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Madhya Pradesh High Court · body

2008 DIGILAW 739 (MP)

Sanjay Verma v. State of M. P.

2008-06-18

P.K.JAISWAL, SUBHASH SAMVATSAR

body2008
ORDER Jaiswal, J. -- 1. This intra-Court appeal is filed under section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005 challenging the order dated 6.9.2006 passed in WP No.5527/03, whereby the writ petition of the appellant was dismissed on the ground that the appellant had obtained B.E. Degree in the year 1991 and he had not completed 8 years of service after passing the B.E. Degree and therefore he has rightly not been considered by the review DPC held on 21.12.1992 for promotion to the post of Assistant Engineer because he had not completed the prescribed minimum years of service as on 1st January, 1992 and order dated 24.12.1998 passed by the respondent No.2 vide Annexure A-12 is just and proper. 2. Brief facts of the case are that the appellant-petitioner was appointed as Sub-Engineer w.e.f 19.10.1984. He had completed his part-time B.E. Degree Course at Madhav Institute of Science and Technology, Gwalior in the year 1991. The service of the appellant is governed by the provisions of M.P. Irrigation Engineering Services (Gazetted) Recruitment Rules, 1968 issued by the Governor in exercise of the power conferred under proviso to Article 309 of the Constitution of India. Rule 15 deals with the condition of eligibility for promotion, which reads as under: "Rule 15. Condition of legibility for promotion. -- (1) Subject to the provisions of sub-rule (2), the committee consider the case of all persons who on the 1st day of January of that year had completed the prescribed years of service (whether officiating or substantive) on the post/service mentioned in column 2 of Schedule IV or any other post or posts declared equivalent thereto be the Government as under and are within the zone of consideration as per sub-rule (2) : (i) Sub-Engineers, Head Draftsman/Draftsman to the post of Assistant Engineers minimum service of 12 years as Sub-Engineers, Head Draftsman/Draftsman. Provided that a Sub-Engineer, Head Draftsman/Draftsman who considered a minimum of 8 years service and possessed degree in Civil/Electrical/Mechanical Engineering from recognised University or qualifications declared equivalent thereto by the State Government will also be eligible for promotion to the post of Assistant Engineer and will be considered each time, just after the zone of consideration and the final selection list shall be made from both the groups on the basis of merits, for example, if ten posts are vacant in the cadre of Assistant Engineer to be filled by promotion of Sub-Engineers then 10x5-50 diploma holders Sub-Engineers from working list be considered first and thereafter the eligible graduate Sub-Engineers be considered in the order of their seniority for promotion. (ii) Junior Engineers to the post of Assistant Engineers -- minimum service of 2 years as Junior Engineers (iii) Research Assistants to the post of Assistant Research Officers-minimum service of 8 years as Research Assistant. (iii) Embankment Inspectors/Silt Analysts to the post of Assistant Research Officers -- minimum service of 8 years as Embankment Inspector/Silt Analyst. (iv) Assistant Engineers promoted from Sub-Engineers, Head Draftsman/Draftsman cadres to the post of E.E. minimum 18 years of total service out of which at least 6 years should be as Assistant Engineers. (v) Assistant Engineers to the post of Executive Engineers minimum 6 years as Assistant Engineer. (vi) Superintending Engineers to the post of Chief Engineers -minimum service 6 years as Superintendent Engineers. (2) The fields of selection shall ordinarily be limited to five times the number of officers to be included in the select list, provided that if the required number of suitable officers are not available in the field so determined the field may be enlarged to the extent considered necessary by the Committee by mentioning the reasons in writing." From the perusal of the above Rules, it is clear and specific that the eligibility is considered as on 1st January of that year. The incumbent must have completed the prescribed years of service, namely, 8 years of service for the Graduation Engineers and 12 years of service for the Sub-Engineers. It is not in dispute that the appellant as on 1st January 1992 had acquired the graduation qualification but had not completed 8 years of service. The incumbent must have completed the prescribed years of service, namely, 8 years of service for the Graduation Engineers and 12 years of service for the Sub-Engineers. It is not in dispute that the appellant as on 1st January 1992 had acquired the graduation qualification but had not completed 8 years of service. When the DPC met on 21.12.1992 for filling up of the vacancies for the year 1992, the claim of the appellant did not come up consideration. So, the appellant filed OA No.354/97. The Tribunal vide order dated 21.1.1998 (Annexure A-9) disposed of OA with the directions that the respondents shall constitute a review DPC within a period of six months for considering the case of the appellant for his promotion from December 1992. The order passed by the Tribunal on 21.1.1998 is relevant, which reads as under: "As per the return, the respondents have admitted the claims of the applicant and have submitted that the petitioner's name would now be placed before Departmental Promotion Committee for consideration of his promotion and for granting him promotion since December 1992. The respondents have, however, not mentioned the time where they will have to place the matter of the applicant for his promotion from 1992 before the review DPC. So it would be proper to fix the time. In the result, the petition be and is hereby disposed of with the directions that respondents shall constitute a review DPC within a period of six months from the date of this order for considering the applicant's case for his promotion from December 1992. However, there will be no order as to costs." 