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2015 (10) TMI 376
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....cts as well as issues of law are common, all the appeals have been heard together and are being disposed of by this common judgment. 4. At the outset, two important issues raised by way of questions of law in these appeals need to be noticed so that subsequent discussion of facts and law may be of help in answering both the issues/questions in controversy. The issues are : (i) Whether the Division Bench of the High Court has erred in holding that the Diploma Holder Project Engineers (Junior) upon acquiring degree / qualification of 'AMIE' would be entitled to count their experience of service prior to acquisition of such qualification for the purpose of eligibility of 3 years total experience of service for promotion to the post of Project Engineer (Sr.) in the quota fixed for Degree Holders? (ii) Whether the Division Bench has erred in setting aside the direction of the learned Single Judge for preparing two separate seniority lists for Diploma Holders and Degree Holders for the purpose of promotion in their respective quotas? 5. In exercise of the powers conferred by Section 53 of the Rajasthan Housing Board Act, the Board made Rajasthan Housing Board Employees Condit....
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.... The basic qualification required is a Degree or Diploma in Civil Engineering. The next post in hierarchy, promotion to which is under issue, is Project Engineer (Senior). The source of recruitment for this post is 50% by direct recruitment, 20% by promotion of degree holder and 30% by promotion of diploma holder. For direct recruitment, the essential qualification is a Degree in Civil Engineering in First Division with at least one year's experience in design and construction of building. The 50% posts to be filled up by promotion of Project Engineer (Junior) require further minimum experience and qualification as laid down in Column 6 of the Schedule Technical. Since the contesting respondents have laid a great amount of emphasis on several words prescribing the minimum experience and qualification required for promotion, the provisions of relevant Column No.6 are extracted hereinbelow : "Post to be filled in by promotion from amongst the P.E.Jr.'s who are degree holders with 3 years total experience of service. Post to be filled in by promotion from P.E.Jr.'s who are diploma holders with 7 years total experience of service. (137.20) Govt. approved Dt.25.2.2000 w.e.f. 9.....
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....ect Engineer (Junior) including diploma, AMIE and degree holders had been issued on 11.8.1989 and although appellants had objected to the said seniority list, promotions were granted by the Board to few diploma holders on ad-hoc basis in January and February 1992, as noted above. 9. Appellants - K.K. Dixit and some others preferred writ petition challenging the Resolution of the Board dated 17.4.1979, the joint Provisional Seniority List dated 11.8.1989 and ad-hoc promotion of the Diploma Holders with AMIE. The writ petition was allowed by a learned Single Judge on 7.7.1993 after deciding only the issue relating to counting of experience and holding that only such service could count for eligibility for promotion which was rendered by the ad-hoc Project Engineer (Junior) after regularization. It was held that their experience as ad-hoc appointees shall not be taken into consideration. 10. The writ petitioners preferred a review petition praying for passing of judgment on the other two grievances raised in the writ petition. The first grievance was that seniority list of degree holders and diploma holders on the post of Project Engineer (Junior) should be prepared separately. ....
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....of Project Engineer (Senior) as provided for in column No.6 of Sr. No.2 in the 'Schedule Technical' of Regulations of 1976? 2. Whether the Project Engineers (Junior) recruited on the basis of diploma, upon their acquiring the qualification of 'AMIE', are entitled to count their experience of service prior to acquisition of such qualification for the purpose of eligibility of 'three years total experience of service' for promotion to the post of Project Engineer (Senior) as provided for in column No.6 of Sr. No.2 of 'Schedule Technical' of Regulations of 1976? 3. Whether according to the Regulations of 1976 the diploma holders Project Engineers (Junior) on acquiring the qualification of 'AMIE' are liable to be placed in the seniority list of Project Engineers (Junior) below degree holders available as on the date of their acquiring such qualification and further whether according to the Regulations of 1976, a separate seniority list of Project Engineers (Junior) based on their educational qualification, viz.- degree and diploma, is required to be maintained?" 13. On behalf of the appellants, learned counsel Ms. Shobha led the arguments. It was categorical stand ....
