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2013 DIGILAW 421 (RAJ)

M. S. Mathur v. State of Rajasthan

2013-02-19

AMITAVA ROY, MEENA V.GOMBER

body2013
JUDGMENT 1. - The petitioner seeks annulment of the notification dated 24.7.1995 (Annex.3 to the writ petition) occasioning amendments in the Rajasthan Service of Engineers (Building And Roads Branch) Rules, 1954 (for short, hereafter referred to as "the Rules") in essence, limiting the promotional prospects to the post of Additional Chief Engineer and Chief Engineer only to the incumbents in the post of Superintending Engineer in the Civil discipline. The petitioner, who at the time of initiation of the instant proceedings, was Superintending Engineer (Mechanical), has retired as such on 31.7.2003, in course of which, according to him, he had to serve under officers junior to him, but promoted on the basis of the impugned provisions of the Rules to the higher rank of Additional Chief Engineer and Chief Engineer. 2. We have heard Mr.Rajendra Soni, learned counsel appearing for the petitioner and Mr.Hari Barath, learned counsel appearing for the respondents. 3. Briefly stated, the facts leading to the filing of the instant petition are that the petitioner, who had been appointed as Junior Engineer with the Public Works Department of the State of Rajasthan (for short, hereafter referred to as "the Department") on 29.8.1964, was selected/promoted to the post of Assistant Engineer under the Rules on 21.11.1967 and then to the post of Executive Engineer on 25.3.1976 and was eventually elevated as the Superintending Engineer (Mechanical) on 30.11.1991 against the vacancy of the year 1991-92 in that rank. Prior thereto, he had been confirmed in the lower grades of Assistant Engineer and Executive Engineer as well. He too was confirmed in the post of Superintending Engineer (Mechanical). 4. In terms of the Rules, prior to the amendment, as per Schedule-I thereto, the posts of Additional Chief Engineer and Chief Engineer were prescribed to be filled-up 100% by promotion from the feeder posts of Superintending Engineer and Additional Chief Engineer respectively. As inspite thereof, the preference was being given only to the Superintending Engineer in the Civil Wing of the Department, one Ram Babu Gupta approached this Court for redress in S.B.Civil Writ Petition No.4608/92 contending that having regard to the Rules, Superintending Engineers of all Wings including Civil, Mechanical and Electrical, ought to be treated at par and provided equal opportunity for being considered for promotion to the posts of Additional Chief Engineer and Chief Engineer. The writ having been disposed of with the observation that the posts of Additional Chief Engineer and Chief Engineer of the Mechanical Wing ought to be created, Ram Babu Gupta being aggrieved, preferred D.B.Civil Special Appeal (Writ) No.833/94. The State of Rajasthan also simultaneously preferred an appeal and eventually the Division Bench of this Court by judgment and order dated 29.8.1995, on an exhaustive survey of the various decisions of the Hon'ble Apex Court on the issues involved, held that the Superintending Engineers of Civil, Mechanical and Electrical Wings were all eligible for promotion to the posts of Additional Chief Engineer and Chief Engineer on the basis of seniority-cum-merit and that to facilitate the same, a combined seniority list of all incumbents ought to be drawn up. The claim of Ram Babu Gupta that his case should be considered exclusively for promotion to the post of Additional Chief Engineer (Mechanical) that had been created meanwhile, was however, negated. 5. Indisputably, in the meantime, by the notification impugned herein, amendments to the Rules had been effected whereby the promotional prospects for elevation to the posts of Additional Chief Engineer and Chief Engineer were confined only to the Superintending Engineers (Civil). In this context, it was held as well that as the amended Rules had been enforced with effect from 24.7.1995, the same would not affect the rights of the officials, who had already been promoted or selected by DPC against the vacancies for the year 1995-96 and application thereof, was thus declared to be prospective vis-a-vis the vacancies from 1996-97 onwards. It was noticed as well that a common seniority list of Superintending Engineers had in fact been prepared on 15.11.1995 (tentative) and finalised on 12.1.1996. 