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2001 DIGILAW 250 (HP)

SUNIL DUTT v. STATE OF HP

2001-09-25

A.L.VAIDYA, AVTAR SINGH, V.K.BHATNAGAR

body2001
JUDGMENT Honble Mr. V.K. Bhatnagar member (Adm). 1. The brief facts of the case are that applicants joined the respondents as Junior Engineers in the years 1980 and 1981 after obtaining degree in Engineering. As per Recruitment & promotion Rules, 1972 for the post of Assistant Engineers which is a promotion post, the relevant provision governing the promotion of Junior Engineers provided that 60% post of the Assistant Engineers would be; filled in by promotion as under: Rule II: Promotion: (i) From amongst sectional officers having 7 years regular or adhoc service or both as such and unqualified sectional officers with at least 15 years regular or adhoc service or both as such..........45%. (ii) Draftsman cadre, who have passed at least matriculation or its equivalent examination and passes a two years diploma in Draftsman course from a recognised institution having 10 years regular or adhoc service or both as such............5%. (iii) From amongst the Graduate Junior Engineers having three years regular or adhoc service or both as such and those Junior Engineers who have passed section A&B of AMIE with 5 years regular or adhoc service or both as Junior Engineer............. 10% 2. Thus according to sub Rule (iii) of Rule 11, Junior Engineers from two categories were eligible for promotion to the post of Assistant Engineers in the 10% quota- (i) Graduate Junior Engineers having three years regular or adhoc service or both; (ii) diploma Holder Junior Engineers who have passed Section A&B of AMIE with five years of regular service. 3. Subsequently Sub Rule (iii) of Rule 11 was amended on June 11, 1984 and the amended Rule read as follows: "(iii) From amongst the Graduate Junior Engineers (University Graduate or AMIE) having 3 years regular or adhoc service rendered upto 31.12.1983 or both as such................10% NOTE: For purpose of promotion three years regular or adhoc service rendered upto 31.12.83 shall be counted from the date of appointment of the Graduate Junior Engineer and from the date of passing sections A & B of AMIE Examination by in service Junior Engineer, respectively". 4. Thus according to amended provisions the eligibility for promotion for both the categories i.e. Graduate Junior Engineers and diploma Holders Junior Engineers who acquired AMIE qualifications during service, was made as three years regular or adhoc service rendered upto December 31, 1983 or both. 4. Thus according to amended provisions the eligibility for promotion for both the categories i.e. Graduate Junior Engineers and diploma Holders Junior Engineers who acquired AMIE qualifications during service, was made as three years regular or adhoc service rendered upto December 31, 1983 or both. A footnote was added to the effect that the period of three years for eligibility in the case of Graduate Junior Engineers would be counted from the date of appointment as Junior Engineer while in the case of Diploma holders the period of three years would be counted from the date of passing of Section A & B of AMIE Examination. 5. The amended provisions was challenged in OA-89/87 and a copy of the order passed by the Tribunal has been placed as Annexure-A/1. As per this judgment passed on June 7, 1991 the Tribunal held as follows: "We, therefore, hold that the impugned footnote as reproduced above is not only highly discriminatory but also vitiated by absurdity and as such is hereby guashed. So far as this cut off date set out in the revised rule of December 31, 1983 is concerned, that too does not appear to be based on any reasonableness or bonafide administrative requirement............. We, therefore, strike down this cut off date ofDecember 31, 1983 also..............." 6. After this decision, the Recruitment & Promotion rules for the post of Assistant Engineers were amended by the respondents vide notification dated December 28, 1993. A copy of these amended Rules is placed as Annexure-A/2. The position of the earlier rules and the amended provisions is as follows: Col. NO. Existing Provision Revised Provision 11 (iii) From amongst the Graduate Junior Engineers (University Graduate or AMIE) having 3 years regular or adhoc service rendered upto 31.12.83 or both as such..............10% (iii) From amongst the Graduate Junior Engineers (University graduate or AMIE) having 3 years of regular or adhoc service or both as junior Engineers......."... 10% Note: for purpose of promotion three years regular or adhoc service rendered upto 31.12.1983 shall be counted from the dated of appointment of the Graduate Junior Engineer and from the date of passing Section A & B of AMIE Examination by in service Junior Engineer respectively. 7. 