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TMI Blog2015 (10) TMI 376X X X X Extracts X X X X X X X X Extracts X X X X ..... he entire eligibility criterion, i.e., he is a degree holder with three years’ experience of service as a degree holder. Such water-tight compartment and separate quotas cannot be rendered meaningless so as to affect the prospect of promotion of the degree holders by inducting into that category a diploma holder who does not have three years’ experience of service as a degree holder. In the absence of any such provision in the Regulations, no equivalence can be permitted in such a situation because even a diploma holder with seven years’ experience of service is confined to a prospect or chance of promotion only against 30% quota for the diploma holders. So far as the word ‘total’ occurring before the words ‘experience of service’ is concerned, from the circumstances and past history relating to the service, it must be understood in the context of service rendered in regular capacity along with service rendered on ad-hoc or officiating or temporary basis. The word ‘total’ cannot be construed to mean service rendered either as diploma holder or degree holder. If this had been the intention, the word ‘total’ would have been included only in the context of three years’ total experi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e granted. 2. These appeals are further additions to the long list of service matters decided by High Courts and this Court resolving disputes between Diploma Holder and Degree Holder Engineers in the matter of eligibility for further promotion. All the appellants belonged to the category of degree holder engineers appointed as Project Engineers (Junior) in the service of Rajasthan Housing Board (for sake of brevity referred to as the Board ). The contesting respondents also held the same post but initially only as diploma holder who later acquired qualification of AMIE which is admittedly equivalent to degree in Engineering. 3. Since all the appeals arise out of a common judgment passed by a Division Bench of the Rajasthan High Court at Jaipur Bench and the facts 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be in accordance with their relative seniority in the lower cadre. 6. Chapter III of the Regulations contains Miscellaneous Provisions and includes Clause (12) which empowers the Board to issue general instructions not inconsistent with the Act and the Rules and Regulations made thereunder for the purpose of removing doubt, lacuna, inconsistency or anomaly which may arise in interpreting the Regulations or in giving effect to them or in putting them to application. The Regulations contain various schedules as appendices. In the case at hand Schedule Technical alone is of significance and that shows the post of Project Engineer (Junior) at the entry level. 97% of this post is to be filled by direct recruitment and 3% by Board employees. 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 expe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ratio of 3:7 (3 years degree holders equal to 7 years diploma holders) . Some diploma holders who were initially appointed as Project Engineers (Junior) purely on ad-hoc basis were not only regularized by the Board vide Order dated 18.5.1987 but they were also given benefit of their past service like the regularly appointed diploma holders and together with the latter category they also gained ad-hoc promotion to the post of Project Engineer (Senior) in the year 1992. In the meantime, pursuant to an advertisement of March 1988 issued by the Board, the appellants as degree holders applied and on selection, were appointed to the post of Project Engineer (Junior) on 18.3.1989. It appears that a common Provisional Seniority List of Project 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... three matters which were also disposed of by the common order under appeal. 12. By the judgment under appeal, the High Court has decided three questions under controversy between the parties. The High Court has summarized the three questions thus : 1. Whether the Project Engineer (Junior) who were initially appointed on ad-hoc/officiating/urgent temporary basis, upon being screened and made members of service with reference to clause 3 of the Note below Schedule Technical of the Rajasthan Housing Board Employees Condition of Recruitment and Promotion Regulations, 1976 are entitled to count the period of service rendered in that capacity for the purpose of seniority and experience for eligibility of promotion to the post 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... everal persons to the post of Project Engineer (Senior) who cleared AMIE examination while in service and were allegedly much junior to the appellants with respect to the date of acquiring eligibility for such promotions. The Special Leave Petitions giving rise to the present appeals were preferred in this Court on 25.09.2007 or soon thereafter. While issuing notice in one such matter, on 26.10.2007 this Court directed that no coercive steps shall be taken in the meantime. On 19.07.2010, 200 posts of Project Engineer (Junior) were upgraded to the post of Project Engineer (Senior) and 31 such posts were abolished. As a consequence of upgradation, on 12.08.2010, 168 persons holding the post of Project Engineer (Junior) came 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 reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause (6) of the Regulations, although in the matter of absorption of employees working in the Board on deputation. Clause (9)(A) which provides for promotion when read together with the Schedule Technical leaves no manner of doubt that in respect of first promotion to higher post, i.e., promotion from post of Project Engineer (Junior) to Project Engineer (Senior), promotion of eligible person is required to be made on the basis of seniority-cum-merit. The High Court has rightly held that the cadre of Project Engineer (Junior) cannot be bifurcated for the purpose of seniority alone, only on the ground that for promotion to the cadre of Project Engineer (Senior) there is provision for 20% quota for degree holders and 30% 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r who acquires eligibility only upon rendering seven years service as a diploma holder. The eligibility criterion of service experience cannot be read differently when the claim for promotion is made against a fixed quota. The aforesaid stand of the appellants is based squarely upon judgment of this Court rendered by a three