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Allahabad High Court · body

2010 DIGILAW 2533 (ALL)

JITENDRA NATH RAI v. STATE OF U. P.

2010-08-19

K.N.PANDEY, SUNIL AMBWANI

body2010
JUDGMENT By the Court.—The writ-petitioners in the leading Writ Petition No. 65487 of 2009 are serving as Junior Engineers in the Irrigation Department of the State of U.P. All of them are qualified with Diploma in Engineering. By these writ petitions they have challenged the letter dated 27.11.2009 written by the Secretary, U.P. Public Service Commission, Allahabad to the Principal Secretary, Irrigation Department, Government of U.P., Lucknow for convening a meeting of the Departmental Promotion Committee on 30.11.2009 in the camp office of the Public Service Commission, U.P. at Lucknow on 30.11.2009 with a request to nominate 2 members, and to intimate to the Commission, for promotions to 159 posts allocated to Degree Holder Junior Engineers (C) to Asstt. Engineers (C). They have also prayed for restraining the respondents from undertaking further proceedings in pursuance to the letter dated 27.11.2009. 2. The Writ Petition No. 29060 of 2008 has been filed by Najrul Islam Siddiqui and Writ Petition No. 28175 of 2008 by Ramayan Pandey & another, the degree holder Junior Engineers challenging Notification dated 16.11.2007, notifying the U.P. Service of Engineers (Irrigation Department) (Group ‘B’) Service Rules, 2007. The Writ Petition No. 29747 of 2008 has been filed by Sanjay Sharma & others; Writ Petition No. 37321 of 2008 by Ziledar Singh; Writ Petition No. 49202 of 2008 by Dinesh Kumar Singh. All these and other writ petitions raise common issues, of promotions to the post of Assistant Engineers in the Irrigation Department of the State of U.P. 3. On 2.12.2009 the respondents were allowed two weeks’ time to file counter-affidavit and the writ petition was directed to be listed in January, 2010. An interim order was made staying the promotions. Shri Zile Singh and others filed an application in the Supreme Court for permission to file SLP and challenged the order dated 2.12.2009 in SLP (C) No. _____ of 2010 (CC No. 6478 of 2010). The Supreme Court by order dated 11.5.2010 allowed permission to Shri Zile Singh and others to file special leave petition; condoned the delay and dismissed the appeal with following orders : “Permission to file special leave petition is granted. Delay condoned. We have heard learned counsel for the parties. We are not inclined to interfere with the interim order. Special leave petition is, accordingly, dismissed. Delay condoned. We have heard learned counsel for the parties. We are not inclined to interfere with the interim order. Special leave petition is, accordingly, dismissed. However, in the peculiar facts and circumstances of the case, we request the High Court to dispose of the Writ Petition-A No. 65487 of 2009 as expeditiously as possible preferably within six months from today.” 4. The pleadings have been exchanged. 5. We have heard Shri Ashok Khare, Sr. Advocate assisted by Shri Siddharth Khare for the petitioners in Writ Petition No. 72726 of 2005, Shri M.C. Chaturvedi, Chief Standing Counsel for the State of U.P., Shri P.S. Baghel for the Public Service Commission. Shri M.D. Singh Sekhar assisted by Shri S.K. Misra appears for the private respondents, degree holder Junior Engineers impleaded in the writ petition and other counsels. 6. Brief facts giving rise to the writ petition are stated as below: 7. The services of Junior Engineers in the Irrigation Department and their promotions were regulated by the provisions of United Provinces Services of Engineers (Irrigation Branch) Class-II Rules, 1936 (the Rules of 1936. Rule 9 (ii) of the Rules of 1936 provided for qualifying examination for the Junior Engineers for promotions as Assistant Engineers for those, who had Diplomas in engineering. The rules continued to remain in force upto the year 1988. 8. The Rules of 1936 amended in 1988 w.e.f. 5.2.1988 abolished the qualifying examination for diploma holder Junior Engineers for promotion to the post of Asstt. Engineers. The amended rules provided for separate quota for diploma and degree holder Junior Engineers. In the year 1993 a new set of Rules namely U.P. Engineering Service (Irrigation Branch, Group-B) Service Rules, 1993, were made under Article 309 of the Constitution of India substituting the Rules of 1936 w.e.f. 23.4.1993. In these Rules there was no provision for qualifying examination for diploma holders Junior Engineers to be promoted to the post of Asstt. Engineers, and that a quota was provided as in the case of the Rules amended in 1988. 9. The amendment to the Rules in 1988, and the new Rules of 1993 were challenged by the degree holder Junior Engineers. They sought relief for promotions to the post of Asstt. Engineer in accordance with the provisions of the Rules of 1936. Engineers, and that a quota was provided as in the case of the Rules amended in 1988. 9. The amendment to the Rules in 1988, and the new Rules of 1993 were challenged by the degree holder Junior Engineers. They sought relief for promotions to the post of Asstt. Engineer in accordance with the provisions of the Rules of 1936. They also prayed for quashing the Rule 4 (2) (a); and clause 3 (4) (5) of the U.P. Service of Engineers Irrigation Branch Group-B Service Rules, 1993 by declaring the same to be ultra vires, and prayed for a writ of mandamus directing the respondents to promote the petitioners to the post of Asstt. Engineer in accordance with the Rules of 1936 and in accordance with the Rules prevailing prior to 5.2.1988. The writ petition (N.I. Siddiqui and others v. State of U.P.) was disposed of on 28.11.2002 with the following order : “Heard counsel for parties. The facts of this case are almost similar to and covered by a Division Bench decision of this Court in the case of Aruvendra Kumar Garg v. State of U.P. and others, (2002) 2 LBEC 843. The petitioner is disposed in the same term and with the same direction as in the aforesaid decision. Sd/- M. Katju, J. Sd/- Rakesh Tiwari, J.” 10. In Aruvendra Kumar Garg v. State of U.P., Writ Petition No. 17949 of 1998 and other connected writ petitions decided on March 22nd, 2002 a Division Bench of this Court considered the challenge to the Notification dated 4.8.1997 and 25.9.1997 and the order dated 18.11.1999 declaring the vacancies on the post of Asstt. Engineer (Civil) to be filled up by promotion of diploma holder Junior Engineers and degree holder Junior Engineers, and the amendment made to the Rules of 1936 by U.P. Service of Engineers (Building and Road Branch) Class-II (Amendment) Rules, 1987, vide notification dated 4.8.1987, and the U.P. Service of Engineers (Building and Road Branch) Class-II (IV Amendment) Rules, 1997 in the Public Works Department by notification dated September 25th, 1997. The degree holder Junior Engineers as petitioners in 3 out of 4 writ petitions had challenged the amendment to the Rules of 1936 on the ground that the term ‘’direct recruitment’ or ‘’direct appointment’ according to Clause-C of Rule 3 as stood amended by notification dated 18.7.1969, came to be defined as “recruitment or appointment in the manner prescribed in Rules 5 (a) (i) and 5 (b) (ii)” and that the detailed procedure of recruitment by promotion under these sub-rule 5 (a) (iii) and 5 (b) (ii) as laid down in Rule 12 of the Rules visualized that recruitment by promotion would be by selection on ‘’merit’. In P.D. Agrawal and others v. State of U.P., AIR 1987 SC 1976, Rule 3 (c), 5, 6 as amended in 1969 and Rule 23 is amended in 1971 were struck down being violative of Article 14 and 16 of the Constitution of India. As a result the seniority in service was required to be determined, by the date of the order of appointment in substantive vacancy. The Asstt. Engineers, who were appointed substantively in temporary posts and, who had become members of the service under the unamended Rules of 1936 were deprived of their right to recognise their service from the date of their substantive appointment on the temporary posts, and due to this reason the Rules were struck down as arbitrary and violative of Article 14 and 16 of the Constitution of India. 