10% Note: for purpose of promotion three years regular or adhoc service rendered upto 31.12.1983 shall be counted from the dated of appointment of the Graduate Junior Engineer and from the date of passing Section A & B of AMIE Examination by in service Junior Engineer respectively. 7. Thus after the amendment of December 28, 1993, both categories of Junior Engineers i.e. the Graduate Junior engineers who were already graduates at the time of appointment and those diploma holders who improved their educational qualifications while in service and obtained a degree were required to complete three years of regular or adhoc service or both, as Junior Engineers for consideration in the 10% quota for the post of Assistant engineers. The grievance of the applicants is that the new amendment carried out on December 28, 1993 is bad in law and is contrary to the judgment dated June 7, 1991 passed in TA-89/87. The arguments of the applicants is that the Government had incorrectly interpreted the judgment of the Tribunal and had wrongly omitted the words "as such" in the earlier provisions and had wrongly replaced it by "Junior Engineers". This mistake in interpretation, had totally changed the spirit of the rules giving undue benefit of length of service to diploma holder Junior engineers prior to their acquiring AMIE/ Degree. The applicants have pleaded that the Tribunal had ordered only cut off date of December 31, 1983 to be omitted. 8. This original application has been filed with the following prayer- (i) That Recruitment & Promotion Rules 1993 (Annexure-A/2) for the post of Assistant Engineers (Civil) be declared ultra vires of the Articles of 14 and 16 of the constitution of India; (ii) The respondents be directed to prepare seniority list of source (iv) from the date of passing of AMIE/ Degree and accordingly consider the case of the applicants for promotion from the date when vacancies occurred/junior promoted and also for release of consequential benefits i.e. promotion, seniority and arrears of salary alongwith 12% interest. The promotions of juniors be also quashed. 9. During the course of arguments, it was brought to the notice of the Tribunal that judgement passed in Division Bench by this Tribunal on June 7, 1991 (Annexure-A/1) in a way impliedly has to be assailed. The promotions of juniors be also quashed. 9. During the course of arguments, it was brought to the notice of the Tribunal that judgement passed in Division Bench by this Tribunal on June 7, 1991 (Annexure-A/1) in a way impliedly has to be assailed. Hence the matter was referred to Full Bench with respect to the following points of reference: (i) Whether the experience gained before acquiring the essential ] educational qualifications can count for eligibility to the! considered for promotion to next higher post; (ii) Whether the Recruitment & Promotion Rules framed Annexure-A/2 in pursuant to the judgment Annexure-A/1 are legally valid; 10. The case was heard on the above points in Full Bench and learned counsel for the parties were heard. 11. During the course of hearing the leaned counsel for the applicants referred to a number of decisions of the Honble Supreme Court and one of High Court of Punjab & Haryana in support of his plea that the experience gained before the essential educational qualifications are acquired, cannot count for eligibility for promotion to the next higher post. These judgments are: (i) Vijay Singh Dgora and Others Versus State of Rajasthan and Another (1997) 3 SCC 118; (ii) D. Stephen Joseph versus Union of India and other AIR 1997 SC 2602; (iii) Telecommunication Engineering Service Association (India) and another versus Union of India and another (1994) 27 ATC 742 (iv) Junior Telecom Officers Forum and Others versus Union of India and others (1994) 26 ATC 367; (v) N. Suresh Nathan and another versus Union of Zindia and other AIR 1992 SC 564; (vi) Punjab" State Electricity Board, Patiala and another versus Ashok Kumar Sehgal and other AIR 1990 P&H 117. 12. The learned counsel for the respondents however, referred to the following judgement: (i) N.N. Asthana and another versus Harish Kumar Ahuja and othek 1993 Supp. (2) SCC 420; (ii) D. Stepnen Joseph versus Union of India and other (1997 A SCC 753. (iii) Anil Kumar Gupta and others versus Municipal Corporation of Delhi and others (2000) 1 SCC 128: (iv) A.K. Reghumani Singh and others versus Gopal Chandra Nath an others (2000) 4 SCC 30. 13. On the basis of above the learned counsel for the respondents argued that the experience acquired even before acquiring the necessary educational qualifications has to be counted towards eligibility for promotion. 14. 13. On the basis of above the learned counsel for the respondents argued that the experience acquired even before acquiring the necessary educational qualifications has to be counted towards eligibility for promotion. 