a Division
Bench of the Rajasthan High Court at Jaipur Bench and the facts as well as
issues of law are common, all the appeals have been heard together and are
being disposed of by this common judgment. =
Whether the Division Bench of the High Court has erred in holding that the
Diploma Holder Project Engineers (Junior) upon acquiring degree /
qualification of ‘AMIE’ would be entitled to count their experience of
service prior to acquisition of such qualification for the purpose of
eligibility of 3 years total experience of service for promotion to the
post of Project Engineer (Sr.) in the quota fixed for Degree Holders?
Whether the Division Bench has erred in setting aside the direction of the
learned Single Judge for preparing two separate seniority lists for Diploma
Holders and Degree Holders for the purpose of promotion in their respective
quotas?=
we find merit in these appeals and
they are accordingly allowed to the extent of reversing the views of the
High Court in respect of
Question no.2 as noted by the Division Bench in
the common judgment under appeal.
We hold that the Project Engineers
(Junior) recruited on the basis of diploma, upon their acquiring the
qualification of ‘AMIE’, are not entitled to count their experience of
service prior to acquisition of such qualification for the purpose of
eligibility for promotion to the post of Project Engineer (Senior) against
the 20% quota fixed for promotion of degree holder Project Engineers
(Junior).
In order to claim promotion against such 20% quota the three
years’ experience of service must be acquired after obtaining the
qualification or degree of AMIE.
We direct the Board and its authorities to treat the writ petitions filed
in the High Court as disposed of in the light of our aforesaid views and to
determine the controversies raised in the writ petitions in that light by
granting relief to the eligible persons expeditiously and preferably within
4 months, without upsetting the transactions which had taken place earlier
and were not under challenge in the writ petitions. In other words, the
regular promotions made in the past prior to 1992, which were not subject
matter of writ petitions filed in 1992 will not be re-opened on account of
views expressed in this judgment.
In the facts and circumstances of the case, there shall be no order as to
costs.
2014 - Sept. Month - http://judis.nic.in/supremecourt/filename=41882
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 8479-8482 OF 2014
[Arising out of S.L.P.(C)Nos.19220-19223 of 2007]
K.K. Dixit & Ors. etc. …..Appellants
Versus
Rajasthan Housing Board & Anr. etc. …..Respondents
J U D G M E N T
SHIVA KIRTI SINGH, J.
Leave granted.
These appeals are further additions to the long list of service matters
decided by High Courts and this Court resolving disputes between “Diploma
Holder” and “Degree Holder” Engineers in the matter of eligibility for
further promotion. All the appellants belonged to the category of degree
holder engineers appointed as Project Engineers (Junior) in the service
of Rajasthan Housing Board
(for sake of brevity referred to as ‘the Board’). The contesting
respondents also held the same post but initially only as diploma holder
who later acquired qualification of AMIE which is admittedly equivalent to
degree in Engineering.
Since all the appeals arise out of a common judgment passed by a Division
Bench of the Rajasthan High Court at Jaipur Bench and the facts as well as
issues of law are common, all the appeals have been heard together and are
being disposed of by this common judgment.
At the outset, two important issues raised by way of questions of law in
these appeals need to be noticed so that subsequent discussion of facts and
law may be of help in answering both the issues/questions in controversy.
The issues are :
Whether the Division Bench of the High Court has erred in holding that the
Diploma Holder Project Engineers (Junior) upon acquiring degree /
qualification of ‘AMIE’ would be entitled to count their experience of
service prior to acquisition of such qualification for the purpose of
eligibility of 3 years total experience of service for promotion to the
post of Project Engineer (Sr.) in the quota fixed for Degree Holders?
Whether the Division Bench has erred in setting aside the direction of the
learned Single Judge for preparing two separate seniority lists for Diploma
Holders and Degree Holders for the purpose of promotion in their respective
quotas?
In exercise of the powers conferred by Section 53 of the Rajasthan Housing
Board Act, the Board made Rajasthan Housing Board Employees Conditions of
Recruitment and Promotion Regulations, 1976 (hereinafter referred to as
‘the Regulations’). Chapter II of the Regulations contains Clauses (6) to
(10) providing for Conditions of Recruitment and Promotion. Clause (6)
provides the manner of filling up the posts created from time to time. In
the context of absorption of employees working in the Board on deputation,
the word ‘category’ has been used in the context of posts created and
vacant. Clause (7) provides as follows :
“(7) The ratio of direct recruitment and promotion of employees in the
service of the Board and qualification and experience required for various
posts will be in accordance with the ‘Schedule’ appended to these
Regulations.”
Clause (9)(A) of the Regulations pertains to promotion and provides as
under :
“(9)(A) Promotion
In respect of first promotion to higher post, promotion of eligible person
shall be made on the basis of seniority-cum-merit. Second promotion shall
be made on the basis of merit and seniority-cum-merit in the promotion of
50:50.”
Clause (9)(B) provides that “seniority lists for each category of employees
will be prepared and maintained.” Clause (10) pertains to ‘seniority’ and
reads thus:
“(10) Seniority :
Amongst the persons recruited in the same year, the promotees will rank
senior to those who will be appointed by direct recruitment. Amongst the
promotees those who are appointed on the basis of seniority cum merit with
rank senior to those who are appointed on the basis of merit with due
regard to seniority. The inter se seniority of those appointed on the
basis of merit will be in accordance with their relative seniority in the
lower cadre.”
