ORAL ORDER The primal question to be determined in this writ petition is whether the so called Engineers, who are merely Diploma holders, can be permitted entry into the service under Bihar Engineering Service Class-I, allowing them promotion to the post of Executive Engineer, Superintending Engineer and Chief Engineer? 2. This writ petition has been heard at length for several days and with consent of all the parties, it is being disposed of at this stage itself. Mr. Ram Naresh Shukla, Advocate appeared for the petitioners in support of the writ petition, Mr. Piyush Lall, Assistant Counsel to learned Additional Advocate General-I appeared on behalf of the State and Mr. Chitranjan Sinha, learned Senior Counsel ably assisted by Mr. Aakashdeep, Advocate appeared for the contesting respondents. 3. Originally this writ petition was filed on 21.09.2006 challenging Annexure-11, the letter from the Road Construction Department, Government of Bihar, Patna to the Bihar Public Service Commission (hereinafter in short B.P.S.C.), being letter dated 26.08.2006. By this letter, the Department informed the B.P.S.C. in response to the letter dated 22.07.2006 of the B.P.S.C. (Annexure-A to the counter affidavit of B.P.S.C.) that in view of Rule-8 of the Bihar Engineering Service Class-I Rules, 1939 there is no restriction on promotion of a Diploma holder to the said service or in the said service being Bihar Engineering Service Class-I. 4. It would be the submission of the petitioners that this stand is wholly untenable and in direct conflict with the Division Bench judgment of this Court in the case of Sk. Md. Amir Ansari versus the State of Bihar and others since reported in 1973 BLJR 223. The private respondents would submit that the position as understood by the Department is correct and Diploma holders can be appointed by promotion to the Bihar Engineering Service Class-I and consequently could be promoted up to Chief Engineer. 5. Petitioner no.1 is an Association of Graduate Engineers from Engineering Colleges in India and represents the cause of Degree holder Engineers and serving as such in Bihar Engineering Service Class-II and Bihar Engineering Service Class-I. Petitioner no.2 is one such Graduate Civil Engineer posted at that time as Assistant Engineer in the Water Resources Department, Government of Bihar to which these Rules also apply. He is the elected General Secretary of the said Association, petitioner no.1. He is the elected General Secretary of the said Association, petitioner no.1. Petitioner no.2 is also authorized by the Executive Committee of the Association to pursue all matters in Court on behalf of the Association. Petitioner no.3 is a Graduate Engineer and was at that material time Executive Engineer in the Road Construction Department to which also the Rules apply. Petitioner nos.4, 5 & 6 are also Graduate Engineers and are Executive Engineers in the Road Construction Department. As the writ petition was originally filed respondent 2ndset, i.e., respondent nos.9 to 39 are all Diploma holders from State Technical (Vocational) Education Board having done the three years Diploma course after Matriculation from different Polytechnics. They have not only been appointed by way of promotion to Bihar Engineering Service Class-I but were proposed to be promoted to different ranks therein jeopardizing and adversely affecting the chance of promotion of the petitioners and their like. 6. During pendency of the writ petition, an intervention application was filed by the Subordinate Engineers Association, Bihar which was allowed by this Court and the said Association was added as party-respondent no.35. It is not in dispute that this Association, Subordinate Engineers Association is a representative body of Diploma holder Engineers espousing the cause of Diploma holder Engineers in the State. In view of the intervention application being allowed, this Court had noted that as representative body of the Diploma holder Engineers had been made a party to the writ petition, the interests of private-respondents are duly represented and, as such, the private-respondents be not noticed individually though they have appeared and filed a counter affidavit as well. They have been heard as well. 7. There is counter affidavit on behalf of the State filed through the Road Construction Department. But, there is yet another counter affidavit filed on behalf of the State through the Water Resource Department. Why this Court has noticed the two is that the stand in the two counter affidavits are diametrically opposite. The Road Construction Department supports the private-respondents, whereas the Water Resources Department supports the contentions of the petitioners. Why this would be apparent a little later. 8. Before adverting to the controversy, I deem it fit to first notice the difference in the educational qualification of the petitioners and the private-respondents, i.e., Graduate Engineers and the Diploma holders as of today. Why this would be apparent a little later. 8. Before adverting to the controversy, I deem it fit to first notice the difference in the educational qualification of the petitioners and the private-respondents, i.e., Graduate Engineers and the Diploma holders as of today. Graduate Engineers have obtained engineering degrees after basic education of Intermediate level. The engineering course is a full time four years course. So far as the Diploma holders are concerned, their basic education is Matriculation followed by the three years Diploma course from any Government recognized Polytechnic. At times the Diploma holders are also referred as persons having done Subordinate Engineering course. 9. Very briefly stated, there appears to be three cadres of Engineers in Bihar. The details of which would be discussed later. The first is the Bihar Subordinate Engineering Service, which basically consists of Engineers having certificates or Diploma in Subordinate Engineering from any institution recognized by the State Government. Then, we have Bihar Engineering Service Class-II, which basically consists of direct recruits having Engineering Degree and their appointment by promotion from Subordinate Engineering Service including those who have enhanced their educational qualifications as also the Diploma Engineers. Then, we have the Bihar Engineering Service Class-I Rules, 1939 which consists of direct recruits of Graduate Engineers and promoted Officers appointed from Bihar Engineering Service Class-II. 10. The contention of the private-respondents would be that Diploma holders who can only be directly recruited under Bihar Subordinate Engineering Service can upon promotion as such be appointed to the Bihar Engineering Service Class-II and then further be appointed on promotion to Bihar Engineering Service Class-I, unlike Graduate Engineers who could be directly recruited to the Bihar Engineering Service Class-I or Bihar Engineering Service Class-II. 11. The contentions of the petitioners would be that Subordinate Engineers, being Diploma holders could at best rise to the cadre of Bihar Engineering Service Class-II, but not above and, as such, appointments made by way of promotions of such Diploma holders from Bihar Engineering Service Class-II to and further promotions in Bihar Engineering Service Class-I given to or proposed to be given the Diploma holders would be contrary to the rules and in conflict with the Division Bench judgment in the case of Sk. Md. Amir Ansari (supra) and, thus, illegal and invalid. 12. Md. Amir Ansari (supra) and, thus, illegal and invalid. 