14. From a perusal of the impugned Recruitment & promotion Rules (Annexure-A/2) it is clear that before a Graduate Junior Engineers (University Graduate or AMIE) is considered for promotion he must have rendered three years service as regular or adhoc or both basis. This means that there are two condition for eligibility (i) Junior engineer concerned should have to be a graduate, (ii) he should have three years service or three years experience; 15. As per judgement in the case of N. Suresh Nathan and another versus Union of India and others AIR 1992 SC 564 the Supreme Court keeping in view the facts of the case under consideration had held that period of three years was required to be reckoned from the date a candidate obtains degree and not earlier. In this case Rules 7 laid down the qualifications for direct recruitment from two source namely Degree holders and Diploma holders with three years professional experience. In other words a Degree is equivalent to Diploma with three years professional experience. Rule 11 provides for recruitment by promotion from the grade of Sectional Officer now called Junior Engineers. There are two categories provided therein-l) one of degree holder Junior Engineers with three of Degree holder Junior Engineers with three years service in the grade and ii) Diploma holder Junior Engineers with six years service in the grade; the provision being for 50% from each category. The Honble Supreme Court held that this match with Rule 7 wherein a Degree is -equated with Diploma with three years professional experience. !n the first category meant for Degree holders it is also provided that if degree holders with three years service in the grade are not available in sufficient number, them Diploma holders with six years of service in the grade may be considered in the category of Degree holders also for 50% vacancies meant for them. !n the first category meant for Degree holders it is also provided that if degree holders with three years service in the grade are not available in sufficient number, them Diploma holders with six years of service in the grade may be considered in the category of Degree holders also for 50% vacancies meant for them. The court observed that the entire scheme did indicate that the period of three years service in the grade required for degree holders according to rule 11 as qualification for promotion in that category must means three fear servicing in the grade as a Degree holder and therefore, that period of three years can commence only from the date of obtaining the Degree and not earlier. The Court also observed that the service in the grade with a degree cannot be counted as prior to obtaining the Degree for the purpose of three years service as a degree holder. On that basis and in conformity with a past practice followed in the public works Department pondicherry the Honble Supreme Court held that period of three years was to be counted from the date an applicant obtains Degree and not earlier. 16. With reference to the case oif D. Stephen Joseph versus Union of India and others AIR 1997 SC 2602 the learned counsel for the applicants referred to headnote pertaining to para 4. In the headnote it has been mentioned that experience of three years has to be reckoned from the date of acquisitions of degree and on that basis the learned counsel for the applicants argued that the experience of three years required for promotion to the post of Assistant Engineer should be from the date of acquisition of degree/ AMIE by the in service Junior Engineer. However, para 4 in this judgement contains only the views of learned counsel for the appellant. These are not the observations of Apex Court. However, para 4 in this judgement contains only the views of learned counsel for the appellant. These are not the observations of Apex Court. The Honble Apex Court has rejected the appeal against the order of the Central Administrative Tribunal Madras Bench in which the Administrative Tribunal had held that the respondents who were holding the posts of Junior Engineers and had three years regular service in the grade and also possessed degree will be entitled to get such promotion to 50% reserved quota (for the persons possessing degree in Electrical Engineering or equivalent with three years regular service) and their experience of years is not to be reckoned from the date of acquisition of degree. The Honble Apex court rejecting the appeal observed as under: "In the instant case, there is no dispute that the rule for promotion to 50% quota came into effect in 1982 and in 1987 and thereafter only some ad hoc promotions were given. Therefore, there is no occasion to proceed on the footing that that rule for promotion since effective from 1982 has been followed differently by giving an interpretation of the rule as was noted in the decision in Suresh Nathans case, which is an exception to the accepted principle of interpretation of the Rule on the plain language, only under special circumstances, has no manner of application in the facts of the case. We, therefore, find no reason to interfere with the ultimate decision of the Tribunal. This appeal, therefore, fails and is dismissed without any order as to costs". 