9911796707
TMI Blog2007 (4) TMI 689X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 9239 of 2002. The appellants and the respondents herein are employees of the Slum Wing Department (hereinafter referred as "SWD"). SWD was part of the Municipal Corporation of Delhi (hereinafter referred as "MCD") before 1974. SWD was transferred from MCD to Delhi Development Authority (hereinafter referred as "DDA") in 1974 with the stipulation that its employees alone would be considered for confirmation and promotions against the posts in it. In 1978, SWD was retransferred to MCD, but once again in May 1980 it was transferred back to DDA with the stipulation that it would remain as a separate entity and its employees would not be merged with DDA. For recruitment of various staff members in DDA, vide its Resolution No.574 dated 13.11.1963, DDA adopted Recruitment Rules of CPWD qua the posts of Junior Engineer, Assistant Engineer and Executive Engineer. In the hierarchy of Engineering Cadre, the initial post is of Junior Engineer (Section Officer or S.O.). The post is meant for 100% direct recruitment and the qualification prescribed was "Diploma-holders in Civil Engineering with two years' experience". However, there was no bar for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sts of Assistant Engineers and a discrimination thus brought about between them. W.P. No.2082 of 1984 (Niranjan Goel and Others v. DDA) pertained to the constitutional validity of the analogous provisions in the rules adopted by Resolution No.105 dated 16.6.1971. The distinction made for promotion of degree- holder promotees and diploma-holder promotees was struck down by Delhi High Court. It was held that the diploma-holders should be governed by the same eligibility promotional qualifications that were applicable to degree-holders. In W.P. No.2082 0f 1984, the Delhi High Court struck down Resolution No.105 dated 16.6.1971 which allowed DDA to distinguish between diploma-holder and degree- holder Assistant Engineers in the matter of experience and promotion as Executive Engineers. By a common judgment dated 2.9.1987 reported as Kimti Lal Kathuria and Others v. Delhi Development Authority and Others, 1988 Labour Industrial Cases 434 (Del) = 1988 (1) SLR 293, the Court held that the prescription of differential standards - based even on the differences in technical, educational qualifications - is violative of Articles 14 and 16 of the Constitution. However, in Roop Chand Adlakha an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee-holders and diploma-holders in the matter of promotion to the post of Assistant Engineer. On 5.3.1991, a Division Bench of the High Court of Delhi granted an interim order in W.P. No.250 of 1990 and directed DDA to convene a DPC for each of the three years, i.e., January-1988, 1989 and 1990 in order that promotion be made and a parity of 1:1 is maintained between the promotees. The relevant observations of the High Court in that regard are as follows:- "We are informed that after January, 1987 till today no DPC has been held. DPCs are required to be held at least once a year. This being so, we direct the DDA to hold a DPC for each of the succeeding years, namely, 1988, 1989 and 1990 and make regular promotions of eligible candidates in such a way that as far as possible parity between the Degree-holders and the Diploma- holders is attained. The regular promotions so made shall, however, be subject to any direct recruitment, which may be made in accordance with the rules against the quota meant for direct recruits. If as a result of such direct recruitment, any of the promotees have to be reverted then the reversion should be done in such a way that the remaining Assistan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olders, as well as, the Diploma- holders. The result is that in my opinion, the case should be remanded back to the DDA, for taking the decision afresh, after inviting objections, or comments, both from the Degree-holders and Diploma-holders Junior Engineers. The representatives of both these categories be also given opportunity of being heard. After this, it is for the DDA to interpret or clarify the rules." " The impugned decision dated September 20, 1990, is quashed and set aside. I remand the matter back to the DDA, with direction to decide the matter afresh, within a period of six months, after inviting objections / comments from all concerned and after giving an opportunity of being heard, to the representatives of Degree-holder and Diploma Holder Junior Engineers." The diploma-holders by way of a Letters Patent Appeal (L.P.A. No. 43 of 1991) challenged the decision of the Single Judge dated 19.8.1991. On 5.2.1991, an Establishment Order was issued to promote diploma-holders on current duty charge basis. The same was questioned by filing a writ petition (W.P. No. 2382 of 1991 - Slum Wing Delhi Development Authority Graduate Engineers' Association (Regd.