12. As noted earlier, the initial challenge in the writ petition as originally filed was Annexure-11, being letter dated 26.08.2006, from the Road Construction Department, Government of Bihar, Patna to the B.P.S.C. This was in response to B.P.S.C. letter dated 02.07.2006 (Annexure-A to the counter affidavit of the B.P.S.C.). As noted earlier, in sum and substance this letter points out to the B.P.S.C. that there is no restriction on either appointment by way of promotion to Bihar Engineering Service Class-I or promotion within it of Diploma holder Engineers. It is, thus, necessary first to look to the communications leading to this stands. 13. It may first be noted that the Road Construction Department has been treated as the nodal Department in relation to the Engineering Services in respect of the Road Construction Department and the Water Resources Department. It appears that on or about 09.06.2006 the Secretary, Water Resources Department wrote to the Commissioner-cum-Secretary, Road Construction Department (Annexure-D to the counter affidavit of the Water Resources Department) seeking clarification whether Diploma holder Junior Engineers could be promoted as Executive Engineers and further upwards and whether those Executive Engineers who were Diploma holders and had been promoted to Class-I service should be recalled. Would their promotions not be contrary to the resolution of the State Government of the year 1987? Upon this query being raised, the Road Construction Department responded by its Memo No.8373 (S) dated 19.07.2006 after taking opinion from the Advocate General, Bihar, Patna. This is Annexure-9 to the writ petition and the opinion of the Advocate General is appended to the said communication. The stand of the Road Construction Department was clear. It clearly referred to Rule-8 of the Bihar Engineering Service Class-I Rules and pointed out that Diploma holders could not be promoted and brought into the said Class-I service. It pointed out that only those Diploma holders who had done four years engineering course after Intermediate (10+2) could be considered for appointment or promotion to Class-I service. The opinion of the Advocate General, which is part of this communication, also clearly brings about a distinction based on the course of the study and clearly points out that appointment to Bihar Engineering Service Class-I posts can only be made from Degree holders or Diploma holders from recognized Engineering Colleges. The opinion of the Advocate General, which is part of this communication, also clearly brings about a distinction based on the course of the study and clearly points out that appointment to Bihar Engineering Service Class-I posts can only be made from Degree holders or Diploma holders from recognized Engineering Colleges. It points out that such an engineering course is after a person has completed schooling of 10+2 and then attended 4 years of engineering classes. It does not include 3 years Diploma holders who get their Diplomas after Matriculation only and any action of the State upon misinterpretation of the provisions of the Rules should be set right. It also opined that those who were wrongly promoted should be reverted but recoveries of financial benefits should not be made. On the same day, the Road Construction Department also wrote to the B.P.S.C. (Annexure-10) to the writ petition to the same effect and also pointed out that the matter of promotion etc. with B.P.S.C. should, accordingly, be reconsidered. It would, thus, be seen that this was the firm stand of the Road Construction Department which stop the Water Resources Department from giving promotions to Diploma holders into Class-I service and that is why, as noted earlier, the Water Resources Department, which accepted the position, has filed a separate counter affidavit supporting the stand of the petitioner in this regard. 14. This communication of the Road Construction Department dated 19.07.2006 (Annexure-10), having reached the B.P.S.C. immediately on 22.07.2006, the B.P.S.C. writes back to the Road Construction Department seeking clarification again. This is Annexure-A to the counter affidavit of B.P.S.C. It points out that the two Associations of Engineers are laying different claims before it, as such, orders from the State Government be obtained so that B.P.S.C. could take decision with regard to promotion etc. It is in response to this that by impugned Annexure-11 dated 26.08.2006 suddenly the Road Construction Department takes a complete U-turn and now informs the B.P.S.C. that under the 1939 Rules there is no restriction on promotion to Diploma holder Junior Engineers. It points out that there were some controversies by various amendments made to Rule-8. But, ultimately, in 1987 State restored Rule-8 in its original shape as it was in the 1939 Rules and, as such, there was no restriction on promotions now. It points out that there were some controversies by various amendments made to Rule-8. But, ultimately, in 1987 State restored Rule-8 in its original shape as it was in the 1939 Rules and, as such, there was no restriction on promotions now. It pointed out that the Law Department agrees with this opinion and, accordingly, steps must be taken for promotion and appointment. 15. It would, thus, be seen that within a span of slightly over a month the nodal Department, i.e., the Road Construction Department took a complete U-turn in the matter first strenuously holding the position that Diploma holders had no place in Class-I Engineering Service and then completely giving it a go-by by Annexure-11. In ultimate analysis, it is the correctness of this stand that is to be judged. But, what may be noticed at the very out set is that at every point deliberately or otherwise parties have chosen to ignore the Division Bench judgment of this Court in the case of Sk. Md. Amir Ansari (supra). Though the very rational of the said judgment, being the difference in nature of course as between Degree and Diploma, has been noticed at times and ignored at other times. 16. In my view, in order to go to the root of the controversy and understand the same, it is necessary to trace the legislative history first of Rule-8 of the Bihar Engineering Service Class-I Rules, 1939. 17. It appears that in exercise of power under Section-241 of the Government of India Act, 1935 the State Government framed Rules for the regulation of recruitment and the conditions of service, pay, allowances and pension of two classes of Bihar Engineering Service as well as for the Subordinate Engineering Service. These Rules were adopted as Rules framed under Article-309 of the Constitution upon the Constitution coming into force. Rule-8 of the Bihar Engineering Service Class-I Rules, 1939 as originally enacted read as follows:- “8.Technical qualification:- No person shall be appointed to the service unless he holds a degree or diploma from an Indian Engineering College of is an Associate Member of the Institution of Engineers (India) or holds a degree from one of the Universities in United Kingdom enumerated in Annexure to these rules, or has passed the examinations mentioned therein.” 18. Before any controversy appears, it is better to clarify the difference if any as between the Degree or Diploma as used in this Rule. The Division Bench of this Court in the case of Sk. Md. Amir Ansari (supra) noticed this aspect of the matter. It is pointed out that originally the expression Diploma was not intended to be in the Rules. B.P.S.C. way back in the year 1939 had pointed out that there was a prestigious engineering institution in India, namely, Thomson College, Roorkee (now I.I.T. Roorkee), which conducted 4 years full time engineering course. The syllabus was the same as 4 years Degree course, but it granted Diploma and it is because of this intervention that the expression Diploma was added at that time in 1939 itself to the said Rules when Rules were finally published. Thus seen, though both the expressions were used, i.e., Degree or Diploma from an Engineering College, there was no essential difference in this set of qualification as the course and the syllabus were the same. No separate class of Diploma holders were sought to be created along with Degree holders. 