TaxTMI 
TaxTMI 
TaxTMI 
2003 (11) TMI 596
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....the Assistant Engineers from direct recruitment of Engineering Graduate or equivalent Degree Holders from outside. On or about 17.8.1973, the cadre of Engineer Assistants was abolished in various phases and only promotional avenue was left for Junior Engineers from amongst the quota of 30% of the diploma-holders. Keeping in view the fact that promotional avenue of those Junior Engineers who had acquired degree in engineering during service was taken away, the State of Bihar by reason of a resolution dated 17.1.1979 sought to provide special facility by way of incentive of promotion to the post of Assistant Engineer to those Junior Engineers who had acquired degree in engineering or passed equivalent examination during their service to the extent of 3%. The said employees besides holding the degree of engineering or passing of equivalent examination were further required to complete a minimum period of five years in service in the cadre of Junior Engineers. The relevant clauses of the aforementioned resolution are as under : "Gha. This facility of promotion to the post of Assistant Engineer on the basis of quota mentioned in paragraph (Ka) shall be equally available to all those p....
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....inimum service period of five years but have obtained certificate of AMIE or Bachelor's degree in Engineering after five years. 3. On the basis of the principles enumerated above, the fixation of inter se seniority of all applicants received within the stipulated period from the concerned applicants has been done according to the enclosed list." A gradation list dated 10.9.1992 was issued and the same was purported to have been finalized on or about 22.12.1992 in terms of the aforementioned circular letter. The appellant herein submitted his representations/objection to the said list on 12.1.1993. Allegedly on the premise that without disposing of the said objections, some Junior Engineers were promoted, a writ petition was filed before the Patna High Court, which was marked as C.W.J.C. No.2489 of 1993. The said writ petition was allowed by a learned Single Judge of the said High Court by a judgment and order dated 25.4.1994 holding that as the Government resolution dated 17.1.1979 had been issued by way of incentive of adding the qualification during continuation of service for getting advantage of acceleration in promotion; in the event the said gradation list dated 22.12.1....
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....Annexure 'O' to the show cause filed on behalf of the Secretary-cum-Commissioner, Department of Road Construction, Government of Bihar, Patna both the writ applications are accordingly dismissed." The appellant filed a letters patent appeal which was barred by limitation of 36 days. By an order dated 18.9.1997, the said letters patent appeal was dismissed stating : "Flag 'A' is an application under Section 5 of the Limitation Act seeking condonation of delay of 36 days in filing the appeal. It is contended that the appellant was advised to prefer S.L.P. before the Apex Court which had delayed the filing of the appeal. On being asked to show the order passed in the S.L.P. Learned Counsel said that no S.L.P. was filed. This being so no ground is made out for condoning the delay in filing the appeal. The application at flag 'A' is accordingly rejected. Consequently, the appeal is dismissed being barred by limitation." Mr. Vikas Singh, learned counsel appearing on behalf of the appellants, inter alia, would submit that the basic qualification for promotion to the post of Assistant Engineer being acquisition of a degree in engineering or passing of an equival....
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....ircular states that the promotion on the vacant posts of Assistant Engineer under the quota mentioned in clause 'Ka' i.e. 3% would be made on the basis of seniority. In absence of any statutory provision or rules made thereunder or under the proviso appended to Article 309 of the Constitution of India, it is trite, that once an incumbent is appointed to a post according to rules his seniority has to be counted from the date of his appointment. The aforementioned Resolution dated 17.1.1979 was introduced as a special measure. The promotion of the holders of the post of Junior Engineers to the post of Assistant Engineer was not to be done on selection basis. No written examination was to be held nor any oral interview was to be taken. No criteria whatsoever was laid down for selecting the candidates. For the purpose of granting promotion to the post of Assistant Engineer in the aforementioned category, only two conditions which were required to be fulfilled on the relevant date are : (a) the employee must be holder of a degree or must have passed an equivalent examination; (b) he must have completed five years of service in the post of Junior Engineer. A plain reading of th....
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....romotion on completion of three years' service including the period of service prior to obtaining of such degree or whether the three years' service as a degree-holder for the said purpose shall be reckoned from the date of obtaining such degree. The Central Administrative Tribunal before which the application was filed held that the diploma-holders were entitled to be considered for promotion to the post of Assistant Engineer on par with the degree-holder Junior Engineers having regard to the total length of service rendered in grade of Junior Engineer irrespective of the fact that as to whether he had acquired the necessary degree qualification earlier than the applicants. This Court in N. Suresh Nathan (supra) held : "In our opinion this appeal has to be allowed. There is sufficient material including the admission of respondents diploma-holders that the practice followed in the department for a long time was that in the case of diploma- holder Junior Engineers who obtained the degree during service, the period of three years' service in the grade for eligibility for promotion as degree-holders commenced from the date of obtaining the degree and the earlier period....
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....t clearly show that the respondents diploma-holders in that case has admitted the practice followed in that department for a long time and the case was mainly decided on the basis of past practice followed in that department for a long time. It was clearly laid down in the above case that if the past practice is based on one of the possible constructions which can be made of the rules then upsetting the same now would not be appropriate. It was clearly said "it is in this perspective that the question raised has to be determined". It was also observed as already quoted above that the Tribunal was not justified in taking the contrary view and unsettling the settled practice in the department. That apart the scheme of the rules in N. Suresh Nathan case (1992 Supp (1) SCC 584 : 1992 SCC (L&S) 451 : (1992) 19 ATC 928) was entirely different from the scheme of the Rules before us. The rule in that case prescribed for appointment by promotion of Section Officers/Junior Engineers provided that 50 per cent quota shall be from Section Officers possessing a recognised degree in Civil Engineering or equivalent with three years' service in the grade failing which Section Officers holding ....
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....d consistently for some time past the rule has been made applicable in a particular manner. In our view, the decision in Nathan case [1992 Supp (1) SCC 584 : 1992 SCC (L&S) 451 : (1992) 19 ATC 928] only indicates that past practice must be referable to the applicability of the rule by interpreting it in a particular manner consistently for some time. Any past practice dehors the rule cannot be taken into consideration as past practice consistently followed for long by interpreting the rule. It may be indicated here that a similar question also came up for consideration before this Court in M. B. Joshi v. Satish Kumar Pandey [1993 Supp (2) SCC 419 : 1993 SCC (L&S) 810 : (1993) 24 ATC 688]. The decision in Suresh Nathan case [1992 Supp (1) SCC 584 : 1992 SCC (L&S) 451 : (1992) 19 ATC 928] was distinguished in the facts of that case and it was indicated that when the language of the rule is quite specific that if a particular length of service in the feeder post together with educational qualification enables a candidate to be considered for promotion, it will not be proper to count the experience only from the date of acquisition of superior educational qualification because such int....