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2010 (4) TMI 1045
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....sts of Assistant Engineer was to be by direct recruitment and to the 80% of the posts by promotion. 50% of the promotion quota was to be filled up by Section Officers (now Junior Engineers) possessing a recognized degree in Civil Engineering or equivalent with three years service in the grade, failing which Section Officers holding diploma in Civil Engineering with six years service in the grade and the remaining 50% of the promotion quota was to be filled up by Section Officers (Junior Engineers) possessing a recognized diploma in Civil Engineering with six years service in the grade. 4. On 24.09.1968, the Chief Secretary, Government of Pondicherry, wrote to the Secretary, Union Public Service Commission (for short `the UPSC') that there were Section Officers with diploma qualification who have acquired degree in Civil Engineering or equivalent and have putting in several years in service and having become qualified for consideration for 50% quota of the post of Assistant Engineers to be filled up by promotion and questions have arisen whether the service rendered by such Section Officers before and after possessing the degree or equivalent can be taken into account for consi....
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....nt Rules held in the judgment reported in 1992 Supp. (1) SCC 584 that the period of three years' service in the grade required for degree-holders as qualification for promotion in the category of degree-holders must mean three years' service in the grade as a degree-holder and, therefore, that period of three years can commence only from the date of obtaining the degree and not earlier and this interpretation of Rule 11 was in conformity with the past practice followed consistently by the Government and that the Tribunal was not justified in taking the contrary view and accordingly allowed the appeal. Review Petition No.50 of 1993 was filed against the judgment and order dated 22.11.1991 of this Court in the aforesaid case but the same was dismissed on 31.01.1993. 7. Thereafter, appellant Nos. 1 to 7 were promoted to the post of Assistant Engineer on 08.03.1997. Respondent Nos. 2 to 7 challenged the promotion of the appellant Nos. 1 to 7 before the Tribunal in O.A. No. 359 of 1997 contending inter alia that this Court in its judgment in N. Suresh Nathan & Ors. v. Union of India & Ors. (supra) has only held that three years' service required for eligibility for the prom....
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.... inter alia that in N. Suresh Nathan & Ors. v. Union of India & Ors. (supra) this Court only decided the question of eligibility for promotion to the posts of Assistant Engineer meant for the category of degree-holders or equivalent, but did not decide the question of seniority of Section Officers/Junior Engineers, who had acquired a degree in Civil Engineering or equivalent after joining as Section Officers/Junior Engineers and, therefore, the judgment of this Court in N. Suresh Nathan & Ors. (supra) did not operate as res judicata. The Division Bench of the Madras High Court, relying on the decisions of this Court in R. B. Desai & Anr. v. S. K. Khanolkar & Ors. [(1999) 7 SCC 54] and A. K. Raghumani Singh & Ors. v. Gopal Chandra Nath & Ors. [(2000) 4 SCC 30], further held in the impugned judgment and order that the entire service of a person concerned even before acquiring the degree in Civil Engineering or equivalent have to be counted for the purpose of seniority and promotion and directed that a review DPC should be held to consider the question of promotion of the petitioners before the High Court vis-`- vis respondents 2 to 8 and other eligible persons, who had become eligibl....
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....athan & Ors.(supra) which contains the ratio decided by this Court is quoted herein below: "5. The Recruitment Rules for the post of Assistant Engineers in the PWD (Annexure C) are at pages 57 to 59 of the paper book. Rule 7 lays down the qualifications for direct recruitment from the two sources, namely, degree-holders and diploma- holders with three years' professional experience. In other words, a degree is equated to diploma with three years' professional experience. Rule 11 provides for recruitment by promotion from the grade of Section Officers now called Junior Engineers. There are two categories provided therein - one is of degree-holder Junior Engineers with three years' service in the grade and the other is of diploma- holder Junior Engineers with six years' service in the grade, the provision being for 50 per cent from each category. This matches with Rule 7 wherein a degree is equated with diploma with three years' professional experience. In the first category meant for degree-holders, it is also provided that if degree- holders with three years' service in the grade are not available in sufficient number, then diploma-holders with six years&#....