11. By a subsequent amendment, Rule 6 of the Rules was omitted vide U.P. Service of Engineers (Building and Road Branch) Class-III (Amendment) Rules, 1987 and Rules 5, 9 and 12 were substituted providing for 66 2/3% vacancies to be filled up by direct recruitment on the basis of competitive examination by a Commission; 25% by promotion from amongst permanent incumbents to the posts in Public Works Department Subordinate Engineering Service and Public Works Department Computer Service with atleast 7 years continuous service and 8 1/3% vacancies by promotion through Commission from permanent incumbents to the post in Public Works Department Subordinate Engineering Service and Public Works Department Computer Service as possess bachelor degree in engineering in the proportion of respective permanent cadre strength. 12. 12. The Court held in Aruvendra Kumar Garg, for the Building & Road Branch Engineers that if the old Rules did not stand obliterated by 1969 Rules, which were declared void under Article 13 (2) of the Constitution of India, the provision, which is “still born” is incapable of repeal or substitution of an existing provision. It was held that 1987 and 1997 Amendment Rules would not be deemed to have come into operation, in as much as the existing Rules namely Rules as they stood prior to 1969 Amendment Rules, were not substituted by impugned Rules, and existed Rules, which were non-existent were sought to be substituted by the impugned amendments to Rules of 1987 and 1997. The Court further held in Aruvendra Kumar Garg’s case that diploma holder Junior Engineers and degree holder Junior Engineers are both eligible for promotion to the post of Asstt. Engineers, and that fixation of separate quota for them is discriminatory and violative of Article 14 and 16 of the Constitution of India. Para 25 of the judgment is quoted as below : “The diploma holder junior engineers and the degree holder junior engineers are both eligible for promotion to the post of Assistant Engineer in the instant case and the promotion according to Rule 12 as it stands amended by 2nd Amendment Rules, 1992 provides for selection in consultation with the Public Service Commission in accordance with the provisions of Public Service Commission (Procedure) Rules, 1970 on the basis of “seniority subject to rejection of unfit”. The result of fixation of separate quota in favour of diploma holder junior engineers degree holder may lead to denial of promotion on the basis of seniority and this would lead to denial of equality clause of the Constitution in the matter of promotion. Fixation of separate quota for degree holder junior engineers and diploma holder junior engineers to our mind is discriminatory and violative of Articles 14 and 16 of the Constitution.” 13. In the Irrigation Department, the State Government did not promote the degree holder Junior Engineers and proceeded to promote 335 diploma holder Junior Engineers in January, 2008. An interlocutory application was filed in pending Civil Appeal to stay the promotions. The application was withdrawn on 28.4.2008, with liberty granted by the Apex Court to the degree holder Junior Engineers to seek redressal of their grievances before the appropriate forum. An interlocutory application was filed in pending Civil Appeal to stay the promotions. The application was withdrawn on 28.4.2008, with liberty granted by the Apex Court to the degree holder Junior Engineers to seek redressal of their grievances before the appropriate forum. A Contempt Application No. 1718 of 2008 was filed by the degree holder Junior Engineers in which notices were issued and in which detailed orders were passed on 21.5.2008 and 10.12.2009, to promote degree holder Junior Engineers against such vacancies, which were available upto the recruitment year 2006-07, (prior to the enforcement of new Rules of 2007). 14. In para 37 of the writ petition it is stated that against the judgment in N.I. Siddiqui’s case decided on 28.11.2002 in terms of the judgment in Aruvendra Kumar Garg Special Leave Petition (Civil) No. 7914 of 2003 filed by Shri N.K. Jain, diploma holder Junior Engineer in the Irrigation Department and in which no interim order was passed, was withdrawn on 6.2.2006. Special Leave Petition (Civil) No. 17351 of 2003 filed by the State against the judgment, however, is still pending. On the same date the leave was granted to the State, with liberty to file informal paper books concerning all relevant records. 15. In para 39 of the writ petition it is stated that on 20.10.2004 the State Government forwarded a requisition to Public Service Commission, U.P. for consideration of promotion of degree holder Junior Engineers (Civil) of the Irrigation Department to fill up 159 vacant post of the year 2003-04 and 2004-05 alongwith list of 137 degree holder Junior Engineers and 20 diploma holder Junior Engineers belonging to Scheduled Castes. The Public Service Commission sent a communication on 2.11.2004 to the State Government referring to the judgment in N.I. Siddiqui’s case dated 28.11.2002 and observing that in pursuance to the said judgment selection proceedings were not possible until amendment of the Rules. 16. In the meantime, Shri N.I. Siddiqui filed a Contempt Petition No. 851 of 2003 complaining of disobedience of the judgment dated 28.11.2002 in which notices were issued. 16. In the meantime, Shri N.I. Siddiqui filed a Contempt Petition No. 851 of 2003 complaining of disobedience of the judgment dated 28.11.2002 in which notices were issued. On receipt of the notice the State Government passed an order on 13.10.2004, which was challenged by Shri Dukh Haran, a diploma holder Junior Engineer in Writ Petition No. 47897 of 2009 and in which interim order was passed on 9.11.2004 staying the order dated 13.10.2004, in so far as it requires participation of diploma holder Junior Engineers in a qualifying examination for promotion. 17. The Rules of 1993 were amended by the State Government on 14.11.2005 by notifying U.P. Service of Engineers (Irrigation Department) Group-B Service (Third Amendment) Rules, 2005. These Rules were challenged in Writ Petition No. 72726 of 2005 in which interim order was granted by this Court on 29.11.2005. 18. The contempt petition filed by Shri N.I. Siddiqui being Contempt Petition No. 851 of 2003 was dismissed by the High Court on 21.8.2006, on the ground that the judgment dated 28.11.2002 has been complied with both by the State Government as well as by the Commission, after which new Rules were framed, and which have been stayed by the Court on 29.11.2005 in Writ Petition No. 72726 of 2005. 19. A review petition for recalling the judgment dated 21.8.2006 dismissing the contempt petition was dismissed. 