IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.01.2009
CORAM
THE HONOURABLE MR. JUSTICE P.K. MISRA
AND
THE HONOURABLE MR. JUSTICE K. CHANDRU
W.P.Nos : 36948 of 2006,8183 and 28928 of 2007
and
M.P.No.2 of 2006, M.P.No.4 of 2007, M.P.No.1 of 2007
W.P. No: 36948 of 2006
1. N. Sureshnathan
2. G. Vijayan
3. R. Sourirajan
4. B. Palaniappan ... Petitioners
Vs.
1. Government of Pondicherry
rep. by Secretary to Govt.
Local Admn. & Public Works Dept.
(Public Words Wind),
Pondicherry.
2. The Registrar,
Central Administrative Tribunal,
Madras Bench,
Chennai 600 104.
3. C. Chakravarthy
4. P. Paramasivam
5. G. Elanchezhian
6. S. Parrie
7. R. Suresh
8. G. Rajulu
9. R. Saisubramanian
10. M. Ravishankar
11. J. Jayakumar ... Respondents
W.P. No: 28928 of 2007
1. R. Saisubramanian
2. M. Ravishankar
3. J. Jayakumar ... Petitioners
Vs.
1. C. Chakravarthy
2. P. Paramasivam
3. G. Elanchezhian
4. S. Parrie
5. R. Suresh
6. G. Rajulu
7. Government of Pondicherry
rep. by Secretary to Govt.
Local Admn. & Public Works Dept.
(Public Words Wind),
Pondicherry.
8. B. Palaniappan
9. N. Sureshnathan
10. G. Vijayan
11. R. Sowrirajan
12. The Registrar,
Central Administrative Tribunal,
Madras Bench,
Chennai 600 104. ... Respondents
W.P. No: 8183 of 2007
The Government of Pondicherry,
Secretary to Government,
Local Admn. & Public Works Dept.
( Public Works Wing )
Pondicherry. ... Petitioner
Vs.
1. The Central Administrative Tribunal,
Madras.
2. C. Chakravarthy
3. P. Paramasivam
4. G. Elanchezhian
5. S. Parrie
6. R. Suresh
7. G. Rajulu
8. R. Saisubramanian
9. M. Ravishankar
10. B. Palaniappan
11. N. Sureshnathan
12. G. Vijayan
13. J. Jayakumar
14. R. Sowrirajan ... Respondents
.. .. ..
W.P. No: 36948 of 2006 :
Writ petition under Article 226 of the Constitution of India praying for issuance of a writ of certiorari calling for the records relating to the order dated 08.09.2006 made in O.A. No: 150 of 2006 on the file of the Hon'ble Administrative Tribunal, Madras Bench, the 2nd respondent herein and to quash the same.
W.P. No: 28928 of 2007 :
Writ petition under Article 226 of the Constitution of India praying for issuance of a writ of certiorari to call for the records of the 12th respondent in respect of the order in O.A. No: 150 of 2006 dated 08.09.2006 and to quash the same.
W.P. No: 8183 of 2006 :
Writ petitions under Article 226 of the Constitution of India praying for issuance of a writ of certiorari calling for the records relating to the order of the 1st respondent Tribunal dated 08.09.2006 made in O.A. No: 150 of 2006 and to quash the same.
W.P. No: 36948 of 2006 :
For petitioners : Mr. Venkatachalapathy,
Senior counsel for
Mr. Manisundargopal
For 1st respondent : Mr. R. Syed Mustafa for
Spl. Govt. Pleader (Pondicherry)
For resp. 2 to 5 : Mrs. Nalini Chidambaram,
Senior counsel for
M/s. Gladys Danial
For resp. 6 & 7 : Miss. R. Vaigai
For resp. 8, 9 & 13 : Mr. V. Ajay Kumar
For resp. 10, 11, 12 : M/s. G.M. Mani
and 14 Associates
.. .. ..
C O M M O N O R D E R
( Order of the Court was made by K. CHANDRU, J.)
Heard the learned counsel appearing for the parties.
2. All these writ petitions are directed against the order dated 22.2.2006 passed by the Central Administrative Tribunal (hereinafter referred to as "the Tribunal") in O.A. No.150 of 2006.