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.... for promotion to the 50% vacancies meant for the category of degree-holders would be considered for promotion. 14. Article 141 of the Constitution states that the law declared by this Court shall be binding on all the courts within the territory of India. In N. Suresh Nathan & Ors. (supra) this Court has set aside the order of the Tribunal dated 09.01.1990 in O.A. No.552 of 1989 after declaring that Section Officers/Junior Engineers having three years' service in the grade after they acquired degree in Civil Engineering or equivalent will become qualified or eligible for promotion to the 50% vacancies meant for the category of degree-holders or equivalent. In N. Suresh Nathan & Ors. (supra) this Court has not declared any law on how these Sections Officers/Junior Engineers, who had become qualified or eligible for promotion to the post of Assistant Engineer under the category of degree- holders or equivalent, would be considered for such promotion. There was, therefore, no law declared by this Court on how Section Officers or Junior Engineers, who become qualified or eligible for promotion to the post of Assistant Engineer would be considered for promotion, which was binding ....
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....s or Junior Engineers possessing a recognized degree in Civil Engineering or equivalent and the other for Section Officers/Junior Engineers holding diploma in Civil Engineering. They submitted that it is for this reason that the UPSC in its letter dated 06.12.1968 advised the Government that the services of Section Officers/Junior Engineers, who qualify as graduates while in service, should be counted from the date they passed the degree or equivalent while considering them for promotion for the channel or stream of promotion meant for Section Officers or Junior Engineers having degree in Civil Engineering or equivalent and the Government of Pondicherry has acted on this advice of the UPSC. 18. Mr. Nageswar Rao cited the decision in Chandravathi P.K. & Ors. v. C.K. Saji & Ors. [(2004) 3 SCC 734] in which the question for consideration was whether in terms of the scheme of the Kerala Engineering Service (General Branch) Rules, diploma-holders were entitled to claim any weightage for the service rendered by them prior to their acquisition of degree qualification in the matter of promotion or transfer to higher posts when specific quota is fixed for graduates and diploma-holders in t....
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....or eligibility and once a diploma-holder acquires a degree in Civil Engineering or equivalent, his entire length of service both prior to acquisition of such degree in Civil Engineering or equivalent and after acquisition of such degree or equivalent has to be taken into consideration at the time of consideration for promotion to the post of Assistant Engineer meant for degree-holders. 21. Mr. Viswanathan cited this Court's decision in R. B.Desai & Anr. v. S. K. Khanolkar & Ors. [(1999) 7 SCC 54] for proposition that if at the time of consideration for promotion, the candidates concerned have acquired eligibility, then unless a rule specifically gives an advantage to a candidate with earlier eligibility, the date of seniority should prevail over the date of eligibility. He submitted that in the present case, the rules for promotion from the post of Section Officer or Junior Engineer to Assistant Engineer did not give any such priority to the candidates acquiring earlier eligibility. He submitted that Chandravathi P. K. & Ors. v. C.K. Saji & Ors. (supra) was a case where the rules, namely, the Kerala Engineering Service (General Branch) Rules, were different from the Recruitmen....
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.... the Rule provides is that if for vacancy in the post of Assistant Engineer, Section Officers possessing recognized degree in Civil Engineering or equivalent with three years' service in the grade are not available, Section Officers holding diploma in Civil Engineering with six years service in the grade could be considered for promotion. Clause 1 of Rule 11 is, therefore, only a provision laying down the qualification or eligibility for promotion to 50% of the posts of Assistant Engineer and the qualification or eligibility provided therein is either three years service in the grade of Section Officers or Junior Engineers after degree in Civil Engineering or equivalent or six years service in the grade of Section Officers or Junior Engineers with diploma in Civil Engineering. This provision also has a rider that if there are Section Officers/Junior Engineers, who have put in three years service after acquiring degree or equivalent, available for consideration for vacancies, then they will be considered first for promotion and the turn for consideration for promotion of diploma-holders in Civil Engineering with six years service in the grade of Section Officers/Junior Engineers....
