JUDGMENT By the Court.—Heard Sri K.N. Tripathi, Senior Advocate assisted by Sri Rajeev Mishra, learned Counsel on behalf of petitioners, learned Standing Counsel on behalf of respondent Nos. 1 and 2, Sri M.A. Quadeer, learned Counsel on behalf of respondent No. 3 and Sri M.D. Singh ‘Shekhar’, Senior Advocate assisted by Sri Vikash Budhwar, learned Counsel on behalf of respondent Nos. 4 to 8. 2. Petitioners have to their credit a diploma in Engineering and also have a degree in the subject concerned. Petitioners were selected by the U.P. Public Service Commission and were appointed as Junior Engineers in the Minor Irrigation Department of the State of Uttar Pradesh on 1st February, 2000. The appointment so offered to the petitioners is stated to be substantive in nature. 3. In accordance with the provisions of Uttar Pradesh Abhiyantran Sewa (Laghu Sinchai Vibhag) Niyamawali, 1991 (hereinafter referred to as the ‘Niyamawali, 1991’), appointment on the post of Assistant Engineer is to be made from following sources : (a) 67% by direct recruitment (b) 25% by promotion from amongst substantively appointed Junior Engineers (Minor Irrigation), and (c) 8% by promotion from amongst substantively appointed Junior Engineers, who possess degree in Civil Mechanical or Agricultural Engineering or a degree recognised as equivalent thereto. 4. Petitioners, by means of present petition, have prayed for a writ of mandamus commanding the State-respondents to forward their names in the eligibility list to the U.P. Public Service Commission for promotion on the post of Assistant Engineer in accordance with the Niyamawali, 1991 and further to restrain the respondents from making any promotion on the strength of the eligibility list already sent by the department for the purpose to the U.P. Public Service Commission. 5. The grievance raised before this Court is confined to the issue as to whether the Junior Engineers referred to in Rule 5 (1)(ii)(b) of Niyamawali, 1991, would include the Junior Engineers, who at the time of appointment possessed a degree in Engineering only or not in the subject concerned. 6. 5. The grievance raised before this Court is confined to the issue as to whether the Junior Engineers referred to in Rule 5 (1)(ii)(b) of Niyamawali, 1991, would include the Junior Engineers, who at the time of appointment possessed a degree in Engineering only or not in the subject concerned. 6. According to the petitioners, if a person was not possessed of a diploma in the subject concerned at the time of induction into service as Junior Engineer, stands excluded from consideration for promotion on the post of Assistant Engineer in terms of Rule 5 (1)(ii)(b) i.e. 8% promotion for the purpose and the reason furnished for such contention before us is that for substantive appointment on the post of Junior Engineer, the minimum essential qualification prescribed was a diploma in the subject concerned. Such candidates, who had a diploma, alone are to be treated as substantively appointed Junior Engineers and it is such appointees alone, who have a degree in the subject concerned (obtained either prior to induction into service or thereafter) are to be considered for promotion under Rule 5 (1)(ii)(b) of Niyamawali, 1991. Therefore, Rule 5(1)(ii)(b) of Niyamawali, 1991 excludes from its consideration, persons, who are not possessed of a diploma in the subject concerned and have only a degree of Engineering in the subject concerned at the time of induction into service. 7. On behalf of State as well as private respondents, in reply it is contended that Rule-5 (1) (ii) (b) talks of no such distinction as has been suggested by the learned Counsel for the petitioners and any degree holder working on substantive basis as Junior Engineer in the Minor Irrigation Department is entitled to be considered for promotion against the feeding cadre contemplated under Rule 5 (1) (ii) (b) of Niyamawali, 1991, irrespective of the fact that where he has a diploma in the subject concerned in addition to his degree or not. 8. After having heard learned Counsel for the parties and after having examined the records, the issue up for consideration is as to who would constitute the feeding cadre for promotion against 8% quota provided for promotion on the post of Assistant Engineer under Rule 5 (1)(ii)(b) of Niyamawali, 1991. For ready reference Rule-5 (1)(ii)(a) and (b) is being quoted herein below : “5. For ready reference Rule-5 (1)(ii)(a) and (b) is being quoted herein below : “5. Source of Recruitment.