20. The State Government issued a fresh notification on 16.11.2007 notifying the U.P. Service of Engineers (Irrigation Department) (Group-B) Service Rules, 2007, in supersession to all existing Rules and orders. These Rules provide in Rule 5 to fill up 50 2/3% posts in the cadre of Asstt. Engineers (Civil or Mechanical) by direct recruitment, and 49 1/3 by promotees through the Commission. In Civil Branch, 47 1/3% was to be filled up from substantively appointed Junior Engineers (Civil), who have completed 7 years of service on the first date of recruitment, 1% from the substantively appointed Computers (Civil), with bachelor degree in Civil Engineering and with 7 years service and 1% from substantively appointed Research Supervisors with bachelor degree in Engineering and with 7 years service. These Rules of 2007 has given up the distinction between degree holder Junior Engineer and diploma holder Junior Engineer for promotion. These new Rules of 2007 published vide notification dated 16.11.2007 were challenged by Shri Ajay Kumar Srivastava and others in Writ Petition No. 62601 of 2007. These Rules of 2007 has given up the distinction between degree holder Junior Engineer and diploma holder Junior Engineer for promotion. These new Rules of 2007 published vide notification dated 16.11.2007 were challenged by Shri Ajay Kumar Srivastava and others in Writ Petition No. 62601 of 2007. The Court issued notice and directed that in the meantime if any promotion or appointment is made, the same will be subject to the decision of the writ petition. 21. The State Government proceeded to make promotions on the basis of the new Rules of 2007, on two occasions. On 26.6.2008, 269 diploma holder Junior Engineers were promoted as Asstt. Engineer (Civil) and thereafter on 16.4.2009, 124 Junior Engineer (Civil) were promoted as Asstt. Engineer (Civil). 22. A large number of writ petitions have been filed by degree holder Junior Engineers challenging new Rules of 2007 notified on 16.11.2007. All these writ petitions namely Writ Petition No. 28175 of 2008, Ramayan Pandey and others v. State of U.P.; Writ Petition No. 29060 of 2008, N.I. Siddiqui v. State of U.P.; Writ Petition No. 29747 of 2008, Sanjay Sharma and others v. State of U.P.; Writ Petition No. 37321 of 2008, Ziledar Singh v. State of U.P. and Writ Petition No. 49202 of 2008, Dinesh Kumar v. State of U.P. have been connected with Writ Petition No. 62601 of 2007, Ajay Kumar Srivastava and another v. State of U.P. Shri N.I. Siddiqui has since withdrawn his Writ Petition No. 44287 of 2007 on 27.9.2007. All these writ petitions are connected and are being decided by this judgment. 23. Shri Ramayan Pandey and Shri Pankaj Singh also filed Contempt Petition No. 1718 of 2008 complaining of disobedience of the judgment dated 28.11.2002 (by Hon’ble Mr. Justice M. Katju & Hon’ble Mr. Justice Rakesh Tiwari). The contempt petition is still pending consideration. On 17.11.2009 the Court directed personal appearance of Principal Secretary (Irrigation Department) and Secretary, Public Service Commission. They appeared and filed their affidavits in the contempt petition on 27.11.2009. The contempt matter was, thereafter, fixed for hearing on 4.12.2009. 24. Justice M. Katju & Hon’ble Mr. Justice Rakesh Tiwari). The contempt petition is still pending consideration. On 17.11.2009 the Court directed personal appearance of Principal Secretary (Irrigation Department) and Secretary, Public Service Commission. They appeared and filed their affidavits in the contempt petition on 27.11.2009. The contempt matter was, thereafter, fixed for hearing on 4.12.2009. 24. In the meantime, under the influence of the orders passed by the High Court on 27.11.2009, in the Contempt Petition No. 1718 of 2008, Ramayan Pandey and another v. Manjeet Singh, Principal Secretary, Irrigation Department and another, the impugned letter has been issued by Shri B.V. Singh, Principal Secretary, Public Service Commission to the Principal Secretary, Irrigation stating that Shri P.S. Baghel, counsel for the Commission tried to explain that the orders of the Court have not been violated and no contempt has been committed, but that it appears that since the Court did not agree with the submissions of Shri Baghel the Commission decided that in order to comply with the orders of the Court and the relevant Rules, to reconsider the requisition of the State Government dated 20.10.2004, a Departmental Promotion Committee under the Chairmanship of Shri C.M. Singh, Hon’ble Member of the Commission was constituted as fresh. Aggrieved this writ petition has been filed on the ground that separate quotas for degree holder and diploma holder Junior Engineers, in the Rules of 1993, has been quashed by the judgment in N.I. Siddiqui’s case on 28.11.2002 and the judgment dated 22.3.2002 in Writ Petition No. 42762 of 2000. The degree holders have filed all sorts of misconceived writ petitions and contempt petition in the Court from time to time. The contempt petition filed by the original petitioners in writ Petition No. 19200 of 2001 has been dismissed by the High Court on 21.8.2006 and thus the petitioners, who are about to retire should be allowed to be promoted under the Rules as interpreted by this Court. 25. As observed above, the Court directed the Commission, in this writ petition by interim order dated 2.12.2009, to consider the recommendation of DPC for promotions. The recommendations, however, were directed to be kept in sealed cover, not to be communicated to the State Government till further orders of the Court. 26. 25. As observed above, the Court directed the Commission, in this writ petition by interim order dated 2.12.2009, to consider the recommendation of DPC for promotions. The recommendations, however, were directed to be kept in sealed cover, not to be communicated to the State Government till further orders of the Court. 26. The impleadment applications of Shri Narendra Singh through Shri A.K. Gupta, Advocate; Shri Prakash Chandra Tripathi through Shri Girijesh Tiwari, Advocate and Shri Nazrul Islam Siddiqui through Shri Siddharth Nandan, Advocate filed in January, 2010, are pending. These applications are allowed. The counsels appearing for them were also heard. 27. Shri Ashok Khare, learned counsel for the petitioner submits that the authorities are misrepresenting and misconstruing the Division Bench judgment in N.I. Siddiqui’s case. A special leave petition against the judgment is pending but that there is no interim order. In view of the judgment in N.I. Siddiqui’s case and in view of the amendments made in the Rules in the year 2007 diploma holders are also entitled for consideration of promotion on the vacant posts of Asstt. Engineers. 28. Shri Ashok Khare has relied upon Dilip Kumar Garg and another v. State of U.P. and others, (2009) 4 SCC 753 , in which the Supreme Court in a judgment delivered by Hon’ble Mr. Justice M. Katju in the matter arising out of promotions of Junior Engineers of PWD Department in Government of U.P., to the post of Asstt. Engineers upheld the validity of Rule 5 (ii) of U.P. Public Works Department (Group-B) Civil Engineering Service Rules, 2004, dispensing with the requirement of the diploma holders to pass qualifying examination for promotion as Asstt. Engineers. The Supreme Court held that Rule is not unconstitutional and there is no illegality in the same. It is entirely for the State authorities to decide whether degree holders and diploma holders should be treated, on a par or not for the purposes of promotion to the post of Asstt. Engineer. The decision is a policy decision with which the Court should not ordinarily interfere, unless there is clear violation of some constitutional provision or statute. The Supreme Court did not find any such violation. 