6. Chapter III of the Regulations contains Miscellaneous Provisions and
includes Clause (12) which empowers the Board to issue general instructions
not inconsistent with the Act and the Rules and Regulations made thereunder
for the purpose of removing doubt, lacuna, inconsistency or anomaly which
may arise in interpreting the Regulations or in giving effect to them or in
putting them to application. The Regulations contain various schedules as
appendices. In the case at hand “Schedule Technical” alone is of
significance and that shows the post of Project Engineer (Junior) at the
entry level. 97% of this post is to be filled by direct recruitment and 3%
by Board employees. The basic qualification required is a Degree or Diploma
in Civil Engineering. The next post in hierarchy, promotion to which is
under issue, is Project Engineer (Senior). The source of recruitment for
this post is 50% by direct recruitment, 20% by promotion of degree holder
and 30% by promotion of diploma holder. For direct recruitment, the
essential qualification is a Degree in Civil Engineering in First Division
with at least one year’s experience in design and construction of building.
The 50% posts to be filled up by promotion of Project Engineer (Junior)
require further minimum experience and qualification as laid down in Column
6 of the Schedule Technical. Since the contesting respondents have laid a
great amount of emphasis on several words prescribing the minimum
experience and qualification required for promotion, the provisions of
relevant Column No.6 are extracted hereinbelow :
”Post to be filled in by promotion from amongst the P.E.Jr.’s who are
degree holders with 3 years total experience of service.
Post to be filled in by promotion from P.E.Jr.’s who are diploma holders
with 7 years total experience of service. (137.20)
Govt. approved Dt.25.2.2000 w.e.f. 9.12.87
Or
Qualification recognized by the State Govt. to be equivalent to Degree in
Civil Engineering.”
7. There are four higher posts in the hierarchy above the post of
Project Engineer (Senior). All of them are required to be filled up only
by promotion and require a Degree in Engineering in Civil, except the post
of Resident Engineer just above that of Project Engineer (Senior) which
requires filling up “75% by degree holder and 25% by diploma holder by
granting promotion to eligible Project Engineer (Senior)”. Column 6 of the
Schedule Technical provides minimum experience and qualification for
promotion to the post of Resident Engineer as (i) Degree Holder with 5
years’ experience and (ii) Diploma Holder with 13 years experience. A
diploma holder, as noticed earlier, is not qualified for any further
promotion.
8. From the facts available on record it appears that initially only
diploma holders were appointed under the Regulations to the post of Project
Engineer (Junior) and on their acquiring the certificate of AMIE while in
service they were to be given benefit of their past service as diploma
holders in the ratio of 3:7, i.e., 3 years of their service with AMIE was
treated as 7 years of service as diploma holder for the purpose of
eligibility for promotion. This benefit of past service in the prescribed
ratio was on account of a Resolution of the Board dated 17.4.1979 which
records that “the present practice of placing the Diploma Holder Engineers
who have cleared AMIE examination in the bottom of the list of Degree
Holders, is appropriate. But it has also been decided that their
experience should be determinant in the ratio of 3:7 (3 years degree
holders equal to 7 years diploma holders)”. Some diploma holders who were
initially appointed as Project Engineers (Junior) purely on ad-hoc basis
were not only regularized by the Board vide Order dated 18.5.1987 but they
were also given benefit of their past service like the regularly appointed
diploma holders and together with the latter category they also gained ad-
hoc promotion to the post of Project Engineer (Senior) in the year 1992.
In the meantime, pursuant to an advertisement of March 1988 issued by the
Board, the appellants as degree holders applied and on selection, were
appointed to the post of Project Engineer (Junior) on 18.3.1989. It
appears that a common Provisional Seniority List of Project Engineer
(Junior) including diploma, AMIE and degree holders had been issued on
11.8.1989 and although appellants had objected to the said seniority list,
promotions were granted by the Board to few diploma holders on ad-hoc basis
in January and February 1992, as noted above.
9. Appellants – K.K. Dixit and some others preferred writ petition
challenging the Resolution of the Board dated 17.4.1979, the joint
Provisional Seniority List dated 11.8.1989 and ad-hoc promotion of the
Diploma Holders with AMIE. The writ petition was allowed by a learned
Single Judge on 7.7.1993 after deciding only the issue relating to counting
of experience and holding that only such service could count for
eligibility for promotion which was rendered by the ad-hoc Project Engineer
(Junior) after regularization. It was held that their experience as ad-hoc
appointees shall not be taken into consideration.
10. The writ petitioners preferred a review petition praying for passing
of judgment on the other two grievances raised in the writ petition. The
first grievance was that seniority list of degree holders and diploma
holders on the post of Project Engineer (Junior) should be prepared
separately. The other grievance was that in view of the Resolution No.6
dated 17.4.1979 those diploma holders who passed AMIE examination while in
service, should be placed below the degree holders of that year. Both the
aforesaid claims or grievances were based upon the plea that as per
recruitment rules there is separate quota for the degree holders and also a
separate quota for diploma holders. The learned Single Judge, by Order
dated 21.9.1993, allowed the review petition to the extent of directing
that the Board shall prepare separate seniority lists for degree holders
and diploma holders Project Engineer (Junior) and such of the Project
Engineers (Junior) who have passed AMIE examination while in service, shall
be placed lowest in that year in the seniority list of degree holder
Project Engineers (Junior).
