J. N. Goel
& Orsg.L. Gupta Y Ors Vs. Union of India & Ors [1997] INSC 34 (14
January 1997)
S.C.
AGRAWAL, G.T. NANAVATI
ACT:
HEAD NOTE:
WITH
CIVIL
APPEAL NO. 5364 OF 1990
S.C.
AGRAWAL, J. :- There appeals, by special leave, are directed against the judgment
of the Central Administrative Tribunal, Principal bench, New Delhi (hereinafter
referred to as `the Tribunal') in O.A. No. 704 of 1988 and O.A. No. 910 of 1989
The appeals relate to promotion of Assistant Engineers to the post of Executive
Engineer in the Central Public Works Department (for short `the C.P.W.D.'), of
the Government of India.
In the
C.P.W.D. Assistant Engineers are appointed by direct recruitment as well as by
promotion from the cadre of Junior Engineers. The cadre of Assistant Engineers consists
of graduates holding a degree in Engineering as well as holders of diploma in
Engineering. Recruitment to the post of Executive Engineer was earlier governed
by the Central Engineering Service Group `A' Recruitment Rules, 1954
(hereinafter referred to as `the 1954 Rules'). Under the 1954 Rules appointment
to the post of Executive Engineer was being made by promotion of Assistant
Executive Engineers and Assistant Engineers. The promotion of Assistant
Engineers as Executive Engineers was governed by Rule 21(3) of the 1954 Rules
which provided as follows :- "Rules 21(3). No Assistant Engineer shall be
eligible for promotion to the service, unless he :- (a) would, but for age, be
qualified for admission to the competitive examination under Part- III of these
rules.
(b) has
rendered at least three years service in a permanent or temporary capacity as
an Assistant Engineer and subordinate under the Central Government, and (c)
satisfied the commission that he is in every respect suitable for appointment
to the service." In view of sub-clause (a) of Rule 21(3) only graduate
Assistant Engineers were eligible for promotion to the post of Executive
Engineer because the qualification prescribed for recruitment by Competitive
Examination under Rule 11 (falling in Part-III of the 1954 Rules) was
"degree in Engineering from a University incorporated by an Act of the
Central or State Legislature in India, or any other educational institution
established by an Act of Parliament or declared to be deemed as Universities under
Section 3 of the University Grants Commission Act, 1956, or a foreign
University approved by the Government from time to time, or a qualification
which has been recognised by the Government for the purposes of admission to
the competitive examination". Executive instructions were, however, issued
in 1956 for promotion of diploma holder Assistant Engineers as Executive
Engineers on ad hoc basis. This practice of promoting diploma holder Assistant
Engineers on ad hoc basis continued for a considerable time. A Writ Petition
(C.W.P.
818 of
1972) was filed by one C.P. Gupta, a degree holder Assistant Engineer, in the
Delhi High Court wherein the action of the Government in promoting diploma
holder Assistant Engineers on ad hoc basis was challenged. The said Writ
Petition, which was subsequently transferred to the Tribunal an registered as
T-52 of 1985, was decided by the Tribunal, by judgment dated December 19, 1986,
whereby it was held that administrative instructions could not override the
statutory provisions of the 1954 Rules and that promotions made on the basis of
administrative instructions, being contrary to the statutory rules, were
invalid. During the pendency of the said petition, the following proviso was
inserted in sub-rule (3) of Rule 21 of the 1954 Rules by Notification dated October 31, 1972 :- "Provided that Government
in consultation with the Commission may promote an Assistant Engineer of
outstanding ability and record, to Group A service in relaxation of the
educational qualifications provided in clause (a)." After the insertion of
the said proviso promotions of diploma holder Assistant Engineers were being
made on the post of Executive Engineer on ad hoc basis under the said proviso.
