Chinmoy
Moulik & Ors Vs. Damodar Valley Corporation & Ors [1998] INSC 82 (10 February 1998)
S.C.
Agarwal, K. Venkataswami, V.N. Khare K. Venkataswami, J.
ACT:
HEAD NOTE:
This
appeal by special leave is directed against the judgment of the Calcutta High
Court dated 9.12.92 in FMAT No. 2296/91.
The
appellants were the writ petitioners in Civil Order No. 7028 (W) of 1988. The
circumstances, which made them to approach the High Court, are briefly given
below:- Damodar Valley Corporation (for short "DVC") during its
initial stage recruited holders of I.Sc/ School Final/ Matric Certificate for
entry level operatives, i.e., Assistant Operator. For the next level of
operatives, i.e., Operators, the Assistant Operators were given promotion as
Operators based on Seniority, experience an d result of departmental
examination. Due to acute shortage of operatives for newly commissioned Power
Plants, the Operators were recruited directly in electrical and mechanical
discipline to meet the urgent requirements. Later on, the minimum qualification
for the post of Assistant Operator (Electrical/ Mechanical) was fixed as B.Sc
and during the period 1969-77, the diploma holders in Electrical/Mechanical
Engineering were also recruited along with the B.Sc candidates for the post of Assistant
Operator.
It was
brought to the knowledge of the DVC Management that in civil discipline the
diploma holder engineers were being recruited at the level of Assistant
Controller equivalent to the Junior Engineer and on that basis the diploma
holders, who were recruited as Assistant Operators, were pressing their case to
upgrade them directly to the rank of Assistant Controller or equivalent in line
with Civil Engineering Cadres. The next stage of promotion of the Operators was
to that of Assistant Controller. The Corporation Management, after going
through the representations of the Diploma Holder Engineers, accepted their
demand in principle and the Director of Personnel, DVC by his letter dated
21.8.79 conveyed the decision of the DVC Management to the General Secretary,
DVC Diploma Holders Engineers' Association. The decision so conveyed was to the
effect that the diploma holders in engineering would be directly recruited at
the level of Assistant Controller or equivalent thereto; theat the Corporation
would upgrade all the existing diploma holders in engineering serving as
Assistant Operators/ Operators to the level of Assistant Controller within
three months and that no recruitment of fresh diploma holders will be made till
all the existing diploma holders are so upgraded.
Though
the DVC took such a policy decision, it could not implement the same for
administrative reasons. As there was delay on the part of DVC to implement the
policy decision taken in favour of diploma holders, they moved the High Court
for implementation of the same. The Calcutta High Court by an order dated
11.2.82 directed the DVC to give effect to their policy decision without
further loss of time. When the Writ Petition was pending before the Calcutta
High Court, the appellants herein, who belonged to the category of degree
holders, did not take the trouble of impleading themselves in the said Writ
Petition filed by the diploma holders as they were not made parties. On account
of non-implementation of the High Court directions, the diploma holders again
moved the High Court on the contempt side. The High Court again gave a
direction on 13.1.83 to the DVC to give the diploma holder engineers the
designations of Assistant Controller or equivalent thereto on or before
31.12.83 with consequential benefits from 11.2.82. Pursuant thereto, the DVC
upgraded the diploma holders on operative side in various ex-cadre posts.
Subsequently, a Sub-ordinate Engineering Service Cadre of Diploma Engineers in
the Engineering Service of the Corporation was created w.e.f. 1.4.88.
The
appellants, aggrieved by the creation of Sub- ordinate Engineering Service in
the Cadre of Diploma Engineers, filed C.O. No. 7028 (W) of 1988 challenging the
creation of that cadre.
The
grounds of attack in the said Writ Petition were that the degree holders and
diploma holders engineers were recruited simultaneously on the basis of the
same advertisement and the upgradation of diploma holder engineers alone
amounted to discrimination; that the B.Sc degree holders and the diploma holder
engineers worked together and were subjected to same departmental examination
for promotion whereas by the impugned action of the DVC the diploma holder
engineers were upgraded to the level of Assistant Controller without any
examination, which action amounted to discrimination; that the upgradation of
diploma holder engineers affected the promotional avenue of the B.Sc degree
holders and the impugned action of the DVC amounted to treating equals as unequals.
The DVC failed to challenge the order of the High Court made in favour of the
Appellate Court that the degree holders would be seriously prejudiced if the
order of the Calcutta High Court at the instance of the diploma holder
engineers was to be given effect to.
The
DVC as well as the diploma holders resisted the plea put forward by the degree
holders and justified the decision of the DVC in creating a separate
engineering service for the diploma holders. It was brought to he notice of the
High Court (learned Single Judge) that the diploma holders were not recruited
to the post of Assistant Operators/Operators trainees from the year 1978
pursuant to the policy decision taken by the DVC and those who were recruited
along with the degree holders prior to 1978, except 7 or 8 degree holders, all
were promoted to the position of Assistant Controller and, therefore, the
question of discrimination as pleaded by the degree holder writ petitioners
will have no force. The DVC had valid reasons for creating a separate
engineering service for diploma holders and there was no question of equals
being treated unequally. It was specifically pointed out that the B.Sc degree
holders on the one hand and the diploma holder engineers of Civil, Mechanical
and Electrical on the other are essentially different from each other so far as
the job descriptions of the ex-cadre posts created in 1982 onwards.
