N. Suresh
Nathan & Ors. Vs. Union of India & Ors. [2010] INSC 299 (22 April 2010)
Judgment
IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 8468 OF
2003 N. Suresh Nathan & Ors., Etc. Etc. ... Appellants Versus Union of
India & Ors., Etc. Etc. ... Respondents With Civil Appeal No. 698 of 2004,
Civil Appeal Nos. 3649-3650 of 2010 (Arising out of S.L.P. (C) Nos. 7174-7175
of 2009) and Civil Appeal No. 8470 of 2003
A.K.
PATNAIK, J.
Leave
granted in S.L.P. (C) Nos. 7174-7175 of 2009.
2. These
are appeals against the judgment and order dated 23.06.2003 passed by a
Division Bench of the Madras High Court in Writ Petition No.11236 of 2000.
3. The
relevant facts briefly are that the Government of Pondicherry, Planning &
Development Department, made the Assistant Engineers (including Deputy Director
of 2 Public Works Department) Group `B' (Technical) Recruitment Rules, 1965
[for short `the Recruitment Rules'] for the post of Assistant Engineers for the
Public Works Department initially by a Notification dated 31.01.1966. The
Recruitment Rules were amended by a Notification dated 08.08.1986 and as per
the amended Recruitment Rules the post of Assistant Engineer in the Public
Works Department, Pondicherry, was a selection post and appointment to the 20%
of the posts of Assistant Engineer was to be by direct recruitment and to the
80% of the posts by promotion. 50% of the promotion quota was to be filled up
by Section Officers (now Junior Engineers) possessing a recognized degree in
Civil Engineering or equivalent with three years service in the grade, failing
which Section Officers holding diploma in Civil Engineering with six years
service in the grade and the remaining 50% of the promotion quota was to be
filled up by Section Officers (Junior Engineers) possessing a recognized
diploma in Civil Engineering with six years service in the grade.
4. On
24.09.1968, the Chief Secretary, Government of Pondicherry, wrote to the
Secretary, Union Public Service Commission (for short `the UPSC') that there
were Section Officers with diploma qualification who have acquired degree in
Civil Engineering or equivalent and have putting in several years in service
and having become qualified for consideration for 50% quota of the post of
Assistant Engineers to be filled up by promotion and questions have arisen
whether the service rendered by such Section Officers before and after
possessing the degree or equivalent can be taken into account for consideration
for promotion under the degree holders quota and whether their cases may be
considered under the diploma holders quota as well for promotion to the post of
Assistant Engineer. In the letter dated 24.09.1968, the Chief Secretary sought
the advice of the Commission regarding the correct procedure to be followed in
such cases. The UPSC gave its advice in its letter dated 06.12.1968 that the
services of Section Officers, who qualify as graduates while in service, 4
should be counted from the date they passed the degree or equivalent
examination or from the date they started drawing Rs.225/- p.m. in the
prescribed scale, whichever was earlier and Section Officers may continue to be
considered in the diploma holders quota in case it is advantageous to them and
the Government followed this advice of the UPSC.
5. In
1989, however, some Junior Engineers, who were formerly Section Officers
working in the Public Works and Local Administration Department of Government
of Pondicherry, filed O.A. No. 552 of 1989 in the Central Administrative
Tribunal, Madras Bench, (for short `the Tribunal') and in its judgment and
order dated 09.01.1990 the Tribunal held that when the Recruitment Rules
require three years service in grade, the Section Officers (now Junior
Engineers) who ceased to be mere diploma holders having acquired the degree
qualification have to be regarded as having total experience put in the grade
of Section Officers before and after acquiring the degree qualification and
there was nothing in the 5 Recruitment Rules to warrant the exclusion of a part
of the experience acquired by such Junior Engineers while functioning in the
grade of Section Officers (Junior Engineers). The Tribunal accordingly directed
that the cases of the applicants in the O.A. be considered for promotion to the
post of Assistant Engineers on par with other degree holders Junior Engineers
taking due note of their total length of service rendered in the grade of
Junior Engineers and such a consideration should be alongside other Junior
Engineers, who might have acquired the necessary degree qualification earlier
than the applicants while holding the post of Junior Engineers.
6. The
judgment and order dated 09.01.1990 of the Tribunal was challenged by N. Suresh
Nathan and Others before this Court in Civil Appeal No. 4542 of 1991 and this
Court interpreting Rule 11 of the Recruitment Rules held in the judgment
reported in 1992 Supp. (1) SCC 584 that the period of three years' service in
the grade required for degree-holders as qualification for 6 promotion in the
category of degree-holders must mean three years' service in the grade as a
degree-holder and, therefore, that period of three years can commence only from
the date of obtaining the degree and not earlier and this interpretation of
Rule 11 was in conformity with the past practice followed consistently by the
Government and that the Tribunal was not justified in taking the contrary view
and accordingly allowed the appeal.