—Recruitment to the various categories of post in the Service shall be made from the following sources : (i) ................ (ii)(a) Twenty-five per cent of the posts by promotion out of which one-third shall be from amongst substantively appointed Junior Engineers (Mechanical) and two-third from amongst substantively appointed Junior Engineers (Minor Irrigation) who have completed ten years service on the first day of the year of recruitment. (b) Eight per cent of the posts by promotion from amongst substantively appointed Junior Engineers who possess degree in Civil Mechanical or Agricultural Engineering or a degree recognised as equivalent thereto : Provided that if suitable candidates are not available in any year for promotion such posts shall be filled by promotion under clause (a)." 9. It is admitted to the parties that no Service Rules have been framed till date qua appointment on the post of Junior Engineers in the Minor Irrigation Department of the State of Uttar Pradesh and appointment on the said post by direct recruitment is made on the recommendation of the U.P. Public Service Commission and is regulated only in accordance with the Government Orders issued from time to time. 10. Learned Standing Counsel has produced the relevant requisition forwarded for appointment on the post of Junior Engineers in the Minor Irrigation Department of the State of Uttar Pradesh to the U.P. Public Service Commission. The said requisition prescribes the minimum qualification for appointment on the post of Junior Engineers as diploma in Engineering in the subject concerned. 11. It is admitted on record that private respondents before this Court did not have a diploma in Engineering in the subject and they had a degree in Engineering in the subject concerned at the time they were selected by the U.P. Public Service Commission and recommended for appointment as Junior Engineer in Minor Irrigation Department. The State Government, despite being aware of the prescribed minimum qualification possessed by the private respondents, offered them appointment as Junior Engineers and such private respondents have been working against substantive posts since their initial appointment and are stated to have been treated as substantively appointed for all practical purposes. The State Government, despite being aware of the prescribed minimum qualification possessed by the private respondents, offered them appointment as Junior Engineers and such private respondents have been working against substantive posts since their initial appointment and are stated to have been treated as substantively appointed for all practical purposes. Absolutely no distinction has been maintained between appointees who had a degree in Engineering in their favour vis-a-vis the appointees by direct recruitment for the post of Junior Engineer, who had a diploma in Engineering. 12. It is in this background that the learned Counsel for the petitioners contended that since the private respondents did not possess the prescribed minimum qualification for the post in question, their appointment, if any, by the State cannot be treated to be substantive in nature. Therefore, in terms of Rule 5 (1)(ii)(b) of Niyamawali, 1991, they do not answer the description of substantively appointed Junior Engineers, entitled to be considered for promotion on the post of Assistant Engineers. 13. The issue therefore, up for consideration before this Court is as to whether in the facts of the present case, Junior Engineers like private respondents, who did not have a diploma in Engineering in their favour, which was the essential qualification prescribed for the post as per the requisition, are to be treated as within the definition of substantively appointed Junior Engineers, entitled to be considered for promotion as Assistant Engineers under Rule 5 (1)(ii)(b) of Niyamawali, 1991. 