19. At this juncture, I may further note from the judgment of the Division Bench in the case of Sk. Md. Amir Ansari (supra) that at one stage parties had raised the plea that Bihar College of Engineering, Patna also awarded Diploma and that would be a Diploma from a Indian Engineering College within the meaning of Rule-8 as originally enacted. This contention was also rejected by the Court after comparing the course and the syllabus. The Court found that the Diploma granted by the Bihar College of Engineering was pursuant to a 3 years course after Matriculation which could never be equated to a 4 years full time course after Intermediate. The Diploma was for Subordinate Engineers as per college prospectus. 20. It appears that there were some misgivings about the operation and the scope of Rule-8. The Diploma was for Subordinate Engineers as per college prospectus. 20. It appears that there were some misgivings about the operation and the scope of Rule-8. Accordingly, the State Government under proviso to Article-309 of the Constitution by notification dated 27thof February, 1969 substituted the original Rule-8 by a new Rule-8, as quoted hereunder:- “8.Technical Qualifications:- No person shall be appointed or promoted to the service unless he is a graduate in Engineering from an Indian University or Institution or is a pass in sections A and B of the Associate Member of Institution of Engineers, India or holds a degree from one of the Universities in the United Kingdom enumerated in the Annexure to the rules, or has passed the examination mentioned therein.” 21. On 1st of December, 1971 this Rule-8 was again amended by substituting a completely new Rule as under noted:- “8. Technical Qualifications:- (a) For direct appointment to the service and for promotion to the rank of Superintending Engineer and higher posts, no person shall be eligible unless he is a graduate in Engineering from an Indian University or Institution or is a pass in Sections A and B of the Associate Member of the Institution of Engineers, India, or holds a degree from one of the Universities in the United Kingdom enumerated in the Annexure to the rules, or has passed the examination mentioned therein; (b) For promotion to the rank of Executive Engineer, it may not be necessary for an Assistant Engineer, promoted from the Subordinate Engineering Service, to possess a Degree in Engineering or a pass in Sections A and B of the Associate Member of the Institution of Engineers, India.” 22. From this 1971 amendment, it would be seen that Rule-8 was split into parts. First, it clearly provided that for direct appointment to the Class-I Engineering Service and for promotion to the rank of Superintending Engineer and above only Graduate Engineers and those who had passed Section-A&B of the Associate Member of the Institution of Engineers of India could be considered. In the second part engineers from Subordinate Engineering Service could be promoted but only up to the rank of Executive Engineers and not above. 23. It may be noted that for Subordinate Engineering Service a person could be a Diploma holder or holder of a certificate in Subordinate Engineering and it was not necessary to be a Degree holder. In the second part engineers from Subordinate Engineering Service could be promoted but only up to the rank of Executive Engineers and not above. 23. It may be noted that for Subordinate Engineering Service a person could be a Diploma holder or holder of a certificate in Subordinate Engineering and it was not necessary to be a Degree holder. Thus, for the first time, this 1971 amendment allowed a limited entry of Diploma holders into Class-I service but restricted them only up to a rank of Executive Engineer. 24. Apparently, it is this amendment that led to the case of Sk. Md. Amir Ansari (supra). There the Diploma holder Engineers challenged the restriction placed on their promotion beyond Executive Engineer whereas the Degree holders sought for restricting the Diploma holder for entering into Class-I service and it is in this perspective various questions and issues were raised and decided in the said judgment looking to the history of legislation. The Division Bench of this Court in the said judgment dismissed both the sets of writ petitions and upheld the Rules as substituted by amendment in 1971. I will deal with this binding precedent in greater details later. 25. This position continued till 1986. In 1986, i.e., on 23.09.1986 an executive order was issued by the Road Construction Department replacing the statutory Rule-8 in the following terms:- “8. Technical Qualification:- No person shall be eligible for direct appointment or promotion to this service unless he holds a diploma or Graduate in Engineering from any Indian University or Institute or has passed Section A and B of Associate Member of Institution of Engineers (India) or holds a degree from one of the Universities in the United Kingdom enumerated in Annexure to the rules, or has passed the examination mentioned therein.” 26. The noticeable departure now being sought to be made was that all other considerations of Rule-8, as originally enacted, being there what was changed was a Diploma from “any institute” also qualified for appointment on promotion to Class-I Engineering Service. But, as noticed above, this was a departmental executive instruction alone and had attempted to amend a statutory Rule framed under Article-309 of the Constitution, which could not be done and, apparently, realizing this soon thereafter efforts were made to statutorily amend the Rule-8. This resulted in once again amendment by way of substitution of Rule-8 as a whole. But, as noticed above, this was a departmental executive instruction alone and had attempted to amend a statutory Rule framed under Article-309 of the Constitution, which could not be done and, apparently, realizing this soon thereafter efforts were made to statutorily amend the Rule-8. This resulted in once again amendment by way of substitution of Rule-8 as a whole. It may be noted here that while making the amendment under Article-309 of the Constitution, the notification dated 02.12.1987 (Annexure-6 to the writ petition) noted that it was superseded the notification and amendment of 1971. It annulled the 1986 amendment which as noted above was a mere departmental executive exercise which could not override statutory provision. Now, Rule-8 after its substitution with effect from 02.12.1987, reads as follows:- “Rule-8. Technical Qualifications:- No persons shall be appointed to the service unless he holds a degree or diploma from an Indian Engineering College or is an Associate Member of the Institution of Engineers (India) or holds a degree from one of the Universities in the United Kingdom enumerated in the Annexure to these Rules or has passed the examination mentioned therein.” 27. A mere comparison of the Rule-8 as brought in 1987 and the Rule-8, as originally enacted in 1939, would show that there is absolutely no difference in any aspect of the matter. The original Rule-8 has been brought back after changes in it in 1969, 1971 & by executive instructions of 1986. 