3. The facts in brief are as follows :-
The applicants before the Tribunal, who were initially having the qualification of diploma in Civil Engineering, had joined the services under the Government of Puducherry as Junior Engineers. The private Respondents 2 to 8 in such O.A., who were graduates in Engineering, had also joined service as Junior Engineers. The next avenue of promotion from the post of Junior Engineer is the Assistant Engineer. The appointment of Assistant Engineer is governed by "Recruitment Rules for the post of Assistant Engineer, in the Public Works Department, Pondicherry" (hereinafter referred to as "the Recruitment Rules"). The post of Assistant Engineer can be filled up by promotion from among the Junior Engineers, failing which by transfer on deputation - 80% and by direct recruitment - 20%. In the present case, the controversy revolves around the question of promotion from the post of Junior Assistant to Assistant Engineer coming within 80%. As per the Recruitment Rules, 50% of the vacancies are earmarked for the Junior Engineers possessing degree in Civil Engineering and the balance 50% are earmarked for the Junior Engineers possessing Diploma in Civil Engineering. Clause 11 of the Recruitment Rules being relevant, is extracted hereunder :-
"11. In the case of promotion -
(1) Section Officer (Junior Engineer) possessing a recognized degree in Civil Engineering or equivalent with three years service in the grade failing which Section Officers (Junior Engineer) holding Diploma in Civil Engineering with six years service in the grade - 50%.
(2) Section Officers (Junior Engineers) possessing a recognized Diploma in Civil Engineering with six years service in the grade - 50%."
4. From the aforesaid Rules it is obvious that a Diploma-holder Junior Engineer would be eligible to be promoted only after six years service in the grade, whereas a Junior Engineer possessing a degree in Civil Engineering would be eligible with three years service in the grade.
5. A controversy had been raised by some of the Diploma-holder Junior Engineers, who after entering into service had acquired the degree of Civil Engineering, that they would be eligible even if they had not completed three years of service after acquiring the degree. This controversy was resolved by the Supreme Court in the decision reported in AIR 1992 SC 564 (N. SURESH NATHAN AND ANOTHER v. UNION OF INDIA AND OTHERS), wherein the Supreme Court had observed as follows :-
"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 )
6. The aforesaid decision of the Supreme Court clearly laid down that a Diploma-holder Junior Engineer, who subsequently acquires a degree, can become eligible to be considered for promotion as Assistant Engineer from out of the quota available to the degree-holder Junior Engineer only after completion of three years of service after obtaining the degree. However, the controversy did not end with the aforesaid decision of the Supreme Court and the matter was agitated before the Tribunal and thereafter before the High Court in W.P.No.11236 of 2000. While considering the case of some of the applicants and private respondents before the Tribunal, who were parties in W.P.No.11236 of 2000, a Division Bench, while referring to the ratio of the Supreme Court in AIR 1992 SC 564 (cited supra) and other decisions, namely,(1993) Supp (2) SCC 419 (M.B. Joshi v. Satish Kumar Pandey) (1997)4 SCC 753) ( D. Stephen Joseph v. Union of India), (1999) 7 SCC 54 (R.B. Desai and another v. S.K. Khanolker and others) and (2000) 4 SCC 30 (A.K. Raghumani Singh and Others v. Gopal Chandra Nath and others),observed as follows :-
“16. A perusal of the aforesaid decisions makes it clear that the question of eligibility for promotion is one thing and question of counting entire service after a person becomes eligible is considered on a different footing. As noticed earlier in A.I.R 1992 SC 564 , the Supreme Court was concerned only with the question of eligibility of a diploma holder to be considered for promotion after acquiring degree and it was observed that after acquiring the degree he has to work for three years before he would become eligible.
. . .
18. It is seen that in the present case a fresh selection process was started in the year 1996 and the respondents 2 to 8 have been selected on the footing that they had longer service after their graduation. The past services of the petitioners as in the cadre of junior engineers as diploma holders before they become degree holders has not been considered. This has been done on a wrong interpretation of the decision of the Supreme Court in the case of N. Suresh Nathan and Another vs Union of India and others reported in A.I.R 1992 SC 564.
. . .
22. In view of the above, we are inclined to allow the writ petition and direct that a review D.P.C should be held to consider the question of promotion of the present petitioners vis-a-vis the respondents 2 to 8 and other eligible persons who had become eligible by the date of the sitting of D.P.C held in 1996. It is made clear that the persons who got the benefit of the Supreme Court decision in A.I.R 1992 SC 564 are not before this Court and their promotion is not at all affected by the present order.
. . .
24. The writ petition is accordingly allowed, subject to the directions given. No costs. Fresh exercise as per our direction shall be carried out within a period of four months from the date of communication of this order.”
7. The aforesaid decision of this Court is the subject matter of challenge before the Supreme Court, wherein the Supreme Court passed an interim order to the following effect :-
” Mr. V.G. Pragasam accepts notice for respondents for No: 1 in both the matters, six weeks’ time, as prayed, is allowed to file counter affidavit and rejoinder, if any, may be filed within two weeks thereafter.