3. In pursuance to the order of the Tribunal, a review DPC was held in the month of November 1998 and he was not found fit to be promoted on the post of Assistant Engineer as on 1.1.1992. This was communicated to the appellant by the respondent No.2 vide communication dated 24.12.1998 (Annexure A-12). 4. The appellant challenged the said order dated 24.12.1998 by filing OA No.2224/2000. After abolition of the Tribunal, the case was transferred to the Gwalior Bench of the High Court of M.P. and registered as Writ Petition No.5527/2003. 5. As per the appellant, there is 10% quota prescribed for promotion on the post of Assistant Engineer from Sub-Engineer Degree Holder. 4. The appellant challenged the said order dated 24.12.1998 by filing OA No.2224/2000. After abolition of the Tribunal, the case was transferred to the Gwalior Bench of the High Court of M.P. and registered as Writ Petition No.5527/2003. 5. As per the appellant, there is 10% quota prescribed for promotion on the post of Assistant Engineer from Sub-Engineer Degree Holder. As per rule 15 of 1968 Rules, the qualifying service for promotion on the post of Assistant Engineer is 8 years of service. 6. Learned counsel for the appellant drew my attention to Annexure A-5 dated 11.7.1989 and submitted that relaxation has been granted by the State Government by issuing instructions to the effect that those who possess B.E. Degree and have 8 years of qualifying service on the date of consideration by DPC are eligible to be considered for promotion. He submitted that in view of the instructions issued by the State Government on 11.7.1989 vide Annexure A-5, the respondent No.2 wrongly rejected his case for promotion on the post of Assistant Engineer as on 1.1.1992. 7. As per rule 15 of the 1968 Rules, the Diploma Holders should have minimum 12 years of qualifying service for eligibility to be considered for promotion as Assistant Engineers. If a Diploma Holder acquires graduation, he should complete minimum of 8 years of service then only he becomes eligible for consideration for promotion as Assistant Engineer. He should hold the post of Sub-Engineer in a sub-station or continuous officiating capacity as prescribed. But the cut off date for eligibility is 1st January of that year, in which the eligibility was to' be considered. The appellant passed the B.E. in the year 1991 and completed 8 years of service as Sub- Engineer on 19.10.1992 and therefore he has required qualification on 19.10.1992 and therefore in the year 1993 as on 1st January 1993, he became eligible for consideration for promotion. Consequently, the direction issued by the Tribunal on 21.1.1998 (Annexure A-9) is dehors to the Rules of 1968. 8. The appellant was duly considered by the review DPC for promotion to the post of Assistant Engineer under 10% quota of Graduate (B.E. Degree-holder) Sub-Engineers strictly in accordance with the provisions contained in the Rules of 1968. Consequently, the direction issued by the Tribunal on 21.1.1998 (Annexure A-9) is dehors to the Rules of 1968. 8. The appellant was duly considered by the review DPC for promotion to the post of Assistant Engineer under 10% quota of Graduate (B.E. Degree-holder) Sub-Engineers strictly in accordance with the provisions contained in the Rules of 1968. The review DPC rightly found that only such incumbents holding the post of Sub-Engineer in the Department, were entitled to be considered for promotion to the post of Assistant Engineer under 10% quota of Graduate Sub-Engineer in the position of 1.1.1992, who, upto the said cut-off date had completed 8 years qualifying service on the post of Sub-Engineer and were alone possessing the degree of RE. Course. In the case of the appellant, although he was fulfilling one of the condition regarding possessing of the degree of RE. Course on the said cut-off date i.e. 1.1.1992, but other mandatory requirement as contemplated under the Rules referred to hereinabove regarding his having completed 8 years qualifying services upto the said cut-off date 1.1.1992, was not being fulfilled by the appellant. Thus, there is no illegality either in the decision taken by the review DPC vide Annexure A-13 or in the consequential intimation given vide Annexure A-12. 9. The issue involved in this appeal was considered by the apex Court in the case of Ramesh Kumar Choudha and others v. State of M.P. and others, decided on 20.9.1996 (Annexure R-1), it was held: "The case of the appellants is that though the respondents had completed the eligibility criteria as on January 1 of the year 1992, a fact that the graduation qualifications acquired subsequent to that date but before the DPC had considered their cases are not entitled to be promoted. The approach adopted by the Tribunal is illegal and contrary to rules 15 and 16 of the Rules referred to hereinbefore. We find force in the contention. As seen Rule 15 is a clear mandate as to the eligibility criteria. Firstly, the diploma-holders should have minimum of 12 years qualifying service for eligibility to be considered for promotion as Assistant Engineers. If a diploma-holder acquires graduation, he should complete minimum of eight years of service then only he becomes eligible for consideration for promotion as Assistant Engineer. He should hold the post as Sub-Engineer in a substation or continuous officiating capacity as prescribed. If a diploma-holder acquires graduation, he should complete minimum of eight years of service then only he becomes eligible for consideration for promotion as Assistant Engineer. He should hold the post as Sub-Engineer in a substation or continuous officiating capacity as prescribed. But the cut-off date for eligibility is 1st January of the year in which the eligibility was to be considered. Since the respondents acquired the qualifications in October 1992, they did not become eligible for consideration for promotion for the year 1992 though the DPC had met in December 1992. Consequently, the direction issued by the Tribunal and the appointments of the respondents made pursuant to the contempt orders are clearly illegal. We are informed that they have been