14. Before adverting to the aforesaid issue, it would be worthwhile to record that most of the private respondents in all the writ petitions had earlier filed writ petitions being Civil Misc. Writ Petition Nos. 45932 of 2003, 45933 of 2003, 45934 of 2003, 45936 of 2003 and 51552 of 2003. These writ petitions were directed against an order of the State Government dated 25th July, 2003, whereby the representation filed by the private respondents (petitioners of said writ petitions) in pursuance to the judgment and order of Division Bench of this Court dated 20th December, 2002 passed in Writ Petition No. 45209 of 2002 (Santosh Kumar Singh/Pramod Kumar Mishra/Anil Kumar Mishra/Rameshwar Singh v. Secretary, Minor Irrigation Department, U.P. Lucknow), had been rejected. The challenge to the order passed by the State Government was on the plea that the quota for promotion for Junior Engineers provided for under Rule 5 (1)(ii)(a) of Niyamawali, 1991 has wrongly been increased from 25% to 33%, being in a disproportionate and discriminatory manner as also on the ground that it had illegally provided that 8% promotional quota reserved for Junior Engineer Degree Holders under Rule- 5 (1) (ii)(b) of Niyamawali, 1991 was meant for those Junior Engineers, who had obtained a degree in Engineering only with the prior sanction of the Competent Authority, subsequent to joining their services in the department. Therefore, such Junior Engineers, who had a degree in Engineering at the time of induction into service as Junior Engineers, stood excluded, from consideration qua promotion under the quota provided for under Rule 5 (1)(ii)(b) of Niyamawali, 1991. 15. The Division Bench of this Court, while deciding the writ petitions 45932 of 2003, 45933 of 2003, 45934 of 2003, 45936 of 2003 and 51552 of 2003, under a common judgment dated 27th February, 2004, held that quota as alleged by the present private respondents (petitioners in that petitions) had not been increased from 25% to 33%. It was further held that no distinction has been made under the Rules qua promotion against 8% quota provided for under Rule 5 (1)(ii)(b) of Niyamawali, 1991, with reference to the date on which the degree in Engineering had been obtained by a Junior Engineer. It was, therefore, clarified that all Junior Engineer Degree Holders, substantively appointed were to be considered for promotion, irrespective of the fact as to whether they had obtained a degree in Engineering prior to entry into service or subsequent to their entry into the service as Junior Engineers. For ready reference relevant findings in the Division Bench Judgment are being quoted herein below : “Respondent No. 1 in para 5 (ka) of the impugned order also observed that 8% promotional quota reserved for Junior Engineer Degree Holders, was meant for those Junior Engineers who had acquired degree after obtaining prior sanction from the competent authority after joining services in the department. No such distinction is done by the Rules. Impugned order, to this extent is against the language of the Rule and Para 5 (ka) of the impugned order is liable to be quashed.” 16. No such distinction is done by the Rules. Impugned order, to this extent is against the language of the Rule and Para 5 (ka) of the impugned order is liable to be quashed.” 16. With regard to Rule 5 (1) (ii) (a) of Niyamawali, 1991, the Division Bench of this Court clarified that the quota was available for promotion to the Junior Engineers who have completed ten years of substantive service, notwithstanding they had a diploma or a degree. For ready reference relevant portion is being quoted herein below : “We, therefore, hold that under Rule 5 (1) (ii) (a) 25% of the Assistant Engineers post by promotion are to be filled by promotion from amongst Junior Engineers, who have completed ten years substantive service notwithstanding they have Diploma or Degree.” 17. The contention raised on behalf of the petitioners does not merit consideration for the following reasons : “Rule 5 (1)(ii)(a) of Niyamawali, 1991, which provides for 25% quota for promotion for all Junior Engineers irrespective of the fact as to whether they had a degree or diploma in Engineering in their favour, is admittedly available to the persons like the private respondents, who have degree in Engineering only. The aforesaid aspect of the matter stands concluded under the Division Bench Judgment of this Court dated 27th February, 2004, the relevant portion whereof has already been quoted herein above.” 18. Thus, in view of the said Division Bench Judgment of this Court dated 27th February, 2004, persons like the private respondents, who have only a degree in Engineering and are not possessed of diploma in Engineering have been held to be substantively appointed Junior Engineers entitled to be considered for promotion within 25% quota under Rule 5 (1)(ii)(a) of Niyamawali, 1991. 19. Language of Rule 5 (1)(ii)(a) is pari materia to the language of Rule 5 (1) (ii)(b) of Niyamawali, 1991, so far as they refer to the feeding cadre for promotion on the post of Assistant Engineer, i.e. “substantively appointed Junior Engineers”. The language used in both sub-rules is identical and has therefore, to be given identical meaning. 