Leave granted.
In the meantime there shall be no reversion. However, it is clarified that the judgment impugned, as such, is not stayed.”
8. Thereafter, O.A.No.150 of 2006 was filed before the Tribunal claiming the following reliefs :-
“(a) Direct the 1st Respondent to include the names of the Applicants in the panel of Assistant Engineers eligible for promotion to the post of Executive Engineer as per the principles laid down order of the High Court in W.P.No.11236 of 2000 dated 23-06-2003.
(b) And consequently make promotion to the post of Executive Engineer as per the panel of Assistant Engineers drawn up by the review DPC.”
9. In the present case, the writ petitions have been filed by the State Government as well as by the private respondents in the Original Application. Such private writ petitioners are all Engineering graduates who have entered into service as Junior Engineer as such, whereas the contesting respondents in the present writ petitions, who had filed the Original Application before the Tribunal, were initially diploma-holders and had entered into service as Junior Engineers, but acquired the degree in Civil Engineering while in service. It is not in dispute that all of them have completed three years of service as Junior Engineers after obtaining the degree.
10. The Tribunal posed for itself the following question :-
“7. . . . whether the direction issued by the Hon’ble High Court in Writ Petition No.11236 of 2000 dated 23.6.2003 has to be carried out?”
11. The Tribunal, after referring to the observations made in the writ petition and referring to the interim order passed by the Supreme Court, observed as follows :-
“9. The effect of the direction of the Hon’ble Supreme is that the contesting private respondents shall not be reverted. It was clarified specifically that the impugned order namely direction of the Hon’ble High Court is not stayed.
10. In the light of the above, we are unable to appreciate the stand of the official respondents set out in paragraph 12 of the reply which is extracted hereunder :
“The respondents herein humbly submit that the matter regarding the fixation of seniority in respect of the Junior Engineers who are holding Diploma and subsequently acquired Degree and the Junior Engineers who are holding Degree on initial entry into service is pending before the Hon’ble Supreme Court and hence this Administration has not taken any action to conduct review DPC. However, review DPC may be conveyed after the outcome of the case pending before the Apex Court.”
It is not open to the official respondents to take such a stand in the light of the specific direction of the Hon’ble High Court and the Hon’ble Supreme Court stating that there will be no stay of the judgment of the High Court. There is no scope for such plea.
11. We are unable to accept the stand of the respondents that the direction of the Hon’ble Supreme Court to the effect that there will be no reversion would mean that there should not be any alteration of seniority list and that it will also enable the contesting private respondents as eligible to be considered for further promotion.
12. It is not open to this Tribunal to interpret the judgment of the Hon’ble Supreme Court. When the Hon’ble Supreme Court has ordered that the impugned judgment is not stayed, the official respondents are bound to implement the direction of the Hon’ble High Court. However, that implementation could be only without reverting the contesting private respondents. It is established before us that DPC can be held and promotion can be affected for Assistant Engineers as well as for Executive Engineers based on seniority without reverting the private respondents. The ratio of the Division Bench judgment in W.P.No.11236 of 2000 is that the past service of Diploma holders before they became Degree holders has to be counted. A Seniority List reflecting this ruling has to be drawn up.
. . .
15. As rightly contended on behalf of the applicants, Seniority List has to be drawn up as per the ratio of the Hon’ble High Court’s decision and a review DPC has to be held considering the case of the applicants along with other eligible candidates for promotion to the post of Executive Engineer from the panel of Assistant Engineers.
16. In the above circumstances, the O.A. is allowed and the official respondents are directed to complete this exercise within a period of one month from the date of receipt of a copy of this order.”
12. As already indicated, this judgment of the Tribunal is the subject matter of the present three writ petitions, one filed by the Puducherry Government and the other two filed by the private respondents before the Tribunal.
13. The main contention raised by all the writ petitioners is to the effect that SLP (Civil) No.16491/2003 filed against the decision of the Division Bench is pending and in view of the order of stay granted therein, the Tribunal should not have issued a direction for considering the question in the light of the observations made by the High Court in W.P.No.11236 of 2000.
The Tribunal has noted that the interim order of the Supreme Court makes it clear that the impugned jugment had not been stayed and only there was a direction that there should not be any reversion.