29. Engineer. The decision is a policy decision with which the Court should not ordinarily interfere, unless there is clear violation of some constitutional provision or statute. The Supreme Court did not find any such violation. 29. Shri Ashok Khare has also relied upon the judgment in Diploma Engineers Sangh v. State of U.P. and others, (2007) 13 SCC 300 , in which the Supreme Court held while interpreting Rules of 1936, referring to P.D. Agrawal’s case in which amendments of 1969 to the Rules and Rule 23 were quashed, that the Rules of 1936 were in existence, when office orders dated 11.2.2003 were issued providing for interview in place of qualifying examination for promotion of diploma holder Junior Engineers as Asstt. Engineers. It was held that qualifying examination in the context of promotion refers to a examination, when passed, makes the candidates eligible for promotion. When qualifying examination is provided, it pre-supposes that all candidates shall have equal opportunity to answer the questions. The interview cannot generally be considered to be qualifying examination and thus the judgment of the High Court quashing the Office Order dated 11.2.2003 was upheld. Shri Khare submits that the vacancies notified by requisition of the State Government dated 20.10.2004, were 159 of the years 2003-04 and 2004-05. These vacancies were filled up under promotion orders dated 26.6.2008. He submits that the existing vacancies of Assistant Engineers are the vacancies of the year 2009-10 for which requisition was sent by the State Government on 21.10.2009. 30. The degree holder Junior Engineers impleaded in the writ petition submit that by judgment dated 28.11.2002 in N.I. Siddiqui’s case, the amendment Rules of 1988 as well as new Rules of 1993, stood automatically quashed and that provision of 1936 Rules, became operational providing for separate quota for degree holder Junior Engineers for promotion to the post of Asstt. Engineers. There is no interim order in the special leave petition filed by the State Government against the judgment, pending in the Supreme Court. It is submitted that inspite of the fact that the amendment to the Rules of 1988 and the new Rules of 1993 have been quashed, no steps were taken by the State Government for promotion of degree holder Junior Engineers. On the other hand 335 diploma holder Junior Engineers were promoted. It is submitted that inspite of the fact that the amendment to the Rules of 1988 and the new Rules of 1993 have been quashed, no steps were taken by the State Government for promotion of degree holder Junior Engineers. On the other hand 335 diploma holder Junior Engineers were promoted. It is submitted by them that if the amendment to the Rules of 1988, and new Rules of 1993 are treated to be operative, the diploma holder Junior Engineers need not undergo a qualifying examination and that vacancies of Asstt. Engineers are required to be filled up on the basis of seniority, but in case it is found that these Rules are not in existence, then the Rules of 2007 cannot be enforced with retrospective effect and that they will not apply on the vacancies, which were available prior to enforcement of 2007 Rules. If this issue is resolved, the pendency of SLP in Supreme Court and various orders from time to time will have no significance. In substance it is submitted that since new Rules of 2007 are not retrospective in operation, the vacancies existing prior to 2007, have to be filled up in accordance with the Rules of 1936. 31. Shri Sinha appearing for Zile Singh and others, degree holder Junior engineers, the petitioners in Writ Petition No. 37321 of 2008, submits that it cannot logically be said that after the Rules of 1988, and the new Rules of 1993 were quashed in N.I. Siddiqui’s case, that the Rules of 1936 are still operating. In the year 2003 by Office Memorandum dated 11.2.2003 Rule 9 (2) of 1936 Rules were again amended providing for viva voce test for promotions. In Diploma Engineer’s Sangh (Supra) the amendment was quashed. He submits that Rules of 1988 and 1993, have been quashed and in any case if they are said to be existing all the vacancies fallen prior to enforcement of the Rules of 2007 have to be filled up in accordance with the old Rules, that is the Rules of 1936, providing for examination of diploma holder Junior Engineers. The Court, therefore, should give direction to the State Government to fill up all the vacancies existing upto the recruitment year 2006-07, in accordance with the Rules of 1936. 32. In the counter-affidavit of Shri S.P. Gupta, Asstt. The Court, therefore, should give direction to the State Government to fill up all the vacancies existing upto the recruitment year 2006-07, in accordance with the Rules of 1936. 32. In the counter-affidavit of Shri S.P. Gupta, Asstt. Engineer-1, Sharda Sahayak Khand, 39, Allahabad filed on behalf of State of U.P. through the Principal Secretary, Department of Irrigation, Government of U.P. and Engineer in Chief, Irrigation Department it is stated in para 6 as follows : “6. That with regard to the contents of paragraph Nos. 39, 40, 41, 42, 43 and 44 of the writ petition, it is stated that the letter dated 13.10.2004 was sent by the Special Secretary to the Chief Engineer, Irrigation Department under some misconception that the 1936 Rules were still applicable and therefore the qualifying examination was required to be passed by the Junior Engineers Diploma Holders. It is relevant to mention here that the provisions of qualifying examination in 1936 Rules was abolished by U.P. Service of Engineers Class II Irrigation Branch (Amendment) Rules, 1988. By the aforesaid Amendment Rules 1988, Rule 9 of 1936 Rules was amended and the provision of qualifying examination was abolished w.e.f. 2.2.1977. further the Hon’ble Supreme Court in judgment and order dated 28.11.2002 passed in Writ Petition No. 19200 of 2001 declared the separate quota of Junior Engineers diploma holders and Junior Engineers Degree holders for promotion to the post of Assistant engineer as violative of Article 14 and 16 of the Constitution of India and in terms of the Judgment passed in the case of Aruvendra Kumar Garg dated 22.3.2002 the Hon’ble High Court directed to re-enact Rules. Thus according to the aforesaid judgment of the Hon’ble High Court there was no direction for promoting anybody but there was only direction to re-enact the Rules. The Hon’ble Supreme Court in its order dated 16.4.2004 in Civil Appeal No. 1946 of 20006 only clarified that the State Government will consider the Degree holders for promotion in accordance with the decision of the High Court since we have not granted any stay. Thus from the reading of judgment of the Hon’ble High Court and the order dated 16.4.2004 passed by the Hon’ble Supreme Court it is clear that there was no direction for promoting anybody much less the Junior Engineers Degree holders. Thus from the reading of judgment of the Hon’ble High Court and the order dated 16.4.2004 passed by the Hon’ble Supreme Court it is clear that there was no direction for promoting anybody much less the Junior Engineers Degree holders. Therefore, it seems that the letter dated 20.10.2004 was sent by the Special Secretary to the U.P. Public Service Commission in some misconception. The U.P. Public Service Commission in its letter dated 2.11.2004 pointed out that there was requirement of enactment of Rules in terms of directions issued by the Hon’ble Supreme Court vide judgment dated 28.11.2002. Thus the stand taken in letter dated 20.10.2004 was corrected. It is further submitted that the communication sent by the Special Secretary does not confer any right to anybody as the same was contrary to the Rules.” 