20. 19. Language of Rule 5 (1)(ii)(a) is pari materia to the language of Rule 5 (1) (ii)(b) of Niyamawali, 1991, so far as they refer to the feeding cadre for promotion on the post of Assistant Engineer, i.e. “substantively appointed Junior Engineers”. The language used in both sub-rules is identical and has therefore, to be given identical meaning. 20. In such circumstances, having regard to the earlier Division Bench Judgment of this Court dated 27th February, 2004, wherein Junior Engineer Degree Holders have been held to be substantively appointed Junior Engineers entitled for promotion within 25% as provided for under Rule 5 (1)(ii)(a) of Niyamawali, 1991, would necessarily answer the description of substantively appointed Junior Engineers under Rule 5 (1)(ii)(b) of Niyamawali, 1991 and there is no justification to read any other meaning in the words “substantively appointed Junior Engineers” in Rule 5 (1)(ii)(b). 21. The issue may be examined with the difference language also. 22. It is admitted on record that there are no Statutory Rules, which regulated the appointment on the post of Junior Engineers. It is further admitted on record that there is no Government Order, which lays down the minimum essential qualification for appointment on the post of Junior Engineer. The only document produced before this Court for the purposes of ascertaining as to what were the minimum essential qualifications prescribed for appointment to the post of Junior Engineer, is the requisition forwarded by the State Government to the U.P. Public Service Commission. The requisition no doubt records that the minimum qualifications required to be possessed by a candidate to be appointed as Junior Engineer is a diploma in Engineering in the subject concerned. The U.P. Public Service Commission for the reasons best known to it, recommended the names of private respondents for appointment as Junior Engineers, despite being fully aware that they did not have a diploma in Engineering but they were possessed of degree in Engineering in the subject concerned. Recommendation of the U.P. Public Service Commission was accepted by the State Government and appointments were offered to the private respondents with full knowledge of the State-authorities that private respondents did not have a diploma in Engineering and they in fact were possessed of a degree in Engineering in the subject concerned. 23. Recommendation of the U.P. Public Service Commission was accepted by the State Government and appointments were offered to the private respondents with full knowledge of the State-authorities that private respondents did not have a diploma in Engineering and they in fact were possessed of a degree in Engineering in the subject concerned. 23. It is admitted on record that the appointments, which have been offered to the private respondents were against the substantively available vacancies in the department. Appointments have been made after following the procedure prescribed under the rule on the recommendation of the U.P. Public Service Commission, and these appointments have been treated to be substantive for all practical purposes subsequent to the appointment. 24. In these set of facts, this Court has no hesitation to record that the State, which was the Competent Authority, to decide about the essential qualification to be possessed by the candidate for appointment as Junior Engineer must be deemed to have been accepted the qualification of a degree in Engineering as equivalent/sufficient to the qualification mentioned in the requisition. The petitioners have fairly conceded that the appointment of private respondents, which was made in the year 2000 was never challenged before any Court of law in any proceedings earlier nor it is being challenged by means of the present writ petitions. 25. We hold that private respondents answer the description of substantively appointed Junior Engineers within Rule 5 (1)(ii)(a) of Niyamawali, 1991, and are entitled to be considered for promotion for the post of Assistant Engineer in accordance with the rules applicable subject to fulfilment of other conditions. 26. Accordingly, the writ petition is dismissed. The State is directed to forward the names of all available candidates strictly in accordance with the observations made herein above qua promotion on the post of Assistant Engineer within 8% quota provided for under Rule 5 (1)(ii)(b) of Niyamawali, 1991 at the earliest. ———