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....ame to acquire the upgraded post of Project Engineer (Senior). 16. On account of the present dispute raised by appellants K.K. Dixit and some others through writ petitions filed in the year 1992, inter alia, against ad-hoc promotions, the Board has granted only ad-hoc promotions even subsequently and hence resolution of the dispute appears to be necessary to enable regularization of those promotions in accordance with law and the Regulations and also for making regular promotions to the next higher post of Resident Engineer. The issues under consideration relate only to eligibility for promotion against respective quotas and not to the Regulations providing for seniority and promotion. 17. The issues relating to Question no.3 decided by the High Court are not very contentious and hence those are taken up first. The learned Single Judge directed for preparation of two seniority lists, one for the degree holders and another for diploma holders only with a view to give effect to the Resolution of the Board dated 17.04.1979 without undertaking the necessary exercise for finding out whether the Resolution was in consonance or in conflict with the Regulations. Such exercise was und....
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.... quota for diploma holders. The practical view of the High Court cannot be faulted that the Board can legitimately prepare separate eligibility lists of Project Engineer (Junior) holding degree and those holding diploma. Such eligibility list could not be mistaken for seniority list which must remain common based upon merit assessed at the time of selection for recruitment. Only if the selection process had been different, there could have been any scope to argue for separate seniority lists. In absence of any legal stipulation for altering the initial seniority, pre-determined on the basis of merit at the time of initial selection and date of regular appointment, the seniority list cannot be altered only because some diploma holder Project Engineers (Junior) acquired the qualification of AMIE equivalent to a degree. The three years' or seven years' experience of service will entitle the degree holders and the diploma holders respectively only for inclusion of their names in the eligibility lists for promotion so as to work out satisfactorily the provision for different quota for the degree holders and the diploma holders. Hence, we find no good ground to interfere with the decisio....
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.... & Ors. v. Thungathurthi Surender & Ors. (2010) 13 SCC 348; Chandravathi P.K. & Ors. v. C.K. Saji & Ors. (2004) 3 SCC 734 and Vijay Singh Deora & Ors. v. State of Rajasthan & Anr. (1997) 3 SCC 118. 22. On the other hand, counsels appearing for the respondents and representing the interest of the diploma holders who subsequently acquired the qualification of AMIE while in service, have made a spirited attempt to distinguish the facts of Shailendra Dania's case (supra). According to learned counsel appearing for the diploma holders there was a difference in the qualification required of degree holders and diploma holders at the time of very entry into the service in Shailendra Dania's case; while degree holders were eligible to apply only with their educational qualification for the entry post, the diploma holders were required to have additional two years' experience and hence the two were treated to be qualitatively different in the matter of service experience. In other words, the submission is that the qualitative difference in the services rendered by degree holders and diploma holders in Shailendra Dania's case was primarily on account of their having different birthmarks wh....
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....te appearing for some of the proforma respondents made it clear that the case of such proforma respondents who were degree holders is same as that of the appellants. 24. Before adverting to the rival submissions on the main issue noted above, in view of submissions advanced on behalf of some of the respondents as if the issue arising in these appeals relates to seniority position of individuals in the seniority list, it is necessary to clarify that the High Court was neither called upon to decide nor it actually decided any issue directly relating to inter se seniority of Project Engineers (Junior) or Project Engineers (Senior) and this Court is also not required to go into the correctness of any seniority list published by the Board. As noticed earlier, the main issue falling for determination in these appeals only relates to what value, if any, is to be given to the service experience of a diploma holder - turned degree holder - Project Engineer (Junior) rendered by him as a diploma holder for the purpose of claiming eligibility for promotion as a degree holder Project Engineer (Junior) against 20% quota allotted for the degree holders. 25. Initially there was a serious dis....
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..... In Shailendra Dania's case this Court placed strong reliance upon judgment in the case of N. Suresh Nathan (supra) and explained that the three Judges Bench decided that case essentially on the interpretation of the rule and merely found support to that interpretation from the past practice followed in the Department. In N. Suresh Nathan (supra), the question involved was similar as in the case of Shailendra Dania (supra) and the present case. The relevant rule provided for recruitment by promotion from the grade of Junior Engineers which consisted of two categories, viz., one of degree holder Junior Engineers with three years' service in the grade and the other of diploma holder Junior Engineers with six years' service in the grade. There, the quota was 50% from each category. The Court interpreted the rule in the light of entire scheme to conclude that the period of three years can commence only from the date of obtaining the degree and not earlier. The service in the grade as a diploma holder prior to obtaining degree cannot be counted as service in the grade with a degree for the purpose of three years' service as a degree holder. Besides explaining and following the judgment....