Feeling aggrieved by such promotion the graduate Assistant Engineers filed an
application (O.A. No. 704 of 1988) before the Tribunal wherein it was submitted
that in view of the proviso inserted in sub-rule (3) of Rule 21 of the 1954
Rules only those diploma holder Assistant Engineers could be promoted to the post
of Executive Engineers who had `outstanding ability and record' and that
diploma holder Assistant Engineers who did not possess `outstanding ability and
record' were not eligible for promotion as Executive Engineer either on regular
or on ad hoc basis and that promotion of diploma holder Assistant Engineers
could not be made simply on the basis of seniority-cum-fitness by taking them
at par with graduate Assistant Engineers. Another application (O.A. No. 910 of
1989) was filed before the Tribunal by the diploma holder Assistant Engineers
who submitted that the proviso to Rule 21(3) of the 1954 Rules, in so far as it
prescribed the requirement of `outstanding ability and record' for the purpose
of promotion of diploma holder Assistant Engineers to the post of Executive
Engineer, was discriminatory and violative of Articles 14 and 16 of the
Constitution. On behalf of the Union Government it was submitted that the
proviso inserted in Rule 21(3) of the 1954 Rules is fair and just and cannot be
termed as discriminatory and that the assessment of `outstanding ability and
record' of the diploma holder Assistant Engineers is done by the Departmental
Promotion Committee (for short `DPC') which is chaired by a member of the Union
Public Service Commission and that he assessment of merit is based on the total
record of service. Both these applications have been disposed of by the
Tribunal by the impugned judgment dated April 30, 1990.
After
referring to the proviso introduced in Rule 21(3) of the 1954 Rules, the Tribunal
has observed that the eligibility conferred thereby in relaxation of the
educational qualification is conditioned by the higher quality of performance
and a longer work experience, assessed as `outstanding ability and record' and
that this could be judged from the annual confidential reports (ACRs).
According
to the Tribunal, ACR is a vehicle for assessment of comparative and competitive
merit of the officers equally placed for the purpose of promotion and that such
an assessment cannot quantify the compensatory element for the diploma holders
Assistant Engineers which is required to place them at the same pedestal as
graduate Assistant Engineers who admittedly have higher mental equipment
because the DPC that makes assessment for the purpose of promotion to the
higher grade applies uniform norms for assessing the performance of the
officers placed equally in the feeder grade. The Tribunal has also observed
that according to Rule 21(3) the Department is required to screen the diploma
holder Assistant Engineers based on their total record of service to identify
those persons who have `outstanding ability and record' and the diploma holder
Assistant Engineers so identified should thereafter be placed at par with the
graduate Assistant Engineers and assessed for promotion to the grade of
Executive Engineer in accordance with the procedure prescribed by the DPC and
this has never been followed. Since both the assessments, namely, screening of
diploma holder Assistant Engineers first for identifying those who have
`outstanding ability and record' in accordance with Rule 21 (3) and thereafter
assessing them along with the graduate Assistant Engineers by the DPC in
accordance with the procedure followed by it for such selection, are made on
the basis of job performance, the work content of which is the same, for the
diploma holders as well as graduates, Rule 21(3) contains an element of
arbitrariness and discrimination. The Tribunal has taken note of the fact that
for the last three decades diploma holder Assistant Engineers have been
promoted on ad hoc basis along with the graduate Assistant Engineers based on
the appraisal of their confidential record and that in the last three DPCs held
in 1965, 1968 and 1971, the select lists were prepared applying the selection norms
uniformly to all the Assistant Engineers irrespective of their being diploma
holders or degree holders by treating them (graduates and non-graduates) as one
category and the selection was made without first determining the eligibility
of diploma holder Assistant Engineers for the next promotion. According to the
Tribunal, the procedure so far has not been in conformity with Rule 21(3). The
Tribunal has, therefore, held that the proviso inserted in Rule 21(3) is
arbitrary and discriminatory and it requires to be substituted by a rational
and just criterion, e.g., holding of a qualifying test for diploma holder
Assistant Engineers, annually or as may be necessary, to obviate the element of
arbitrariness and make the rule reasonable and those who qualify in such a
departmental test, they should be considered along with graduate Assistant
Engineers for promotion to the next higher grade by the DPC by following the
normal procedure. The Tribunal has directed the Government to further amend the
1954 Rules suitably and has also directed that until the Rules are so amended,
no regular promotion of diploma holder Assistant Engineers shall be made and
that ad hoc promotions already made shall be regularised in accordance with the
amended Rules.
