S. B. SINHA ( 1 ). A Division Bench of this Court having regard to the conflict in the decisions of the Apex Court in N. Suresh Nathan v. UOI, AIR 1992 SC 564 , and in MB joshi v. Satish Kumar Pandey AIR 1993 SC 267 , D Stephen Joseph v. UOI, (1997) 4 SCC 753 , Anil Kumar Gupta v. MCD (2000) 1 SCC 128 , A. K. Raghumani Singh v. Gopal chandra Nath and Ors. (2000) 4 SCC 30 as regards the applicability of the eligibility criteria in the recruitment rules for promotion to the post of Assistant Engineer keeping in view the purported prevalent past practice as also on the question as to whether having regard to the facts and circumstances of the case the principle of res judicata would apply in the facts of this case has referred these matters for consideration to a Full Bench. ( 2 ). Slum Department having civil and electric units was a part of the municipal Corporation of Delhi. The said department had been transferred in 1974 to delhi Development Authority, a statutory authority established and governed by Delhi development Act, but the same was re-transferred to MCD in 1978. When it was transferred from MCD to DDA in 1974, a stipulation was made in the Office Order dated 28. 2. 1973 that the establishment of slum wing would be separate. For the purpose of recruitment and promotion to the cadre of Junior Engineer, Assistant Engineer and executive Engineer in the Slum Department, the Recruitment Rules promulgated by the dda s resolution No. 574 dated 13. 11. 1963 were adopted w. e. f. 6. 12. 1982. Minimum qualification laid down for appointment in the post of Junior Engineer was that the candidate must have a diploma in civil/electrical engineering with two years experience. There was no bar for a person possessing higher qualification viz. Degree in Engineering for applying to the post of Junior Engineer for direct recruitment but he was not required to have any prior experience for appointment to the cadre of Junior Engineer in DDA. All the appointments were to be made by way of direct recruitment. ( 3 ). There was no bar for a person possessing higher qualification viz. Degree in Engineering for applying to the post of Junior Engineer for direct recruitment but he was not required to have any prior experience for appointment to the cadre of Junior Engineer in DDA. All the appointments were to be made by way of direct recruitment. ( 3 ). As regards the promotion to the post of Assistant Engineer, recruitment rules provided for 50% of the posts being filled up on direct recruitment and remaining 50% were to be filled through cadre of Junior Engineer by way of promotion i. e. 25% posts to be filled up on promotion of degree holder Junior Engineers with three years service and 25% to be filled up from diploma holders Junior Engineers with eight years service. ( 4 ). Disputes and differences having arisen as regards interpretation of the said rules to the effect as to whether the Junior Engineers being diploma holders acquiring degrees, their past experience of three years should be counted therefor or not, two writ petitions were filed before this Court in 1984 being CWP 2132/84 Kimti Lal Kathuria and Ors vs. DDA and CWP 2082/84 Niranjan Goel and Ors vs DDA. A Division Bench of this court allowed writ petition 2132/84 striking down regulation No. 574 dated 13. 11. 63 which prescribed eight years of service for diploma holder Junior Engineers for being promoted as Assistant Engineer. The quota fixed for promotion for degree-holder promotees and diploma holder promotees was also struck down. It was held that the diploma holders shall be governed by the same eligibility promotional qualifications as were applicable to degree holders. Writ petition 2082/84 filed by Niranjan Goel and others was also allowed striking down disparity made by the DDA between diploma holder Assistant Engineers and degree holder Assistant Engineers in the matter of experience for promotion as Executive Engineer. ( 5 ). Appeals were taken against the aforesaid decisions, which were allowed by the Apex Court in Roop Chand Adiakha and Ors v DDA and Ors reported in AIR 1989 SC 307 . ( 5 ). Appeals were taken against the aforesaid decisions, which were allowed by the Apex Court in Roop Chand Adiakha and Ors v DDA and Ors reported in AIR 1989 SC 307 . The Apex Court noticed that the principal controversy was whether the rules prescribing different conditions of eligibility for diploma holders and graduates for promotion from the cadre of Junior Engineers to that of Assistant Engineers and from cadre of Assistant Engineers to that of Executive Engineers are not violative of Articles 14 and 16 of the Constitution of India and the High Court had held that such differential treatment to the diploma holders and graduates by prescribing different standards of service experience for purpose of eligibility for promotion to the higher cadre was unconstitutional. Supreme Court from the pleadings of parties found that the principal question which arose in the appeals was whether recruitment to a particular cadre of post is made from two different sources, different conditions based on difference in educational qualifications can be prescribed as regards the eligibility for further promotion to higher cadre in service. The question was answered holding that graduates and diploma holders were not rated equal in the matter of eligibility for promotion. It was further held that State is not prevented from formulating a policy prescribing an essential part of the conditions for the very eligibility that the candidate must have a particular qualification plus a stipulated quantum of service experience. The authorities were found to have formulated the policy by considering the infusion of higher academic and technical quality in the personal requirement in the relevant cadres of engineering services as necessary on the basis of report of Vaish Committee. The validity of recruitment rules was upheld in so far as it had provided different experience as a condition for eligibility and fixation of quota at the level of Assistant Engineers. ( 6 ). A circular letter was issued on 27. 11. 1987 after the decision of the division Bench of this Court in Kimti Lal Kathuria s writ petition providing for a common seniority list of all the Junior Engineers as per the selection panels of respective years starting from 1963 onwards. ( 7 ). ( 6 ). A circular letter was issued on 27. 11. 1987 after the decision of the division Bench of this Court in Kimti Lal Kathuria s writ petition providing for a common seniority list of all the Junior Engineers as per the selection panels of respective years starting from 1963 onwards. ( 7 ). A writ petition was filed by S. P. Dubey being CWP 591/89 questioning the discrimination and validity of the formula adopted by the DPC in 1971 which was allegedly made dehors the rules. The said formula laid down that two years after graduation and benefit of service prior thereto was to be counted for 3/8th of service rendered in DDA or any other local body as Junior Engineer subject to a maximum of one year. It was further laid down therein that if SO/je who had done graduation and completed eight years service as SO on a day prior to which the period of two years after graduation expires, he should be given promotion from the earlier date notwithstanding the fact that he has not completed two years service after graduation. In terms of the said formula, thus even though the petitioner acquired the qualification of engineering in march, 1987 and despite the fact that he had rendered five and a half years service as junior Engineer, he was to be considered for promotion only after March, 1989. ( 8 ). Another writ petition No. 1427/89 was filed by M. K. Gera against DDA alleging that he joined the Slum Department of DDA as Junior Engineer (electrical) in june, 1984. He graduated in 1986 and had completed two and a half years service as graduate engineer. He alleged that according to the rules of promotion, the limit of maximum service of one year rendered as Junior Engineer holding diploma for the purpose of promotion after he acquired degree is provided. He has challenged the said rules being arbitrary and not proportionate to the length of service rendered as Junior engineer holding diploma in electrical engineering. He sought for a direction quashing of the rules. ( 9 ). In the meantime Slum Wing Graduate Engineers Association filed CWP no. 250/90 seeking direction against DDA to fill up posts of Assistant Engineers belonging to degree holders quota. He sought for a direction quashing of the rules. ( 9 ). In the meantime Slum Wing Graduate Engineers Association filed CWP no. 250/90 seeking direction against DDA to fill up posts of Assistant Engineers belonging to degree holders quota. It is stated that according to the recruitment rules 50% posts are to be filled up by direct recruits or on deputation and 50% by promotion from amongst Junior Engineers. Although within the promotion quota of 50% there exists further categorization namely 25% quota is for degree holder Junior Engineers with three years service in the cadre, no direct recruitment had been resorted to. Consequently 50% quota for promotees has in fact become 100%. The petitioner alleged that intention and spirit behind the recruitment rules is that there should be parity between the degree holders and diploma holders in the matter of promotion to the post of Junior engineer. ( 10 ). A Division Bench of this court having regard to the decision of the Apex Court in roop Chand Adiakha s case by a judgment dated 5. 3. 