C CHAKKARAVARTHY Vs. UNION OF INDIA

JUDGEMENT

(1.) Heard the learned counsel appearing for the parties. The facts giving rise to present writ petitions are narrated in some detail.

(2.) The petitioners joined under the first respondent as Section Officers, subsequently re-designated as Junior Engineers. Initially they were diploma holders. The contesting respondents 2 to 8 also joined as Section Officers at a subsequent point of time. They were degree holders at the time of their appointment. As per the Rules, 20% of the posts of Assistant Engineers are to be filled up by Direct Recruitment and the balance by promotion from the Junior Engineers and a Junior Engineer can be promoted to the post of Assistant Engineer. 50% of such promotional posts are reserved for Junior Engineers having degree as their qualification and 50% are reserved for diploma holders. So far as degree holders are concerned, as per Rule 11, three years in service is required to make a Junior Engineer eligible for promotion as Assistant Engineer, whereas so far as diploma holders are concerned, it is indicated that they must have six years service in such cadre of junior engineer. The petitioner after having joined service as junior engineers subsequently acquired degree. Selection took place in the year 1987 and 1989. At that stage, the petitioners had not completed three years of service after acquiring the degree even though they were already in service for more than three years as diploma holders. As the petitioners' cases were not considered, O.A.No.552/1989 was filed before the Central Administrative Tribunal. It was the contention of the petitioners at that stage that since they were already in service for more than three years and since they had acquired degree, they were eligible to be considered for promotion and by ignoring their case illegality had been committed. The Central Administrative Tribunal by its judgment dated 9.1.1990 upheld the contention of such applicants and held that since the applicants had three years of experience in service, as soon as they acquired the degree qualification, they became eligible for promotion and their case should have been considered. Accordingly, a direction was given to hold Review D.P.C for the purpose of considering such cases. Such decision of the Tribunal was challenged by the Junior Engineers before the Supreme Court. The Supreme Court by Judgment dated 22.11.1991 in the decision reported in A.I.R. 1992 SC 564 (N. SURESH NATHAN AND ANOTHER VS UNION OF INDIA AND OTHERS) reversed the decision of the Tribunal. Since much reliance has been placed by the contesting respondents, on such decision it is necessary to quote the relevant portions of the decision of the Supreme Court in extenso: ".......... for appointment by promotion of Section Officers now called Junior Engineers, the qualification prescribed is as under " 1. Section Officers possessing a recognised Degree in Civil Engineering or equivalent with three years' service in the grade failing which Sections Officers holding Diploma in Civil Engineering with six years' service in the grade - 50 per cent. 2.Section Officers possessing a recognised Diploma in Civil Engineering with six years' service in the grade - 50 per cent. 2. The dispute in the present case is whether a Diploma holder Junior Engineer who obtains a Degree while in service becomes eligible for appointment as Assistant Engineer by promotion on completion of three years' service prior to obtaining the Degree or the three years' service as a Degree holder for this purpose is to be reckoned from the date he obtains the Degree. The Diploma holders contend that they are entitled to include the earlier period and would be eligible for promotion in this category on obtaining the Degree if the total period of service is three years inclusive of the earlier period. The Degree holders contest this position and contend to the contrary. According to the Degree-holders, these are two distinct categories. In the first category are Degree holders with three years' service in the grade as degree holders, the period of three years being subsequent to the date of obtaining the degree as in the case of the Junior Engineers who join the service with a Degree and the other category is of Diploma holders with six years' experience. ......... 4. In our opinion, this appeal has to be allowed. There is sufficient material including the admission of respondents Diploma holders that the practice followed in the Department for a long time was that in the case of Diploma holder Junior Engineers who obtained the Degree during service, the period of three years' service in the grade for eligibility for promotion as Degree holders commenced from the date of obtaining the Degree and the earlier period of service as Diploma holders was not counted for this purpose. This earlier practice was clearly admitted by the respondents Diploma holders in para 5 of their application made to the Tribunal at page 115 of the paper book. This also appears to be the view of the Union Public Service Commission contained in their letter dated December 6,1968 extracted at pages 99-100 of the paper book in the counter affidavit of respondents 1 to 3. The real question, therefore, is whether the construction made of this provision in the rules on which the past practice extending over a long period is based is untenable to require upsetting it. If the past practice is based on one of the possible constructions which can be made of the rules then upsetting the same now would not be appropriate. It is in this perspective that the question raised has to be determined. 5. The Recruitment Rules for the post of Assistant Engineers in the P.W.D. (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 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 also 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% from each category. This matches with R,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% 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 R.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 R.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 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." (emphasis supplied by us)

(3.) Thereafter, review application had been filed before the Supreme Court, which was dismissed by the Supreme Court, by order dated 13.1.1993 in Review Petition NO.50/93. The entire order is also extracted here under: ORDER We have considered the review petition along with Annexures I and II and examined the other relevant documents and we do not find any merit in the prayer for review which is accordingly rejected.