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....unior Engineer. When the quota is prescribed under the Rules, the promotion of graduate Junior Engineers to the higher post is restricted to 25% quota fixed. So far as the diploma-holders are concerned, their promotion to the higher post is confined to 25%. As an eligibility criterion, a degree is further qualified by three years' service for the Junior Engineers, whereas eight years' service is required for the diploma-holders. Degree with three years' service experience and diploma with eight years' service experience itself indicates qualitative difference in the service rendered as degreeholder Junior Engineer and diploma-holder Junior Engineer. Three years' service experience as a graduate Junior Engineer and eight years' service experience as a diploma-holder Junior Engineer, which is the eligibility criterion for promotion, is an indication of different quality of service rendered. In the given case, can it be said that a diploma-holder who acquired a degree during the tenure of his service, has gained experience as an Engineer just because he has acquired a degree in Engineering. That would amount to say that the experience gained by him in his service as a diploma-holder i....
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....istant Engineer by a degree-holder in the limited quota of degree-holder Junior Engineers cannot be equated with the service rendered as a diplomaholder nor can be substituted for service rendered as a degree-holder. When the claim is made from a fixed quota, the condition necessary for becoming eligible for promotion has to be complied with. The 25% specific quota is fixed for degree-holder Junior Engineers with the experience of three years. Thus, on a plain reading, the experience so required would be as a degree-holder Junior Engineer. 25% quota for promotion under the rule is assigned to degree-holder Junior Engineers with three years' experience, whereas for diplomaholder Junior Engineers eight years' experience is the requirement in their 25% quota. Educational qualification along with number of years of service was recognized as conferring eligibility for promotion in the respective quota fixed for graduates and diplomaholders. There is watertight compartment for graduate Junior Engineers and diploma-holder Junior Engineers. They are entitled for promotion in their respective quotas. Neither a diploma-holder Junior Engineer could claim promotion in the quota of degreeholder....
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....ion into service. Absence of such birthmark in the present case is not material. Such birthmark was only an additional ground available in the case of Shailendra Dania (supra) but that, in our considered view, would not make any material difference in coming to the same conclusion that degree with three years' service experience and diploma with seven years' service experience by itself indicates qualitative difference in the service rendered as a degree holder and that rendered as a diploma holder. 30. As held in paragraph 36 of Shailendra Dania's case (supra) we are required to decide the matter on the basis of the entire scheme of the rules, the facts and circumstances at the relevant time and the rules called in question, for independently giving meaning to the words, the principle involved and the past practice, if any. In that view of the matter, the word 'with' occurring before the words, "three years' service" or "seven years' service" has to be given a natural meaning as understood in the common parlance and in the light of two water tight compartments created for the two classes for promotion with respective quotas of 20% and 30%, it must be held that three years' tota....
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....rified and held that service rendered on adhoc or officiating basis prior to regularization cannot be counted for acquiring eligibility for promotion and that aspect is no longer under controversy. Hence the use of the word 'with' or 'total' in the relevant regulation does not make any difference and the judgment in the case of Shailendra Dania (supra) applies to the present case, as contended by learned counsel for the appellants. 32. The other judgments of this Court in the case of Challa Jaya Bhaskar (supra); Chandravathi P.K. (supra) and Vijay Singh Deora (supra) also support the view which we have taken on the basis of Shailendra Dania's case (supra). Para 29 of the judgment in the case of Challa Jaya Bhaskar (supra) clearly shows that in the said case this Court followed the views expressed in N. Suresh Nathan's case (supra) and Shailendra Dania's case (supra). In the case of Chandravathi P.K. (supra) rules for shifting by exercise of option from the category of diploma holders to that of degree holders on acquiring AMIE qualification was in place. In that context, in paragraph 30 this Court held that diploma holder officer on acquiring higher qualification during service ....