1991 held as under : "we are informed that after January, 1987 till today no dpc has been held. DPCs are required to be held at least once a year. This being so, we direct the DDA to hold a dpc for each of the succeeding years, namely, 1988, 1989 and 1990 and make regular promotions of eligible candidates in such a way that as far as possible parity between the degree holders and the diploma holders is attained. The regular promotions so made shall, however, be subject to any direct recruitment which may be made in accordance with the rules against the quota meant for direct recruits. If as a result of such direct recruitment, any of the promotees have to be reverted then the reversion should be done in such a way that the remaining Assistant Engineers who are promotees should maintain the parity, namely, 50% should be from degree holders and 50% from diploma holders. For the purpose of seniority at least, if not for other benefits, about which we make no observations, the promotions or regularizations should be made with effect from the date when the vacancies were available and the candidates became eligible for promotion. The DPC should be convened within a period of six weeks from today. For the purpose of seniority at least, if not for other benefits, about which we make no observations, the promotions or regularizations should be made with effect from the date when the vacancies were available and the candidates became eligible for promotion. The DPC should be convened within a period of six weeks from today. " ( 11 ) A Special Leave Petition preferred thereagainst was dismissed. A Memorandum was issued by DDA on 20. 9. 1990 stipulating that diploma holders who have subsequently acquired degrees in engineering will be treated as degree holders for the purpose of promotion irrespective of the date of acquiring degree qualification and if an officer had just acquired the degree before the meeting of the DPC, he will be considered as a degree holder for that and any subsequent DPC. However, benefit of past service would not be available for reckoning seniority. ( 12 ). Questioning the said Memorandum, writ petition 3336/90 was filed by r. K. Mittal against UOI and others. A learned single Judge allowed the said writ petition on a limited ground that prior to issuance of the said circular, principles of natural justice were not complied with. Diploma holders by way of a Letters Patent Appeal questioned the said judgment. On 5. 2. 1991 orders were issued promoting diploma holders on current duty charge basis. ( 13 ). Aggrieved thereby, the degree holders questioned the same by filing Civil writ Petition No. 2372/91 (Slum Wing DDA Graduate Engineers Association (Regd) v. DDA and ors ). ( 14 ). Decision rendered by a Division Bench of this Court in the said writ petition is reported in 1992 (22) DRJ 548 in terms whereof LPA was dismissed and the writ petition was allowed holding that three years experience required for degree holders eligibility quota has to be post degree. The SLP filed thereagainst was dismissed in limine by the Supreme Court by an order dated 20. 8. 1992. ( 15 ). Pursuant to the directions contained in the judgment dated 12. 2. 1992, the dda by a circular issued tentative seniority list of all the engineers indicating their placement as per their eligibility for promotion as Assistant Engineer upto 15. 10. 1992. The said tentative seniority list was made final on 19. 3. 1993. ( 16 ). Questioning the said list S. P. Dubey filed a writ petition (CWP 1664/93 ). 2. 1992, the dda by a circular issued tentative seniority list of all the engineers indicating their placement as per their eligibility for promotion as Assistant Engineer upto 15. 10. 1992. The said tentative seniority list was made final on 19. 3. 1993. ( 16 ). Questioning the said list S. P. Dubey filed a writ petition (CWP 1664/93 ). Naresh Kumar who was a diploma holder also questioned the seniority list in CWP 1822/93. R. K. Mittal filed a writ petition on 27. 11. 1993 (CWP 2819/93) questioning the promotion granted to the diploma holders acquiring degree subsequently. One Sher singh also filed a writ petition which was marked as CWP 2976/93 praying for regularization of his services as Assistant Engineer. Some diploma holders also filed cwp 1220/93 who had obtained degree during service and who had been appointed as junior Engineers and had joined Slum Deptt of DDA on various dales questioning the recruitment rules. Various other writ petitions were also filed details whereof need not be taken note of separately. ( 17 ). The question as indicated hereinbefore revolves round as to whether the experience of diploma holders should be taken into consideration for the purpose of promotion for being considered in the degree holders quota as and when they obtain such degree. ( 18 ). Another issue also, as regards the past practice adopted by DDA and different stands taken by it in different proceedings, arose for consideration. ( 19 ). Mr Gupta, appearing for petitioner, would urge that the decision of the apex Court in Roop Chand Adlakha s case (supra) and N. Suresh Nathan s case (supra) cannot be said to be good law. ( 20 ). Having regard to the subsequent decisions of the Apex Court in MB Joshi (supra), Stephen Jopseph (supra), Anil Kumar Gupta (supra), and A. K. Raghumani Singh (supra), the learned counsel would contend that the decision in N. Suresh Nathan s case was rendered on a wrong premise and on a wrong interpretation of rule as also as regards exclusion of the alleged past practice. Learned counsel would contend that in the cadre of Assistant Engineer a common seniority list was maintained and thus it is not correct to contend that the nature of the job performed by degree holders and diploma holders are different. ( 21 ). Learned counsel would contend that in the cadre of Assistant Engineer a common seniority list was maintained and thus it is not correct to contend that the nature of the job performed by degree holders and diploma holders are different. ( 21 ). As regards the question of applicability of the principles of res judicata, the learned counsel would submit that some of the petitioners were not parties in the earlier writ petitions and as such principle of res judicata shall not apply in their cases. Having regard to the different nature of reliefs prayed for in different petitions and particularly in view of the fact that the question of authority of DPC for issuance of impugned circular had not been decided, the present petition cannot be said to be barred under the principle of res judicata. Our attention has been drawn to the fact that it has explicitly been stated by DDA that though the said note issued by the DPC was being followed by them, the same had in fact not been approved by DDA and in that view of the matter, contends the learned counsel, that the said note cannot prevail over the statutory rules particularly having regard to the fact that the DPC had no jurisdiction to amend tile same. Learned counsel in support of the aforementioned contention relied on dr Krushna Chandra Sahu v State of Orissa 1995 (5) SLR 337 . ( 22 ). As regards the purported past practice, the learned counsel would submit that no such past practice had been pleaded or proved by DDA, as would be evident from the Division Bench judgment and in this behalf has drawn our attention to the observations made in Jagmohan Swarop v. DDA, 1995 (34) DRJ 226. ( 23 ). Learned counsel would contend that in a case where SLP is dismissed in limine without passing a speaking order, doctrine of merger shall not apply. Strong reliance in support of the said proposition has been placed on a decision in kunhayammed v. State of Kerala, 2000 (6) SCC 359 . ( 24 ). Mrs Anusuya Salwan, the learned counsel appearing for DDA, supported the contention of Mr Gupta. Strong reliance in support of the said proposition has been placed on a decision in kunhayammed v. State of Kerala, 2000 (6) SCC 359 . ( 24 ). Mrs Anusuya Salwan, the learned counsel appearing for DDA, supported the contention of Mr Gupta. Learned counsel submitted that there had been no past practice in DDA prior to the decision of the Division Bench of this Court in Slum Wing dda Graduate Engineers Association, whence only experience had been insisted upon. Learned counsel would contend that since 1963, except for a brief period, where the note issued by DPC had been followed by DDA, the experience of the diploma holders had been taken into consideration for the purpose of promotion after they acquired a degree. ( 25 ). Mr Sandip Sethi, the learned counsel, appearing for the degree holders would, on the other hand, submit that there exists separate quota for degree holders and diploma holders. According to the learned counsel, great injustice and hardship would be caused ill the event of diploma holders on promoted in degree holders quota, as thereby their chance of being promoted shall go down. Our attention in this connection has been drawn to a chart prepared in this behalf for the purpose of showing that a person who was at Sl. No. 1 in the seniority list, within a span of few years had gone down to Sl. No. 18 and thus his chance of promotion has been diminished. Learned counsel would submit that the experience required for promotion to the post of Assistant Engineer must be post-degree and in support of the said contention strong reliance has been placed on a recent judgment of the Apex court in Indian Airlines vs. S. Gopalakrishnan, JT 2001 (1) sc 28. He also relied upon the decisions in State of Gujrat vs C. G. Desai, 1974 (2) SCR 253, and H. V. Pardasanie v. Union of India, 1985 (2) SLR 43. ( 26 ). According to the learned counsel, having regard to the decision of this court in Slum Wing DDA Graduate Engineers Association s case (supra) which had been upheld by the Apex Court the principle of res judicata shall apply. In any event, contends the learned counsel, a binding decision should not be deviated from by this court, nor a settled position should be unsettled. In any event, contends the learned counsel, a binding decision should not be deviated from by this court, nor a settled position should be unsettled. Reliance in this connection has been placed on C. K. Daphtary v. O. P. Gupta, AIR 1991 SC 1134 and Municipal Corporation of greater Bombay vs. Sushil V. Patkar, 1990 Suppl SCC 746, Union of India v. Madras Telephone SC and ST Social Welfare Association AIR 2000 SC 1717 ; ramanjaneyulu v. State of Andhra Pradesh, 1985 (3) SCR 569 ; Junior Telecom officers Forum and Ors. v. Union of India, 1993 Supp (4) SCC 693 (=jt 1992 (5) 525 ). ( 27 ). Learned counsel would submit that in the event the plea taken by the diploma holders herein is accepted, the same would give rise to machination inasmuch as it had been found in the past that with a view to give promotion to diploma holders, dpcs had not been held in time with a view to allow the diploma holders to acquire degrees. Such attitude on the part of the authorities, contends Mr Sethi, should be curbed. ( 28 ). Mr Atul Batra appearing for petitioners in CWP 2819/93 adopted the submissions of Mr Sethi. ( 29 ). It is not in dispute that criteria adopted in 1971 by the DPC in its meeting held on, 23. 