17. Thus the Nathans case in which the experience was required to be acquired after obtaining the degree, was distinguished and not followed. 18. The other case cited by the learned counsel for the applicants are not relevant or applicable to the facts of the present case. 19. At this stage a reference to the case cited by the learned counsel for private respondent is necessary. In the case of M.B. Joshi versus Satish Kumar Pandey 1993 Supp. (3) SCC 419 the Honble Apex Court observed that it is also a well settled principle of service jurisprudence that in the absence of any specific Rule, the seniority amongst persons holding similar post in the same cadre, has to be determined on the basis of length of service and not on any fortuitous circumstance. (3) SCC 419 the Honble Apex Court observed that it is also a well settled principle of service jurisprudence that in the absence of any specific Rule, the seniority amongst persons holding similar post in the same cadre, has to be determined on the basis of length of service and not on any fortuitous circumstance. With this observation the Honble Court held that the Tribunal was wrong in determining the seniority from the date of acquiring degree of Engineering and it ought to have been determining on the basis of length of service on the post of Sub engineer. This judgment was referred to in the case of D. Stephens case also (1997) 4 SCC 753. The following observations of the Honble Apex Court in this case is relevant: "................... The decision in Suresh Nathan case was distinguished in the facts of that case and it was indicated that when the language of the rule is quite specific that if a particular length of service in the feeder post together with educational qualification enables a candidate to be considered for promotion, it will not be proper to count the experience only from the date of acquisition of superior educational qualification because such interpretation will violate the very purpose to give incentive to the employee to acquire higher education". 20. Thus in this case also the Honble Supreme Court held that it will not be proper to count the experience only from the date of acquisition of superior educational qualification. 21. In the case of Anil Kumar Gupta and others verses Municipal Corporation of Delhi and others (2000) 1 SCC 128, again the Honble Apex Court relied on the case of M.B. Joshi and held that two years professional experience need not entirely be experience gained after obtaining the degree. 22. Similarly in the case of A.K. Raghumani Singh and others versus Gopal Chandra Nath an others (2000) 4 SCC 30, reliance was placed on the case of M.B. Joshi and Anil Kumar Gupta and the j principle laid down in those two cases was approved and followed. The j other case cited by the learned counsel either are not applicable or they relate to the case already discussed but with a different citations. 23. The j other case cited by the learned counsel either are not applicable or they relate to the case already discussed but with a different citations. 23. In view of above discussion that law laid down by the Honble supreme Court is very clear and it is that experience required need not necessarily be that which is gained after acquiring a degree. The experience already rendered even prior the acquiring degree has also to be counted 24. The Tribunal in order dated June 7, 1991 in TA-89/87 had quashed the footnote given below Sub Rule (iii) of Rule 11 as amended on June 11, 1984. On the basis of this order the Recruitment & Promotion Rules have been amended by issue of Annexure-A/2 dated December 28, 1993 to implement the judgment of this Tribunal. According to he amended provisions an in service Junior Engineer who has already rendered three years service as Junior engineer would become eligible for promotion as Assistant engineer as and when he completes the AMIE or acquires a degree. This is as per various judgments of the Honble Apex Court, referred to above. 25. In view of the above position the reply to the two points on which reference has been made to the Full Bench is as under: Point No. i).............Yes Point No. ii) ............. In view of reply to Point NO. i) the Recruitment & Promotion Rules Annexure-A/2 are valid. 26. The reference is replied accordingly and the case is referred back to Division Bench for disposal of the original application.