6. A Coordinate Bench of this Court having expressed a view different from the one as recorded in D.B.Civil Special Appeal (Writ) No.416/95 State of Rajasthan & Anr. v. Ram Babu Gupta & ors. , D.B.Civil Special Appeal (Writ) No.436/95 State of Rajasthan & anr. v. S.R.Mehta and anr. and D.B.Civil Special Appeal (Writ) No.833/94 Ram Babu Gupta v. State of Rajasthan & ors. v. Ram Babu Gupta & ors. , D.B.Civil Special Appeal (Writ) No.436/95 State of Rajasthan & anr. v. S.R.Mehta and anr. and D.B.Civil Special Appeal (Writ) No.833/94 Ram Babu Gupta v. State of Rajasthan & ors. decided on 29.8.1995 , as referred to hereinabove, on the issue of applicability of the amended Rules to the vacancies of 1995-96 and the process undertaken by the DPC for promotion thereto, this issue was referred to the Larger Bench of this Court and by judgment and order dated 30.8.1996 rendered in R.Dayal & ors. v. State of Rajasthan & ors. (F.B. Reference in D.B.Civil Writ Petition No.3759 of 1995) , it was held that the amended provisions of the Rules did apply for the purpose of ascertaining the eligibility for consideration for promotion to the posts of Additional Chief Engineer and Chief Engineer, even for vacancies arising during 1995-96. To this extent, the view taken in Ram Babu Gupta's case (supra) was reversed. 7. Significantly, the Larger Bench of this Court did not have the occasion to examine the validity of the amended Rules qua the aspect of exclusion of all avenues of promotion for the incumbents in the post of Superintending Engineer (Mechanical) and (Electrical) then serving the Department. Though it had been concluded in the judgment and order dated 30.8.1996 of the Larger Bench of this Court on the basis of the reasoning in support of its view on applicability of the amended Rules to the vacancies of 1995-96 and onwards, that the decision in the case of Ram Babu Gupta (supra) had been reversed, having regard to the scope and ambit of challenge laid before it and examined, we are of the unhesitant opinion that it did not tantamount to endorsement of the validity of the provisions in the amended Rules confining the prospects of promotion to the post of Additional Chief Engineer and Chief Engineer of the Department only to the incumbents in the post of Superintending Engineer belonging to Civil discipline. We are thus of the comprehension that the challenge now laid in the instant proceedings did not stand concluded and answered by the judgment and order of the Larger Bench rendered in the case of R.Dayal (supra) on this aspect of the debate. 8. We are thus of the comprehension that the challenge now laid in the instant proceedings did not stand concluded and answered by the judgment and order of the Larger Bench rendered in the case of R.Dayal (supra) on this aspect of the debate. 8. Whereas the petitioner has impeached the validity of the amended Rules so far as it denies the Superintending Engineer (Mechanical) any prospect of promotion to the higher rank of Additional Chief Engineer and Chief Engineer being violative of Articles 14 and 16 of the Constitution of India being bereft of any rational basis of classification and/or nexus thereof with the object sought to be achieved thereby, the respondents seek to endorse the validity of the amended Rules on the basis of the adjudication made by the Larger Bench of this Court in the case of R.Dayal (supra). As a matter of fact, this stand finds projection in their pleadings in the instant proceedings. Though in the additional affidavit filed on their behalf, the facts pertaining to the abolition of various posts have been brought on record, it is conspicuously silent about the reason and/or justification for confining the promotional posts in the rank of Additional Chief Engineer and Chief Engineer to the incumbents of the Civil Branch/Wing thereof. 9. Mr.Soni, while reiterating the petitioner's plea as above, has urged that having regard to the scheme of the Rules, the amendment sought to be introduced vide impugned notification dated 24.7.1995 is per se arbitrary, unjust, unreasonable and discriminatory and ought to be adjudged null and void. He has argued further that similar amendments to the identical Service Rules governing the service conditions of the incumbents of the Public Health & Engineering Department as well as Irrigation Department of the State of Rajasthan have been struck down as ultra vires by this Court. To reinforce his challenge to the validity of the amended provisions of the Rules, the learned counsel has also placed reliance on the decisions of the Hon'ble Apex Court in Chandigarh Administration v. K.K.Jerath 1995 SCC (L&S) 166 : AIR 1995 SC 299 , B.Manmad Reddy & ors. v. Chandra Prakash Reddy and ors. 2010 (3) SCC 314 : AIR 2010 SC 1001 , National Council for Teacher Education & Ors. v. Shri Shyam Shiksha Prashikshan Sansthan and ors. ( 2011(3) SCC 238 : AIR 2011 SC 932 , Andhra Pradesh Dairy Development Corpn. v. Chandra Prakash Reddy and ors. 2010 (3) SCC 314 : AIR 2010 SC 1001 , National Council for Teacher Education & Ors. v. Shri Shyam Shiksha Prashikshan Sansthan and ors. ( 2011(3) SCC 238 : AIR 2011 SC 932 , Andhra Pradesh Dairy Development Corpn. Federation v. B.Narasimha Reddy 2011(9) SCC 286 : AIR 2011 SC 3298 , Dakshin Haryana Bijli Vitran Nigam & Ors. v. Bachan Singh, JT 2009(10) SCC 352 : AIR 2009 SC 2745 , Deepak Sibal v. Punjab University and anr. ( AIR 1989 SC 903 ) , Regional Provident Fund Commissioner v. Sanatan Dharam Girls Secondary School & Ors. ( AIR 2007 SC 276 ) , D.S.Nakara v. Union of India(UOI) ( AIR 1983 SC 130 ) and Indravadan H.Shah v. State of Gujarat and anr. ( AIR 1986 SC 1035 ) . 