4. 1971 was reflected in the recruitment rules in 1963 by way of a note. Extract cnote: The condition of the permanency was released by the DPC in the meeting held on 23. 9. 1971 and in subsequent meeting also. Formula laid down for promotion : 1. The period of 3 years should comprise of at least 2 years after graduation plus 3/8th of the service rendered in DDA other Government organisation or local body as S. O. subject to a maximum of 1 years. 2. If an SO who has done graduation completes 8 years service as SO on a date earlier than the date on which the period of 2 years after graduation expires, he should be given promotion from such earlier date notwithstanding the fact that he has not completed 2 years service after graduation. ( 30 ). From the records it almost stands accepted that but for the period from 1971 till 1980, the said note had not been given effect to. ( 30 ). From the records it almost stands accepted that but for the period from 1971 till 1980, the said note had not been given effect to. It is true that in one of the writ petitions it has been contended that the past practice prevalent in DDA was to consider the promotion of diploma holders who had acquired experience at the post degree stage. The DDA has taken the categorical stand before us that in fact the practice all along had been to consider the experience in the category of Junior Engineers and even for the purpose of promotion to the post of Assistant Engineer. As regards the question as to whether there is any material difference in the duties performed by the degree holders and diploma holders, in the counter affidavit filed in CWP 1822/93, it has been categorically stated "it is stated that the requirement under the recruitment rules is three years service experience as Junior Engineer and the recruitment rules make no distinction whatsoever between initial degree holders or subsequent degree holders as the requisite service experience has to be that of Junior Engineer. . " ( 31 ). Except one or two letters which had been placed before us by Ms Sunita bhardwaj appearing for petitioner in CWP 3028, we do not find that there exist any statutory rules or executive instructions in this regard. We would, therefore have no other option but to proceed on the basis that there had been no difference in the performance of duties of Junior Engineers by and between degree holders and diploma holders. " ( 32 ). Admittedly, changes in the policy have been made from time to time. As noticed hereinabove, a circular letter had also been issued. Therefore, it cannot be said that the DDA followed consistent practice to the effect that experience for the purpose of promotion to the post of Assistant Engineer would be counted only after a candidate acquires a degree. ( 33 ). One of the questions which arises for consideration is as to whether the note dated 23. 9. 1971 could have been issued by the DPC in violation of the statutory rules dated 13. 11. 1963 which were made applicable to the Slum Department in 1982. ( 34 ). The answer to the aforementioned question must be rendered in negative. One of the questions which arises for consideration is as to whether the note dated 23. 9. 1971 could have been issued by the DPC in violation of the statutory rules dated 13. 11. 1963 which were made applicable to the Slum Department in 1982. ( 34 ). The answer to the aforementioned question must be rendered in negative. In Dr Krushna Chandra Sahu v State of Orissa, 1995 (5) SLR 337 , it was observed: "30. In the instant case, the Government did neither issue any administrative instruction nor did it supply the omission with regard to the criteria on the basis of which suitability of the candidates was to be determined. The members of the Selection Board of their own, decided to adopt the confidential character rolls of the candidates who were already employed as homeopathic Medical Officers as the basis for determining their suitability. 31. The members of the Selection Board or for that matter, any other Selection Committee, do not have the jurisdiction to lay down the criteria for selection unless they are authorised specifically in that regard by the Rules made under Article 309. It is basically the function of the Rule making authority to provide the basis for selection. , This Court in State of Andhra pradesh and another v. Sadanandam and others ( AIR 1989 SC 2060 ) observed as under:- "we are now only left with the reasoning of the Tribunal that there is no justification for the continuance of the old rule and for personnel belonging to either Zones being transferred on promotion to offices in other zones in drawing such conclusion, the Tribunal has travelled beyond the limits of its jurisdiction. We need only point out that the mode of recruitment and the category from which the recruitment to a service should be made are all matters which are exclusively within the domain of the executive. It is not for judicial bodies to sit in judgment over the wisdom of the executive in choosing the mode of recruitment or the categories from which the recruitment should be made as they are matters of policy decision falling exclusively within the purview of the executive" 32. The Selection committee does not even have the inherent jurisdiction to lay down the norms for selection nor can such power be assumed by necessary implication. In Ramchandra Iyer and Orsv. Union of India and Ors. The Selection committee does not even have the inherent jurisdiction to lay down the norms for selection nor can such power be assumed by necessary implication. In Ramchandra Iyer and Orsv. Union of India and Ors. ( 1984 (2) SCR 200 ) it was observed: - "by necessary inference there was no such power in the asrb to add to the required qualifications. If such power is claimed, it has to be explicit and cannot be read by necessary implication for the obvious reasons that such deviation from the rules is likely to cause irreparable and irreversible harm". 33. Similarly, in Umesh Chandra Sukhla etc v. UOI (1985 Suppl (2) SCR 367), it was observed that the selection Committee does not possess any inherent power to lay down its own standards in addition to what is prescribed under the Rules. Both these decisions were followed in Shri Durgacharan Misra v. State of Orissa and others (1987 (2) UJSC 657) :[1987 (5) SLR 276 SC)] and the limitations of the selection Committee were pointed out that it had no jurisdiction to prescribe the minimum marks which a candidate had to secure at the viva voce test. " ( 35 ). We may further notice that DDA itself in its counter-affidavit filed in cwp 591/98- S. P. Dube vs DDA-has categorically stated : "the recruitment Rules for the post of Assistant engineer were approved by the Authority vide its resolution No. 574 dated 13. 11. 1963. As per the said Rules, the method of promotion is as under: (i) direct or on deputation. . . . . 50% promotion from Junior Engineer (c) 50% (ii) For promotion to Junior Engineer (Civil) candidates should be:- (a) Graduate in Engineering with 3 years service ( 50% of the promotion quota ). (b) Diploma holders with 8 years service (50% of the promotion quota) who are permanent Junior Engineers the condition of permanency was relaxed. " subsequently on the recommendation of the DPC in its meeting held in the year 1971, a footnote was recorded at the bottom of the recruitment rules and it was mentioned therein as to how the period was to be considered for promotion in the case of diploma holder junior Engineer who acquired degree subsequent to his appointment. The formula which is laid down in the footnote by DPC may be referred to. This footnote was not approved by DDA. The formula which is laid down in the footnote by DPC may be referred to. This footnote was not approved by DDA. " ( 36 ). Not only having regard to the fact that the DPC had no requisite jurisdiction, therefore, the same had not been approved by the DDA, and thus the same was ultra vires. The purported practice which was followed pursuant to the note dated 23. 9. 1971 till 6. 12. 1982 was therefore wholly illegal and without jurisdiction and thus it must be held to be non est in the eye of law. If there was no such practice, there cannot be any doubt that in law in terms of existing statutory extant rules, DDA was bound to give effect thereto providing for three years experience with a degree in engineering (. civil/electrical) ( 37 ). We may notice that in Jagmohan Swarop v DDA, 1995 (35) DRJ 226 , a division Bench of this Court had found as of fact that no such practice was in existence. It was further held: "3. The rule relevant for recruitment for the post of Executive Engineer E/m) has been extracted in the counter affidavit of DDA. A Photostat copy of the said Rule has been produced before us in Court. It reads as under: recruitment RULES FOR THE POST of EXECUTIVE ENGINEER ( ELEC/mech) (PROVIDED VIDE RESOLUTION NO. 106 DATED 4. 9. 1976) 38501. htm38502. htm 4. The plea of DDA is that the petitioner would become eligible for being considered for promotion to the post of Executive Engineer 8 years after acquiring the degree. On the other hand, the plea of the petitioner is that period of 8 years is to be counted from the date of his promotion as Assistant Engineer. 