ANJANI KUMAR MISRA Vs. STATE OF U P

JUDGEMENT

(1.) THESE batch of writ petitions have been filed by degree holder (BE/aime) Junior Engineers of Lok Nirman Vibhag of Government of U. P challenging the various steps of process of promotion on the posts of Assistant Engineers including the validity and correctness of prescription of quota for promotion, determination of vacancies and preparation of eligibility list and also validity and applicability of new Rules of recruitment namely The Uttar Pradesh Public Works Department Group-B Civil Engineering Service Rules, 2004, hereinafter referred to as new Rules 2004, for the post of Assistant Engineers published under the notification dated 3-1-2004. Although, individual petitions comprehend grievances of only individual petitioners but our effort is to comprehend all necessary facts and to decide the issues raised in these batch of writ petitions so that the controversy may be set at rest. The petitioners of Writ Petitions No. 2750/2004, 39299/2005, 51288/2005, 1549/2004, 58513/2005 and 47560/2005 have challenged the provisions of the aforesaid Rules pertaining to the recruitment on the posts in question and alternatively have also challenged the process of selection that the aforesaid notification shall not cover the vacancies of Assistant Engineers prior to the date of commencement of the notification. Since the facts and grounds of aforesaid writ petitions are almost similar, therefore, we would like to state the facts of Anjani Kumar Misra & Anr. 's case only to resolve the controversy involved in the aforesaid cases.

(2.) IT is stated in the aforesaid case that there are Rules regulating process of promotion from the post of Junior Engineer to the post of Assistant Engineer known as U. P. Service of Engineers (Building and Road Branch) (Class II) Rules, 1936 as amended from time to time (hereinafter referred to as the Old 1936 Rules ). Rule 3 of which deals with the definition clause and Rule 4 provides strength of cadre of service. Rule 5 provides for source of recruitment, Rule 6 empowers the Government to decide the vacancies to be filled from the sources specified under the aforesaid Rule 5. Rule 9 provides for technical qualification for appointment. On 21-7-1959 a notification was issued by the State Government making amendment to the Old 1936 Rules whereby in clause (iv) of Rule-5 the words 'upper-subordinate' had been deleted and the existing clause (a) of Rule-6 was substituted by new provisions containing 25% of vacancies in the service are reserved or earmarked for selected qualified members of Subordinate Engineering Service and Computers. The vacancies so reserved has to be shared by members of Subordinate Engineering Service and Computers in approximate proportion of their relative cadre strengths at the time of selection in question. Rule 9 of Old 1936 Rules as initially existed provided technical qualifications required to be possessed for the post of Assistant Engineer. Sub-clause (ii) provided that no officer would be promoted under Rule 5 (iv) unless he had passed any qualifying examination, which the Government may prescribe.

(3.) ON 4-8-1987 a notification was issued by the State Government making amendment to 1936 Rules including Rules 5, 6, 9, 12, 13 and 16 of the existing Rule and on 25-9-1997 another notification was issued by State Government whereby Rule 5 of 1936 Rules was again substituted by new Rules. The aforesaid notifications are on record as Annexures 5 and 6 of the writ petition. The effect of the amendment so referred to above was to specify a separate promotion quota of 8. 33% for degree holder Junior Engineers in promotion to the post of Assistant Engineer. The validity of notifications dated 4-8- 1987 and 25-9-1997 was subject-matter of challenge before this Court by means of four writ petitions including Writ Petition No. 42762 of 2000, Aruvendra Kumar Garg v. State of U. P. & Ors. A Division Bench of this Court while deciding all aforesaid writ petitions jointly in Aruvendra Kumar Garg's case vide judgment and order dated 22-3-2002, contained in Annexure-7 of the writ petition (reported in 2002 (1) LBESR 963 (All) : 2002 (2) E. S. C. 148), has quashed the impugned notifications dated 4-8-1987 and 25-9-1997 being ultra virus of Articles 14 and 16 of the Constitution. Against the aforesaid judgment a Special Leave Petition has been filed before the Apex Court by Aruvendra Kumar Garg & Ors. but vide order dated 1st August, 2006 the Hon'ble Apex Court has permitted the appellant of said case to withdraw the Civil Appeal No. 40195 of 2002, Aruvendra Kumar Garg v. State of U. P. , with Civil Appeal No. 4194 of 2002.