14. Keeping in view the nature of the interim order passed by the Hon’ble Supreme Court, we do not think that the contention raised in the writ petitions on the question as to whether the Division Bench judgment of the High Court was not required to be implemented, can be accepted. On the other hand, as rightly understood by the Tribunal, the Puducherry Government was required to give effect to the judgment of the High Court, but in the process the Puducherry Government was required not to revert any person. In other words, the Puducherry Government was required to follow the ratio of the Division Bench decision. Since the appeal before the Supreme Court was pending and is still pending, the Puducherry Government could have completed the exercise of reconsidering the question of promotion by making in specifically clear that the matter was subject to the ultimate decision of the Supreme Court, more particularly in view of the specific observation of the Supreme Court to the effect that “. . . there shall be no reversion. However it is clarified that the judgment impugned, as such, is not stayed”. The contention of the learned counsels appearing for different petitioners to the effect that the ratio of the judgment of the Madras High Court was not required to be implemented in view of the order of stay passed by the Supreme Court, was therefore rightly negatived by the Tribunal.
15. The other contention raised by the counsels appearing for various petitioners is to the effect that the ratio of the Division Bench decision can be said to have impliedly over-ruled in the subsequent decision of the Supreme Court reported in (2007) 5 SCC 535 (SHAILENDRA DANIA AND OTHERS v. S.P. DUBEY AND OTHERS). Since all the counsels for the petitioners have vehemently contended that the aforesaid decision of the Supreme Court has the effect of over-ruling the earlier decision of the Division Bench in W.P.No.11236 of 2000, it would be appropriate to refer to the relevant observation in the said case.
“25. Large number of authorities are cited by learned counsel appearing for both sides raising various issues viz. whether a diploma-holder after obtaining a degree would be compulsorily shifted to the group of graduate Engineers giving a go-by to their claim for promotion to diploma-holders’ quota or they have a choice to select and continue with either of them. What should be the seniority position of the diploma-holders after they have qualified as graduates, etc. We have refrained ourselves from expressing any opinion on these points and have confined ourselves to the specific issue raised before us and answered by the High Court in the impugned judgment. . . .
37. The only question involved in these appeals and transferred cases can be stated thus : whether a diploma-holder Junior Engineer, who obtains a degree while in service, becomes eligible for promotion to the post of Assistant Engneer 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.
The Supreme Court ultimately concluded as follows :-
” 44. After having an overall consideration of all the relevant Rules, we are of the view that the service experience required for promotion from the post of Junior Engineer to the post of Assistant Engineer by a degree-holder in the limited quota of degree-holder Junior Engineers cannot be equated with the service rendered as a diploma-holder nor can be substituted for service rendered as a degree-holder. When the claim is made from a fixed quota, the condition necessary for becoming eligible for promotion has to be complied with. The 25% specific quota is fixed for degree-holder Junior Engineers with the experience of three years. Thus, on a plain reading, the experience so required would be as a degree-holder Junior Engineer. 25% quota for promotion under the rule is assigned to degree-holder Junior Engineers with three years’ experience, whereas for diploma-holder Junior Engineers eight years’ experience is the requirement in their 25% quota. Educational qualification along with number of years of service was recognised as conferring eligibility for promotion in the respective quota fixed for graduates and diploma-holders. 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. Fixation of different quota for promotion from different channels of degree-holders and diploma-holders itself indicates that service required for promotion is an essential eligibility criterion along with degree or diploma, which is service rendered as a degree-holder in the present case. The particular years of service being the cumulative requirement with certain educational qualification providing for promotional avenue within the specified quota, cannot be anything but the service rendered as a degree-holder and not as a diploma-holder. The service experience as an eligibility criterion cannot be read to be any other thing because this quota is specifically made for the degree-holder Junior Engineers.”
(Emphasis added)
16. As rightly pointed out by the counsel for the contesting respondents, the Supreme Court has considered only the question of eligibility and therefore observed that the concerned person is required to complete three years’ service on the post after obtaining the degree. The question as to whether the past seniority has to be considered or wiped away had been specifically left open.
17. On the other hand, the Division Bench, on the earlier occasion had specifically relied upon the decision of the Supreme Court reported in (1999) 7 SCC 54 [R.B.Desai and another vs. S.K. Kanolker and others] and in the subsequent Supreme Court decision, the Supreme Court has not referred to any such decision obviously because the Supreme Court had left that question open. In such view of the matter, we are still bound by the earlier Division Bench judgment. In order to allay any misapprehension in the minds of all concerned, we make it clear that while considering the matter in the light of the earlier decision of the Division Bench, the Puducherry Government can always incorporate a specific condition that the order of promotion, if any, is subject to the result of the decision of the Supreme Court in the pending appeal and the ultimate decision of the Supreme Court in SLP (Civil)No.16491 of 2003 would be made applicable to all concerned.
18. Accordingly, these writ petitions are dismissed. Consequently, connected miscellaneous petitions are closed. No costs.
gp/dpk