5. The DDA in support of its plea has placed reliance on decision of the Supreme court in N. , Suresh Nathan and another vs. Union of India and others, 1992 Supp SCC 584. The petitioner, on the other hand, has placed reliance on a later decision of the supreme court in the case of M. B. Joshi and others vs. Satish Kumar Pandey and others air 1993 Supreme Court 267. 6. In Joshi s case the Supreme Court held that the Tribunal was wrong in determining the seniority from the date of acquiring degree of Engineering. 6. In Joshi s case the Supreme Court held that the Tribunal was wrong in determining the seniority from the date of acquiring degree of Engineering. It held that it ought to have been determined on the basis of length of service on the post of Sub Engineer and the state Government was right in doing so and there was no infirmity in the orders passed by the Government. The decision in Nathan s case was considered in Joshi s case but was distinguished in view of the Scheme and the language of the rule, and it was held:- "that apart the scheme of the rules in N. Suresh Nathan s case ( AIR 1992 SC 564 ) was entirely different from the scheme of the Rules before us. The rule in that case prescribed for appointment by promotion of Section Officers/junior Engineers provided that 50 per cent quota shall be from Section Officers possessing a recognised degree in Civil engineering or equivalent with three years service in the grade failing which Section officers holding Diploma in Civil Engineering with six years service in the grade. The aforesaid rule itself provided in explicit terms that Section Officers possessing a recognised Degree in Civil Engineering was made equivalent with three years service in the grade. Thus, in the scheme of such rules the period of three years service was rightly counted from the date of obtaining such degree. In the cases in hand before us, the scheme of the rules is entirely different. " in the cases before us 50% of the posts of Assistant Engineers has to be filled by direct recruitment of persons having degree of graduation in engineering. The remaining 50% of the vacant posts are to be filled by promotion from the lower cadre of Sub Engineer and Draftsman. Out of this 50% 35% quota is fixed for diploma holders who have completed 12 years of service on the post of sub Engineer 5% quota for Draftsman who have completed 12 years of service and the remaining ten per cent with which we are concerned has been kept for such Sub Engineers who during the continuation of their service obtained a degree of graduation or equivalent in engineering and in that case the period of service is reduced from 12 years to 8 years. The Rules in our case do not contemplate any equivalence of any period of service with the qualification of acquiring degree of graduation in engineering as was provided in express terms of N Suresh nathan s case ( AIR 1992 SC 564 ) making three years service in the grade equivalent to degree in engineering. In our opinion, in the Rules applicable in the cases before us clearly provide that the diploma holders having obtained a degree of engineering while continuing in service as Sub-Engineers shall be eligible for promotion to the post of assistant Engineer in eight years of service and quota of 10 per cent posts have been earmarked for such category of persons. If we accept the contention of Mr Ashok Sen, it would defeat the very scheme and the purpose of giving incentive of adding educational qualification by diploma holders while continuing in service in case the period of eightyears is counted from the date of obtaining graduate degree in engineering. It may be noted that no such argument was raised even from the side of respondents before the Tribunal. If such interpretation as now sought to be advanced by Mr Ashok Sen, learned senior counsel is accepted, no relief could have been granted to the respondent Satish Kumar Pandey. We would illustrate the above position on admitted facts that Shri Satish Kumar Pandey had joined as Sub Engineer on 23. 8. 1980, but had acquired the degree of engineering in May, 1987. In that situation, Mr Satish Kumar becomes eligible only in May, 1995 and he could not be considered as eligible in December, 1989 when these Sub Engineers were considered for promotion as Assistant Engineers. Even otherwise if this period of eight years is counted from the date of acquiring degree then this incentive of adding the qualification during the continuation of service and getting the advantage of acceleration in promotion in eight years would for all practical purposes become nugatory and of no benefit. It is further important to note that in the cases before us, the Government itself has been adopting the practice and making promotion as contended by the appellants and we are upholding such practice. In N. Suresh Nathan s case also this Court had upheld the practice followed by the Government. It is further important to note that in the cases before us, the Government itself has been adopting the practice and making promotion as contended by the appellants and we are upholding such practice. In N. Suresh Nathan s case also this Court had upheld the practice followed by the Government. It is also well settled principle of service jurisprudence in the absence of any specific rule, the seniority amongst persons holding similar posts in the same cadre has to be determined on the basis of the length of service and not on any other fortuitous circumstances. On the scheme and language of the rules in the present case the point in issue is squarely covered by law laid down by the Supreme Court in Joshi s case. " ( 38 ). Thus embarking upon the question as regards interpretation of the said rule, we must consider as to whether in a case of this nature principles of res judicata would have any application in other cases. In view of the decisions of this Court following Roop Chand ( supra) and N. Suresh Nathan (supra), would apply. ( 39 ). It is now trite law that in a situation of this nature the High Court itself is required to consider such a question. ( 40 ). In Indian Petrochemicals Corpn Ltd and Anr v. Sharamik Sena 2001 (7) scc 469 it has been held : "8. We have perused the impugned order of the High court. We are unable to appreciate the approach of the high Court. Even when it was faced with diametrically apposite ( sic opposite) interpretation of the judgment of this court, it was expected of the High court to decide the case ( writ petition) on merit according to its own interpretation of the said judgment. Instead the High court after referring to rival contentions of the parties, in para 3 observed thus: "in our view, the right course for the petitioner will be to approach the Apex Court and to seek a clarification of the said order. Mr Singhvi is agreeable to take necessary steps". There cannot be any doubt whatsoever that principles of res judicata would apply even in a writ proceedings. Mr Singhvi is agreeable to take necessary steps". There cannot be any doubt whatsoever that principles of res judicata would apply even in a writ proceedings. In DIRECT RECRUIT CLASS II engineering OFFICERS ASSOCIATION V. STATE OF maharashtra, AIR 1990 SC 1607 , it has clearly been held by the Apex court that the principles of resjudicata are applicable to writ proceedings also. However, principles of resjudicata have certain exceptions. ( 41 ). In SUPREME COURT EMPLOYEES WELFARE ASSOCIATION vs UOI AIR 1990 SC 334 , the Apex Court held: "24. THUS, a decision on an abstract question of law unrelated to facts which give rise to a right cannot operate as res judicata. Nor also can a decision on the question of jurisdiction be res judicata in a subsequent suit or proceeding. But, if the question of law is related to the fact in issue, an erroneous decision on such a question of law may operate as res judicata between the parties in a subsequent suit or proceeding, if the cause of action is the same. The Delhi High Court judgments do not decide any abstract question of law and there is also no question of jurisdiction involved. Assuming that the judgments of the delhi High Court are erroneous, such judgments being on questions of fact would still operate as res judicata between the same parties in a subsequent suit or proceeding over the same cause of action. " ( 42 ). Yet again in ISABELLA Johnson v. M. A. Susai AIR 1991 SC 993 the question has again come up for consideration wherein in no unmistakable terms it was held : "it is true that in determining the application of the rule of res judicata the Court is not concerned with the correctness or otherwise of the earlier judgment. The matter in issue, if it is one purely of fact, decided in the earlier proceeding by a competent court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be reopened. A mixed question of law and fact determined in the earlier proceeding between the same parties may not, for the same reason, be questioned in a subsequent proceeding between the same parties. A mixed question of law and fact determined in the earlier proceeding between the same parties may not, for the same reason, be questioned in a subsequent proceeding between the same parties. But where the decision is on a question of law, i. e. the interpretation of a statute, it will be resjudicata in a subsequent proceeding between the same parties where the cause of action is the same, for the expression: "the matter in issue" in Section 11 of the Code of Civil Procedure means the right litigated between the parties, i. e. the facts on which the right is claimed or denied and the law applicable to the determination of that issue. Where, however, the question is one purely of law and it relates to the jurisdiction of the court or a decision of the court sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of that order under the rule of res judicata, for a rule of procedure cannot supersede the law of the land. " ( 43 ). An interpretation of statute is a pure question of law and thus the principles of res judicata shall not apply in relation thereto. An order which has been passed by