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egree and not earlier and this interpretation of Rule 11 is quite tenable and commends to us being in conformity with the past practice followed consistently. It has also been so understood by all concerned till the raising of the present controversy. On 25.2.1992, one of the respondents herein S.P. Dubey and others challenged the abovementioned judgment of the Delhi High Court dated 12.2.1992 before this Court by way of Special Leave Petition (Civil) Nos. 7737-39 of 1992. The DDA also filed Special Leave Petitions (Civil) Nos. 7114-16 of 1992 against the aforesaid judgement. This Court dismissed these petitions vide order dated 20.8.1992 in limine. Pursuant to the directions contained in the judgment dated 12.2.1992 of the Division Bench of the Delhi High Court, DDA by a circular dated 30.10.1992 issued tentative seniority list of the Engineers and indicated their placement as per their eligibility for promotion as Assistant Engineer upto 15.10.1992. On 19.3.1993, the final seniority list of graduate Junior Engineers (Civil) indicating their placement as per eligibility for promotion as Assistant Engineer (Civil) was circulated. On 22.3.1993, the appellants were promoted as Assis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... followed the decision of this Court in N. Suresh Nathan and Another v. Union of India and Others (supra), required to be considered as N. Suresh Nathan's Case had not been subsequently followed by this Court in other cases like M.B. Joshi and Others v. Satish Kumar Pandey and Others, 1993 Supp. (2) SCC 419; D. Stephen Joseph v. Union of India and Others, (1997) 4 SCC 753; Anil Kumar Gupta and Others v. Municipal Corporation of Delhi and Others, (2000) 1 SCC 128; and A.K. Raghumani Singh and Others v. Gopal Chandra Nath and Others, (2000) 4 SCC 30 as regards the applicability of eligibility criteria in the Recruitment Rules for promotion to the post of the Assistant Engineer. Accordingly, the matter was placed before the Full Bench of the Delhi High Court. The present appeals by special leave have been filed before this Court against the interim and common order dated 25.1.2002 passed by the Full Bench of the Delhi High Court. The Full Bench of the Delhi High Court after consideration of the relevant decisions, the rule in question and the facts found from the record has recorded the findings that (i) it cannot be said that the DDA followed a consistent practice to the effect t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o contend that any anomaly existed and the answer to the question referred to the Full Bench was in the following terms: 1. Principle of res judicata in the instant case has no application; and, 2. The experience gained by diploma-holders as Junior Engineer has to be counted for promotion to the post of Assistant Engineer, in the event they are duly qualified as degree-holders; and the matter was remitted back to the Division Bench for consideration of the cases in the light of the findings arrived at by the Full Bench. In the present case, we are concerned with the rule relating to promotion from the post of Junior Engineer to the post of Assistant Engineer. It is urged by Shri Jawahar Lal Gupta and Dr. Rajeev Dhavan, the learned senior counsel for the appellants, that under the promotion rule promotion to the post of Assistant Engineer two separate channels are provided for diploma-holders and degree- holders within their respective quota and there would be no violation of rules if requisite experiences required on the post of Junior Engineer as diploma-holder and degree-holder are treated differently and it would be open for the Government to lay down and treat different pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be compulsorily shifted to the group of graduate Engineers giving a go-by to their claim for promotion to diploma-holders quota or they have a choice to select and continue with either of them. What should be the seniority position of the diploma-holders after they have qualified as graduates, etc. We have refrained ourselves from expressing any opinion on these points and have confined ourselves to the specific issue raised before us and answered by the High Court in the impugned judgment. In the matter of N. Suresh Nathan and Another v. Union of India and Others, 1992 Supp. (1) SCC 584, a three- Judge Bench was called upon to decide a similar question as involved in the present case, namely, whether the three years' service experience for promotion for graduate Engineers would mean three years' service prior to obtaining the degree or three years' service after obtaining the degree. The relevant Rule 11 provided for recruitment by promotion from the grade of Junior Engineers. Two categories were provided therein, 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&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the graduate Sub-Engineers completing eight years of service. The relevant rule provided for Sub-Engineers to qualify for promotion to the post of Assistant Engineer and qualifying service provided was twelve years for diploma-holders and eight years for such Sub-Engineers who had obtained Degree of Graduation in the course of service. By an Executive Order, 50% of the quota was provided for direct recruits and the balance 50% quota by promotion was sub-divided prescribing 35% for diploma-holders completing twelve years of service, 5% for Draftsmen and Head Draftsmen completing twelve years of service and 10% for graduate Engineers completing eight years of service. The Court was called upon to consider whether the period of eight years can only be counted from the date when the diploma-holder Sub- Engineers acquired the Degree of Engineering and not prior to the said date. The controversy arose between the parties is summarized in paragraph 5 of the judgment as under :- "The short controversy arising in these cases relates to the determination of seniority amongst the diploma-holder Sub-Engineers who acquired the degree of graduation in engineering