33. In the counter-affidavit of Shri Natwar Singh, Joint Secretary, Public Service Commission, U.P. filed by Shri Gautam Baghel, it is stated that a proposal was received by the Commission from the State Government by letter dated 20.10.2004 to make selections by promotion of degree holder Junior Engineers in the Irrigation Department to the 159 vacant post of Asstt. Engineers in the year 2003. The Selection Committee met on 1.11.2004 and came to conclusion, after examining the judgment/ orders passed by the High Court as well as the Apex Court that as per the orders of Division Bench of the High Court the promotion is required to be considered after amendment in the existing Rules and accordingly the State Government was informed. In the expectation of necessary initiative the Commission returned the requisition vide its letter dated 3.4.2005. Now no proposal for promotion regarding degree/ diploma holder is pending for consideration before the Commission. The Rules were amended in 1993, extinguishing the quota of promotion of degree holder and diploma holder Junior Engineers, and by providing for qualifying service of 7 years in place of 10 years for diploma holder, and 3 years for degree holder junior engineers respectively. The amended Rules were notified on 14.11.2005. By the stay order dated 29.11.2005 in Writ Petition No. 72726 of 2005, Dinesh Kumar v. State of U.P., the operation of the amended Rules have been stayed. The amended Rules were notified on 14.11.2005. By the stay order dated 29.11.2005 in Writ Petition No. 72726 of 2005, Dinesh Kumar v. State of U.P., the operation of the amended Rules have been stayed. After approval of the Commission the State Government has made the re-enacted Rules w.e.f. 16.11.2007 (Rules of 2007) and the State Government sent a requisition to the Commission on 14.1.2008 to make promotions of diploma holder Junior Engineers to the post of Asstt. Engineer (Civil). In response the Commission has made and sent recommendation on 10.6.2008 and 13.6.2008 for selected candidates to the Government and that Government has issued promotion orders. Since the requisition was received only for diploma holder Junior Engineers, recommendations were made accordingly. 34. In para 18 of the counter-affidavit of the Public Service Commission, U.P. it is stated that number of posts communicated was 159 out of which 91 belongs to general category, 52 to Scheduled castes and 16 to Scheduled Tribes. The vacancies are of the year 2004-05. As per the request of the Government selection committee met on 30.11.2009 and that recommendations under the orders of the Court in this writ petition made on 2.12.2009, have been kept in the sealed cover. 35. In Contempt Petition No. 1718 of 2008, Ramayan Pandey v. Manjeet Singh, Principal Secretary, an order was passed by the High Court on 10.12.2009 directing compliance of the orders passed in this writ petition. The Selection Committee again met on 6.1.2010, to consider the resultant vacancies arising out of cases of death, retirement and otherwise falling in the period prior to the commencement of the Rules, 2007. The recommendations have been kept in sealed cover as per the order of the Court dated 2.12.2009. 36. In the aforesaid background we are required to consider, during the pendency of the Civil Appeal, against the judgment in N.I. Siddiqui’s case, and under the directions of the Supreme Court dated 11.5.2010 to decide the case as to whether the Rules of 1988 and 1993 are still operative, and that since new Rules of 2007 have not been challenged, whether the vacancies of the period prior to notification dated 16.11.2007 (when the Rules of 2007 were notified) are required to be filled up under the Rules of 1936 or in accordance with the Rules of 1988 and 1993. 37. 37. We find it appropriate to pose a simpler question before us, as to whether the posts, which have fallen vacant prior to the notification of the new Rules, 2007, are to be filled up in accordance with the Rules of 1936 by providing for a qualifying examination for the diploma holder Junior Engineers, by accepting the judgment in N.I. Siddiqui’s case, or to hold otherwise and issue directions to fill up those vacancies in accordance with the Rules of 2007, without providing for any quota or qualifying examination, and treating both the diploma holder Junior Engineers and degree holder Junior Engineers in the Irrigation Department, to be in the same class. 38. In Mohammed Bhaker v. Krishna Reddi, 1970 Ser.L.R. 768 (SC), the Supreme Court said that any rule, which affects the promotion of a person relates to his condition of service but right to be considered for promotion should not be confused with mere chance of promotion. The principle was followed in Mohd. Sujat Ali, AIR 1974 SC 1631 , a Constitution Bench decision. In T.R. Kapoor v. State of Haryana and others, AIR 1987 SC 415 ; State of Maharashtra v. Chandra Kant Anant Kulkarni, AIR 1981 SC 1990 ; Union of India v. S.C. Dutta, AIR 1991 SC 363 ; State of Andhra Pradesh v. T. Ramakrishna Rao, AIR 1972 SC 2715; I.J. Diwakar v. Government of Andhra Pradesh, AIR 1982 SC 1555 ; Y.V. Rangaiah v. J. Srinivasa Rao, AIR 1983 SC 852 ; A.A. Calton v. Director of Education, AIR 1983 SC 1123; P. Mahajan and others v. State of Karnataka and others, AIR 1990 SC 405 ; State of Madhya Pradesh v. Raghubeer Singh Yadav and others, 1994 (6) SCC 151 and in B.L. Gupta and another v. M.C.D., 1998 (9) SCC 223 , the principles of filling up vacancies prior to the amendment of the Rules (with no retrospective effect), from the eligible persons under the old Rules were settled. Though no candidate acquires a vested right, if he was eligible, when the post had fallen vacant, and that amended Rules have only prospective operation, he has a right to be considered for promotion under the old Rules. 39. Though no candidate acquires a vested right, if he was eligible, when the post had fallen vacant, and that amended Rules have only prospective operation, he has a right to be considered for promotion under the old Rules. 39. We have to now examine the effect of the judgment of this Court in Aruvendra Kumar Garg v. State of U.P., (2002) 2 UPLBEC 1483 and Anjani Kumar Misra v. State of U.P., 2006 (4) ESC 3007 (DB), on promotions. 40. The recruitment to the service known as ‘’United Provinces Service of Engineers (Building and Road Branch) (Class-II) Rules, 1936 regulated the service conditions of both the engineers of Public Works Department and Irrigation Department. The word ‘’United Provinces’ was substituted by the word ‘’Uttar Pradesh’. Prior to 1969, the Rules of 1936 provided for different sources of recruitment, and included a qualifying examination for the diploma holder Junior Engineers for promotion. The amendment in the Rules of 1969 by Notification dated 18.7.1969 provided for a detailed procedure for recruitment by promotion under Rule 5 (A) (iii) and Rule 5 (B) (ii) laid down under Rule 12 of the Rules visualizing that recruitment by promotion would be by selection on merit. 