28. We have, thus, to see as to what was the scope of original Rule-8 as enacted and whether there is any change in its effect after the 1987 amendment when it has been restored to its original form. 29. Mr. R.N. Shukla, learned counsel appearing for the petitioners in support of the writ petition submitted that Rule-8, as originally enacted in 1939, had been restored by the 1987 amendment. Therefore, the scope of Rule-8 now would be the same as original Rule-8 and would have the same meaning as ascribed to it by the Division Bench in the case of Sk. Md. Amir Ansari (supra) a decision rendered in 1973 which is binding. In that case, as noted earlier, the Court noted why the “Diploma from Engineering College” was inserted and held that Diploma would have to be the same as Degree. Md. Amir Ansari (supra) a decision rendered in 1973 which is binding. In that case, as noted earlier, the Court noted why the “Diploma from Engineering College” was inserted and held that Diploma would have to be the same as Degree. So far as course of study is concerned, other Diploma including Diploma from Bihar College of Engineering, which is 3 years courses, would not qualify for the said purpose. That being the decision of the Division Bench rendered in 1973 itself about the scope of Rule-8 as originally enacted, then it must be assumed that when Rule-8 in the same form and shape was reintroduced in 1987, State being aware of its judicial interpretation must be deemed to have accepted the same without any intention to depart. 30. Mr. Chitranjan Sinha, learned Senior Counsel appearing for the contesting private-respondents contends to the contrary. He contends that the real issue before the Division Bench judgment was the validity of the 1971 amendment and there was no issue with regard to the original Rule-8. He further submits that even otherwise the Division Bench did not consider some other provisions of the Rules, which were relevant and, as such, the decision should be treated as a decision rendered sub silentio. He further submits that Rule-8, as originally enacted and as now brought back, talks only of appointment to the service and not in respect of promotions to the service from Class-II service. He further submits that the expression Diploma from Engineering College may have been relevant in the year 1939, if it is so read even today, it would be redundant because no Engineering College grants any Diploma. He, thus, submits that the expression Diploma from any Indian Engineering College should be read by this Court now to mean Diploma from any recognized institution so as to include any Diploma in engineering from any Polytechnic. He further submits that a Diploma holder by dint of experience can be treated equivalent to a degree holder in due course of time. 31. Mr. Shukla submits to the contrary in this regards and submits that appointment to the service would include appointment by way of promotion. He further submits that a Diploma holder by dint of experience can be treated equivalent to a degree holder in due course of time. 31. Mr. Shukla submits to the contrary in this regards and submits that appointment to the service would include appointment by way of promotion. He further submits that where Degree or Diploma from Engineering College is a basic eligibility for entering into a service the same provision cannot be read down in any manner more so to include within it a Diploma in Engineering from Polytechnic because they are essentially different course and syllabus than a Degree in engineering. Many subjects which are essential are not even taught much less with any depth in Diploma and if promotions are permitted to Diploma holders they would become in due time Chief Engineers who are the ultimate sanctioning authority for all big engineering projects of which they might not have even studied as Diploma holders. 32. During pendency of the writ petition, challenge has also been laid to the proposed promotions sought to be granted to the Diploma holders. The exception being those who had got entry into Class-I service by virtue of 1971 amendment but only to the extent of reaching the post of Executive Engineer because at no point the Diploma holder could rise above Executive Engineer. These are the salient issues as raised by the parties. 33. Here, it may be noted that on behalf of State of Bihar there are two counter affidavits. One through the Road Construction Department, which in substance is totally ignoring the binding precedent of the Division Bench judgment continues to harp that Rule-8 did not apply to appointment by promotion and there was no restriction on appointment by promotion of Diploma holders from Bihar Engineering Class-II Service or their promotion within Bihar Engineering Class-I Service. The other counter affidavit is through the Water Resources Department which places reliance on the Division Bench judgment in the case of Sk. Md. Amir Ansari (supra) and submits that Diploma holders had never any place in Bihar Engineering Class-I Service. Thus, supporting the petitioners as against the Road Construction Department which supports the private-respondents. There are counter affidavits on behalf of the individual private-respondents whose appointments and promotion in the Bihar Engineering Class-I Service is under challenge. There are separate counter affidavits on behalf of the Association of Subordinate Engineers (Diploma holders). Thus, supporting the petitioners as against the Road Construction Department which supports the private-respondents. There are counter affidavits on behalf of the individual private-respondents whose appointments and promotion in the Bihar Engineering Class-I Service is under challenge. There are separate counter affidavits on behalf of the Association of Subordinate Engineers (Diploma holders). There are rejoinders to each. B.P.S.C. has also filed counter affidavit but takes no stand except informing the Court that it was proceeding on basis of impugned direction received from the Road Construction Department, the nodal agency, as contained in Annexure-11. 34. Before proceeding further, I must dispose of certain objections as raised by Mr. Chitranjan Sinha, learned Senior Counsel appearing for the private-respondents, Diploma holders. His first submission is that the petitioners’ Association had earlier filed a writ petition, being C.W.J.C. No.4600 of 1987, challenging the amendment to Rule-8 of the Rules which was disposed of by Division Bench by order dated 28.06.2001 along with an analogous case without granting any relief. Therefore, it is submitted that they cannot maintain this writ petition. I am afraid, the submission is to be noted only to be rejected. The said judgment is to be found in petitioners’ reply to the intervention petition as Annexure-17. It is specifically stated that the writ petition was filed on 15.10.1987 and, in fact, it challenged the 1986 executive departmental instructions amending Rule-8 of the Rules. It did not even purport to challenge the 1987 amendment which came on 02.12.1987. Moreover, a reference to the said order would show that leave was given to challenge in any individual case if grievance of discrimination or other grievances were there. With that leave the writ petition was permitted to be withdrawn without adjudication. Then reference was made to C.W.J.C. No.7437 of 1994 filed by the petitioners’ Association which was dismissed by Division Bench on 26.09.1994, which is Annexure-18 to the said rejoinder to the intervention petition. A bare perusal of the order would show that the said writ petition