during the period of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ering was made equivalent with three years' service in the grade. Thus, in the scheme of such rules the period of three years' service was rightly counted from the date of obtaining such degree. In the cases in hand before us, the scheme of the rules is entirely different". In the above decision (i.e. M.B. Joshi's case), the matter of N. Suresh Nathan (supra) was distinguished mainly on the basis of past practice and the Court further held that the rule under consideration in N. Suresh Nathan (supra) was entirely different from the scheme of the rule which the Court was considering in M.B. Joshi (supra). We have carefully considered the case of N. Suresh Nathan and it is not correct to say that the decision rendered in that matter was based on past practice. The Court, in fact, has considered and interpreted the relevant service rules and then found that such an interpretation is fortified by the practice followed in that department. Similar issue once again came before a two-Judge Bench of this Court in D. Stephen Joseph v. Union of India and Others, (1997) 4 SCC 753. The exact question was as follows :- " ..whether for promotion to the post of Assistant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule which provides for a particular length of service in the feeder post as qualifying service completed with educational qualification to enable the candidates to be considered for promotion and, thus the experience so obtained in the service would necessarily mean the experience obtained after the requisite qualification was acquired. Thus, the decision turns on the language of the rule and has distinguished N. Suresh Nathan's case on that basis. In Anil Kumar Gupta and Others v. Municipal Corporation of Delhi and Others, (2000) 1 SCC 128, the relevant rules which came up for consideration provided for essential qualification for appointment, viz., (a) Degree in Civil Engineering ; and (b) two years' professional experience. The age was not to exceed 30 years (relaxable for government servants and MCD employees). The applications were received for appointment to the post of Assistant Engineer (Civil) in the Engineering Department of MCD. The applications were received from the departmental candidates as well as others. The Selection Board of MCD had prescribed the norms for awarding marks. So far as the experience part was concerned, break-up was : Upto two years experie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allotting marks by the Selection Board. A two-Judge Bench of this Court gave its considered opinion on the subject by means of interpretation of the word `with' that appeared before the stated requirement of given period of experience in A.K. Raghumani Singh and Others v. Gopal Chandra Nath and Others., (2000) 4 SCC 30. The Court considered the rules called "The Manipur PWD/Irrigation and Food Control/Public Health Engineering (Superintending Engineer (C)/Superintending Surveyor of Works) Recruitment Rules" wherein it is provided that the post of Superintending Engineer shall be filled up by promotion from Executive Engineer and Surveyor of Works possessing Degree in Civil/Mechanical Engineering or its equivalent from a recognised institution with six years' regular service in the grade. The contention was that six years' regular service in the grade as eligibility criteria should be after the educational qualification was obtained. The Court interpreted the rules and said that the rule prescribed the eligibility criteria to be a prescribed educational qualification and six years' experience as well. Giving a plain meaning to the phrase, it would not be j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hi, D. Stephen Joseph, Anil Kumar Gupta, A.K. Raghumani Singh and Indian Airlines Ltd. (supra), are based on the interpretation of the respective rules called in question, giving meaning to the words used in the context of the entire scheme governing service conditions and the facts involved in each case and it cannot be said that the decisions rendered by this Court after the decision of N.Suresh Nathan's case, have taken a different view than what has been decided in N.Suresh Nathan's case. Thus, 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 before us, independently giving meaning to the words, the principle involved and the past practice, if any, which is in consonance with the interpretation given by us to the rule. If we find that two views are possible after interpreting the rule, then the rule would be interpreted keeping with the practice followed in the Department for a long time and thus the practice practically acquired status of rule in the Department. The only question involved in these appeals and transferred cases can be stated thus : Whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereas under clause (b) 25% of the total posts would be filled up by diploma-holders with eight years' service. The rule prescribes two sources for promotion from the post of Junior Engineers a graduate with three years' service experience and a diploma-holder with eight years' service experience. A separate quota is, thus, prescribed for promotion of Junior Engineers for degree and diploma-holders to that of higher post of Assistant Engineer. For further promotion from the post of Assistant Engineer to the post of Executive Engineer, the requirement of the rule is for graduates, eight years' service in the grade; and, for diploma-holders, ten