Diploma
in engineering is a technical or professional qualification whereas the degree
in science is a general academic qualification. Diploma in engineering is a three
year integrated course covering study of engineering subjects in addition to
study of science subjects like physics, Chemistry and Mathematics. Diploma
engineering students undergo vocational training and other allied engineering practicals
whereas the science graduate pursue the general study of science subjects and
are given no such exposure through vocational or industrial practical or practicals
related to industrial applications. Diploma in engineering is given two years' weightage
for obtaining engineering degree whereas there is no such weightage given to
the science graduates. A.M.I.E., which is considered equivalent to an
engineering degree, is completed in two sections - Section A and Section B and
both consist of nine papers each. Diploma holder in engineering get exemption
in six papers of Section B, graduates or even post-graduates in general stream
of science do not get such exemption.
Therefore,
according to the DVC, the two streams are not the same and they are essentially
different in various aspects.
According
to the DVC Management, the upgradation of diploma holder engineers on masse in
1982 was not only in compliance with the judgment of the Calcutta High Court,
but also in implementation of a policy decision of the Corporation adopted even
before the judgment of the High Court.
Likewise,
the formation of sub-ordinate engineering service was as a result of a policy
decision expedited by the judgment of the Calcutta High Court.
The
learned Single Judge was of the view that the action of the DVC in giving
special treatment to the diploma holders amounted to discrimination so far as
the science graduates were concerned and, therefore, issued a writ of mandamus
directing the DVC to treat the degree holders equally in the matter of
promotion to the next higher post for higher salary w.e.f. June 11, 1982 as was
done in the case of diploma holder engineers, with protection of pay, who were
appointed initially along with the science graduates in the same post. The
learned Single Judge further directed the DVC to maintain inter se seniority of
the petitioners vis-a-vis diploma holder engineers as it existed before June 11, 1982. The learned Single Judge also upgradation
of the diploma holder engineers any further. The learned Judge also gave three
months' time to pay to the degree holders arrears of pay which might accrue
owing to reorientation of the position and to give effect to the other
directions by him.
Aggrieved
by the judgment of the learned Signal Judge, the DVC preferred an appeal to the
Division Bench and the learned Judge after considering the rival submissions
found that the classification made by the DVC between the degree holders and
the diploma holders was permissible and that the conclusion of the learned
Single Judge that it amounted to discrimination against the degree holders, was
not right and on that basis allowed the appeal. However, the Division Bench
found that the science graduates stood relegated to an inferior position for no
fault of theirs. Therefore, it directed that the authorities should find ways
and means by setting up a Committee of Experts to examine the case of the
science graduates vis-a-vis the diploma holder engineers, who have been ex-caderised
from operational pool and have been placed in a separate channel of service
with accelerated promotion to improve the service conditions of the degree
holders.
The
degree holders, aggrieved by the judgment of the Division Bench, have come up
to this Court in this appeal by way of special leave.
Mr. Sanghi,
learned senior counsel appearing for the appellants, reiterated the same
contentions that were raised before the High Court on the side of the
appellants. Learned counsel appearing for the contesting respondents and the
DVC eiterated also the same contentions that were advanced before the High
Court on their side. Now, to avoid repetition, they are not set out in detail
as we have already set out in detail earlier.
We
have carefully gone through the judgments of the learned Single Judge and also
the Division Bench of the High Court. The main thrust of the appellants before
the High Court as well as before us was that the degree holders and diploma
holder engineers were recruited simultaneously on the basis of the same
advertisement and the upgradation of diplomas holder engineers alone amounted
to discrimination.
Before
deciding the said issue from the legal angle, were would like to place the
factual position. On facts, it was the definite stand of the DVC that since
1978 the DVC ceased to appoint diploma holder engineers in the post of
Assistant Operators/Operator trainees. No doubt, for the period 1969 to 1977,
the DVC was recruiting simultaneously both the degree holders and the diploma
holder engineers to the post of Assistant Operators/ Operator trainees. It is
pointed out in more than one place by the DVC in the Counter Affidavit that out
of 349 appellants only 7/8 of them were recruited simultaneously, who joined
the service of the DVC with the diploma holder engineers in response to the
same advertisement and rest of them were all recruited subsequently not along
with the diploma holder engineers as by then, as a policy, the DVC stopped
recruiting them as Assistant Operators/Operator trainees. Therefore, the
Division Bench directed the DVC to appoint a Committee to look into the matter
to protect the interest of the degree holders. It is also brought to our notice
that pursuant to the order of the High Court the DVC has formed a Committee and
before the said Committee, the appellants appeared and participated in the deliberations
and the Committee has also submitted its Report.
Bearing
the above factual position in mind, we can also consider the issue on the legal
side. In the earlier part of the judgment while setting out the contentions of
the respective parties, we have noticed in detail the difference between the
degree holders and the diploma holders engineers int he matter of technical and
professional qualification.
We
have also noticed the treatment given to diploma holders in other civil
disciplines. When these factors were brought to the notice of the DVC by the
Diploma Holder Engineers' Association, the DVC decided to create ex-cadre posts
initially and subsequently, created a separate service cadre, namely, a Sub-
ordinate Engineering Service Cadre of Diploma Holder Engineers. The authority
and power of the DVC to create/from such a separate service cadre cannot be questioned.
It is also to be noted that as a result of creation of separate cadre for
diploma holder engineers the promotion chances of degree holders in their cadre
had increased. All t hese factors were taken note of by the Division Bench and
it also noticed at the same time that the diploma holders had not been given
their due, but that does hot mean the creation of a separate cadre for diploma
holders is liable to be questioned by the degree holders.
We are
satisfied that both factually as well as in law the degree holders have not
made out a case to challenge the benefit given to the diploma holder engineers
in this case.
We
agree with the conclusions reached by the Division Bench of the High Court and
accordingly we find no merit in this appeal. The appeal is dismissed with no
order as to costs.
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