had been filed as a Public Interest Litigation, which was held to be not maintainable, but while dismissing clearly liberty was given to the aggrieved to move the Court if they were aggrieved by any action the respondent-State. Thus, this decision also does not come in way of the writ petitioners. Thus, this decision also does not come in way of the writ petitioners. The next judgment is in the case of Satya Narayan versus State of Bihar and others, being C.W.J.C. No.130 of 2005, which is Annexure-R/35-D to the counter affidavit on behalf of respondent no.35, the Association of Subordinate Engineers, which is also Annexure-12/D to the counter affidavit of some of the private-respondents whose promotions are under challenge. The said writ petition was allowed by judgment and order dated 26.10.2005. The same has since been reported in 2005(4) PLJR 755 . In the said case, the dispute was that the petitioner who was Diploma holder Engineer had been superseded by allegedly to two of his juniors, respondent nos.4&5 to the said writ petition who were Diploma holder Engineers in matter of officiating as Engineer-in-Chief. The contention of the State and respondent nos.4&5 in that case was that the petitioner being a Diploma holder could not even given entry into Bihar Engineering Class-I Service and, as such, even if he was superseded he could not make any grievance as he was superseded by Degree holders. The petitioner’s contention was to the contrary. His contention was that Rule-8 apply to direct recruits to Class-I Service and not to promotes from Class-II Service of Subordinate Service. 35. Mr. R.N. Shukla, learned counsel for the petitioners in the present writ petition submitted and, in my view, rightly that the said judgment in Satya Narayan’s case (supra) is per in curium inasmuch as it being a judgment of learned Single Judge of this Court and it did not take note of the binding precedent being the Division Bench judgment in the case of Sk. Md. Amir Ansari (supra) which directly answered this issue as against the petitioners of that writ petition. The Division Bench had clearly held that Rule-8 apply both to direct appointees and appointees by way of promotion from Class-II service. The Division Bench further held that the Diploma holders could not be considered for Class-I service unless the Diploma holder was graduate of an Engineering College and that too of a 4 years course after Intermediate. Whereas on both these issues the learned Single Judge took a different view in direct conflict with the Division Bench. The Division Bench further held that the Diploma holders could not be considered for Class-I service unless the Diploma holder was graduate of an Engineering College and that too of a 4 years course after Intermediate. Whereas on both these issues the learned Single Judge took a different view in direct conflict with the Division Bench. It is a matter of regret that a reported judgment directly on the issue was not brought to the notice of the Court which led the Court to decide the issue in conflict with binding precedent and in ignorance thereof. So far as this Court is concerned, it is bound by the judgment of the Division Bench and, in view of the facts noted above, it cannot but be held that the judgment in the case of Satya Narayan (supra) is per in curium. 36. At this point, I must also notice as is evident from the judgment in the case of Satya Narayan (supra) as late as 2005, when the said judgment was delivered, the specific stand of the State was that Diploma holders could not find place in Bihar Engineering Class-I Service. I have noted this because as earlier noted this was the stand of the Road Construction Department as evident from Annexures-9 & 10 to the writ petition. But, suddenly in about a month time it has chosen to take a complete U-turn that was also the opinion of the Advocate General, Bihar. But, now the State through the Road Construction Department contends to the contrary. Whereas the State through the Water Resources Department sticks to the earlier stand that Diploma holders has no place in Bihar Engineering Class-I Service. 37. Now, it is proper for me to refer to the binding precedent and the judgment of the Division Bench in the case of Sk. Md. Amir Ansari (supra). As noted earlier, the original Rule-8 of the Rules as enacted in 1939 provided that no person shall be appointed to the service, which means Bihar Engineering Class-I Service, unless he holds a degree or a Diploma from Indian Engineering College. This led to a dispute as to what was meant by a Diploma from Indian Engineering College. As noted earlier, the original Rule-8 of the Rules as enacted in 1939 provided that no person shall be appointed to the service, which means Bihar Engineering Class-I Service, unless he holds a degree or a Diploma from Indian Engineering College. This led to a dispute as to what was meant by a Diploma from Indian Engineering College. The Division Bench found that it was because of a prestigious institution Thomson College, Roorke (now I.I.T. Roorke) granted Diploma even that the syllabus, course of study and duration were because of this “Diploma” was added while enacting the Rule. It was contended by the promotes (Diploma holders) that they had been promoted to Class-I Service because they had Diplomas from Bihar College of Engineering. This Court in detail examined the curriculum, syllabus and the course of study and found that the Diploma granted was pursuant to a 3 years course. It was a Diploma with a certificate in Subordinate Engineering and could not be equated to Diploma as contemplated under Rule-8. Such engineers were wrongly promoted, then specific issue was raised by the promotes, who were from Bihar Engineering Class-II Service, in other words, Subordinate Engineers that Rule-8, as originally enacted, apply only to direct recruits and not to promotes from Class-II Engineering Service. This was specifically negatived by the Court holding that the technical educational eligibility as provided in Rule-8 was intended to apply to both direct appointment and appointment by promotion. The Court also found that there was no discrimination as between promotes and the direct recruit. Promotes having the educational qualification as prescribed under Rule-8 could be appointed by way of appointment to Class-I service. 38. In my view, once the Division Bench as far back as in 1973 had interpreted the provisions of Rule-8 in its original form then once the same Rule was brought back verbatim, it is not open for this Court to take a different view of the matter so long as the view of the Division Bench is not altered in any manner by any superior Court. Even otherwise, I am of the same view there being neither reason nor authority to doubt the correctness of the Division Bench judgment. 39. Here, it would be appropriate to refer the Constitution Bench judgment in the case of Bengal Immunity Co. Even otherwise, I am of the same view there being neither reason nor authority to doubt the correctness of the Division Bench judgment. 39. Here, it would be appropriate to refer the Constitution Bench judgment in the case of Bengal Immunity Co. Ltd. versus State of Bihar since reported in AIR 1955 SC 661 for the proposition of law as stated in paragraph-197 of the said reports, which is quoted as under:- “197. ….It is a well-settled rule of construction that when a statute is repealed and re-enacted and words in the repealed statute are reproduced in the new statute, they should be interpreted in the sense which had been judicially put on them under the repealed Act, because the legislature is presumed to be acquainted with the construction which the Courts have put upon the words, and when they repeat the same words, they must be taken to have accepted the interpretation put on them by the Court as correctly reflecting the legislative mind….” 