years' service in the grade. This distinction between the graduate Engineers and diploma-holders is maintained for promotion to the post of Executive Engineer, although there is no separate quota prescribed for graduates or diploma-holders, by prescribing different experience for promotion on the basis of a person being a graduate or a diploma-holder. In Roop Chand Adlakha and Others v. Delhi Development Authority and Others, 1989 Supp. (1) SCC 116, application of the rules governing same service conditions as involved in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of promotion, is not considered equivalent to the degree. This is the point of distinction in the situations in the two cases. If Diploma Holders of course on the justification of the job requirements and in the interest of maintaining a certain quality of technical expertise in the cadre could validly be excluded from the eligibility for promotion to the higher cadre, it does not necessarily follow as an inevitable corollary that the choice of the recruitment policy is limited to only two choices, namely, either to consider them "eligible" or "not eligible". State, consistent with the requirements of the promotional posts and in the interest of the efficiency of the service, is not precluded from conferring eligibility on Diploma Holders conditioning it by other requirements which may, as here, include certain quantum of service experience. In the present case, eligibility determination was made by a cumulative criterion of a certain educational qualification plus a particular quantum of service experience. It cannot, in our opinion, be said, as postulated by the High Court, that the choice of the State was either to recognize Diploma Holders as "eligible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be held as a discrimination. The Court has made distinction between the service rendered as diploma- holder and graduate Engineer and thus has not found any discrimination in different period of experience provided for promotion for degree-holder and diploma-holder. Degree and a diploma with different period of service is held to be a valid classification whereby a different period of service has been made eligibility criteria along with educational qualification for promotion to the higher post. Taking into consideration the entire scheme of the relevant rules, it is obvious that the diploma-holders would not be eligible for promotion to the post of Assistant Engineer in their quota unless they have eight years' service, whereas the graduate Engineers would be required to have three years' service experience apart from their degree. If the effect and intent of the rules were such to treat the diploma as equivalent to a degree for the purpose of promotion to the higher post, then induction to the cadre of Junior Engineers from two different channels would be required to be considered similar, without subjecting the diploma- holders to any further requirement of havin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adre of Assistant Engineers. The rules provide for different service experience for degree- holders and diploma-holders. Degree-holder Assistant Engineers having eight years of service experience would be eligible for promotion to the post of Executive Engineer, whereas diploma- holder Assistant Engineers would be required to have ten years' service experience on the post of Assistant Engineer to become eligible for promotion to the higher post. This indicates that the rule itself makes differentia in the qualifying service of eight years for degree-holders and 10 years' service experience for diploma- holders. The rule itself makes qualitative difference in the service rendered on the same post. It is a clear indication of qualitative difference of the service on the same post by a graduate Engineer and a diploma-holder Engineer. It appears to us that different period of service attached to qualification as an essential criterion for promotion is based on administrative interest in the service. Different period of service experience for degree-holder Junior Engineers and diploma-holder Junior Engineers for promotion to the higher post is conducive to the post manned by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for promotional avenue within the specified quota, cannot be anything but the service rendered as a degree-holder and not as a diploma- holder. The service experience as an eligibility criterion cannot be read to be any other thing because this quota is specifically made for the degree-holder Junior Engineers. As a necessary corollary, we are of the view that the diploma-holder Junior Engineers who have obtained a Degree in Engineering during the tenure of service, would be required to complete three years' service on the post after having obtained a degree to become eligible for promotion to the higher post if they claim the promotion in the channel of degree-holder Junior Engineer, there being a quota fixed for graduate Junior Engineers and diploma-holder Junior Engineers for promotion to the post of Assistant Engineers. For the above reasons, the appeals are allowed and the impugned judgment of the High Court is set aside. The writ petitions shall now be decided by the Division Bench of the High Court in accordance with law laid down herein. The writ petitions which were transferred to, and registered as Transferred Cases in, this Court, shall also be sent back to the High ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