Review
Petition No.50 of 1993 was filed against the judgment and order dated
22.11.1991 of this Court in the aforesaid case but the same was dismissed on
31.01.1993.
7.
Thereafter, appellant Nos. 1 to 7 were promoted to the post of Assistant
Engineer on 08.03.1997. Respondent Nos. 2 to 7 challenged the promotion of the
appellant Nos. 1 to 7 before the Tribunal in O.A. No. 359 of 1997 contending
inter alia that this Court in its judgment in N.
Suresh
Nathan & Ors. v. Union of India & Ors. (supra) has only held that three
years' service required for eligibility for the promotion quota reserved for
the category of 7 degree-holders or equivalent should be considered from the
date of acquiring the degree or equivalent, but has not decided the question of
seniority as between degree- holders or equivalent and diploma-holders in the
grade.
The
Government of Pondicherry in its reply filed in O. A. No.359 of 1997 before the
Tribunal contended that the Departmental Promotion Committee met on 29.09.1996
and keeping in view the direction of this Court in the judgment in N. Suresh
Nathan & Ors. v. Union of India & Ors. (supra) selected the Section
Officers/Junior Engineers to the post of Assistant Engineers by preparing two
lists, one list for considering promotions to the post of Assistant Engineer
for the degree-holders quota and another list for considering promotion to the
post of Assistant Engineers for the diploma-holders quota. The Government of
Pondicherry further clarified in its reply that in the first list those who had
joined as Section Officers/Junior Engineers with degree in Civil Engineering
were placed above the Section Officers/Junior Engineers who had joined the
service 8 with diploma in Civil Engineering but had subsequently acquired
degree in Civil Engineering and in the second list, the Section Officers/Junior
Engineers who had joined with diploma were placed in order of seniority counted
from the date of the joining in the grade. By the judgment and order dated
27.08.1999, the Tribunal dismissed O.A. No.359 of 1997 after holding that this
Court has already taken a specific view in N. Suresh Nathan's case (supra) with
regard to the procedure to be adopted for promotion of Junior Engineers in the
Public Works Department of Pondicherry construing the recruitment rules and the
applicants in O.A. should not be allowed to raise the point once again and that
the judgment of this Court in N. Suresh Nathan's case was binding on the
Tribunal and it was not open for the Tribunal to hold otherwise insofar as the
interpretation of the recruitment rules for the post of Assistant Engineer in
the Public Works Department in Pondicherry is concerned.
8.
Aggrieved, respondents Nos.3, 4, 5 and 6 filed Writ Petition No.11236 of 2000
before the Madras High Court against the judgment and order dated 27.08.1999 of
the Tribunal in O.A. No.359 of 1997 and by the impugned judgment and order, a
Division Bench of the Madras High Court held inter alia that in N. Suresh
Nathan & Ors. v. Union of India & Ors. (supra) this Court only decided
the question of eligibility for promotion to the posts of Assistant Engineer
meant for the category of degree-holders or equivalent, but did not decide the
question of seniority of Section Officers/Junior Engineers, who had acquired a
degree in Civil Engineering or equivalent after joining as Section
Officers/Junior Engineers and, therefore, the judgment of this Court in N.
Suresh Nathan & Ors. (supra) did not operate as res judicata. The Division
Bench of the Madras High Court, relying on the decisions of this Court in R. B.
Desai & Anr. v. S. K. Khanolkar & Ors. [(1999) 7 SCC 54] and A. K. Raghumani
Singh & Ors. v. Gopal Chandra Nath & Ors. [(2000) 4 SCC 30], further
held in 1 the impugned judgment and order that the entire service of a person
concerned even before acquiring the degree in Civil Engineering or equivalent
have to be counted for the purpose of seniority and promotion and directed that
a review DPC should be held to consider the question of promotion of the
petitioners before the High Court vis-`- vis respondents 2 to 8 and other
eligible persons, who had become eligible by the date of sitting of the DPC in
1996 and accordingly allowed the Writ Petition.
9. Mr.
Jawahar Lal Gupta, Mr. L. Nageswar Rao and Mr. M.N. Rao, learned senior counsel
appearing for the appellants, submitted that the view taken by the High Court
in the impugned judgment and order is the same as has been taken by the
Tribunal in its order dated 09.01.1990 in the earlier O.A. No.552 of 1989 and
as the order dated 09.01.1990 of the Tribunal in O.A. No.552 of 1989 has been
set aside by this Court in N. Suresh Nathan & Ors. (supra), the impugned
judgment and order of the High Court cannot be sustained. They referred to the
earlier order dated 09.01.1990 of the 1 Tribunal in O.A. No.552 of 1989 to show
that the Tribunal had directed the authorities to consider the applicants in
the O.A. for promotion to the post of Assistant Engineer at par with other
degree-holder Junior Engineers taking due note of their total length of service
rendered in the grade of Junior Engineer, both before and after acquiring the
degree of Civil Engineering or equivalent, and submitted that this Court set
aside this direction of the Tribunal in the judgment in N. Suresh Nathan &
Ors. (supra). They further submitted that once this Court set aside the order
dated 09.01.1990 of the Tribunal in O.A. No.552 of 1989 on the ground that the
order of the Tribunal was not in conformity with Rule 11 of the Recruitment
Rules and the practice followed by the Department, the decision of this Court
on the issue constitutes res judicata and the interpretation of Rule 11 of the
Recruitment Rules by this Court was a declaration of law binding on the High
Court under Article 141 of the Constitution.