an authority who had no jurisdiction would be a nullity and such an order cannot be upheld on the procedural doctrine of estoppel, res judicata, waiver etc. In chief Justice A. P. v. LVA Dikshitulu AIR 1979 SC 193 , the decision of the Tribunal was challenged on a pure question of law on interpretation of a constitutional provision, which, if upheld, would make the decision of the Tribunal as having been given by an authority suffering from inherent lack of jurisdiction, or on that ground the same was held to be not sustainable by invoking doctrine either of res judicata or estoppel. It was observed : "moreover, this is a pure question of law depending upon the interpretation of Article 371-D. If the argument holds good, it will make the decision of the tribunal as having been given by an authority suffering from inherent lack of jurisdiction. Such a decision cannot be sustained merely by the doctrine of resjudicata or estoppel as urged in this case. " ( 44 ). Such a decision cannot be sustained merely by the doctrine of resjudicata or estoppel as urged in this case. " ( 44 ). In a case where the fundamental right of a person, by reason of a wrong interpretation of statute would be taken away, which would render a decision a nullity, cannot operate as resjudicata. ( 45 ). A candidate in terms of Article 16 of the Constitution of India does not have a right of promotion but he has the fundamental right to be considered therefor. Right to be considered in terms of Article 16 would embrace within its fold consideration in accordance with law and in a fair, just and equitable manner. If a candidate is deprived of his right to be considered for promotion on a mis-interpretation and misconstruction of a statutory provision the same in the aforementioned situation would attract the wrath of Article 16 and on that ground also an earlier decision would not attract the principles of res judicata. ( 46 ). In the instant case, persons who were not parties, like S. P. Dubey have filed these writ petitions. Writ petitions have also been filed for different reliefs, as, for example, in CWP 1427/92, a prayer has been made by the petitioner therein that he had not been considered on the ground that he did not have three years experience ( 47 ). In CWP 1822/93 apart from the aforementioned prayer, the seniority has also beep challenged. In CWP 1427/89 the validity of the note of the DPC itself has been challenged. ( 48 ). If the right of the diploma holders had been denied on the basis of the. rule evolved by the DPC which would run counter to the statutory rules, there cannot be any doubt whatsoever that by reason thereof the right to be considered in terms of Article 16 of the Constitution of India must be held to have been denied to him. Would in such a situation the doctrine of merger apply, as has been contended by Mr Sandip Sethi? We think not. Would in such a situation the doctrine of merger apply, as has been contended by Mr Sandip Sethi? We think not. It is not necessary for us in support of our aforementioned finding to notice a catena of decisions having regard to a recent decision of the Apex Court in kunhayammed v. State of Kerala, 2000 (6) SCC 359 wherein it was held that doctrine of merger shall not apply when grant of special leave is denied. ( 49 ). To what extent the decision in N Suresh Nathan and, Roop Chand would operate as precedents may now be considered. In A. R. Antulay v. R. S. Nayak, AIR 1988 SC 1531 , it was held :- "it appears that when this Court gave the aforesaid directions on 16th february, 1984, for the disposal of the case against the appellant by the high Court, the directions were given oblivious of the relevant provisions of law and the decision in Anwar Ali Sarkar s case ( AIR 1952 SC 75 ) ( supra ). See, Halsbury s Laws of England, 4th Edn, Vol 26 page 297, para 578 and page 300, the relevant notes 8, 11 and 14; dias on Jurisprudence, 5th Edn, pages 128 and 130: Young v. Bristol aeroplane Co Ltd (1944) 2 All ER 293, at page 300. Also see the observations of Lord Goddard in Moore v. Hewitt ( 1947) 2 All ER 270 at p. 272-A) and Penny v. Nicholas (1950) 2 All ER 89, 92a. "per incuriam" are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the Court concerned so that in such cases some part of the decision or some step in the reasoning on which it is based is found on that account to be demonstrably wrong. See Morelle v. Wakeling (1955) 1 All ER 708, 718f. Also see State of Orissa v Titaghur Paper Mills Co Ltd. , (1985) 3 SCR 26 : ( AIR 1985 SC 1293 )" ( 50 ). And yet in Union of India v. Raghubir Singh, AIR 1989 SC 1933 , it has been held : - "28. See Morelle v. Wakeling (1955) 1 All ER 708, 718f. Also see State of Orissa v Titaghur Paper Mills Co Ltd. , (1985) 3 SCR 26 : ( AIR 1985 SC 1293 )" ( 50 ). And yet in Union of India v. Raghubir Singh, AIR 1989 SC 1933 , it has been held : - "28. This Court also laid down in Acharya Maharajshri narandraprasadji Anandprasadji Maharaj v. State of gujarat (1975) 2 SCR 317 ( AIR 1974 SC 2098 ), that even where the strength of two differing Division Benches consisted of the same number of Judges, it was not open to one Division Bench to decide the correctness or otherwise of the views of the other. The principle was re-affirmed in union of India v. Godfrey Philips India Ltd. ( 1985) 4 SCC 369. ( AIR 1986 SC 806 ) which noted that a Division Bench of two Judges of this Court in Jit Ram v. State of Haryana, (1980) 3 SCR 689 : ( AIR 1980 SC 1285 ) had differed from the view taken by an earlier Division Bench of two judges in Motilal Padampat Sugar Mills v State of U. P. (1979) 2 SCR 641 : ( AIR 1979 SC 621 ), on the point whether the doctrine of promissory estoppel could be defeated by invoking the defence of executive necessity, and holding that to do so was wholly unacceptable reference was made to the well accepted and desirable practice of the later Bench referring the case to a larger Bench when the learned Judges found that the situation called for such reference. " . ( 51 ). We may now consider the decision relied upon by Mr Sethi. In nityananda Kar and another vs. State of Orissa and others, AIR 1991 SC 1134 , the decision inter-parties was final upto Supreme Court. In that case the question was the year of allotment to be fixed in relation to the candidates in question and the Apex Court having regard to the fact that the position stood concluded by a binding decision in ananta Kumar Bose v. State of Orissa, AIR 1986 Orissa 151 declined to unsettle the settled position. ( 52 ). In Union of India v. Madras Telephone SC and ST Social Welfare association, AIR 2000 SC 1717 (at page 1723); it was held ; it was held:". . . ( 52 ). In Union of India v. Madras Telephone SC and ST Social Welfare association, AIR 2000 SC 1717 (at page 1723); it was held ; it was held:". . . On the admitted position that the applicant Permanand was reverted by order dated 4. 2. 1993 because of certain directions given by some other Tribunals, deciding the principle of re- fixation of seniority and it is on that basis an order of reversion was passed, we have no hesitation to come to the conclusion that the order of reversion is untenable and unjustified on the grounds on which the said reversion has been passed and as such cannot be sustained in law. We make it clear that the seniority of Parmanand in the cadre of Junior Engineer fixed on the basis of the directions of Allahabad High Court, after dismissal of the SLP against the same by this Court is not liable to be altered by virtue of a different interpretation being given for fixation of seniority by different Benches of the central Administrative Tribunal. The impugned order passed by the Central Administrative Tribunal is erroneous and we quash the same and allow the civil appeals filed by the said parmanand Lal. "such is not the position here. ( 53 ). In Govt of Andhra Pradeesh v M. Narasimha Murth, 1990 Supp SCC 746, again inter-party lis attained finality. It was held that when disputes between the parties had been determined in a suit, it was not open to him to agitate the same very question in a suit which he subsequently filed. ( 54 ). In Shenoy and Co v. Commercial Tax Officer, 1985 (3) SCR 659 , the apex Court held that when Karnataka Tax on Entry of Goods into Local Areas for consumption, use or sale therein Act, 1979 was held ultra vires and writ had been issued against the State Govt for barring it from taking any proceedings thereunder, the said decision was binding on all, irrespective of the fact as to whether the petitioner was a party therein or not. The said decision was rendered having regard to the provisions contained in Article 14 of the Constitution of India stating:"the law declared by the Supreme court shall be binding on all courts within the territory of India. The said decision was rendered having regard to the provisions contained in Article 14 of the Constitution of India stating:"the law declared by the Supreme court shall be binding on all courts within the territory of India. " "a mere reading of this Article brings into sharp focus its expanse and its all pervasive nature. In cases like this, where numerous petitions are disposed of by a common judgment and only one appeal is filed, the parties to the common judgment could very well have and should have intervened and could have requested the court to hear them also. They cannot be heard to say that the decision was taken by this Court behind their back or profess ignorance of the fact that an appeal had been filed by the State against the common judgment. " ( 55 ). In Junior Telecom Officers Forum and others v. Union of India and others, 1993 Supp (4) SCC 693, again a case where on the petitioner's own showing all issues raised in their intervention, application, which was heard along with the original application, had been rejected by the earlier judgment. In that situation, it was held that the same constitute a binding precedent. The Apex Court rendered the aforementioned judgment in the fact of the case holding that