S.K. SINGH Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) Intervention Application is allowed. Heard.

(2.) This writ petition was filed on 22nd November, 2010, whereby provisions of Rule 5(a)(iii) of the Uttaranchal Service of Engineers (Irrigation Department) (Group 'B') Rules, 2003, notified on 18th February, 2003 and amended on 4th February, 2004, has been challenged on the ground that the same is ultra vires to Articles 14 and 16 of the Constitution of India. By the said Rule, a quota has been specified for promotion of degree holder Junior Engineers to the posts of Assistant Engineers. On 4th January, 2011, this Court restrained the State Government from giving any further promotion on the basis of such quota and also from giving any further progression to those who have been promoted on the basis of such quota, as and by way of interim measure.

(3.) Before we consider the Rule in question, it would be appropriate to understand the historical background, which may have prompted the rule makers to make the said Rule. In the State of Uttar Pradesh, Rules known as U.P. Service of Engineers (Buildings and Roads Branch) (Class II) Rules, 1936 (hereinafter referred to as the "1936 Rules") were in force. Before 28th July, 1969, one of the sources of recruitment to the posts of Assistant Engineers was by promotion of members of the United Provinces Subordinate Engineering Service or of Upper Subordinates in the Public Works Department (Buildings and Roads Branch) and also Computers of Public Works Department, who have shown exceptional merit. Rule 9(ii) of the 1936 Rules, at that time, made it clear that no member of such services shall be promoted unless he has passed qualifying examination, which the Government may prescribe. Remaining sources of recruitment insisted that the person, to be appointed, should be a Graduate Engineer. On 28th July, 1969, the 1936 Rules were amended. Thereby, 25 per cent of the vacancies were to be filled up by promotion of members of the Public Works Department Subordinate Engineering Service and the Public Works Department Computers Service. By suitably altering Rule 9, it was made clear that members of the said services must pass such qualifying examination as the Government may prescribe or unless he possesses qualification of a Graduate Engineer. The then Rule 12 visualized recruitment by promotion would be by selection on merit. The amendment also sought to alter status of Assistant Engineers appointed by direct recruitment but working in temporary or officiating vacancies in terms of the unamended Rules. In P.D. Agarwal and others vs. State of U.P. and others, 1987 AIR(SC) 1676 the amendment made to that extent was struck down. By Amendment Rules, 1987, notified on 4th August, 1987, while certain changes were made in the 1936 Rules, the provisions contained in Rule 9(ii) thereof were omitted. Thereafter, by the Amendment Rules, 1992, the criterion of merit for promotion was changed to seniority subject to rejection of unfit. By the 1987 Amendment, while 25 per cent of the vacancies were retained for promotees, it was insisted that they must put in at least 7 years' continuous service in the feeder post and, at the same time, 8 1/3rd per cent of the vacancies were introduced for the first time for promotees possessing Bachelor's Degree. By the 1997 Amendment, introduced on 25th September, 1997, 25 per cent of the vacancies available for promotees was increased to 33.33 per cent. That was challenged principally by the degree holder Junior Engineers before the Hon'ble Allahabad High Court. One of the questions that cropped up in the said litigation was, whether the classification of the members of the feeder cadre, based on qualification, is violative of Articles 14 and 16 of the Constitution of India. By the judgment and order, rendered on 22nd March, 2002, Hon'ble Allahabad High Court held that fixation of separate quota for degree holder Junior Engineers and diploma holder Junior Engineers is discriminatory and violative of Articles 14 and 16 of the Constitution of India. We are told that the Hon'ble Supreme Court has rejected Special Leave Petitions filed against the said judgment.