10. Mr.
M.S. Ganesh, learned senior counsel appearing for the Government of
Pondicherry, reiterated these contentions of the learned counsel for the
appellants.
11. Mr.
Rakesh Dwivedi and Mr. K.V. Viswanathan, learned counsel appearing for
respondents No. 2 to 19, in their reply, contended that the High Court has
rightly held in the impugned judgment and order that in N. Suresh Nathan &
Ors (supra), this Court only decided the question of eligibility of Section
Officers or Junior Engineers for promotion to the post of Assistant Engineers
meant for the category of degree-holders and not the method in which the
eligible candidates will be considered for promotion.
12. Para
5 of the judgment in N. Suresh Nathan & Ors.
(supra)
which contains the ratio decided by this Court is quoted herein below:
"5.
The Recruitment Rules for the post of Assistant Engineers in the PWD (Annexure
C) are at pages 57 to 59 of the paper book. Rule 7 lays down the qualifications
for direct recruitment from the two sources, namely, degree-holders and
diploma- holders with three years' professional experience. In 1 other words, a
degree is equated to diploma with three years' professional experience. Rule 11
provides for recruitment by promotion from the grade of Section Officers now
called Junior Engineers.
There are
two categories provided therein - one is of degree-holder Junior Engineers with
three years' service in the grade and the other is of diploma- holder Junior
Engineers with six years' service in the grade, the provision being for 50 per
cent from each category. This matches with Rule 7 wherein a degree is equated
with diploma with three years' professional experience. In the first category
meant for degree-holders, it is also provided that if degree- holders with
three years' service in the grade are not available in sufficient number, then
diploma-holders with six years' service in the grade may be considered in the
category of degree-holders also for the 50 per cent vacancies meant for them.
The entire scheme, therefore, does indicate that the period of three years'
service in the grade required for degree- holders according to Rule 11 as the
qualification for promotion in that category must mean three years' service in
the grade as a degree-holder and, therefore, that period of three years can
commence only from the date of obtaining the degree and not earlier. The
service in the grade as a diploma-holder prior to obtaining the degree cannot
be counted as service in the grade with a degree for the purpose of three
years' service as a degree-holder. The only question before us is of the
construction of the provision and not of the validity thereof and, therefore,
we are only required to construe the meaning of the provision. In our opinion,
the contention of the appellants degree-holders that the rules must be
construed to mean that the three years' service in the grade of a degree-holder
for the purpose of Rule 11 is three years from the date of obtaining the degree
is quite tenable and commends to us being in conformity with the past practice
1 followed consistently. It has also been so understood by all concerned till
the raising of the present controversy recently by the respondents.
The
tribunal was, therefore, not justified in taking the contrary view and
unsettling the settled practice in the department."
13. On a
close reading of the aforesaid para 5 of the judgment of this Court in N.
Suresh Nathan & Ors.
(supra),
we find that this Court confined its decision to the qualification or
eligibility for consideration for promotion to 50% vacancies for the post of
Assistant Engineer meant for degree-holders or equivalent in the grade of
Section Officers/Junior Engineers and held that only those Sections Officers or
Junior Engineers, who had completed three years' service after obtaining
degree, were qualified or eligible for consideration to the 50% vacancies meant
for the category of degree-holders or equivalent. In the judgment in N. Suresh
Nathan & Ors.
(supra),
this Court did not decide on how the Section Officers/Junior Engineers who had
completed three years' service in the grade after the degree in Civil
Engineering or equivalent and had the qualification or 1 eligibility for
consideration for promotion to the 50% vacancies meant for the category of
degree-holders would be considered for promotion.
14.
Article 141 of the Constitution states that the law declared by this Court
shall be binding on all the courts within the territory of India. In N. Suresh
Nathan & Ors.
(supra)
this Court has set aside the order of the Tribunal dated 09.01.1990 in O.A.
No.552 of 1989 after declaring that Section Officers/Junior Engineers having
three years' service in the grade after they acquired degree in Civil
Engineering or equivalent will become qualified or eligible for promotion to
the 50% vacancies meant for the category of degree-holders or equivalent. In N.