11. Aggrieved by the judgment dated 07.07.1993 passed by the learned
Single Judge in the writ petition and also against order dated 21.9.1993
passed by the learned Single Judge in Review Petition, some of the affected
diploma holders preferred D.B. Spl. Appeal (C) No.67 of 1993 and 64 of 1993
respectively. Five other matters including D.B. Civil Writ Petition Nos.20
of 1993 and 7063 of 1993 were also tagged with the Special Appeals. They
were heard together and partly allowed by a common judgment dated 25.5.2007
which is under challenge in these appeals preferred by those who had
entered Board’s service as degree holders on the post of Project Engineers
(Junior). Since these appeals arise from only four out of seven matters
decided by the Division Bench of the High Court, it is not necessary to
indicate details of the remaining three matters which were also disposed of
by the common order under appeal.
12. By the judgment under appeal, the High Court has decided three
questions under controversy between the parties. The High Court has
summarized the three questions thus :
“1. Whether the Project Engineer (Junior) who were initially appointed on
ad-hoc/officiating/urgent temporary basis, upon being screened and made
members of service with reference to clause 3 of the Note below ‘Schedule
Technical’ of the Rajasthan Housing Board Employees Condition of
Recruitment and Promotion Regulations, 1976 are entitled to count the
period of service rendered in that capacity for the purpose of seniority
and experience for eligibility of promotion to the post of Project Engineer
(Senior) as provided for in column No.6 of Sr. No.2 in the ‘Schedule
Technical’ of Regulations of 1976?
2. Whether the Project Engineers (Junior) recruited on the basis of
diploma, upon their acquiring the qualification of ‘AMIE’, are entitled to
count their experience of service prior to acquisition of such
qualification for the purpose of eligibility of ‘three years total
experience of service’ for promotion to the post of Project Engineer
(Senior) as provided for in column No.6 of Sr. No.2 of ‘Schedule Technical’
of Regulations of 1976?
3. Whether according to the Regulations of 1976 the diploma holders Project
Engineers (Junior) on acquiring the qualification of ‘AMIE’ are liable to
be placed in the seniority list of Project Engineers (Junior) below degree
holders available as on the date of their acquiring such qualification and
further whether according to the Regulations of 1976, a separate seniority
list of Project Engineers (Junior) based on their educational
qualification, viz.-degree and diploma, is required to be maintained?”
On behalf of the appellants, learned counsel Ms. Shobha led the arguments.
It was categorical stand of the appellants that since Question no.1 was
decided against the ad-hoc/officiating category of Project Engineer
(Junior) and no one from that category has preferred any appeal, hence
answer to that question has attained finality. Learned counsel for the
appellants has seriously assailed the findings given against the appellants
in respect of Question nos.2 and 3.
According to the High Court the Resolution of the Board dated 17.04.1979
affirming the alleged practice of placing the diploma holder engineers who
have cleared AMIE examination in the bottom of the list of degree holders
and giving them benefit of their experience in service as diploma holders
only in the ratio of 3:7 is neither justified by past practice nor by the
Regulations. It was also held that the learned Single Judge erred in
directing the Board to prepare two separate seniority lists. Thus the
Division Bench answered Questions nos.2 and 3 against the appellants by
reversing the effect of order passed by the learned Single Judge in review
and also by granting the benefit of entire past service once a diploma
holder cleared AMIE examination.
Before deciding the two main issues raised on behalf of the appellants as
noticed earlier, it may be useful to note certain subsequent developments
which are not in dispute. Pursuant to the impugned order of the High Court
the Board issued a provisional common seniority list on 30.06.2007 and
withdrew the Resolution dated 17.04.1979 on 06.07.2007. A final common
seniority list was issued on 27.08.2007 and according to appellants it was
prepared without deciding their objections. Provisional promotions have
been granted to several persons to the post of Project Engineer (Senior)
who cleared AMIE examination while in service and were allegedly much
junior to the appellants with respect to the date of acquiring eligibility
for such promotions. The Special Leave Petitions giving rise to the
present appeals were preferred in this Court on 25.09.2007 or soon
thereafter. While issuing notice in one such matter, on 26.10.2007 this
Court directed that no coercive steps shall be taken in the meantime. On
19.07.2010, 200 posts of Project Engineer (Junior) were upgraded to the
post of Project Engineer (Senior) and 31 such posts were abolished. As a
consequence of upgradation, on 12.08.2010, 168 persons holding the post of
Project Engineer (Junior) came to acquire the upgraded post of Project
Engineer (Senior).
On account of the present dispute raised by appellants K.K. Dixit and some
others through writ petitions filed in the year 1992, inter alia, against
ad-hoc promotions, the Board has granted only ad-hoc promotions even
subsequently and hence resolution of the dispute appears to be necessary to
enable regularization of those promotions in accordance with law and the
Regulations and also for making regular promotions to the next higher post
of Resident Engineer. The issues under consideration relate only to
eligibility for promotion against respective quotas and not to the
Regulations providing for seniority and promotion.
