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TMI Blog2003 (11) TMI 596X X X X Extracts X X X X X X X X Extracts X X X X ..... uate or equivalent Degree Holder) to 20% of total cadre strength of Assistant Engineers; and (c) 50% of the posts of 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the date of obtaining AMIE or Bachelors Degree in Engineering of those officers who, by remaining in service, have completed the minimum 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 qualificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 97 stating : In view of the Division Bench judgment in L.P.A. No.100 of 1994 and analogous cases, a true copy of which has been annexed as 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 su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0% quota which was earlier reserved for graduate engineers was abolished, as a result whereof they suffered immense prejudice. Clause 'Cha' of the said circular 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rein the dispute was as to whether a diploma-holder Junior Engineer who had obtained a degree while in service had become entitled for appointment as Assistant Engineer by promotion 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and upon taking into consideration, the fact situation obtaining therein as also the findings rendered by this Court, held : 11. A perusal of the above observations made by this Court 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CC 584 : 1992 SCC (L S) 451 : (1992) 19 ATC 928]. This Court in the said decision, has only indicated that past practice should not be upset provided such practice conforms to the rule for promotion and 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gradation list was published by an authority relying on or on the basis of criteria which was illegal, the seniority list issued pursuant thereto or in furtherance thereof must necessarily fall. FINDINGS : The proposition of law, therefore, which emerges from the aforementioned discussions is that in absence of any statutory rule governing the field the criteria for promotion should be construed upon applying the principle of literal meaning as also continuous officiation in the lower post. We are, therefore, of the view that the impugned judgment cannot be sustained. We, therefore, are of the opinion that the aforementioned order dated 22.12.1992 passed by the Water Resources Department being illegal and without jurisdiction, the impugned seniority list cannot be sustained which is set aside accordingly. We are further of the opinion that having regard to the facts and circumstances of the case, the order of the High Court dated 18.9.1997 passed by the High Court in L.P.A. No.1018 of 1997 refusing to condone the delay must also be set aside. We condone the delay and direct that the writ petitions filed by the appellants herein should also be disposed of on the above te ..... X X X X Extracts X X X X X X X X Extracts X X X X
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