Suresh Nathan & Ors. (supra) this Court has not declared any law on how these
Sections Officers/Junior Engineers, who had become qualified or eligible for
promotion to the post of Assistant Engineer under the category of degree-
holders or equivalent, would be considered for such promotion. There was,
therefore, no law declared by this Court on how Section Officers or Junior
Engineers, who 1 become qualified or eligible for promotion to the post of
Assistant Engineer would be considered for promotion, which was binding on the
courts under Article 141 of the Constitution.
15.
Section 11 of the Code of Civil Procedure Code (for short `CPC') titled `Res
judicata' states that no court shall try any issue which was directly or
substantially in issue between the same parties and which has been heard and
finally decided by a competent court. Thus, unless an issue directly and
substantially raised in the former case is heard and decided by the competent
court, the principle of res judicata will not be attracted. In N. Suresh Nathan
& Ors. (supra) this Court, while setting aside the order dated 09.01.1990
in O.A. No.552 of 1989, has decided that those Section Officers/Junior
Engineers who complete three years' service after acquiring the degree in Civil
Engineering or equivalent are qualified or eligible for consideration for
promotion to the 50% quota of vacancies for the post of Assistant Engineer
under the degree-holders category but has not decided how such 1 Section
Officers/Junior Engineers who are qualified or eligible will be considered for
such promotion under the degree-holders category. The decision of this Court in
N.
Suresh
Nathan & Ors. (supra), therefore, did not constitute res judicata on the
issue regarding the manner in which Section Officers/Junior Engineers who were
qualified or eligible for consideration for promotion to the post of Assistant
Engineer would be considered for promotion.
16. The
High Court was, therefore, right in taking the view that in N. Suresh Nathan
& Ors. (supra), this Court was concerned only with the question of
eligibility but was not concerned whether the past services rendered by the
diploma-holders would be counted for the purpose of seniority and that neither
Article 141 of the Constitution nor the principle of res judicata was a bar for
Tribunal or the High Court to consider whether past services of Section
Officers/Junior Engineers who were diploma- holders before they acquired degree
in Civil Engineering or equivalent could be counted for the purpose of 1
promotion for the 50% vacancies for the post of Assistant Engineers meant for
the category of degree-holders or equivalent.
17.
Learned counsel for the appellants next submitted that Rule 11 of the
Recruitment Rules provides for two streams or channels of promotion to the post
of Assistant Engineer, Public Works Department, one stream or channel is for
Sections Officers or Junior Engineers possessing a recognized degree in Civil
Engineering or equivalent and the other for Section Officers/Junior Engineers
holding diploma in Civil Engineering. They submitted that it is for this reason
that the UPSC in its letter dated 06.12.1968 advised the Government that the
services of Section Officers/Junior Engineers, who qualify as graduates while
in service, should be counted from the date they passed the degree or
equivalent while considering them for promotion for the channel or stream of
promotion meant for Section Officers or Junior Engineers having degree in Civil
Engineering or 1 equivalent and the Government of Pondicherry has acted on this
advice of the UPSC.
18. Mr.
Nageswar Rao cited the decision in Chandravathi P. K. & Ors. v. C.K. Saji
& Ors. [(2004) 3 SCC 734] in which the question for consideration was
whether in terms of the scheme of the Kerala Engineering Service (General
Branch) Rules, diploma-holders were entitled to claim any weightage for the
service rendered by them prior to their acquisition of degree qualification in
the matter of promotion or transfer to higher posts when specific quota is
fixed for graduates and diploma-holders in the matter of promotion and this
Court, on a conjoint reading of Rules 4 and 5 of the Kerala Engineering Service
(General Branch) Rules, held that a diploma-holder Assistant Engineer who
subsequently acquired a degree qualification would be eligible for promotion as
Assistant Executive Engineer, only in the event he fulfills the conditions
precedent therefore and not otherwise and his case could be considered only
after the cases of 2 promotion of those who had been holding such degree
qualification have been considered.
19. Mr.
Ganesh adopted these arguments of learned counsel for the appellants and cited
the decision in Shailendra Dania & Ors. v. S. P. Dubey & Ors. [(2007) 5
SCC 535] wherein this Court interpreting the rules for promotion to the post of
Assistant Engineers in CPWD, which has adopted by the DDA, found that 25% of
the total posts of Assistant Engineers were to be filled up by promotion from
the category of graduate Junior Engineers and 25% of the total posts were to be
filled up by diploma-holders with eight years' service and held that a separate
quota was, thus, prescribed for promotion of Junior Engineers for degree and
diploma-holders to the higher post of Assistant Engineer. He submitted that in
the aforesaid case of Shailendra Dania & Ors. (supra), this Court
emphatically held that the service experience required for promotion from the
post of Junior Engineer to the post of Assistant Engineer in the limited quota
of degree-holder Junior Engineers in the service experience of a degree- 2
holder and cannot be equated with the service rendered as a diploma-holder.