Both
the sides, namely, the graduate Assistant Engineers as well as diploma holder
Assistant Engineers, have felt aggrieved by the judgment of the Tribunal. The
graduate Assistant Engineers have filed Civil Appeal No. 5363 of 1990, while
the diploma holder Assistant Engineers have filed Civil Appeal No. 5364 of
1990.
During
the pendency of these appeals, the Government of India has made the Ministry of
Urban Affairs and Employment (Department of Urban Development), Central
Engineering (Civil) Group `A' Service, Rules, 1996 and the Ministry of Urban
Affairs and Employment (Department of Urban Development) Central Engineering
(Electrical and Mechanical) Group `A' Service Rules, 1996 (hereinafter referred
to as `the 1996 Rules'). The 1996 Rules have been published in the Gazette of
India dated October 29,
1996 vide
notifications dated October
28, 1996. The 1996
Rules have superseded the 1954 Rules and prescribe a quota system for promotion
to the post of Executive Engineers from three sources :- (i) Assistant
Executive Engineer with four years regular service in the grade. 33/1/3% (ii)
Degree holder Assistant Engineers with eight years regular service in the
grade. 33/1/3% (iii) Diploma holder Assistant Engineers with ten years regular
service in the grade. 33/1/3% The 1996 Rules have come into force with effect
from October 29, 1996. Since the 1996 Rules are
prospective in operation, the promotions made prior to the making of the 1996
Rules would be governed by the 1954 Rules and, therefore, the question
regarding the validity of the proviso to Rule 21(3) of the 1954 Rules has to be
considered.
Before
we come to the question regarding the validity of the proviso to Rule 21(3), we
would deal with the submission of Shri G.K. Aggarwal, the learned counsel
appearing for the appellants in Civil Appeal No. 5364 of 1990 filed by the
diploma holder Assistant Engineers, assailing the validity of Rule 21(3). Shri Aggarwal
has submitted that Rule 21(3) of the 1954 Rules, in so far as it restricts
eligibility for promotion to the cadre of Executive Engineer to graduate
Assistant Engineers only, is violative of Articles 14 and 16 of the
Constitution. The submission is that promotion to the cadre of Assistant
Engineers is made from amongst Junior Engineers who are degree holders as well
as diploma holders on the basis of a limited departmental examination and that
diploma holder Junior Engineers who become Assistant Engineers after such
selection discharge the same duties and responsibilities as graduate Assistant
Engineers and that there is no basis for denying diploma holder Assistant
Engineers promotion to the higher grade of Executive Engineers. Shri Aggarwal
has also urged that since 1956 diploma holder Assistant Engineers were being
promoted as Executive Engineers and there is nothing to show that their
performance as Executive Engineers was found wanting.
We are
unable to accept this contention of Shri Aggarwal. The decisions of this Court
have laid down that educational qualifications can justifiably be made the
basis for classification for the purpose of promotion to the higher post. In
State of Jammu & Kashmir v. Triloki Nath Khosa & Ors., 1974 (1) SCR
771, there was a similar provision in the Jammu & Kashmir Engineering (Gazetted
Service) Recruitment Rules, 1970, whereunder only graduate Assistant Engineers
were eligible for promotion to the post of Assistant Executive Engineers. The
validity of the said rule was challenged by diploma holder Assistant Engineers
on the ground of violation of Articles 14 and 16 of the Constitution and the
provision was struck down by Jammu & Kashmir High Court, but, on appeal,
the rule was upheld as valid by this Court. It was held :- "Formal
education may not always produce excellence but a classification founded on
variant educational qualifications is, for purposes of promotion to the post of
an Executive Engineer, to say the least, not unjust on the fact of it".