the issues raised had been agitated twice over. It was not permissible for the petitioner to reagitate the matter by now coming under the cloak of forum. It was held:"we reject the contentions of the interveners to the contrary and further hold that having urged before the Supreme Court their various contentions and their SLP having been dismissed by the Supreme Court they cannot reagitate the matter before us. " ( 56 ). In Punjab State Electricity Board v. Ashok Kumar Sehgal ( FB), 1990 labour and Industrial Cases 249, a Full Bench of the Punjab and Haryana High Court held that a decision of the Supreme Court in view of Article 14 is binding in nature. It further observed that principles of law are binding and declaratory. ( 57 ). We, therefore, are of the opinion that principles of res judicata are not applicable in the instant case. ( 58 ). It is not in dispute that the entry point to degree holder and diploma holder in the post of Junior Engineer was the same. It further observed that principles of law are binding and declaratory. ( 57 ). We, therefore, are of the opinion that principles of res judicata are not applicable in the instant case. ( 58 ). It is not in dispute that the entry point to degree holder and diploma holder in the post of Junior Engineer was the same. As indicated hereinbefore, the degree holder, however, was not required to have an experience of two years prior to his appointment as Junior Engineer, which was an essential condition for diploma holder. In the said situation, there cannot be any doubt that a common seniority list had to be maintained. ( 59 ). In one of the writ petitions, namely, CWP 1427/89, Naresh Kumar Gera vs. DDA, a plea has been taken therein that had the note inserted by the DPC not been taken into consideration, he would have become eligible for promotion in January, 1986, whereas he was declared eligible only in January, 1989 in the quota of degree holders on the ground that his service of three years in the quota was to be reckoned after he gained experience as a holder of a degree. ( 60 ). So far as the entry point is concerned, it will bear repetition to state that a diploma holder with two years experience would be equated with Junior Engineer with no prior experience therefor. As noticed hereinbefore, the contention of the DDA had also been that the parties had been performing the same nature of duties. In such a situation, would it be correct to contend that holding of a higher qualification by itself be taken to be the criteria for gaining experience. Answer thereto must be rendered in the negative. It will be appropriate at this stage to refer the following passage from the observations of the Constitutional Bench of the Apex Court in Mohd Shujat Ali v Union of India, AIR 1974 SC 1 631 "28. Now, there are three decisions of this court where educational qualifications have been recognized as forming a valid basis for classification. It will be appropriate at this stage to refer the following passage from the observations of the Constitutional Bench of the Apex Court in Mohd Shujat Ali v Union of India, AIR 1974 SC 1 631 "28. Now, there are three decisions of this court where educational qualifications have been recognized as forming a valid basis for classification. In State of mysore v. Narasing Rao, AIR 1968 SC 349 , this court held that higher educational qualifications such as success in SSLC examination are relevant considerations for fixation of higher pay scale for tracers who have passed the SSLC examination and the classification of two grades of tracers in Mysore state one for matriculate tracers with higher pay scale and the other for non-matriculate tracers with lower pay scale cannot be said to be violative of Article 14 or 16. So also in Union of India v. , Dr ( Mrs) SB kohli, AIR 1973 SC 811 , a Central Health Service rule requiring that a Professor in Orthopaedics must have a post-graduate degree in particular specialty was upheld on the ground that the classification made on the basis of such a requirement was not without reference and there can be no question of discrimination. A very similar question arose in AIR 1974 SC 1 , where a rule which provided that only degree holders in the cadre of Assistant Engineers shall be entitled to be considered for promotion to the next higher cadre of Executive Engineers and diploma holders shall not be eligible for such promotion was challenged as violative of the equal opportunity clause. This Court repelled the challenge holding that though persons appointed directly and by promotion were integrated into a common class of Assistant engineers, they could, for the purposes of promotion to the cadre of Executive Engineers, be classified on the basis of educational qualifications and the rule providing that graduates shall be eligible for such promotion to the exclusion of diploma holders was not obnoxious to the fundamental guarantee of equality and equal opportunity. But from these invariable rule that whenever any classification is made on the basis of qualification must be held to be valid, irrespective of the nature and purpose of the classification or the quality and extent of the differences in the educational qualifications. It must be remembered that "life has relations not capable always of division into inflexible compartments". But from these invariable rule that whenever any classification is made on the basis of qualification must be held to be valid, irrespective of the nature and purpose of the classification or the quality and extent of the differences in the educational qualifications. It must be remembered that "life has relations not capable always of division into inflexible compartments". The moulds expand and shrink. The test of reasonable classification has to be applied in each case on its peculiar facts and circumstances. It may be perfectly legitimate for the administration to say that having regard to the nature of the functions and duties attached to the post, for the purpose of achieving efficiency in public service, only degree holders in engineering shall be eligible for promotion and not diploma or certificate holders. That is what happened in Air 1974 SC 811. But where graduates and non- graduates are both regarded as fit and, therefore, eligible for promotion, it is difficult to see how, consistently with the claim for equal opportunity, any differentiation can be made between them by laying down a quota of promotion for each and giving preferential treatment to graduates over non-graduates in the matter of fixation of such quota. The result of fixation of quota of promotion for each of the two categories of Supervisors would be that when a vacancy arises in the post of Assistant Engineer, which according to the quota is reserved for graduate supervisors, a non-graduate Supervisor, cannot be promoted to that vacancy, even if he is senior to all other graduate Supervisors and more suitable than they. His opportunity for promotion would be limited only to vacancies available for non-graduate supervisors. That would clearly amount to denial of equal opportunity to him. When there is a vacancy earmarked for graduate Supervisors, a non graduate supervisor would be entitled to ask: "i am senior to the graduate Supervisor who is intended to be promoted. I am more suitable than he is. It is no doubt true that I am a non-graduate, but my not being a graduate has not been branded as a disqualification. I am regarded fit for promotion and, like the graduate supervisor, I am equally eligible for being promoted. My technical equipment supplemented by experience is considered adequate for discharging the functions of assistant Engineer. It is no doubt true that I am a non-graduate, but my not being a graduate has not been branded as a disqualification. I am regarded fit for promotion and, like the graduate supervisor, I am equally eligible for being promoted. My technical equipment supplemented by experience is considered adequate for discharging the functions of assistant Engineer. Then why am I being denied the opportunity for promotion and the graduate Supervisor is preferred?" There can be no satisfactory answer to this question. It must be remembered that many of these non-graduate Supervisors might not have been able to obtain degree in engineering because they came from poorer families and did not have the financial resources to pursue degree course in engineering and not because they lacked the necessary capacity and intelligence. "chill penury" might have" represented their noble rage". It is of the essence of equal opportunity for such persons with humble and depressing backgrounds that they should have opportunity, through experience or self study, to level up with their more fortunate colleagues who, by reason of favourable circumstances, could obtain the benefits of higher education, and if they prove themselves fit and more suitable than others, why should they be denied an opportunity to be promoted in a vacancy on the ground that that vacancy belongs to Supervisors possessing higher educational qualifications. " . ( 61 ). The said dicta, in our opinion, would apply at least to equality in the matter of gaining experience. In Roop Chand Adiakha, (supra), the Apex Court held that eligibility determination in the case of the Recruitment Rules was criterion by a cumulative of certain educational qualifications plus a particular quantum of service experience. It was held:"in the present case eligibility determination was made by a cumulative criterion of a certain educational qualifications plus a particular quantum of service experience. " ( 62 ). The question which now arises is, did the Division Bench take a correct view in Slum Wing Graduate Engineers Association following N. Suresh Nathan's case (supra ). Apart from relying upon N. Suresh Nathan's case, the Division Bench did not consider the validity or otherwise of the note issued by DPC. The resolution dated 13. 11. 