Relying on this decision, learned counsel for the Government of Pondicherry
submitted that the prior service experience of a Section Officer or Junior
Engineer while he was diploma-holder and when he had not acquired the degree in
Civil Engineering or equivalent cannot be counted for the purpose of
consideration for the 50% quota of promotion to the post of Assistant Engineer
meant for degree-holders.
20.
Learned counsel appearing for the respondents 2 to 19, on the other hand,
submitted that Rule 11 of the Recruitment Rules does not provide for two
streams or channels of promotion as contended by learned counsel for the
appellants and it only lays down the qualification or eligibility of three
years' service after degree in Civil Engineering or equivalent as a
qualification or eligibility and once a diploma-holder acquires a degree in
Civil Engineering or equivalent, his entire length of service both prior to
acquisition of such degree in Civil Engineering or equivalent and after acquisition
of such 2 degree or equivalent has to be taken into consideration at the time
of consideration for promotion to the post of Assistant Engineer meant for
degree-holders.
21. Mr.
Viswanathan cited this Court's decision in R. B. Desai & Anr. v. S. K. Khanolkar
& Ors. [(1999) 7 SCC 54] for proposition that if at the time of
consideration for promotion, the candidates concerned have acquired
eligibility, then unless a rule specifically gives an advantage to a candidate
with earlier eligibility, the date of seniority should prevail over the date of
eligibility. He submitted that in the present case, the rules for promotion
from the post of Section Officer or Junior Engineer to Assistant Engineer did
not give any such priority to the candidates acquiring earlier eligibility. He
submitted that Chandravathi P. K. & Ors. v. C.K. Saji & Ors. (supra)
was a case where the rules, namely, the Kerala Engineering Service (General
Branch) Rules, were different from the Recruitment Rules in the present case
and the Kerala Engineering Service (General Branch) Rules clearly provided for
two different streams or 2 channels of promotion for the posts of Assistant
Engineer, i.e. for diploma-holders and degree-holders.
He
submitted that in Shailendra Dania & Ors. v. S. P. Dubey & Ors. (supra)
cited by the learned counsel for the appellants and the Government of
Pondicherry, the question for consideration was whether a diploma-holder Junior
Engineer, who obtained a degree while in service, became eligible for promotion
to the post of Assistant Engineer on completion of three years of service after
he obtained the Engineering degree or on completion of three years of service
prior to obtaining the degree in Engineering and while answering this question,
this Court held that a diploma-holder Junior Engineer became eligible for
promotion to the post of Assistant Engineer on completion of three years'
service after he obtained the Engineering degree. He submitted that the
decision of this Court in Shailendra Dania & Ors. (supra), therefore, is
not an authority for proposition that the service of diploma-holders put in
prior to the acquisition of the degree or equivalent by him will have to be
ignored 2 while considering them for promotion to the post of Assistant
Engineer meant for degree holders.
22. Rule
11 of the Recruitment Rules in the present case is quoted herein below :-
"11. In case of recruitment Promotion by promotion/deputation/ 1. Section
Officer Transfer grades from which possessing a promotion/deputation/
recognized degree transfer to be made. in Civil Engineering or Equivalent with
3 Years service in the grade failing which Section Officers holding diploma in
Civil Engineering with 6 years service in the grade - 50%.
2.
Section Officers possessing a recognized diploma in Civil Engineering with 6
years service in the grade - 50%"
23. A
plain reading of Rule 11 of the Recruitment Rules quoted above would make it
clear that for the 50% quota for the posts of Assistant Engineer mentioned
under 2 Clause 1 of Rule 11, Section Officers (now Junior Engineers) possessing
recognized degree in Civil Engineering or equivalent with three years' service
in the grade, failing which Section Officers possessing diploma in Civil
Engineering with six years' service in the grade would be eligible for
consideration for promotion. All that the Rule provides is that if for vacancy
in the post of Assistant Engineer, Section Officers possessing recognized
degree in Civil Engineering or equivalent with three years' service in the
grade are not available, Section Officers holding diploma in Civil Engineering
with six years service in the grade could be considered for promotion. Clause 1
of Rule 11 is, therefore, only a provision laying down the qualification or
eligibility for promotion to 50% of the posts of Assistant Engineer and the
qualification or eligibility provided therein is either three years service in
the grade of Section Officers or Junior Engineers after degree in Civil
Engineering or equivalent or six years service in the grade of Section Officers
or Junior Engineers with diploma in Civil 2 Engineering. This provision also
has a rider that if there are Section Officers/Junior Engineers, who have put
in three years service after acquiring degree or equivalent, available for
consideration for vacancies, then they will be considered first for promotion
and the turn for consideration for promotion of diploma-holders in Civil
Engineering with six years service in the grade of Section Officers/Junior
Engineers will come only thereafter.