[p.
780] In that case also an argument was advanced tat diploma holders could
comfortably fill higher posts for over three decades and no reason was shown
why they shall be rendered wholly ineligible even for being considered for
promotion to the post of Executive Engineer. The Court has, however, held :-
"Efficiency which comes in the trail of a higher mental equipment can
reasonably be attempted to be achieved by restricting promotional opportunities
to those possessing higher educational qualifications." [p. 784] In
restricting promotion to the cadre of Executive Engineer from amongst graduate
Assistant Engineers only Rule 21(3) of the 1954 Rules, as it stood prior to the
amendment of 1972, was not different from the rule which has been upheld as
valid by this Court in State of Jammu & Kashmir v. Triloki Nath Khosa &
Ors. (supra). The insertion of the proviso in Rule 21(3) in 1972 removes the
bar against eligibility of diploma holder Assistant Engineers being promoted as
Executive Engineers and permits relaxation in educational qualification in
respect of non-graduate Assistant Engineers of outstanding ability and record.
Keeping
in view the paramount requirement of efficiency in the higher echelons of the
service, the proviso seeks to strike a balance between the aspirations in the
matter of promotion of Assistant Engineers having higher educational
qualifications and Assistant Engineers, though lesser qualified educationally,
having outstanding ability and record.
Shri Aggarwal
has placed strong reliance on the decision of this Court in N. Abdul Basheer
and Ors. v. K.K. Karunakaran and Ors., 1989 Supp. (2) SCC 344, which related to
promotion from the post of Excise Preventive Officer to that of Second Grade
Excise Inspectors. In that case the provision fixing a quota for promotion
between graduates and non-graduates was held to be violative of Articles 14 and
16 of the Constitution on the view that the conditions of employment and the
incidents of service recognise no distinction between graduate and non-graduate
officers and that for all material purposes they are effectively treated as
equivalent. The decision in State of Jammu & Kashmir v. Triloki Nath Khosa
& Ors. (supra) was noticed and it was observed that in that case having
regard to the object of achieving the administrative efficiency in the
Engineering Service it was a just qualification to maintain a distinction
between Assistant Engineers who were degree holders and those who were merely
diploma holders. The decision in N. Abdul Basheer & Ors. v. K.K. Karunakaran
& Ors. (supra) does not, therefore, lend support to the submission of Shri Aggarwal
that Rule 21(3) of the 1954 Rules was invalid. Reference in this context may be
made to the recent decision in T.R. Kothandaraman & Ors. v. Tamil Nadu
Water Supply & Drainage Board & Ors., 1994 (6) SCC 282, wherein this
Court has upheld that validity of the proviso to Regulation 19(2) (b) of the
Tamil Nadu Supply and Drainage Board Service Regulations, 1972, which permitted
diploma Assistant Engineers to be eligible for promotion to the post of
Executive Engineer only if they were to have "exceptional merit" in
work, otherwise such diploma holders were not eligible for promotion. The
challenge to the said provision on the basis of Article 16 of the Constitution
was negativated on the basis of the judgment in Triloki Nath Khosa & Ors. (supra).