41. The Asstt. Engineers appointed substantively in temporary posts and who had become members of the service under the amended Rules of 1936, were deprived of the right to reckon their seniority from the date of their substantive appointment to the temporary post. In P.D. Agrawal and others v. State of U.P. and others, AIR 1987 SC 1676 , Rule 3 (c), 5 (6) as amended in 1969 and Rule 23 is amended in 1971, were struck down being violative of Article 14 and 16 of the Constitution of India. As a result of these amendments seniority in service was required to be determined by the date of order of appointment in substantive capacity. 42. Rule 6 of the Rules, was omitted by the notification dated 4.8.1987 bringing a significant change in the Rules, by doing away the eligibility qualification for promotion under Rule 9 (2) of the Rules, though the criteria of ‘merit’ for promotion was maintained. 42. Rule 6 of the Rules, was omitted by the notification dated 4.8.1987 bringing a significant change in the Rules, by doing away the eligibility qualification for promotion under Rule 9 (2) of the Rules, though the criteria of ‘merit’ for promotion was maintained. By the second amendment of the Rules in 1992 the criteria of ‘merit’ for promotion as contained in Rule 12 was changed to ‘’seniority subject to rejection of unfit’ and specific quota came to be fixed both for direct recruitment and promotion with 8.33% reserved in promotion for degree holder; permanent incumbents of PWD Subordinate Engineering Service and PWD Computer Service and 25% from the permanent incumbent in PWD Subordinate Engineering Service and PWD Computer Service with 7 years continuous service on such posts of respective permanent cadre strength. 43. In the year 1997 for Public Works Department by notification dated 25.9.1997 the 4th amendment was made to the Rules reducing the quota of direct recruits from 66 2/3% to 58.34% and proportionately increasing quota of promotees from 25% to 33.33%. 44. In Aruvendra Kumar Garg’s case the Division Bench held that amendment in the Rules of 1969 were held in P.D. Agrawal’s case to be violative of Article 14 and 16 of the Constitution of India and were thus void under Article 13 (2) of the Constitution of India and hence ‘’still-born’. The Court did not agree with the judgment of Hon’ble K.N. Singh, J. (as he then was) in UPSRTC v. State Transport Appellate Tribunal, AIR 1978 Alld. 154, that a law, which violates fundamental rights, whether pre-constitution or post-constitution is not wholly dead, if it violates fundamental rights of promotions as it were, in a moribund condition as long as shadow of fundamental rights falls upon it. When that shadow is removed, the law begins to operate proprio vigour from the date of such removal, unless it is retrospective. The law declared void by the Court is not effaced from the statute book; it is revived and revitalize, if the constitutional limitations are removed by constitutional amendment or by re-enactment by legislature. Hon’ble Mr. Justice S.R. Singh and Hon’ble Mr. The law declared void by the Court is not effaced from the statute book; it is revived and revitalize, if the constitutional limitations are removed by constitutional amendment or by re-enactment by legislature. Hon’ble Mr. Justice S.R. Singh and Hon’ble Mr. Justice D.R. Choudhary held in Aruvendra Kumar’s case that after offending Rules by 1969th amendment were declared in P.D. Agrawal’s case as violative of Article 14 and 16 of the Constitution of India, they have to be treated as ‘’still-born’ and their re-enactment was impermissible by the amendment to the Rules by notification dated 4.8.1982 and 25.9.1997. 45. In the Irrigation Department a different set of Rules are running, in different stream beginning with amendment by the Notifications dated 5.2.1988; 3.12.1992; 23.4.1993; 1.7.1998; 19.7.2001; 28.11.2005 and thereafter a new set of Rules replaced the entire service rules relating to Irrigation Department in the year 2007 by the name of U.P. Service of Engineers (Irrigation Department) (Group-B) Service Rules, 2007. 46. The Rules of 1936 provided for different source of recruitment namely from engineering students, who have passed out from Thompson Civil Engineering College, Roorki; by direct appointment after advertisement and consultation with Public Service Commission, U.P.; by appointment of officers in temporary service of U.P. Public Works Department, Irrigation Branch after consulting with Public Service Commission, U.P. and by promotion of members of U.P. Subordinate Engineering Service in Public Works Department, Irrigation Branch, who have in the opinion of the Government shown exceptional merit held the field until its amendment by U.P. Service of Engineers (Class-II), Irrigation Branch (Amendment) Rules, 1988. The sources of recruitment for promotion in Rule 5 (4) was amended providing for promotion on the basis of ‘merit’, through Public Service Commission U.P. from amongst such permanent Junior Engineers and permanent computer or Irrigation Department as (a) possess bachelor degree in Engineering (b) Diploma holders with 7 years service as Junior Engineers or Computers in Irrigation Department. Rule 6 provided for quota of 25% for promotion for diploma holder Junior Engineers and 8 1/3% from degree holder Junior Engineers and computers. 47. By notification dated 3.12.1992 a new set of rules were made under Article 309 of the Constitution of India called as U.P. Irrigation Department Civil Engineers (Subordinate) Service Rules, 1992, providing for 2251 temporary and 4255 permanent posts (total 6506) under Rule 4 (2) of Junior Engineers in the department. 47. By notification dated 3.12.1992 a new set of rules were made under Article 309 of the Constitution of India called as U.P. Irrigation Department Civil Engineers (Subordinate) Service Rules, 1992, providing for 2251 temporary and 4255 permanent posts (total 6506) under Rule 4 (2) of Junior Engineers in the department. Rule 15 provided for direct recruitment and Rule 16 for promotion by Selection Committee on the basis of seniority subject to reject of unfit under sub-rule (1) by a Committee appointed under U.P. Departmental Promotions Constitution of Committee (For Posts Outside the Purview of Public Service Commission) Rules, 1992. 48. U.P. Service of Engineers (Irrigation Department) (Group-B) Service Rules, 1993, were notified on 23.4.1993 providing sources of recruitment by direct recruitment under Rule 5 (1) to 66 2/3 posts and under the Rule 33% posts by promotion through the Commission out of which 24% under Rule 5 (2) (a) (i) by Junior Engineers (Civil), who have completed 10 years of service (ii) 1% by substantively appointed computers (iii) 7 1/3% from amongst substantively appointed Junior Engineers. There was further sub-division under Sub-Rule for (iv) 0.6% from substantively appointed computers holding graduate degree and in Sub-Rule (V) 0.41 from substantively appointed Research Supervisors. 