already promoted. Therefore, their promotions should be treated to be ad hoc and de horse the rules. Though as per the orders of the Tribunal, they came to be promoted, such promotions do not confer any right to seniority over any other eligible candidates who acquired the qualifications as on January 1, 1992. Therefore, the DPC is directed to sit every year either in the month of February or March for consideration of respective claims of the candidates provided if any vacancy exists or anticipated. As regards this year is concerned, they should sit in this year to consider the vacancies that had arisen between 1st January 1992 to 1st January 1996. The DPC should get identified the vacancies arisen in each year. Consider the basis of respective eligible candidates diploma-holders as well as Engineers who have completed 12 years of service by the diploma-holders and the diploma-holders who acquired graduation before first day of January of the year and consider their cases for promotion in accordance with rules. Such of the 'candidates found fit and recommended fit be given them regular promotion provided they are substantive or substantively in officiating capacity in the lower ranking. It would appear that some of the candidates have approached the Government taking advantage of the orders of the Tribunal and got promoted, they also came to be considered and were promoted. All appointments are also to be treated as ad hoc." 10. A statutory rule, it is trite, cannot be supplemented by an executive instruction and would not prevail over statutory provisions contained in the Rules of 1968. All appointments are also to be treated as ad hoc." 10. A statutory rule, it is trite, cannot be supplemented by an executive instruction and would not prevail over statutory provisions contained in the Rules of 1968. On perusal of Annexure A-5 issued by the respondent No.1 on 11.7.1989, we are of the considered view that the same will not in any way help the appellant, or appellant will get any benefit from the same. 11. The appellant vide application dated 25.6.2008 (IA No. 14532/06) pointed out this Court that he was found fit for promotion and promoted on the post of Assistant Engineer vide order dated 19.5.2003 (Annexure P-15). On 21.9.2005 vide Annexure P-16, the appellant made a representation for considering his case for promotion on the post of Assistant Engineer in 1993 as he had completed 8 years of service as Sub-Engineer on 19.10.1992. 12. In the case of N. Suresh Nathan and another v. Union of India and others [ AIR 1992 SC 564 ], it was held by the apex Court that as per rule 11 of Recruitment Rules for post of Assistant Engineer in PWD, Diploma holders Junior Engineers who obtained the Degree during service, the period of three years service in the grade for eligibility for promotion as Degree-holder commenced from the date of obtaining the Degree and the earlier period of service as a Diploma-holders was not counted for this purpose. In the case in hand before us, the scheme of the 1968 Rules is entirely different and therefore the decision of N. Suresh Nathan's case (supra), is distinguishable. 13. In the case of M.B. Joshi and others v. Satish Kumar Pandey and others [ 1993 JLJ 217 = AIR 1993 SC 267 ], the apex Court had held that the seniority is to be counted from the date of appointment and not from the date of acquiring the required qualification. Paras 11 and 12 are relevant which read as under: "11. In the cases before us 50 per cent of the posts of Assistant Engineers has to be filled by direct recruitment of persons having degree of graduation in engineering. The remaining 50 per cent of the vacant posts are to be filled by promotion from the lower cadre of Sub-Engineer and Draftsman. In the cases before us 50 per cent of the posts of Assistant Engineers has to be filled by direct recruitment of persons having degree of graduation in engineering. The remaining 50 per cent of the vacant posts are to be filled by promotion from the lower cadre of Sub-Engineer and Draftsman. Out of this 50 per cent, 35 per cent quota is fixed for diploma-holders who have completed 12 years of service on the post of Sub-Engineer, 5 per cent quota for Draftsman who have completed 12 years of service and the remaining 10 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 of 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 8 years of service and quota of 10 per cent posts has been earmarked for such category of persons. 12. 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 8 years' 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 the 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. 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 8 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 8 years would for all practical purposes become nugatory and of no benefit." 14. The DPC had to consider the case of the appellant for promotion on the post of Assistant Engineer in the year 1993 because the appellant had acquired the qualification as on 1st January 1993. In case if it is found that the appellant's case was not considered in the year 1993 and his case was not considered for promotion on the post of Assistant Engineer in the DPC held in the year 1993, the respondents are directed that they shall constitute a review DPC within a period of six months from the date of this order for considering the case of the appellant for his promotion on the post of Assistant Engineer. 15. In these circumstances mentioned above, we are clearly of the view that the learned Single Judge was wrong in holding that the appellant has to complete 8 years of service as Sub-Engineer after passing BE Degree as per rule 15(1) of 1968 Recruitment Rules. 16. In the result, we allow the appeal partly by directing the respondents to reconsider the case of the appellant as per Para 14 of this order for promotion to the post of Assistant Engineer as on 1.1.1993 as he had completed 8 years qualifying service upto the said cut-off date. The whole exercise be completed within as period of six months from the date of this order. No costs.