1963, modified by the aforementioned decision of the DPC in 1971, was held to have been followed for promotion of Assistant Engineers till 1990 when a decision to the contrary was taken. The resolution dated 13. 11. 1963, modified by the aforementioned decision of the DPC in 1971, was held to have been followed for promotion of Assistant Engineers till 1990 when a decision to the contrary was taken. It was further noticed that all through 1963 till 20. 9. 1990, when a decision to the contrary was taken by some officers of DDA, even if a diploma holder obtained degree while in service, he was promoted as Junior Engineer only three years after obtaining degree but it was on the basis of past practice. The Special Leave Petition was dismissed with one line order "slps are dismissed". ( 63 ). It is well settled that such an unreasoned order at the threshold does not constitute a binding precedent nor would such an order operate as res judicata. (See indian Oil Corporation Ltd v. State of Bihar, AIR 1986 SC 1780 , Union of India v. Sher singh (1997) 3 SCC 555 , Late Nawab Sir Mir Osman Ali Khan v. CWT Huderabad 1985 (Supp) SCC 700, Rup Diamonds v UOI AIR 1989 SC 674 ). ( 64 ). In N. Suresh Nathan (supra), the rule which fell for interpretation was in the following terms:"section Officers possessing a recognised degree in Civil Engineering or equivalent with three years service in the grade failing which Section officers holding Diploma in Civil Engineering with six years' service in the grade50%" ( 65 ). A bare comparison of the rule in question with the rule which fell for consideration in N. Suresh Nathan's case would clearly show that the same was not identical in nature. The diploma holders in that case could be considered for promotion only when Section Officers possessing recognised degree in engineering with three years in the grade were not available. In the instant case, the diploma holders per se were entitled to be promoted to the post of Assistant Engineers, although they instead of three years experience, were required to have six years experience. They had different quotas. Thus, neither in principle nor on precedent, N. Suresh Nathan could have been followed by the Division Bench. The Apex Court in its subsequent decision in M. B. Joshi (supra) and D. Stephen Joseph's case (supra) and A. K. Raghumani Singh's case (supra) had considered a situation where there exists quota for diploma holders and degree holders. Thus, neither in principle nor on precedent, N. Suresh Nathan could have been followed by the Division Bench. The Apex Court in its subsequent decision in M. B. Joshi (supra) and D. Stephen Joseph's case (supra) and A. K. Raghumani Singh's case (supra) had considered a situation where there exists quota for diploma holders and degree holders. In M. B. Joshi's case (supra) it was held:"the appellants and the private respondents were sub-Engineers in Public Health Engineering department of Government of Madhya Pradesh. They are governed by Madhya Pradesh Public health Engineering (Gazetted) Service Rules 1980 (hereinafter referred to as the Rules ). Under schedule IV of the Rules, the next higher post for promotion from the post of Sub Engineers in Civil or Mechanical is the post of Assistant Engineer. The minimum period for Sub Engineer to qualify for promotion to the post of Assistant Engineer is 12 years for diploma holders and 8 years for such sub-Engineers who obtain degree of graduation in the course of service. Earlier 60 per cent quota for the post of Assistant Engineers was fixed by direct recruitment and 40% by promotion from the Sub-Engineers, Draftsman and Head draftsman. By an executive order dated 7. 2. 1989 quota of direct recruitment was reduced to 50% and the quota by promotion increased to 50%. This 50% quota by promotion with which we are concerned in the above cases has been sub-divided in the following manner:- i) Diploma holder Sub Engineers 35% completing 12 years of service. ii) Draftsman and Head draftsman 5% completing 12 years of service iii) Graduate Sub-Engineers 10%" completing 8 years of service it was held distinguishing N. Suresh Nathan's case : ". . . . . It was clearly said "it is in this perspective that the question raised has to be determined". It was also observed as already quoted above that the Tribunal was not justified in taking the contrary view and unsettling the settled practice in the department. That apart the scheme of the rules in N. Suresh Nathan's case was entirely different from the scheme of the rules before us. It was also observed as already quoted above that the Tribunal was not justified in taking the contrary view and unsettling the settled practice in the department. That apart the scheme of the rules in N. Suresh Nathan's case was entirely different from the scheme of the rules before us. The rule in that case prescribed for appointment by promotion of Section Officers/junior engineers provided that fifty per cent quota shall be from Section Officers possessing a recognised degree in Civil Engineering or equivalent with three years service in the grade failing which Section Officers holding Diploma in Civil Engineering with six years' service in the grade. The aforesaid rule itself provided in explicit terms that Section Officers possessing a recognised degree in Civil Engineering was made equivalent with three year's service in the grade. Thus, in the scheme of such rules the period of three years service was rightly counted from the date of obtaining such degree. In the cases in hand before us, the scheme of the rules is entirely different. " ( 66 ). Submission of Mr. Sethi to the effect that the Apex Court was concerned with a controversy, which was between equals, as would appear from the statement of law occurring in para 11 of the judgment, cannot be sustained. The Court considered the entire aspect of the matter but in para 11 merely gave its verdict as regards the lis in question. ( 67 ). Yet again in D. Stephen Joseph's case (supra), the court was concerned with interpretation of a rule where there existed different quotas for promotion from the degree-holders and diploma holders. N. Suresh Nathan was distinguished stating:-"5. It appears to us that the State Government is labouring under a wrong impression as to the applicability of the past practice as indicated in suresh Nathan case. This Court in the said decision, has only indicated that past practice should not be upset provided such practice conforms to the rule for promotion and consistently for sometime past the rule has been made applicable in a particular manner. In our view, the decision in Nathan case only indicates that past practice must be referable to the applicability of the rule by interpreting it in a particular manner consistently for some time. Any past practice dehors the rule cannot be taken into consideration as past practice consistently followed for long by interpreting the rule. In our view, the decision in Nathan case only indicates that past practice must be referable to the applicability of the rule by interpreting it in a particular manner consistently for some time. Any past practice dehors the rule cannot be taken into consideration as past practice consistently followed for long by interpreting the rule. It may be indicated here that a similar question also came up for consideration before this court in MB Joshi vs. Satish Kumar Pandey. 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. 6. 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 the 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 Nathan case. Therefore, in our view the decision in Suresh nathan 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. . . . . " ( 68 ). Yet again in Anil K. Gupta ( supra), the Apex Court formulated the following question :"whether, while deciding whether the respondents had two years experience gained while holding diplomas could also be counted in addition to the experience gained after obtaining degree? it answered the said question stating : "18. On this question, the learned Senior Counsel Shri p. P. Rao for the selected candidates contended that the experience of the respondents while holding diploma has to be counted in addition to the period of experience which they obtained after getting their degrees. it answered the said question stating : "18. On this question, the learned Senior Counsel Shri p. P. Rao for the selected candidates contended that the experience of the respondents while holding diploma has to be counted in addition to the period of experience which they obtained after getting their degrees. Reliance in this behalf was placed upon m. B. Joshi v. Satish Kumar Pandey and D. Stephen joseph v. UOI. On the other hand, learned Senior counsel for the appellants Shri Rakesh Dwivedi, Shri ravinder Sethi and Shri S. B. Sanyal contended that the experience of the respondents while holding diploma could not be counted. They relied upon N. Suresh Nathan v. UOI. 19. We may point out that in the present case, the relevant provision applicable and the notification dated 3/6/89 inviting applications refer to essential qualification as (i) degree, and (ii) 2 years professional experience. As stated earlier, experience upto 2 years is the minimum and. . . . . . . . . . . . . . . . . . 3 to 12 years, the maximum marks being 5 for experience. 20. We may at the outset state that the provision regarding experience speaks only of professional experience for two years and does not in any manner connect it with the degree qualification. In our view, the case on hand is similar to Subash v. State of mahrashtra, where while considering Rule 3 (e) of the relevant recruitment rules, namely, the Maharashtra motor Vehicles Deptt ( Recruitment) Rules, 1991, this court pointed out that Rule 3 (e) which required one year's experience in a registered automobile workshop did not make any difference between acquisition of such experience prior to or after the acquisition of the basic qualification. 