49. The provision for qualifying examination has come to an end by 1988 amendment in 1936 Rules in the Irrigation Department by letter dated 13.10.2004 sent by Special Secretary to the Chief Engineer, Irrigation Department. The information given regarding applicability of the 1936 Rules was entirely misplaced. The diploma holder Junior Engineers were not required to pass any examination. The U.P. Services of Engineers Class II (Irrigation Branch) (Amendment) Rules 1988 has abolished the qualifying examination. In Aruvendra Kumar Garg’s case decided on 22.3.2002 the High Court did not give any permission to promote anybody. The directions were confined only to re-enact the rules. The Supreme Court, in its order dated 16.4.2004 in Civil Appeal No. 1946/2006, only clarified that the State Government will consider the degree holders for promotion in accordance with the decision of the High Court. There was no directions given in the judgment of the High Court and in the order of the Supreme Court dated 16.4.2004 to promote degree holder Junior Engineers. The letter dated 20.10.2004 sent by Special Secretary to the Commission was thus totally misplaced. The Commission rightly pointed out on 2.11.2004 that the rules were required to be re-enacted. There was no directions given in the judgment of the High Court and in the order of the Supreme Court dated 16.4.2004 to promote degree holder Junior Engineers. The letter dated 20.10.2004 sent by Special Secretary to the Commission was thus totally misplaced. The Commission rightly pointed out on 2.11.2004 that the rules were required to be re-enacted. The rules have now been re-enacted in 2007. In the counter-affidavit of Shri S.P. Gupta filed on behalf of the State Government it is clearly stated in paragraph-6 that the communication sent by the Special Secretary does not confer any right to anybody as it was contrary to the rules. 50. The respondents have heavily relied upon judgment in A.A. Calton v. Director of Education, MANU/SC/0047/1983; Y.V. Rangaiah v. J. Sreenivasa Rao, MANU/SC/0354/1983; P. Ganeshwar Rao and others v. State of Andhra Pradesh and others, MANU/SC/0357/1988; P. Mahendra and others v. State of Karnataka and others, (1989) 4 JT 459 and N.T. Devin Katti v. Karnataka Public Service Commission and others, AIR 1990 SC 1233 , but have not correctly appreciated the ratio laid down in these judgments. 51. The Supreme Court has in High Court of Delhi and another v. A.K. Mahajan and others, (2009) 12 SCC 62 , has explained and reiterated the principles that a mere chance of promotion cannot be a ground to challenge the amendments to the rules. It is only when the selection for direct recruitment or promotion actually starts by way of advertisement or calling for the names for consideration for promotion, that the chance of promotion crystallizes into a right of consideration for promotion. Even in such case if the rules are validly amended retrospectively, a person having only a right to be considered for promotion cannot claim the promotions to be made in accordance with the old rules. The Supreme Court held : “22. This Court has time and again held that since promotion is not a right of the employee, a mere chance of promotion if affected cannot and does not invalidate the action on the part of employer. That right of consideration may accrue at a particular point of time or subsequently thereto. Merely because at a particular point of time the employee is not considered, does not mean the total denial of the consideration of the employee. 37. That right of consideration may accrue at a particular point of time or subsequently thereto. Merely because at a particular point of time the employee is not considered, does not mean the total denial of the consideration of the employee. 37. Last but not the least, there was no mandamus issued by this Court in the aforementioned judgment. Completely erroneous observation has been made that a mandamus was issued by this Court and that the same could not be nullified by resorting to the Rule-making power by respondent Nos. 1 and 2 (therein) since there was no change in the circumstances. A further observation is also incorrect that the amendment could only be made when there is a change in circumstances. The need for the amendment could even be felt because of the change of the policy. If the High Court came to the conclusion that there was any need for amendment on the factual situation, the amendment could always be made. 38. In the present case, the amendment was necessitated on account of the statistics of promotions to the three categories, where the Private Secretaries had almost monopolized the same. Therefore, there was nothing wrong with the amendments. This Court in S.B. Mathur case (S.B. Mathur v. Chief Justice of Delhi High Court,1989 Supp (1) SCC 34, had also not given any mandamus that the promotions would only be in the light of the existing Rules and in no other. The Court had simply approved of the Rules, as they then stood, providing for the equal status of the three categories and the combined seniority list for them. This did not mean that this Court directed that there could be no change in the modality or that there could be no three separate seniority lists from the three categories. In our opinion, the judgment is completely misunderstood by the High Court. 39. Further, if this was the situation found by the High Court that the Rule could not be changed by amendment, the High Court could have and should have found fault with the whole amendment, not only the retrospectivity aspect thereof. But that has not happened. The High Court has not invalidated the amendments, creating three seniority lists for the three categories and introducing the principle of rotational promotion. It has only found fault with the retrospectivity. 40. But that has not happened. The High Court has not invalidated the amendments, creating three seniority lists for the three categories and introducing the principle of rotational promotion. It has only found fault with the retrospectivity. 40. We have already pointed out that the retrospective effect given to the amendments was after consideration of material statistics. Further, the date fixed was also relevant, as it was immediately after the last promotion was effected. We, therefore, find no fault with the retrospective aspect and in our opinion, the High Court has wrongly found fault with the retrospective aspect on the incorrect logic that the amendments affected any absolute vested or accrued rights of being considered. There is no such absolute accrued or vested right of consideration, which could not be affected by the retrospective amendments. The only condition is that such retrospective amendments should be constitutionally valid. 41. In the decision in N.T. Devin Katti and and others v. Karnataka Public Service Commission and others, 1990 (3) SCC 157 , the Court was considering the right of the candidates to be considered. The question in that case was that as to which Rules were applicable, particularly, when there were amendments in the Rules after the advertisement was issued. The Court clearly held that under such circumstances, normally the existing Rules on the date of advertisement would be applicable, however, if there is an amendment in the Rule with retrospective effect, then it would be the amended Rules, which would be applicable. The Court observed that it was on the date of the advertisement that the right of the candidate crystallizes. However, the Court observed that he had no absolute right in the matter. 42. The Court further observed : “11............ If the Recruitment Rules are amended retrospectively during the pendency of selection, in that event selection must be held in accordance with the amended Rules.” The Court also observed that : “11............a candidate, on making application for a post pursuant to an advertisement does not acquire any vested right of selection, but if he is eligible and is otherwise qualified in accordance with the relevant rules and the terms contained in the advertisement, he does acquire a vested right of being considered for selection in accordance with the Rules as they existed on the date of advertisement. He cannot be deprived of that limited right on the amendment of Rules during the pendency of selection unless the amended Rules are retrospective in nature.” (Emphasis supplied) 43. This judgment was relied upon further in case of Marripati Nagaraja and others v. Government of Andhra Pradesh and others, 2007(11) SCC 522 . This Court observed : 2007 AIR SCW 6861 “16. The State, in exercise of its power conferred upon it under the proviso to Article 309 of the Constitution is entitled to make Rules with retrospective effect and retroactive operation. Ordinarily, in the absence of any Rule and that too a rule which was expressly given a retrospective effect, the rules prevailing as on the date of the notification are to be applied. But, if some Rule has been given a retrospective effect which is within the domain of the State, unless the same is set aside as being unconstitutional, the consequences flowing therefrom shall ensue. In such an event, the applicable rule would not be the Rule which was existing, but the one which had been validly brought on the statute book from an anterior date ...............” 44. In Virender Singh Hooda and others v. State of Haryana and another, 2004 (12) SCC 588 , in paragraph 45, this Court recognized the power and competence of the Legislature to make a valid law and make it retrospectively, so as to bind even past transactions. In para 67 and 68, the Court explained the aspect of retrospectivity and came to the conclusion that there was nothing wrong if the Legislature had removed the basis of the decision of this Court by repealing the circulars. It further observed that : “67............. the candidates have the right to the posts that are advertised and not the ones which arise later for which a separate advertisement is issued. A valid law, retrospective or prospective, enacted by the legislature cannot be declared ultra vires on the ground that it would nullify the benefit which otherwise would have been available as a result of applicability and interpretation placed by a superior Court.” The decision in the case of Chairman, Railway Board (cited supra) was specifically considered in para 70 of the judgment. The Court reiterated the observation made in that case that a Rule, which seeks to reverse from an anterior date a benefit which has been granted or availed of e.g. promotion or pay scale, can be assailed as being violative of Articles 14 and 16 of the Constitution to the extent it operates retrospectively. We have already pointed out that it is only to this extent that the retrospectivity can be challenged. However, for that there has to be a tangible benefit awarded like promotion or pay-scale or a rate of pension. Such is not the state of affairs in the present case. The Court also made reference to the decision in State of J. & K. v. Triloki Nath Khosa, 1974 (1) SCC 19 , wherein it was held that impugned Rules did not recall a promotion already made or reduce a pay-scale already granted. 45. In short, law regarding the retrospectivity or retroactive operation regarding the Rules of selection is that where such amended Rules affect the benefit already given, then alone such Rules would not be permissible to the extent of retrospectivity.” (emphasis supplies) 52. In Dilip Kumar Garg’s case (supra) relying upon South Central Railway v. A.V.R. Siddhantti, (1974) 4 SCC 335 ; P. Murugesan v. State of T.N., (1993) 2 SCC 340 ; J. Ranga Swamy v. Government of A.P., (1990) 1 SCC 288 ; State of Rajasthan v. Lata Arun, (2002) 6 SCC 252 , the Supreme Court observed that eligibility qualification for admission to a course or for recruitment or for promotion in service are matters to be considered by the appropriate authority and not by the Courts. The Supreme Court observed that amendment to the rules in the year 2004 has done away with the requirement of passing a qualifying examination for the diploma holder Junior Engineer for promotion as Assistant Engineer and have been placed at par with the degree holder Junior Engineer. There is no constitutionality or illegality in the same. It is entirely for the authorities to decide whether the degree holders or diploma holders should be treated at par or not for the purposes of promotion from the post of Junior Engineer to the Assistant Engineer. In paras 15, 16 and 17 of the judgment in Dilip Kumar Garg’s case the Supreme Court observed : “15. It is entirely for the authorities to decide whether the degree holders or diploma holders should be treated at par or not for the purposes of promotion from the post of Junior Engineer to the Assistant Engineer. In paras 15, 16 and 17 of the judgment in Dilip Kumar Garg’s case the Supreme Court observed : “15. In our opinion Article 14 should not be stretched too far, otherwise it will make the functioning of the administration impossible. The administrative authorities are in the best position to decide the requisite qualifications for promotion from Junior Engineer to Assistant Engineer, and it is not for this Court to sit over their decision like a Court of appeal. The administrative authorities have experience in administration, and the Court must respect this, and should not interfere readily with administrative decisions. (See Union of India v. Pushpa Rani and Official Liquidator v. Dayanand). 16. The decision to treat all Junior Engineers, whether degree-holders or diploma-holders, as equals for the purpose of promotion is a policy decision, and it is well settled that this Court should not ordinarily interfere in policy decisions unless there is clear violation of some constitutional provision or the statute. We find no such violation in this case. 17. In Tata Cellular v. Union of India, it has been held that there should be judicial restraint in administrative decision. This principle will apply all the more to a rule under Article 309 of the Constitution.” 53. On the aforesaid discussion, we find substance in the contentions of learned counsels for the petitioners to grant the prayers to quash the communication of the Secretary, Public Service Commission, U.P. Allahabad dated 27.11.2009 and to restrain the respondents from undertaking any proceedings in pursuance to the said communication, and direct accordingly. The prayers made in the writ petitions filed by degree holder Junior Engineers, to quash the notification dated 16.11.2007 notifying the U.P. Service of Engineers (Irrigation Department) (Group-B) Service Rules, 2007 is not founded on valid grounds. The Rules have been made under the proviso to Article 309 of the Constitution of India, to carry out the policy of the State Government with regard to qualifications and the method of selection to the post of Assistant Engineers. The Rules are valid and are not found to violate Article 14 and 16 of the Constitution of India. 54. The Rules have been made under the proviso to Article 309 of the Constitution of India, to carry out the policy of the State Government with regard to qualifications and the method of selection to the post of Assistant Engineers. The Rules are valid and are not found to violate Article 14 and 16 of the Constitution of India. 54. The promotions on the subject vacancies on the posts of Assistant Engineer in the Irrigation Department of the year 2009-10 and 2010-11 (vide requisition made by State Government on 21.10.2009) are directed to be made in accordance with the U.P. Service of Engineers (Irrigation Department) (Group-B) Service Rules, 2007, notified on 16.11.2007 subject to the decision of the Supreme Court in the Special Leave Petition filed by the State Government being Special Leave Petition (Civil) No. 17351 of 2003 against the judgment in N.I. Siddiqui’s case dated 28.11.2002. 55. All the writ petitions are disposed off, accordingly. —————