10. In reply, Mr.Barath has argued that not only the impugnment of the vires of the amended Rules is barred in view of the adjudication made by the Larger Bench of this Court in R.Dayal's case (supra), the confinement of the promotional prospects to the incumbents of Civil Wing of the Department in the higher rank of Additional Chief Engineer and Chief Engineer being a matter of policy based on the felt need of a change in the scheme of the hierarchy of posts in the Department, this Court in exercise of its power of judicial review would not interfere. According to learned counsel, with the passage of time, the works of the Department pertaining to Mechanical and Electrical disciplines are being outsourced and hence, the amendments. 11. We have considered the pleaded facts to the extent essential and have also analyzed the arguments advanced. There is no wrangle at the Bar that the service conditions of the petitioner and other incumbents in service with the Department are governed by the Rules. Rule 6 of the Rules deals with the composition and strength of service. Schedule-I thereto lists the posts with relevant particulars pertaining thereto. The methods of recruitment to these posts are prescribed by Rule 7. Rule 6 of the Rules deals with the composition and strength of service. Schedule-I thereto lists the posts with relevant particulars pertaining thereto. The methods of recruitment to these posts are prescribed by Rule 7. A plain reading of Schedule-I of the unamended Rules indicates that the posts of Additional Chief Engineer and Chief Engineer have been mentioned under the caption "Senior Posts" and were to be filled-up 100% by promotion from the feeder posts of Superintending Engineer and Additional Chief Engineer respectively and the criteria of eligibility is also mentioned therein. Vide impugned notification dated 24.7.1995, these posts have been earmarked to be filled-up 100% by promotion exclusively from the Superintending Engineer (Civil) and Additional Chief Engineer (Civil) respectively. Though there is a mention of the post of Additional Chief Engineer (Mechanical), which is to be filled up from the post of Superintending Engineer (Mechanical) exclusively by promotion, it is a matter of records that no such distinction does exist as on that. 12. On being queried by us, it has been submitted in course of the arguments that at present, there are seven posts of Additional Chief Engineer and three posts of Chief Engineer earmarked to be filled-up from the incumbents only in the Civil discipline of the Department. 13. Be that as it may, the amended Schedule-I discloses that for a Superintending Engineer for being eligible for consideration for promotion to the post of Additional Chief Engineer, the incumbent apart from possessing the academic qualification as prescribed therein, is required to have five years' service as Superintending Engineer (Civil). In other words, as contended by the petitioner, the posts of Additional Chief Engineer and the Chief Engineer in the Department are patently kept reserved for the officers in the rank of Superintending Engineer (Civil) and Additional Chief Engineer (Civil) of the Department. No provision whatsoever has been made for the incumbents of the equal rank in the other disciplines i.e. Mechanical and Electrical. 14. A scrutiny of the Schedule-I to the Rules both unamended and amended, however reveals that for the incumbents of the posts in the lower rank i.e. Assistant Engineer and Executive Engineer, the avenues of promotion have been guaranteed to the respective higher ranks of identical groups with the exception only of variation in the academic qualification vis-a-vis the discipline involved. A scrutiny of the Schedule-I to the Rules both unamended and amended, however reveals that for the incumbents of the posts in the lower rank i.e. Assistant Engineer and Executive Engineer, the avenues of promotion have been guaranteed to the respective higher ranks of identical groups with the exception only of variation in the academic qualification vis-a-vis the discipline involved. No distinction whatsoever has otherwise been made between these three sets of officers for promotion to the rank of Superintending Engineer in terms of the framework of the Rules as existed prior to the amendment. These three streams of officers at the level of Superintending Engineer thus conceptually merged into each other to be considered for promotion thereafter to the higher rank of Additional Chief Engineer and Chief Engineer. For promotion, the