21. It is true, in N. Suresh Nathan case the experience of a candidate while holding a diploma was not counted. There the relevant rules stated : " Section Officers possessing a recognised Degree in civil Engineering or equivalent with three years' service in the grade failing which Section Officers holding Diploma in Civil Engineering with six years' service in the grade. . . " it distinguished N. Suresh Nathan : "22. This Court based its decision initially on the practice obtaining in the Deptt over a long number of years when the rules were understood as requiring full service of three years after obtaining the degree. . . " it distinguished N. Suresh Nathan : "22. This Court based its decision initially on the practice obtaining in the Deptt over a long number of years when the rules were understood as requiring full service of three years after obtaining the degree. On that basis it was held that service was not to include service while holding a diploma. Suresh Nathan case was however distinguished in MB Joshi case. In the latter case the relevant rule referred to (i) Diploma holder sub Engineers completing 12 years of service 35% (ii) Draftsman and Head Draftsman completing 12 years of service 5%, (iii) graduate sub Engineers completing 8 years of service 10% the Court was concerned with category (iv) it was pointed out that the rule did not contemplate any equivalence between a degree with a particular number of years service as in N. Suresh nathan case. It was observed that the rules in MB joshi case " clearly provide that the diploma holder having obtained a degree of engineering while continuing in service as Sub Engineers shall be eligible for promotion to the post of Assistant engineer in 8 years of service and quota of 10% posts have been earmarked for such category of persons. " it opined : "24. Therefore on the language of the notification dated 30. 6. 89 we are of the view that the 2 years professional experience need not entirely be experience gained after obtaining the degree. 25. It is true that in one of the counter affidavits in CWP No. 606 of 1985 MCD took the view that the experience ought to be after acquiring degree. But the clarification of UPSC dated 13. 9. 1985 addressed to MCD made it clear that the entire service including the service rendered before obtaining degree was to be taken in to consideration. This matter has, in fact been relied upon by the learned Single Judge of the High court for holding that service rendered before acquiring the degree was to be counted. " ( 69 ). Like Anil K Gupta (supra), as also in the decision in Subash v. State of mahrashtra 1995 Suppl (3) SCC 332, and in the instant case also the advice of UPSC had been taken. " ( 69 ). Like Anil K Gupta (supra), as also in the decision in Subash v. State of mahrashtra 1995 Suppl (3) SCC 332, and in the instant case also the advice of UPSC had been taken. A distinction is sought to be made by Mr Sethi to the effect whereas in the rules in the aforementioned cases clearly used the word "and" hence the expression used is "with". The Apex Court has answered said the question in AK. Raghumani Singh (supra) in the following words :" The Rules regulating the recruitment to the posts of Superintending Engineers of the State of manipur were notified on 18. 10. 1977. The Rules called " the Manipur PWD/irrigation and Flood control/public Health Engineering [superintending Engineer (Civil)/superintending surveyor of Works] Recruitment Rules, 1977" provide that the post of Superintending Engineer shall be filled up by promotion from "executive engineer (Civil)/ Mech) and surveyor of Works possessing degree in Civil/mechanical engineering or its equivalent from a recognised institution with 6 years regular service in the grade" the Apex Court considered the definition of word "with" and stated : "the word "with" has been defined in the New shorter Oxford Dictionary (1993) diversely the meaning depending on the context in which it is used. But when it is used to connect two nouns it means "accompanied by; having as an addition or accompaniment. Frequently used to connect to nouns, in the sense "and" - "as well" applying the definition to the eligibility criteria it is dear that it requires the prescribed educational qualification and six years experience as well. Given the plain meaning of the phrase, the Court would not be justified in reading a qualification into the conjunctive word and imply the word 'subsequent' after the word 'with'. ( 70 ). It also noticed that N. Suresh Nathan's case had been explained in M. B. Joshi's case (supra) and D. Stephen Joseph's case (supra) and in Anil Kumar Gupta (supra ). Having noticed the aforementioned cases, it was observed :"15. In the last mentioned case, namely, Anil kumar Gupta's case , the essential qualifications for appointment were (a) Degree in Civil engineering, and (b) two years professional experience. The Court interpreted the language to mean that the two years' professional experience need not entirely be experience gained after obtaining the Degree. " ( 71 ). In the last mentioned case, namely, Anil kumar Gupta's case , the essential qualifications for appointment were (a) Degree in Civil engineering, and (b) two years professional experience. The Court interpreted the language to mean that the two years' professional experience need not entirely be experience gained after obtaining the Degree. " ( 71 ). At this juncture, we may notice Indian Airlines case 2001 (1) Judgment today 28. In that case the rule which fell for consideration of the Apex Court was :"ssc or its equivalent with three years government recognised diploma in Mechanical electrical/automobile Engineering and having two years experience in equipment operations or driving and possessing current heavy vehicle driving licence. " it was held : ". . . Indeed in prescribing qualification and experience, it is also made clear in the general information instruction at item No. 6 that "experience will be computed after the date of acquiring the necessary qualification. ". Therefore, when this requirement was made very clear that he should have experience only after acquiring the qualification, the view taken by the High Court to the contrary either by the learned Single Judge or the Division Bench, does not stand to reason. ," ( 72 ). Therein N. Suresh Nathan and Anil Kumar Gupta were noticed, but reference to Gurdial Singh v. State of Punjab appears to have been made by mistake in place of Subash v. State of Maharashtra 1995 (3) SCC 332. As indicated herein before, anil K. Gupta is not an authority for the proposition that necessity to obtain experience would arise only after acquisition of requisite qualification, but it is contrary thereto. Learned counsel for the parties in that case appeared to be remiss in not bringing the said fact to the notice of the Court subsequent decision of the Apex Court explaining N. Suresh Nathan. Indian Airlines' case (supra) must be held to have been rendered in the fact situation obtaining therein and cannot be said to be laying down a law in absolute terms that experience must be obtained upon acquisition of necessary qualification. In any event, having regard to the earlier binding decisions and keeping the aforementioned explanation the said decision must be held to have been not applicable. ( 73 ). A chart as noticed hereinbefore has been placed before us. It shows one shailender Dania who was at Sl. No. 1 on 1. 1. In any event, having regard to the earlier binding decisions and keeping the aforementioned explanation the said decision must be held to have been not applicable. ( 73 ). A chart as noticed hereinbefore has been placed before us. It shows one shailender Dania who was at Sl. No. 1 on 1. 1. 1988, was at Sl No. 3 on 1. 1. 89, at Sl No. 7 on 1. 1. 1990 and at Sl No. 18 on 1. 1. 1992. Contention of Mr Sethi is that clearly shows that there exists anomaly and in any event the same would create hardship. We are afraid that such a view cannot be countenanced. The diploma holders and degree holders, as noted herein before, were at par. The said chart itself shows that a common seniority list was maintained. Educational qualification was to be considered for the purpose of eligibility alone. Once it is held that both the degree holders and diploma holders had been performing same type of functions, there cannot be any doubt whatsoever that their experience would be counted for the purpose of their promotion irrespective of their educational qualification. As and when diploma holders acquire qualification only then, they become eligible for consideration in the degree holders' quota. ( 74 ). It is our considered view, it is idle to contend that any anomaly exists. ( 75 ). Nobody has a right to be promoted. Chance of promotion is not a condition of service under Article 16 of the Constitution of India. Chance of promotion may vary from time to time. Thus, only because having regard to the circumstances prevailing at one point of time, the degree holders could not be promoted, the same by itself would not justify the construction/interpretation of statutory rules in some other manner. Hardship by itself cannot be a ground for striking down a legislation. We, therefore, answer the question referred to us in the following terms: 1. Principle of res judicata in the instant case has no application. 2. The experience gained by diploma holders as Junior Engineer has to be counted for promotion to the post of Assistant Engineer, in the event they are duly qualified as degree holders. ( 76 ). We, therefore, answer the question referred to us in the following terms: 1. Principle of res judicata in the instant case has no application. 2. The experience gained by diploma holders as Junior Engineer has to be counted for promotion to the post of Assistant Engineer, in the event they are duly qualified as degree holders. ( 76 ). Having regard to the fact that other questions are involved in the matter, and the writ petitions may have to be considered individually on their merit, we remit the matter back to the Division Bench for consideration of the cases in the light of our aforementioned findings.