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....resent case, on the other hand, Clause 1 of Rule 11 of the Recruitment Rules does not provide for "separate avenues" or "watertight compartments" for promotion to the post of Assistant Engineers for degree- holders and diploma-holders. As we have seen Clause 1 Rule 11 of the Recruitment Rules only lays down the qualification or eligibility for consideration for promotion to the post of Assistant Engineers earmarked for the 50% quota. The two decisions of this Court in Chandravathi P. K. & Ors. v. C.K. Saji & Ors. (supra) and Shailendra Dania & Ors. v. S. P. Dubey & Ors. (Supra) are, therefore, of no assistance to the appellants. 27. In R. B. Desai & Anr. v. S. K. Khanolkar & Ors. (supra) cited by Mr. Viswanathan, this Court found that the amended rules of 1988 pertaining to the promotion to the cadre of Assistant Conservator of Forests provided that Range Forest Officers with five years regular service in the grade and possessing diploma of Forest Rangers' Training from Forest Rangers College in India or equivalent were eligible for promotion to the post of Assistant Conservator of Forests and the Court held in para 9: " that if at the time of consideratio....
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.... as it considers as most suitable. In this view we think the High Court was not justified in going into the question of seniority nor will we be justified in going into that question." Thus, the question of seniority in the grade of Section Officers or Junior Engineers is not at all relevant for promotion to the post of Assistant Engineer in the Public Works Department, Government of Pondicherry. The practice adopted by the Government of Pondicherry in consultation with the UPSC of counting the services of Section Officers or Junior Engineers, who qualified as graduates while in service from the date they passed the degree or equivalent examination and placing them in order of seniority accordingly for the purpose of consideration for promotion to the post of Assistant Engineer under Clause 1 of Rule 11 of the Recruitment Rules is contrary to Rule 5 of the Recruitment Rules. Similarly, the direction of the High Court in the impugned judgment and order to count the entire service of a person concerned even before acquiring degree in Civil Engineering for the purpose of seniority and promotion to the post of Assistant Engineer under Clause 1 of Rule 11 of the Recruitment Rules is co....
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....v. Rajiv Govil [(1991) 3 SCC 368], Satya Narain Shukla v. U.O.I. [(2006) 9 SCC 69], P.U. Joshi v. Accountant General [(2003) 2 SCC 632], U.O.I. v. Pushpa Rani [(2008) 9 SCC 242], Inderjeet Khurana v. State of Haryana [(2007) 3 SCC 102] and U.O.I. v. A.K. Narula [(2007) 11 SCC 10]. Learned counsel for the appellants submitted that in the present case the Government of Pondicherry in consultation with the UPSC has adopted the procedure since 1968 that the services of Section Officers/Junior Engineers who qualified as graduates while in service should be counted from the date they passed the degree or equivalent examination for the promotion under clause 1 Rule 11 of the Recruitment Rules and this procedure is not unconstitutional, arbitrary, unreasonable or illegal and, therefore, the High Court by the impugned judgment and order should not have interfered with this procedure and should not have directed that the entire service of a person concerned even before acquiring the degree in civil engineering or equivalent has to be counted for the purpose of seniority and promotion to the post of Assistant Engineer under clause 1 of Rule 11 of the Recruitment Rules. Learned counsel appeari....
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....of service on the post of Sub-Engineer and the Government was right in doing so and there was no infirmity in the orders passed by the Government. In this case also, the question did not arise whether for selection post seniority would have weightage or merit would have weightage while considering the eligible candidates for promotion. 34. As we have seen, Rule 5 of the Recruitment Rules in the present case states that the post of Assistant Engineer is a selection post and the Recruitment Rules no where provide that seniority-cum-merit would be the criteria for promotion. In the absence of any indication in the Recruitment Rules that seniority in the grade of Section Officers / Junior Engineers will be counted for the purpose of promotions to the post of Assistant Engineer, consideration of all Section Officers / Junior Engineers under Clause 1 of Rule 11 of the Recruitment Rules who are eligible for such consideration has to be done on the basis of assessment of the comparative merit of the eligible candidates and the most suitable or meritorious candidate has to be selected for the post of Assistant Engineer. Such a method of selection will be consistent with Rule 5 of the Recru....