Rules do not contemplate any distinction on the basis of their disciplines i.e. Civil, Mechanical and Electrical. This classification had been introduced for the first time by amendment to the Rules effected by the impugned notification dated 24.7.1995. To reiterate, the records do not reveal any reason therefor. In absence of any pleadings on behalf of the respondents to corroborate the arguments on their behalf that with the passage of time and change in the nature of works and departmental exigencies, the promotional avenues of the Superintending Engineer (Mechanical) were considered inessential and hence, was done away with, thus, cannot be either entertained or acted upon. 15. At the cost of repetition, it may be recalled that the Division Bench of this Court in the case of Ram Babu Gupta (supra) had an occasion to address this aspect of the matter whereupon it returned a finding that a combined seniority of the Superintending Engineer of all disciplines of the Department ought to be drawn up and the eligibility of the incumbents ought to be considered for promotion to the higher rank of Additional Chief Engineer and Chief Engineer. This was significantly after the amended Rules had been brought into force. In view of our conclusion recorded hereinabove that this finding of a Coordinate Bench of this Court in Ram Babu Gupta's case (supra) had in fact not been reversed on principle by the Larger Bench of this Court in the case of R.Dayal (supra), we are of the view that this determination as on date does not stand effaced. 16. In view of our conclusion recorded hereinabove that this finding of a Coordinate Bench of this Court in Ram Babu Gupta's case (supra) had in fact not been reversed on principle by the Larger Bench of this Court in the case of R.Dayal (supra), we are of the view that this determination as on date does not stand effaced. 16. It is too trite to be over-emphasized as on date that classification though not wholly impermissible amongst members of a homogeneous group, the same indispensably has to be on a rational basis and on criteria having reasonable nexus with the object ultimately sought to be achieved thereby. The classification to be valid on the touchstone of Articles 14 and 16 of the Constitution therefore, has to pass the twin tests of reasonableness of the criteria applied for classification and the nexus thereof with the object to be achieved. In absence of any of these two pre-conditions, the classification is bound to be rendered invalid and unconstitutional. This proposition being too fundamental, we do not wish to burden this judgment with the authorities cited in support thereof. 17. Applying this test to the impugned provisions of the amended Rules so far as these pertain to domain of promotional prospects of Superintending Engineer of the Mechanical and Electrical Wing of the Department to the higher rank of Additional Chief Engineer and Chief Engineer, we are persuaded to conclude that the total extinction of such scope for these two groups of officers of otherwise homogeneous class of Superintending Engineers, is vividly discriminatory and unsustainable in law and on the facts. This is more so, in absence of any justification in support thereof. In our considered view, having regard to the framework of the Rules, such classification in absence of any tangible reason whatsoever tantamounts to meeting out hostile discrimination to the two groups of Superintending Engineers belonging to Mechanical and Electrical Wings of the Department, who admittedly are integral constituents thereof serving it over the years. 18. In the above view of the matter and on a cumulative consideration of all the factors outlined hereinabove, we are of the opinion that the challenge to the validity of the impugned notification dated 24.7.1995 effecting amendments to the Rules to the extent as indicated therein, ought to be upheld. Ordered accordingly. The notification dated 24.7.1995 (Annex.3 to the writ petition) is hereby set aside. Ordered accordingly. The notification dated 24.7.1995 (Annex.3 to the writ petition) is hereby set aside. The respondents, as a consequence hereof, are directed to consider the case of the petitioner for notional promotion to the post of Additional Chief Engineer and thereafter, to the post of Chief Engineer, if found eligible/suitable therefor in succession. It is made clear that this ought to be done on and from the date his immediate junior in the service in the regular cadre of Superintending Engineer was so promoted. It is also made clear that if the petitioner on the completion of the exercise, as directed above, is found entitled to such promotion, he would be awarded the benefit of continuity in service only for the purpose of retiral entitlements. 19. The writ petition thus stands allowed to the extent indicated hereinabove. No costs.Petition allowed. *******