The issues relating to Question no.3 decided by the High Court are not very
contentious and hence those are taken up first. The learned Single Judge
directed for preparation of two seniority lists, one for the degree holders
and another for diploma holders only with a view to give effect to the
Resolution of the Board dated 17.04.1979 without undertaking the necessary
exercise for finding out whether the Resolution was in consonance or in
conflict with the Regulations. Such exercise was undertaken by the
Division Bench of the High Court which did not approve of the Resolution
and held that it was contrary to the Regulations. It also rightly noticed
that the earlier seniority list was only a common seniority list and there
was no past practice of having any seniority lists.
Learned counsel for the appellants did not dispute the relevant facts
noticed by the High Court on this issue. The High Court noticed that
Schedule Technical and the Regulations provide for only one source of
recruitment for the post of Project Engineer (Junior) that is by direct
recruitment and the same selection process was applicable to both, the
degree holders and the diploma holders and, therefore, only on account of
difference in their academic qualification they could not be treated to be
belonging to two different cadres in absence of any provision for this
purpose in the Regulations. They were to be treated as two channels for
next promotion because of separate quota for each channel and different
eligibility criteria.
On behalf of appellants, a submission was advanced that in Clause (9)(B) of
the Regulations there is a mandate that seniority lists for each “category
of employees” will be prepared and maintained and hence the Board should
treat degree holders and diploma holders as separate category of employees
for preparation of separate seniority lists for each of these categories.
We do not find any merit in this submission. The words “category of
employees” used in Clause (9)(B) in the context of the Regulations can only
mean category of posts held by the employees. The word “category” has been
used in the context of posts only in Clause (6) of the Regulations,
although in the matter of absorption of employees working in the Board on
deputation. Clause (9)(A) which provides for promotion when read together
with the Schedule Technical leaves no manner of doubt that in respect of
first promotion to higher post, i.e., promotion from post of Project
Engineer (Junior) to Project Engineer (Senior), promotion of eligible
person is required to be made on the basis of seniority-cum-merit. The
High Court has rightly held that the cadre of Project Engineer (Junior)
cannot be bifurcated for the purpose of seniority alone, only on the ground
that for promotion to the cadre of Project Engineer (Senior) there is
provision for 20% quota for degree holders and 30% quota for diploma
holders. The practical view of the High Court cannot be faulted that the
Board can legitimately prepare separate eligibility lists of Project
Engineer (Junior) holding degree and those holding diploma. Such
eligibility list could not be mistaken for seniority list which must remain
common based upon merit assessed at the time of selection for recruitment.
Only if the selection process had been different, there could have been any
scope to argue for separate seniority lists. In absence of any legal
stipulation for altering the initial seniority, pre-determined on the basis
of merit at the time of initial selection and date of regular appointment,
the seniority list cannot be altered only because some diploma holder
Project Engineers (Junior) acquired the qualification of AMIE equivalent to
a degree. The three years’ or seven years’ experience of service will
entitle the degree holders and the diploma holders respectively only for
inclusion of their names in the eligibility lists for promotion so as to
work out satisfactorily the provision for different quota for the degree
holders and the diploma holders. Hence, we find no good ground to
interfere with the decision of the High Court in respect of Question no.3.
Further dispute between the parties is in respect of issues arising out of
Question no.2. The primal question which requires to be answered is
whether the diploma holders who acquired the qualification of AMIE during
service should be given the benefit of experience of service rendered by
them as diploma holders for promotion to the post of Project Engineer
(Senior) against the 20% quota for the degree holders or they need to
acquire further three years’ experience of service after acquiring the
qualification of AMIE for availing such benefit.
In the context of issue noticed above, the stand of the appellants is that
there is qualitative difference in the service rendered by a degree holder
and that rendered by a diploma holder and, therefore, the Regulations
provide that the degree holder Project Engineers (Junior) with three years’
service and diploma holder Project Engineers (Junior) with seven years’
service shall be eligible for promotion to the higher post of Project
Engineer (Senior). Their further case is that by providing 20% and 30% of
the posts as quota for the degree holders and diploma holders respectively,
the Regulations have created a water-tight compartment for the two classes
because they are entitled for promotion in their respective quota only.
The fact that separate quota for promotion has been fixed for two different
channels of degree holders and diploma holders, according to appellants, is
a clear indication that the service of three years must be rendered as a
degree holder in order to acquire the eligibility for promotion as is the
case with a diploma holder who acquires eligibility only upon rendering
seven years’ service as a diploma holder. The eligibility criterion of
service experience cannot be read differently when the claim for promotion
is made against a fixed quota. The aforesaid stand of the appellants is
based squarely upon judgment of this Court rendered by a three Judges Bench
in the case of Shailendra Dania & Ors. v. S.P. Dubey & Ors. (2007) 5 SCC
535. For providing further support to the conclusions in the case of
Shailendra Dania (supra), reliance has been placed also upon judgments in
the case of N. Suresh Nathan & Anr. v. Union of India & Ors. 1992 Supp.(1)
SCC 584; Indian Airlines Ltd. & Ors. v. S. Gopalakrishnan (2001) 2 SCC 362;
Challa Jaya Bhaskar & Ors. v. Thungathurthi Surender & Ors. (2010) 13 SCC
348; Chandravathi P.K. & Ors. v. C.K. Saji & Ors. (2004) 3 SCC 734 and
Vijay Singh Deora & Ors. v. State of Rajasthan & Anr. (1997) 3 SCC 118.