40. It is for this reason that I hold that the interpretation given to Rule-8 as originally enacted would still bind and be good when the same Rule-8 is brought by the 1987 amendment substituting changes in the meantime. On the same lines is the decision of the Apex Court in the case of F.S. Gandhi (Dead) by Lrs. versus Commissioner of Wealth Tax, Allahabad since reported in (1990) 3 Supreme Court Cases 624 wherein in paragraph-16 their Lordships have held thus:- “16. In this context, it may also be mentioned that CWT v. Muthukrishna Ammal was decided by this Court on September 6, 1968. The Finance Act, 1969, whereby clause (e) of Section 2 of the Act was substituted, was enacted by Parliament on May 13, 1969. In the amended provisions of clause (e), Parliament has repeated the same language, namely, “where the interest is available to an assessee for a period not exceeding six years” in Item (v) of sub-clause (1) and in Item (iii) of sub-clause (1) and in Item (iii) of Sub-clause (2). It must be assumed that while enacting the Finance Act, 1969, Parliament was aware of the construction placed by this Court on these words in CWT V. Muthukrishna Ammal. It must be assumed that while enacting the Finance Act, 1969, Parliament was aware of the construction placed by this Court on these words in CWT V. Muthukrishna Ammal. In repeating the said words in the amended clause (e) of Section 2, Parliament must be taken to have used the said words to bear the meaning which has been put upon them by this Court in CWT v. Muthukrishna Ammal.” 41. It was then contended by Mr. Chitranjan Sinha, learned Senior Counsel that as would be seen from the facts noted in the case of Sk. Md. Amir Ansari (supra) and subsequent actions of the Government that it for quite sometime considered any Diploma holders from either Bihar College of Engineering or any Polytechnic to be equivalent to a Degree holder then the Court must construe the provisions accordingly because it was statute made by the State and that is how then had intended to apply it. In my view, the answer to this is to be found in the words of the Apex Court in the case of Punjab Traders and others versus State of Punjab and others since reported in (1991) 1 Supreme Court Cases 86 wherein the Apex Court held thus in paragraph-16 of the reports, which is quoted hereunder:- “16. …..Even if it is true that persons who dealt with the statute understood its provisions in a restricted sense, such mistaken construction of the statute did not bind the court so as to prevent it from giving it its true construction.” 42. Moreover, it may be noted that in the case of Sk. Md. Amir Ansari (supra) itself the Court had pointed out that not even Diploma from Bihar Engineering College would qualify a person for Bihar Engineering Class-I Service. But, as noticed earlier, in different litigations that had been the stand of the State as well till 2006 when suddenly in spite of opinion of the Advocate General to the contrary it took a U-turn. Thus, the reliance placed by Mr. Chittranjan Sinha on the decisions of the Apex Court in the case of Municipal Corporation for City of Pune and another versus Bharat Forge Co. Thus, the reliance placed by Mr. Chittranjan Sinha on the decisions of the Apex Court in the case of Municipal Corporation for City of Pune and another versus Bharat Forge Co. Ltd. and others since reported in (1995) 3 Supreme Court Cases 434 and in the case of Cantonment Board, Mhow and another versus M.P. State Road Transport Corporation since reported in AIR 1997 Supreme Court 2013 is of no help as well as the case of Ajay Gandhi and another versus B. Singh and others since reported in AIR 2004 Supreme Court 1391. 43. It was then urged by Mr. Sinha, learned Senior Counsel that there is no rational for discrimination as between the Degree holder and Diploma holder, the later gained his experience by dint of their long service as Engineering Class-II Service. This issue of discrimination as between degree holder and the Diploma holder Engineers came up squarely for consideration before the Constitution Bench in the case of the State of Jammu & Kashmir versus Triloki Nath Khosa and others since reported in AIR 1974 Supreme Court 1 and was negatived. I may also notice in this connection a similar argument that was made with regard to experience gained by long service over academic qualification which was negatived by the Apex Court in the case of State of M.P. and another versus Dharam Bir since reported in (1998) 6 Supreme Court Cases 165 wherein their Lordships in paragraphs-31,32&34 have held thus:- “31. ……The courts as also the tribunal have no power to override the mandatory provisions of the Rules on sympathetic consideration that a person, though not possessing the essential educational qualifications, should be allowed to continue on the post merely on the basis of his experience. Such an order would amount to altering or amending the statutory provisions made by the Government under Article-309 of the Constitution. 32. “Experience” gained by the respondent on account of his working on the post in question for over a decade cannot be equated with educational qualifications required to be possessed by a candidate as a condition of eligibility for promotion to higher posts. If the Government, in exercise of its executive power, has created certain posts, it is for it to prescribe the mode of appointment or the qualifications which have to be possessed by the candidates before they are appointed on those posts. If the Government, in exercise of its executive power, has created certain posts, it is for it to prescribe the mode of appointment or the qualifications which have to be possessed by the candidates before they are appointed on those posts. The qualifications would naturally vary with the nature of posts or the service created by the Government. 34. The respondent having worked in an ad hoc capacity on the post of Principal might have gained some administrative experience but the same cannot be treated as equivalent to his knowledge in the field of Engineering. A compounder, sitting for a considerably long time with a doctor practicing in modern medicine, may have gained some experience by observing the medicine prescribed by the doctor for various diseases or ailments but that does not mean that he, by that process, acquires knowledge of the human anatomy or physiology or the principles of pharmacology or the field of action of any particular medicine or its side effects. The compounder cannot, merely on the basis of experience, claim a post meant exclusively for persons having MBBS or other higher degrees in medicine or surgery. The plea of experience, therefore, must fail. Moreover, this would amount to a relaxation of the Rule relating to educational qualification. Power to relax the Rule vests exclusively in the Governor as provided by Rule 21. This power cannot be usurped by the court or the tribunal.” 44. In fairness to Mr. Chitranjan Sinha, learned Senior Counsel, I must refer the case of B.N. Saxena versus New Delhi Municipal Committee and others since reported in (1990) 4 Supreme Court Cases 205 wherein he has sought inspiration from the observations of the Apex Court for that the experience gained for a considerable length of time is itself a qualification. He submits that in view of the aforesaid observations the Diploma holder in due course of time gets necessary qualification to become equivalent to that of a Degree holder. 