Judges Bench in the case of Shailendra Dania Ors. v. S.P. Dubey Ors. (2007) 5 SCC 535. For providing further support to the conclusions in the case of Shailendra Dania (supra), reliance has been placed also upon judgments in the case of N. Suresh Nathan Anr. v. Union of India Ors. 1992 Supp. (1) SCC 584; Indian Airlines Ltd. Ors. v. S. Gopalakrishnan (2001) 2 SCC 362; Challa Jaya Bhaskar 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 (supr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard and supported the case of diploma holders by taking a stand that different service experience of three years and seven years for the purpose of eligibility have been prescribed for degree holders and diploma holders respectively not upon any qualitative difference in their experience but upon difference in the educational qualification alone. Thus, the stand of the Board before this Court which is diametrically opposite to its stand before the High Court is that a diploma holder who has service experience of three years and acquires the qualification of AMIE is qualified under the Regulations to claim eligibility for promotion in the 20% quota reserved for degree holders with three years experience. Learned advocate 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee holders three years qualifying service. Further promotion from the post of Assistant Engineer was to the post of Executive Engineer. For this post, the minimum qualifying experience for graduate engineers was eight years as Assistant Engineer and for diploma holders it was ten years in the grade of Assistant Engineer. However, for the initial post in the hierarchy, that is, post of Junior Engineer, the selection was only through direct recruitment and the qualification prescribed was diploma holders in civil engineering with two years experience . But there was no bar for persons having degree in engineering in applying for the post of Junior Engineer and they were not required to have any prior experience. 27. 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 prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngineers from two different channels would be required to be considered similar, without subjecting the diploma-holders to any further requirement of having a further qualification of two years service. At the time of induction into service to the post of Junior Engineers, degree in Engineering is a sufficient qualification without there being any prior experience, whereas diploma-holders should have two years experience apart from their diploma for their induction in the service. As per the service rules, on the post of Assistant Engineer, 50% of total vacancies would be filled up by direct recruitment, whereas for the promotion specific quota is prescribed for a graduate Junior Engineer and a diploma-holder Junior 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a-holder Junior Engineers for promotion to the higher post is conducive to the post manned by the Engineers. There can be no manner of doubt that higher technical knowledge would give better thrust to administrative efficiency and quality output. To carry out technical specialized job more efficiently, higher technical knowledge would be the requirement. Higher educational qualifications develop broader perspective and therefore service rendered on the same post by more qualifying person would be qualitatively different. 44. After having an overall consideration of the relevant Rules, we are of the view that the service experience required for promotion from the post of Junior Engineer to the post of Assistant 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 experi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... post of Project Engineer (Junior) there is no requirement that the diploma holders should have two years experience apart from their diploma. Literally, that distinction is valid but in our considered view the other considerations which were discussed in paragraph 43 are of much greater significance, particularly there being specific quota prescribed for graduate Project Engineers (Junior) and diploma holder Project Engineers (Junior). In the present case also, as an eligibility criterion, a degree is further qualified by three years service whereas a diploma is further qualified by seven years service. These distinctions are of much more vital significance than the birthmark at the time of induction 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the context of service rendered in regular capacity along with service rendered on ad-hoc or officiating or temporary basis. The word total cannot be construed to mean service rendered either as diploma holder or degree holder. If this had been the intention, the word total would have been included only in the context of three years total experience of service of degree holders and not in the context of seven years experience of service as diploma holders. A diploma holder in any case is required to have seven years experience of service for being eligible for promotion and hence the word total would be otiose or redundant in the aforesaid context. No doubt, the High Court has now clarified 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 Chall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Court held that different service experience could be prescribed for conferring eligibility for promotion to the degree holders and diploma holders and such classification on the basis of educational qualification is permissible under Articles 14 and 16 of the Constitution of India. 34. In the light of aforesaid discussions, we find merit in these appeals and they are accordingly allowed to the extent of reversing the views of the High Court in respect of Question no.2 as noted by the Division Bench in the common judgment under appeal. We hold that the Project Engineers (Junior) recruited on the basis of diploma, upon their acquiring the qualification of AMIE , are not entitled to count their experience of service prior to acquisition of such qualification for the purpose of eligibility for promotion to the post of Project Engineer (Senior) against the 20% quota fixed for promotion of degree holder Project Engineers (Junior). In order to claim promotion against such 20% quota the three years experience of service must be acquired after obtaining the qualification or degree of AMIE. 35. We direct the Board and its authorities to treat the writ petitions filed in the High ..... X X X X Extracts X X X X X X X X Extracts X X X X
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