On the other hand, counsels appearing for the respondents and representing
the interest of the diploma holders who subsequently acquired the
qualification of AMIE while in service, have made a spirited attempt to
distinguish the facts of Shailendra Dania’s case (supra). According to
learned counsel appearing for the diploma holders there was a difference in
the qualification required of degree holders and diploma holders at the
time of very entry into the service in Shailendra Dania’s case; while
degree holders were eligible to apply only with their educational
qualification for the entry post, the diploma holders were required to have
additional two years’ experience and hence the two were treated to be
qualitatively different in the matter of service experience. In other
words, the submission is that the qualitative difference in the services
rendered by degree holders and diploma holders in Shailendra Dania’s case
was primarily on account of their having different birthmarks which does
not exist in the present case. It is also the case of diploma holders that
the words used in the Regulations laying down eligibility for promotion are
different in the present case because of use of the word ‘total’ before the
clause ‘experience of service’ and hence on a literal interpretation, as is
warranted in the present case, the appellants cannot derive any advantage
from the judgment in the case of Shailendra Dania (supra). Much emphasis
has also been laid on the word, ‘with’ used in the Schedule Technical to
contend that it be read as ‘and’ which will then not permit the cumulative
eligibility criteria to be read as three years’ total experience of service
with degree but only as degree and three years’ total experience of
service. It is further case of the diploma holders that the use of the
word ‘total’ clearly indicates the intent of counting not only experience
of service with degree but also experience of service already gained with
diploma. Mr. Manu Mridul, learned Advocate for some of the respondents, in
support of the aforesaid contentions placed reliance upon judgments of this
Court in the case of Anil Kumar Gupta & Ors. v. Municipal Corporation of
Delhi & Ors. (2000) 1 SCC 128; M.B. Joshi & Ors. etc. v. Satish Kumar
Pandey & Ors. etc. 1993 Supp.(2) SCC 419 and A.K. Raghumani Singh & Ors. v.
Gopal Chandra Nath & Ors. (2000) 4 SCC 30. Appearing on behalf of another
set of respondents in one of the appeals, Mr. Abhishek Gupta, Advocate
placed reliance upon case of Roop Chand Adlakha & Ors. v. Delhi Development
Authority & Ors. 1989 Supp.(1) SCC 116.
Mr. Vijay Hansaria, learned Senior Advocate appeared for the Board and
supported the case of diploma holders by taking a stand that different
service experience of three years and seven years for the purpose of
eligibility have been prescribed for degree holders and diploma holders
respectively not upon any qualitative difference in their experience but
upon difference in the educational qualification alone. Thus, the stand of
the Board before this Court which is diametrically opposite to its stand
before the High Court is that a diploma holder who has service experience
of three years and acquires the qualification of AMIE is qualified under
the Regulations to claim eligibility for promotion in the 20% quota
reserved for degree holders with three years’ experience. Learned advocate
appearing for some of the proforma respondents made it clear that the case
of such proforma respondents who were degree holders is same as that of the
appellants.
Before adverting to the rival submissions on the main issue noted above, in
view of submissions advanced on behalf of some of the respondents as if the
issue arising in these appeals relates to seniority position of individuals
in the seniority list, it is necessary to clarify that the High Court was
neither called upon to decide nor it actually decided any issue directly
relating to inter se seniority of Project Engineers (Junior) or Project
Engineers (Senior) and this Court is also not required to go into the
correctness of any seniority list published by the Board. As noticed
earlier, the main issue falling for determination in these appeals only
relates to what value, if any, is to be given to the service experience of
a diploma holder - turned degree holder - Project Engineer (Junior)
rendered by him as a diploma holder for the purpose of claiming eligibility
for promotion as a degree holder Project Engineer (Junior) against 20%
quota allotted for the degree holders.
Initially there was a serious dispute raised on behalf of appellants
whether the word ‘total’ before the clause ‘experience of service’ in the
context of minimum experience and qualification required for promotion of
Project Engineer (Junior) mentioned in the Schedule Technical is an
illegitimate insertion in this Schedule or whether it was actually existing
in the draft of the Schedule which was approved by the Board and the State
Government. Learned senior counsel appearing for the Board placed before
us the original records and made it clear that the word ‘total’ in the
relevant clauses existed in the original draft of Schedule Technical which
was duly approved. Matter has come to rest at that.
Coming to the rival contentions, it will be useful to refer to the
concerned paragraphs from the judgment in the Shailendra Dania’s case
(supra) along with the relevant facts in order to appreciate the contention
of the appellants that even in absence of the birthmark on account of two
years’ experience for diploma holders to enter into the service, which was
peculiar to the facts of that case, the relevant facts and rule position
are materially similar and hence the law laid down in that case is apt for
deciding the present appeals on the same lines. In Shailendra Dania’s case
the rules provided for filling up 50% of total vacancies in the post of
Assistant Engineer by direct recruitment and the remaining were to be
filled up by promotion by providing specific quota for a graduate Junior
Engineer and a diploma holder Junior Engineer. The eligibility criteria
for promotion of diploma holders Junior Engineers was eight years’
qualifying service and for graduate Engineering degree holders three years’
qualifying service. Further promotion from the post of Assistant Engineer
was to the post of Executive Engineer. For this post, the minimum
qualifying experience for graduate engineers was eight years as Assistant
Engineer and for diploma holders it was ten years in the grade of Assistant
Engineer. However, for the initial post in the hierarchy, that is, post of
Junior Engineer, the selection was only through direct recruitment and the
qualification prescribed was “diploma holders in civil engineering with two
years’ experience”. But there was no bar for persons having degree in
engineering in applying for the post of Junior Engineer and they were not
required to have any prior experience.