45. In my view, what the Apex Court has considered the statute which itself provided the promotion for a person who did not have the qualification but have experience. The statute itself equated the two. The Apex Court was only noticing what the particular statute had provided. But, in my view, the Apex Court did not intend to lay down any general Rule of law in that regards. The statute itself equated the two. The Apex Court was only noticing what the particular statute had provided. But, in my view, the Apex Court did not intend to lay down any general Rule of law in that regards. The answer to the submission is to be found in the case of Dharam Bir (supra). 46. Then, Mr. Chitranjan Sinha, learned Senior Counsel appearing for the private-respondents contended that the Court must not interpret a provision which would lead to absurdity. It must interpret a statutory provision in aid of the object and should give purposive interpretation to the object of the legislation. For this proposition, he relied on several decisions of the Apex Court. I deem it unnecessary to notice them for the reasons that as a proposition of law what is submitted is unexceptional and unquestionable, but the question is, does that apply to the present case. My answer is emphatic no. The reason is that Mr. Sinha attempts or wants the Court to presume that the object of 1987 amendment to the Rule was to permit the Diploma holder a free access into Bihar Engineering Service Class-I. There is no warrant for such an assumption or presumption. The words of the statute (Rule-8) do not suggest it. There is no ambiguity in the language used. The language used is the same that was directly interpreted by this Court in the case of Sk. Md. Amir Ansari (supra) more than a decade and half before the 1987 amendment and which decision was binding precedent and had attained finality. No statutory Aims and Objects Clause was referred to and brought on record for the said amendment even the nodal Department and the State understood the 1987 amendment consistent with the interpretation given in the case of Sk. Md. Amir Ansari (supra) up to the year 2006 when suddenly the Road Construction Department took a complete U-turn for inexplicable reasons. It first told the B.P.S.C. that in view of the provisions there was no scope for the Diploma holders in Bihar Engineering Class-I Service. Having obtained the opinion of the Advocate General, then within a span of about 1½ months, it took a U-turn and informed B.P.S.C. that right from 1939 there was no restriction on appointment by promotion or promotion within Class-I Service of Diploma holders totally wishing away the Division Bench judgment. Having obtained the opinion of the Advocate General, then within a span of about 1½ months, it took a U-turn and informed B.P.S.C. that right from 1939 there was no restriction on appointment by promotion or promotion within Class-I Service of Diploma holders totally wishing away the Division Bench judgment. This conduct of the State itself shows that it is not only inadvisable but dangerous to think about or talk about the object for the amendment or the intention for it except by clear reference to the words used in the statute itself which is the expression of the legislative intent. 47. Here, I may add that if the intent and object was to give free access to the Diploma orders, State had the executive order of 1986, before it which could have been reenacted as a part of amendment under Article-309 of the Constitution, where for Diploma holders any institution granting it was valid and equivalent to a Degree in engineering as a technical qualification. They were aware of this executive amendment because the notification amending Rule-8 in 1987 noticed the 1986 executive amendment and annulled it never before the Diploma holders were permitted unrestricted access in Class-I service. Even as per 1971 amendment Rule-8(b) permitted Diploma holders’ access and promotion restricted to the post of Executive Engineer and no further. The reason is very simple and correct. The responsibility for sanctioning bigger engineering projects with all its technicalities rests on Superintending Engineer and Officers senior to them. Diploma holders, who are not taught many of the subjects which are taught for a full time 4 years Degree course in engineering, cannot be said to be technically qualified for the said purpose. Here, I can only usefully quote once again from paragraph-34 of the judgment of the Apex Court in the case of Dharam Bir (supra) : “…..A compounder, sitting for a considerably long time with a doctor practicing in modern medicine, may have gained some experience by observing the medicine prescribed by the doctor for various diseases or ailments but that does not mean that he, by that process, acquires knowledge of the human anatomy or physiology or the principles of pharmacology or the field of action of any particular medicine or its side effects. The compounder cannot, merely on the basis of experience, claim a post meant exclusively for persons having MBBS or other higher degrees in medicine or surgery. The plea of experience, therefore, must fail. Moreover, this would amount to a relaxation of the Rule relating to educational qualification….” 48. At this stage, I may also notice that Mr. Shukla learned counsel for the petitioners did urge that now a days Diplomas in engineering are available from multifarious Polytechnics which have mushroomed and available dime a dozen and permitting them with their technical qualification to reach the highest place to take crucial decisions of technical nature would not be conducive in public administration. 49. Now, I may consider another argument of Mr. Sinha, learned Senior Counsel for the private-respondents. He submits that whatever may have been the interpretation given by the Division Bench in the case of Sk. Md. Amir Ansari (supra) in respect of Rule-8, as originally enacted in 1939, in view of subsequent amendments, when ultimately the same Rule was reinserted, this Court should see the change in attitude of the Government and should be free to depart from the interpretation given earlier from the same Rule. This is a very extreme argument without precedents and I am unable to accept the same. Firstly, as noticed earlier, the Apex Court has clearly held in the case of Bengal Immunity Co. Ltd. (supra) that when a provision is reenacted, which provision had earlier been interpreted judicially, it must be assumed that the legislature knew the interpretation and wanted to retain the same. Secondly, it is not open for me to differ from binding precedent. However, in deference to his submission which in effect is that now doors are open to Diploma holders for free entry into Bihar Engineering Class-I Service. I must note that sequence of legislative amendments. I have already noticed why originally the expression Diploma from Indian Engineering College was introduced while enacting Rule-8 in 1939. At that time Thomson College, Roorke was granting Diploma though the course was same as a Degree course in all respect. Thus, ordinary 3 years Diploma course people had no entry legally in Class-I service. As noticed above, in the case of Sk. Md. At that time Thomson College, Roorke was granting Diploma though the course was same as a Degree course in all respect. Thus, ordinary 3 years Diploma course people had no entry legally in Class-I service. As noticed above, in the case of Sk. Md. Amir Ansari (supra) there was misgivings in the State where Diploma holders from Bihar College of