Thus, the
Rule itself provides that if for vacancies in the post of Assistant Engineer,
Section Officers possessing a recognized degree in Civil Engineering or
equivalent with three years' service in the grade are not available, then
Section Officers holding diploma in Civil Engineering with six years' service
in the grade would be eligible for promotion. We, therefore, cannot accept the
submission of learned counsel for the appellants and the Government of
Pondicherry that Clause 1 of Rule 11 provides for a separate stream or channel
of promotion exclusively for degree-holders, who have completed three years
service and we are of the opinion that learned counsel for the 2 respondents 2
to 19 are right in the submission that Clause 1 of Rule 11 only lays down the
qualification or eligibility for consideration for promotion to 50% of the
posts of Assistant Engineers.
24. In
Chandravathi P. K. & Ors. v. C.K. Saji & Ors. (supra), cited by Mr. L.
Nageshwara Rao, on the other hand, this Court held that under Rules 4 and 5 of
the Kerala Engineering Service (General Branch) Rules there were separate
avenues of promotion for the degree-holders and the diploma holders. This will
be clear from the observations of the Court in para 30 of the judgment in
Chandravathi P. K. & Ors. v. C.K. Saji & Ors. (supra), quoted herein
below:
"A
bare perusal of Rules 4 and 5 of the Kerala Engineering Service (General
Branch) Rules would clearly go to show that the avenues for promotion for the
degree- holders and the diploma holders were separate. ......"
[(2004) 3
SCC 734 at 748]
25. In
Shailendra Dania & Ors. v. S. P. Dubey & Ors. (Supra) cited by learned
counsel Mr. Ganesh, this Court similarly found that there were two different
channels or streams of promotion for degree-holders and diploma holders to 2
the post of Assistant Engineer in the relevant rules. This will be clear from
the findings in para 44 of the judgment quoted herein below:
"......
There is watertight compartment for graduate Junior Engineers and
diploma-holder Junior Engineers.
They are
entitled for promotion in their respective quotas.
Neither a
diploma-holder Junior Engineer could claim promotion in the quota of
degree-holders because he has completed three years of service nor can a
degree-holder Junior Engineer make any claim for promotion quota fixed for
diploma-holder Junior Engineers. [(2007) 5 SCC 533 at 560)]"
26. In
the present case, on the other hand, Clause 1 of Rule 11 of the Recruitment
Rules does not provide for "separate avenues" or "watertight compartments"
for promotion to the post of Assistant Engineers for degree- holders and
diploma-holders. As we have seen Clause 1 Rule 11 of the Recruitment Rules only
lays down the qualification or eligibility for consideration for promotion to
the post of Assistant Engineers earmarked for the 50% quota. The two decisions
of this Court in Chandravathi P. K. & Ors. v. C.K. Saji & Ors. (supra)
and Shailendra Dania & Ors. v. S. P. Dubey & Ors. (Supra) are,
therefore, of no assistance to the appellants.
27. In R.
B. Desai & Anr. v. S. K. Khanolkar & Ors. (supra) cited by Mr.
Viswanathan, this Court found that the amended rules of 1988 pertaining to the
promotion to the cadre of Assistant Conservator of Forests provided that Range
Forest Officers with five years regular service in the grade and possessing
diploma of Forest Rangers' Training from Forest Rangers College in India or
equivalent were eligible for promotion to the post of Assistant Conservator of
Forests and the Court held in para 9:
".............
that if at the time of consideration for promotion the candidates concerned
have acquired the eligibility, then unless the rule specifically gives an
advantage to a candidate with earlier eligibility, the date of seniority should
prevail over the date of eligibility.
The rule
under consideration does not give any such priority to the candidates acquiring
earlier eligibility and, in our opinion, rightly so. In service law, seniority
has its own weightage and unless and until the rules specifically exclude this
weightage of seniority, it is not open to the authorities to ignore the same.
[(1999) 7 SCC 54 at 58] 28. In the passage of the judgment of this Court in
R.B. Desai & Anr. V. S. K. Khanolkar & Ors. (supra) quoted above, it 3
is laid down that in service law, seniority has its own weightage and unless
and until the rules specifically exclude this seniority, it is not open to the
authorities to ignore the same. In the aforesaid case though the post of ACF
was mentioned to be a selection post in the amended rules of 1988, the question
whether for a selection post seniority would have weightage or merit would have
weightage while considering the eligible candidates for promotion was not
raised or decided and the only question which was raised before this Court was
whether ranking assigned in the eligibility list or the ranking assigned to the
seniority list should be given weightage and this Court held that between the
candidates who are eligible, ranking in seniority must be given weightage
irrespective of the date for which the candidate becomes eligible.