In Shailendra Dania’s case this Court placed strong reliance upon judgment
in the case of N. Suresh Nathan (supra) and explained that the three Judges
Bench decided that case essentially on the interpretation of the rule and
merely found support to that interpretation from the past practice followed
in the Department. In N. Suresh Nathan (supra), the question involved was
similar as in the case of Shailendra Dania (supra) and the present case.
The relevant rule provided for recruitment by promotion from the grade of
Junior Engineers which consisted of two categories, viz., one of degree
holder Junior Engineers with three years’ service in the grade and the
other of diploma holder Junior Engineers with six years’ service in the
grade. There, the quota was 50% from each category. The Court interpreted
the rule in the light of entire scheme to conclude that the period of three
years can commence only from the date of obtaining the degree and not
earlier. The service in the grade as a diploma holder prior to obtaining
degree cannot be counted as service in the grade with a degree for the
purpose of three years’ service as a degree holder. Besides explaining and
following the judgment in N. Suresh Nathan’s case (supra), the judgment in
Shailendra Dania’s case (supra) also considered and distinguished some
later judgments on the basis of difference in facts and rules such as in
the case of M.B. Joshi (supra); D. Stephen Joseph v. Union of India & Ors.
(1997) 4 SCC 753; Anil Kumar Gupta (supra) and A.K. Raghumani (supra).
In the case of Shailendra Dania (supra), this Court also took note of
judgment in the case of Indian Airlines Ltd. (supra) on which the
appellants have also placed reliance. Para 5 of the judgment in the case
of Indian Airlines Ltd. (supra) begins by holding that “when in addition to
qualification, experience is prescribed, it would only mean acquiring
experience after obtaining the necessary qualification and not before
obtaining such qualification”. No doubt, in that case there was specific
general information/instruction that experience will be computed after the
date of acquiring the necessary qualifications. Instead of dilating the
point further it will be useful to extract paragraphs 43 to 45 of the
judgment in the case of Shailendra Dania (supra) which are as follows :
“43. Taking into consideration the entire scheme of the relevant Rules, it
is obvious that the diploma-holders would not be eligible for promotion to
the post of Assistant Engineer in their quota unless they have eight years’
service, whereas the graduate Engineers would be required to have three
years’ service experience apart from their degree. If the effect and intent
of the Rules were such to treat the diploma as equivalent to a degree for
the purpose of promotion to the higher post, then induction to the cadre of
Junior Engineers from two different channels would be required to be
considered similar, without subjecting the diploma-holders to any further
requirement of having a further qualification of two years’ service. At
the time of induction into service to the post of Junior Engineers, degree
in Engineering is a sufficient qualification without there being any prior
experience, whereas diploma-holders should have two years’ experience apart
from their diploma for their induction in the service. As per the service
rules, on the post of Assistant Engineer, 50% of total vacancies would be
filled up by direct recruitment, whereas for the promotion specific quota
is prescribed for a graduate Junior Engineer and a diploma-holder Junior
Engineer. When the quota is prescribed under the Rules, the promotion of
graduate Junior Engineers to the higher post is restricted to 25% quota
fixed. So far as the diploma-holders are concerned, their promotion to the
higher post is confined to 25%. As an eligibility criterion, a degree is
further qualified by three years’ service for the Junior Engineers, whereas
eight years’ service is required for the diploma-holders. Degree with
three years’ service experience and diploma with eight years’ service
experience itself indicates qualitative difference in the service rendered
as degree-holder Junior Engineer and diploma-holder Junior Engineer. Three
years’ service experience as a graduate Junior Engineer and eight years’
service experience as a diploma-holder Junior Engineer, which is the
eligibility criterion for promotion, is an indication of different quality
of service rendered. In the given case, can it be said that a diploma-
holder who acquired a degree during the tenure of his service, has gained
experience as an Engineer just because he has acquired a degree in
Engineering. That would amount to say that the experience gained by him in
his service as a diploma-holder is qualitatively the same as that of the
experience of a graduate Engineer. The Rule specifically made difference
of service rendered as a graduate Junior Engineer and a diploma-holder
Junior Engineer. Degree-holder Engineer’s experience cannot be substituted
with diploma-holder’s experience. The distinction between the experience
of degree-holders and diploma holders is maintained under the Rules in
further promotion to the post of Executive Engineer also, wherein there is
no separate quota assigned to degree-holders or to diploma-holders and the
promotion is to be made from the cadre of Assistant Engineers. The Rules
provide for different service experience for degree-holders and diploma-
holders. Degree-holder Assistant Engineers having eight years of service
experience would be eligible for promotion to the post of Executive
Engineer, whereas diploma-holder Assistant Engineers would be required to
have ten years’ service experience on the post of Assistant Engineer to
become eligible for promotion to the higher post. This indicates that the
Rule itself makes differentia in the qualifying service of eight years for
degree-holders and ten years’ service experience for diploma-holders. The
Rule itself makes qualitative difference in the service rendered on the
same post. It is a clear indication of qualitative difference of the
service on the same post by a graduate Engineer and a diploma-holder
Engineer. It appears to us that different period of service attached to
qualification as an essential criterion for promotion is based on
administrative interest in the service. Different period of service
experience for degree-holder Junior Engineers and diploma-holder Junior
Engineers for promotion to the higher post is conducive to the post manned
by the Engineers. There can be no manner of doubt that higher technical
knowledge would give better thrust to administrative efficiency and quality
output. To carry out technical specialized job more efficiently, higher
technical knowledge would be the requirement. Higher educational
qualifications develop broader perspective and therefore service rendered
on the same post by more qualifying person would be qualitatively
different.