Engineering were taken into Class-I service, apart from the Division Bench disapproving the same on detailed comparison of the course of study. In 1969 Rule-8 was amended, as noticed above, this unambiguous terms put a complete ban on Diploma holders of any sort of entry into Class-I Engineering Service either by way of appointment or by way of promotion. This position was changed in 1971 when Rule-8 was amended and it was split up in two parts. Diploma holders, who were in Subordinate Engineering Service, were given limited access to Class-I Engineering Service only up to the rank of Executive Engineer and no further. This position continued till 1986 when not by statutory amendment but an executive order issued by the Road Construction Department for some inexplicable reason Rule-8 was amended opening Class-I service to Diploma holders from any institution. Soon thereafter in 1987, this free access of Diploma holders was restricted once again by reintroducing the original Rule-8 as it stood in 1939 verbatim the same. Thus seen, legally only once were Diploma holders given a restricted entry to Class-I service only up to Executive Engineer. The executive instructions of 1986 had no legal sanctity. But, from pleadings it appears that taking advantage of that executive non-statutory amendment a large number of Diploma holders were given free access and promotion in Class-I service. It may be noted that in the counter affidavit of the Water Resources Department, it is specifically mentioned that though 1986 non-statutory amendment was annulled by 1987 statutory amendment, the later was not circulated widely enough to be noticed whereby ignoring the same promotions were obtained by Diploma holders into Class-I Service and, that is why, it has sought clarification in the matter. Thus, to submit that the intent was to allow free access to Diploma holders into Class-I Service by the 1987 amendment cannot be accepted because that was never the intention of the Government. 50. Mr. Thus, to submit that the intent was to allow free access to Diploma holders into Class-I Service by the 1987 amendment cannot be accepted because that was never the intention of the Government. 50. Mr. Chitranjan Sinha, learned Senior Counsel then submitted that the Division Bench did not examine the entire scheme of the Bihar Engineering Class-I Service and, in particular, he submits that one read Rules-4, 8 and 10 (c) together which would show that Rule-8, in fact, applies only to direct recruits and not for promotion. Similar argument was made before the Division Bench that Rule-8 apply for direct recruits and not for promotes from Class-II service and had been repealed. What Mr. Sinha submits is Rule-4 which deals with source of recruitment and does not include Bihar Engineering Service Class-II and provides a quota for that. When we come to Part-V, being procedure for direct recruitment, Rule-10(c) provides that the direct recruits must along with their application as per Sub-Rule-(c) thereof submit evidence of their educational qualification. But, when it comes to promotion, there is no such provision and, therefore, we must hold that promotes quota being there and there being no requirement to show their educational qualification Class-II Officers are to be promoted without any restriction. 51. In my view, not only this has accepted by Division Bench and it cannot be accepted now again. Rule-8 clearly says that no person shall be appointed to the service, a promote from Class-II cadre which is independent of Class-I cadre is appointed to Class-I service as well. Rule-8 is not Part-IV which deals with procedure for direct recruit. It is a technical qualification for anyone coming to Class-I Service. Thus, it operates as a filter. A direct recruit applying for the first time to the Government must establish his credentials of having a Degree as per Rule-10 (c), but that is not necessary for a promote whose service record with its qualification are already with the Government while in Class-II service. If he has achieved the technical qualification then he is technically qualified for Class-I, but if he is a Diploma holder then he is automatically filtered out and his promotional avenues curtailed because of lack of technical qualification. This is quite rational. In my view, if the scheme of Rules-4, 8 & 10(c) are seen then rather than helped the respondents it holds out against them. This is quite rational. In my view, if the scheme of Rules-4, 8 & 10(c) are seen then rather than helped the respondents it holds out against them. Here, I may refer to the statutory note appended to Rule-7 of the Rules which clearly brings about and clearly shows that members of Bihar Engineering Service Class-II are eligible for appointment by promotion. Thus, even this argument of Mr. Sinha does not succeed. 52. Thus, to sum up, in my view, the 1987 amendment to Rule-8 of the Rules bringing back verbatim. Rule-8, which was there originally in the Rules, as enacted and which had been duly interpreted by the Division Bench in the case of Sk. Md. Amir Ansari (supra), would reinstate the position as was earlier there. Thus, Diploma holders from any Polytechnic, having done courses not academically equivalent to Degree courses in engineering, cannot have any access to Bihar Engineering Class-I Service, even though they may be part of Bihar Engineering Class-II Service from which appointment by way of promotion is to be made to Class-I Service and possess a Degree in engineering or have passed Sections-A & B certificate from Associate Member of Institution of Engineers, India are to get entry into Class-I Service. 53. Now, the question is the legal position having been settled, thus, what is the relief that the petitioners are entitled to. As noticed above, by interlocutory application, which had been allowed long back, petitioners have challenged the promotion of the private-respondents. They have defended their position by filing their counter affidavit. Once it is held that Diploma holders have no entry in Class-I Service then for any reason those who have got into service wrongly can they now be permitted to be promoted. The answer must be emphatic no because their very foundation upon which they entered into Class-I Service was wrong except those who had entered by virtue of Rule-8 (b) as per 1971 amendment and the amendment in 1987 even in those cases they cannot travel beyond the post of Executive Engineer. Thus, those Diploma holders who were granted promotion from the post of Executive Engineer to Superintending Engineer in the year 2006 which was subject matter of challenge in the writ petition, their promotion has to be held to be contrary to law. They were ineligible. Thus, those Diploma holders who were granted promotion from the post of Executive Engineer to Superintending Engineer in the year 2006 which was subject matter of challenge in the writ petition, their promotion has to be held to be contrary to law. They were ineligible. But, while holding so, apparently having entered into service though wrongly and having been there for such a long period, it may not be fair to totally throw them out of Class-I Service and revert them back to Class-II service. I would, thus, mould the relief by restricting them to the position and post of Executive Engineer and not above. However, this would have no effect on the remuneration already received by them including pensionary benefits if they have superannuated by now. The promotion orders, as contained in Annexures-15 & 16 are, thus, to that extent quashed. So is impugned Annexure-11 quashed. 54. The writ petition is allowed.