29. In
the present case, we find that Rule 5 of the Recruitment Rules states that the
post of Assistant Engineer in the Public Works Department, Pondicherry, is a
selection post. The Recruitment Rules, however, do not lay down that
seniority-cum-merit would be the criteria for promotion to the selection post
of Assistant Engineer. In Dr. Jai Narain Misra v. 3 State of Bihar & Ors.
[(1971) 1 SCC 30] a three-Judge Bench of this Court held that the question of
seniority was not relevant for promotion to the selection post in the language
of the judgment of this Court in Dr. Jai Narain Misra v. State of Bihar &
Ors. (supra):
"It
was not disputed before us that the post of Director of Agriculture is a selection
post. Therefore, the question of seniority was not relevant in making the
selection. It is for the State Government to select such officer as it
considers as most suitable. In this view we think the High Court was not
justified in going into the question of seniority nor will we be justified in
going into that question."
Thus, the
question of seniority in the grade of Section Officers or Junior Engineers is
not at all relevant for promotion to the post of Assistant Engineer in the
Public Works Department, Government of Pondicherry. The practice adopted by the
Government of Pondicherry in consultation with the UPSC of counting the
services of Section Officers or Junior Engineers, who qualified as graduates
while in service from the date they passed the degree or equivalent examination
and placing them in order of seniority accordingly for the purpose of
consideration for promotion to the post of Assistant Engineer 3 under Clause 1
of Rule 11 of the Recruitment Rules is contrary to Rule 5 of the Recruitment
Rules. Similarly, the direction of the High Court in the impugned judgment and
order to count the entire service of a person concerned even before acquiring
degree in Civil Engineering for the purpose of seniority and promotion to the
post of Assistant Engineer under Clause 1 of Rule 11 of the Recruitment Rules
is contrary to Rule 5 of the Recruitment Rules.
30. The
person, who is most meritorious, is the most suitable person to be promoted for
the selection post. Merit, in other words, is the sole criteria for promotion
to the selection post. In Guman Singh, etc. v. State of Rajasthan & Ors.
[1971 (2) SCC 452] a five-Judge Bench of this Court speaking through
Vaidialingam, J. explained how merit of candidates for promotion is to be
assessed in para 35 at page 408 of the judgment in the following words:
"...........
No doubt the term `merit' is not capable of an easy definition, but it can be
safely said that merit is a sum total of various qualities and attributes of an
employee such as his academic qualifications, his distinction in the
University, his character, integrity, devotion to duty and the manner in which
he discharges his official duties.
3 Allied
to this may be various other matters or factors such as his punctuality in
work, quality and outturn of work done by him and the manner of his dealings
with his superiors and subordinate officers and the general public and his rank
in the service. We are only indicating some of the broad aspects that may be
taken into account in assessing the merits of an officer. In this connection it
may be stated that the various particulars in the annual confidential reports
of an officer, if carefully and properly noted, will also give a very broad and
general indication regarding the merit of an officer. "
Where,
therefore, there are large number of eligible candidates available for
consideration for promotion to a selection post, the Government can issue
executive instructions consistent with the principle of merit on the method to
be followed for considering such eligible candidates for promotion to the
selection post.
31.
Learned counsel for the appellants however submitted that when the Recruitment
Rules are silent on the procedure to be adopted by the Government in selecting
the candidates for promotion, the Government is the best authority to decide
what procedure to be adopted in such promotion and the Court will not interfere
with the procedure so adopted unless it was unconstitutional, arbitrary,
unreasonable or otherwise 3 illegal. In support of this submission, Mr. L.
Nageswar Rao cited the decisions of this Court in Suman Gupta v. State of J
& K [(1983) 4 SCC 339], Munidra Kumar v. Rajiv Govil [(1991) 3 SCC 368],
Satya Narain Shukla v. U.O.I. [(2006) 9 SCC 69], P.U. Joshi v. Accountant
General [(2003) 2 SCC 632], U.O.I. v. Pushpa Rani [(2008) 9 SCC 242], Inderjeet
Khurana v.
State of
Haryana [(2007) 3 SCC 102] and U.O.I. v. A.K. Narula [(2007) 11 SCC 10].
Learned counsel for the appellants submitted that in the present case the
Government of Pondicherry in consultation with the UPSC has adopted the
procedure since 1968 that the services of Section Officers/Junior Engineers who
qualified as graduates while in service should be counted from the date they
passed the degree or equivalent examination for the promotion under clause 1
Rule 11 of the Recruitment Rules and this procedure is not unconstitutional,
arbitrary, unreasonable or illegal and, therefore, the High Court by the
impugned judgment and order should not have interfered with this procedure and
should not have directed that the entire service of a person concerned even
before acquiring the degree in civil engineering 3 or equivalent has to be
counted for the purpose of seniority and promotion to the post of Assistant
Engineer under clause 1 of Rule 11 of the Recruitment Rules. Learned counsel
appearing for the Government of Pondicherry adopted this contention of the
learned counsel of the appellants.