44. After having an overall consideration of the relevant Rules, we are of
the view that the service experience required for promotion from the post
of Junior Engineer to the post of Assistant Engineer by a degree-holder in
the limited quota of degree-holder Junior Engineers cannot be equated with
the service rendered as a diploma-holder nor can be substituted for service
rendered as a degree-holder. When the claim is made from a fixed quota,
the condition necessary for becoming eligible for promotion has to be
complied with. The 25% specific quota is fixed for degree-holder Junior
Engineers with the experience of three years. Thus, on a plain reading,
the experience so required would be as a degree-holder Junior Engineer.
25% quota for promotion under the rule is assigned to degree-holder Junior
Engineers with three years’ experience, whereas for diploma-holder Junior
Engineers eight years’ experience is the requirement in their 25% quota.
Educational qualification along with number of years of service was
recognized as conferring eligibility for promotion in the respective quota
fixed for graduates and diploma-holders. There is watertight compartment
for graduate Junior Engineers and diploma-holder Junior Engineers. They
are entitled for promotion in their respective quotas. Neither a diploma-
holder Junior Engineer could claim promotion in the quota of degree-holders
because he has completed three years of service nor can a degree-holder
Junior Engineer make any claim for promotion quota fixed for diploma-holder
Junior Engineers. Fixation of different quota for promotion from different
channels of degree-holders and diploma-holders itself indicates that
service required for promotion is an essential eligibility criterion along
with degree or diploma, which is service rendered as a degree-holder in the
present case. The particular years of service being the cumulative
requirement with certain educational qualification providing for
promotional avenue within the specified quota, cannot be anything but the
service rendered as a degree-holder and not as a diploma-holder. The
service experience as an eligibility criterion cannot be read to be any
other thing because this quota is specifically made for the degree-holder
Junior Engineers.
45. As a necessary corollary, we are of the view that the diploma-holder
Junior Engineers who have obtained a degree in Engineering during the
tenure of service, would be required to complete three years’ service on
the post after having obtained a degree to become eligible for promotion to
the higher post if they claim the promotion in the channel of degree-holder
Junior Engineer, there being a quota fixed for graduate Junior Engineers
and diploma-holder Junior Engineers for promotion to the post of Assistant
Engineers.”
On behalf of respondents the difference in qualification at the time of
induction into the service to the post of Junior Engineers as indicated in
paragraph 43 was highlighted to distinguish the present case on the ground
that for induction into the service on the post of Project Engineer
(Junior) there is no requirement that the diploma holders should have two
years’ experience apart from their diploma. Literally, that distinction is
valid but in our considered view the other considerations which were
discussed in paragraph 43 are of much greater significance, particularly
there being specific quota prescribed for graduate Project Engineers
(Junior) and diploma holder Project Engineers (Junior). In the present
case also, as an eligibility criterion, a degree is further qualified by
three years’ service whereas a diploma is further qualified by seven years’
service. These distinctions are of much more vital significance than the
birthmark at the time of induction into service. Absence of such birthmark
in the present case is not material. Such birthmark was only an additional
ground available in the case of Shailendra Dania (supra) but that, in our
considered view, would not make any material difference in coming to the
same conclusion that degree with three years’ service experience and
diploma with seven years’ service experience by itself indicates
qualitative difference in the service rendered as a degree holder and that
rendered as a diploma holder.
As held in paragraph 36 of Shailendra Dania’s case (supra) we are required
to decide the matter on the basis of the entire scheme of the rules, the
facts and circumstances at the relevant time and the rules called in
question, for independently giving meaning to the words, the principle
involved and the past practice, if any. In that view of the matter, the
word ‘with’ occurring before the words, “three years’ service” or “seven
years’ service” has to be given a natural meaning as understood in the
common parlance and in the light of two water tight compartments created
for the two classes for promotion with respective quotas of 20% and 30%, it
must be held that three years’ total experience of service must be service
as a degree holder. This view is fortified by the provision in the
Regulations that for similar promotion a diploma holder has to have seven
years’ total experience of service. The relevant regulation does not
contemplate any reduced total experience for promotion for a diploma holder
who may acquire degree or AMIE qualification while in service. Even on
acquiring such higher qualification the concerned diploma holder is neither
given any advantage vis-à-vis other diploma holders nor is he ousted from
the right of consideration against 30% quota provided for diploma holders.