We may
now come to the proviso to Rule 21(3) which was inserted in 1972. As noticed
earlier, the proviso permits relaxation in the matter of educational
qualifications for promotion of Assistant Engineers to the cadre of Executive
Engineers and an Assistant Engineer though not a graduate could be promoted
provided he had `outstanding ability and record'. The said criterion of
`outstanding ability and record' prescribed by the proviso cannot be regarded
as vague or arbitrary. In service jurisprudence `outstanding merit' is a well recognised
concept for promotion to a selection post on the basis of merit. Such
assessment of outstanding merit is made by the DPC on the basis of the record
of performance of the employee. It cannot, therefore, be said that the proviso
to Rule 21(3) which enabled a diploma holder Assistant Engineer to be promoted
as Executive Engineer if he had `outstanding ability and record' suffers from
the vice of arbitrariness. The only reason given by the Tribunal for striking
down the said proviso as invalid is that in the matter of promotions which have
been made on the post of Executive Engineer, the DPCs have not correctly
applied the said criterion and have made selections by applying selection norms
uniformly irrespective of their being diploma holder Assistant Engineers or
degree holder Assistant Engineers. The failure on the part of the DPCs, in the
past, to correctly apply the norms laid down in the proviso and to make an
assessment about the eligibility of the diploma holder Assistant Engineers on
the basis of their `outstanding ability and record' would not mean that the
proviso which enables diploma holder Assistant Engineers having `outstanding
ability and record' being promoted as Executive Engineers is violative of
Articles 14 and 16 of the Constitution on the ground of arbitrariness. The failure
to implement the said proviso properly could only mean that the promotion which
was made without properly applying the criterion laid down in the proviso would
be open to challenge. But it does not mean that the proviso itself is bad as
being arbitrary. We are, therefore, unable to hold that the proviso to Rule
21(3) of the 1954 Rules was violative of Articles 14 and 16 of the
Constitution. This would mean that the promotions from the cadre of Assistant
Engineers (graduates as well as diploma holders) to the cadre of Executive
Engineers prior to the coming into force of 1996 Rules would be governed by
Rule 21(3) of the 1954 Rules, as amended in 1972 to include the proviso.
In
O.A. No. 704 of 1988 which filed by the graduate Assistant Engineers, the relief
sought was confined to future promotions of diploma holder Assistant Engineers
to the cadre of Executive Engineers on regular as well as ad hoc basis. The
scope of Civil Appeal No. 5363 of 1990 filed by the graduate Assistant
Engineers is, therefore, confined to promotions made to the cadre of Executive
Engineers from amongst diploma holder Assistant Engineers after the date of
filing of D.A. No. 704 of 1988 in the Tribunal. It has been pointed out that
subsequent to the filing of O.A. No. 704 of 1988 before the Tribunal some
orders were passed in 1994 whereby regular appointments have been made to the
cadre of Executive Engineers from amongst Assistant Engineers, degree holders
as well as diploma holders. It has also been stated that most of the diploma holder
Assistant engineers who were regularly appointed as Executive Engineers under
these orders have already retired from service. The grievance of the graduate
Assistant Engineers is mainly confined to diploma holder Assistant Engineers
who have been working as Executive Engineers on ad hoc basis. Since the 1954
Rules were in operation prior to the promulgation of the 1996 Rules, regular
promotion on the post of Executive Engineers against vacancies which occurred
prior to the promulgation of the 1996 Rules will be governed by the 1954 Rules.
If any of the appellants in Civil Appeal No. 5363 of 1990 feels aggrieved by
the regular promotion of any of the diploma holder Assistant Engineers to the
cadre of Executive Engineer after the filing of O.A. No. 704 of 1988 and prior
to the coming into force of the 1996 Rules, he may agitate the said grievance
in the competent forum. The promotion of diploma holder Assistant Engineers who
have been promoted on the post of Executive Engineer on ad hoc basis, will have
to be reviewed by the authorities and regular promotions against vacancies
which occurred prior to the promulgation of the 1996 Rules will have to be made
in accordance with the 1954 Rules. Regularisation of diploma holder Assistant
Engineers who are working as Executive Engineers on ad hoc basis against
vacancies which occurred after the promulgation of the 1996 Rules will have to
be made in accordance with the provisions of the 1996 Rules.
The
appeals are disposed of accordingly and the impugned judgment of the Tribunal
will stand modified in these terms. No order as to costs.
Back