32.
Learned counsel for the respondents No.2 to 19, in their reply, submitted that
the Government cannot adopt a procedure for selection by way of promotion to
the post of Assistant Engineer contrary to the Recruitment Rules. They
submitted that the Recruitment Rules do not provide that for promotion under
clause 1 of Rule 11, the services of Section Officers/Junior Engineers who
qualified as graduates while in service, would be counted from the date they
passed the degree or equivalent examination and their services prior to the
date of passing the degree or equivalent examination would be ignored. They
further submitted that the Government also cannot adopt the procedure of
selection which violates the fundamental right guaranteed under Article 16 of
the Constitution of India to equality of opportunity in matters of public
employment. They submitted that once a 3 candidate became eligible or qualified
to be considered for promotion to the post of Assistant Engineer under clause 1
of Rule 11 of the Recruitment Rules, he has a right to be considered for such
promotion and such consideration cannot be denied by laying down a procedure
which ignores his seniority in the grade of Section Officer/Junior Engineer.
They
relied on the decision of this Court in M.B. Joshi v. Satish Kumar Pandey [1993
Supp.(2) SCC 419].
33. In
M.B. Joshi v. Satish Kumar Pandey (supra), the State Government had been
applying the principle of counting the seniority of Graduate Sub-Engineers from
the date of their continuous officiation irrespective of the date on which such
diploma-holder Sub-Engineer acquired the degree of graduation in Engineering
and on the basis of such seniority, the Departmental Promotion Committee was
considering Graduate Sub-Engineers for promotion to the post of Assistant
Engineers. When this method adopted by the State Government was challenged by
some of the Sub-Engineers before the Madhya Pradesh Administrative Tribunal,
Jabalpur, the Tribunal held that the seniority of such Sub-Engineers 3 must be
determined from the date of acquiring the degree of graduation in Engineering
and this Court held that the Tribunal was wrong in determining the seniority
from the date of acquiring degree of Engineering and it ought to have been
determined on the basis of length of service on the post of Sub-Engineer and
the Government was right in doing so and there was no infirmity in the orders
passed by the Government. In this case also, the question did not arise whether
for selection post seniority would have weightage or merit would have weightage
while considering the eligible candidates for promotion.
34. As we
have seen, Rule 5 of the Recruitment Rules in the present case states that the
post of Assistant Engineer is a selection post and the Recruitment Rules no
where provide that seniority-cum-merit would be the criteria for promotion.
In the
absence of any indication in the Recruitment Rules that seniority in the grade
of Section Officers / Junior Engineers will be counted for the purpose of
promotions to the post of Assistant Engineer, consideration of all Section
Officers / Junior Engineers under Clause 1 of Rule 11 of the 3 Recruitment
Rules who are eligible for such consideration has to be done on the basis of
assessment of the comparative merit of the eligible candidates and the most
suitable or meritorious candidate has to be selected for the post of Assistant
Engineer.
Such a
method of selection will be consistent with Rule 5 of the Recruitment Rules and
Article 16 of the Constitution which guarantees to all citizens equality of
opportunity in matters of public employment. In our considered opinion,
therefore, the practice adopted by the Government of Pondicherry on the advice
of the UPSC of counting the service of the eligible candidates from the date of
acquisition of the degree in Civil Engineering by them and the impugned
judgment and order of the High Court directing that the entire service of
eligible candidates, both prior and after acquisition of the degree of Civil
Engineering by them, would be counted for the purpose of promotion to the post
of Assistant Engineer under Clause 1 of Rule 11 of the Recruitment Rules are
contrary to the rules made under Article 309 of the Constitution and the
fundamental right guaranteed under Article 16 of the Constitution.
35. For
the aforesaid reasons, we set aside the impugned judgment of the High Court and
direct the Government of Pondicherry to consider the cases of all Section
Officers or Junior Engineers, who have completed three years' service in the
grade of Section Officers or Junior Engineers, for promotion to the vacancies
in the post of Assistant Engineer, Public Works Department, Government of
Pondicherry, in accordance with their merit. We make it clear that the
promotions to the post of Assistant Engineers already made pursuant to the
judgment and order of the High Court will not be disturbed until the exercise
is carried out for promotion in accordance with merit as directed in this
judgment and on completion of such exercise, formal orders of promotion to the
vacancies in the posts of Assistant Engineer which arose during the pendency of
the cases before this Court are passed in case of those who are selected for
promotion and after such exercise only those who are not selected for 4
promotion may be reverted to the post of Section Officer or Junior Engineer.
The appeals
are disposed of accordingly with no order as to costs.
..........................J. (J. M. Panchal)
..........................J. (A.K. Patnaik)
New Delhi,
April 22, 2010.
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