In such a situation in order to enter into the water-tight compartment of
20% quota for the degree holders with three years’ experience of service, a
diploma holder with AMIE qualification must show that he fulfills the
entire eligibility criterion, i.e., he is a degree holder with three years’
experience of service as a degree holder. Such water-tight compartment and
separate quotas cannot be rendered meaningless so as to affect the prospect
of promotion of the degree holders by inducting into that category a
diploma holder who does not have three years’ experience of service as a
degree holder. In the absence of any such provision in the Regulations, no
equivalence can be permitted in such a situation because even a diploma
holder with seven years’ experience of service is confined to a prospect or
chance of promotion only against 30% quota for the diploma holders.
So far as the word ‘total’ occurring before the words ‘experience of
service’ is concerned, from the circumstances and past history relating to
the service, it must be understood in the context of service rendered in
regular capacity along with service rendered on ad-hoc or officiating or
temporary basis. The word ‘total’ cannot be construed to mean service
rendered either as diploma holder or degree holder. If this had been the
intention, the word ‘total’ would have been included only in the context of
three years’ total experience of service of degree holders and not in the
context of seven years’ experience of service as diploma holders. A
diploma holder in any case is required to have seven years’ experience of
service for being eligible for promotion and hence the word ‘total’ would
be otiose or redundant in the aforesaid context. No doubt, the High Court
has now clarified and held that service rendered on ad-hoc or officiating
basis prior to regularization cannot be counted for acquiring eligibility
for promotion and that aspect is no longer under controversy. Hence the
use of the word ‘with’ or ‘total’ in the relevant regulation does not make
any difference and the judgment in the case of Shailendra Dania (supra)
applies to the present case, as contended by learned counsel for the
appellants.
The other judgments of this Court in the case of Challa Jaya Bhaskar
(supra); Chandravathi P.K. (supra) and Vijay Singh Deora (supra) also
support the view which we have taken on the basis of Shailendra Dania’s
case (supra). Para 29 of the judgment in the case of Challa Jaya Bhaskar
(supra) clearly shows that in the said case this Court followed the views
expressed in N. Suresh Nathan’s case (supra) and Shailendra Dania’s case
(supra). In the case of Chandravathi P.K. (supra) rules for shifting by
exercise of option from the category of diploma holders to that of degree
holders on acquiring AMIE qualification was in place. In that context, in
paragraph 30 this Court held that diploma holder officer on acquiring
higher qualification during service could opt for promotion from the degree
holders’ quota or from diploma holders’ quota but once he opts for
promotion in the degree holders’ quota, rule of seniority would apply as he
acquired the qualification therefor subsequently. He would be placed at
the bottom of the seniority list and his case could be considered only
after the cases of promotion of those who had been holding such degree
qualification had been considered. In the case of Vijay Singh Deora
(supra) the rule position was different but in paragraph 9 this Court
permitted only a limited recognition of service rendered as diploma holder
Junior Engineers for purposes of eligibility and justified the permitted
procedure on the ground that it would do justice to all the three groups
(as existed in that case) and no one would jump over the other and would
not illegitimately steal a march over the legitimate right of the other,
“otherwise, in effect the qualified graduates would be pushed downwards and
unqualified late entrants on acquisition of qualification would steal a
march over the qualified.”
The judgments relied upon by learned advocate for the respondents have been
noticed above. All those cases were noticed and distinguished or explained
in the case of Shailendra Dania (supra) and we find that none of those
cases are of any help to the respondents. In those cases, either there was
no water-tight compartment and fixed quota for different categories or the
advertisement and rules related only to initial recruitment or the contest
was only between two groups of diploma holders. The judgment in the case
of Roop Chand Adlakha (supra) in fact helps the case of the appellants
because in that case this Court held that different service experience
could be prescribed for conferring eligibility for promotion to the degree
holders and diploma holders and such classification on the basis of
educational qualification is permissible under Articles 14 and 16 of the
Constitution of India.
In the light of aforesaid discussions, we find merit in these appeals and
they are accordingly allowed to the extent of reversing the views of the
High Court in respect of Question no.2 as noted by the Division Bench in
the common judgment under appeal. We hold that the Project Engineers
(Junior) recruited on the basis of diploma, upon their acquiring the
qualification of ‘AMIE’, are not entitled to count their experience of
service prior to acquisition of such qualification for the purpose of
eligibility for promotion to the post of Project Engineer (Senior) against
the 20% quota fixed for promotion of degree holder Project Engineers
(Junior). In order to claim promotion against such 20% quota the three
years’ experience of service must be acquired after obtaining the
qualification or degree of AMIE.
We direct the Board and its authorities to treat the writ petitions filed
in the High Court as disposed of in the light of our aforesaid views and to
determine the controversies raised in the writ petitions in that light by
granting relief to the eligible persons expeditiously and preferably within
4 months, without upsetting the transactions which had taken place earlier
and were not under challenge in the writ petitions. In other words, the
regular promotions made in the past prior to 1992, which were not subject
matter of writ petitions filed in 1992 will not be re-opened on account of
views expressed in this judgment.
In the facts and circumstances of the case, there shall be no order as to
costs.
………………….…………………………………...J.
[FAKKIR MOHAMED IBRAHIM KALIFULLA]
………………….…………………………………...J.
[SHIVA KIRTI SINGH]
New Delhi.
September 05, 2014.
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