IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23/06/2003
CORAM
THE HON'BLE MR.JUSTICE P.K. MISHRA
AND
THE HON'BLE MR.JUSTICE F.M. IBRAHIM KALIFULLA
WRIT PETITION NO. 11236 OF 2000
1. C. Chakkaravarthy
2. G. Elanchiezhian
3. S. Parrie
4. R. Suresh
5. G. Rajulu .... Petitioners
-Vs-
1. Union of India rep by the
Government of Pondicherry
rep by Secretary to Government
Local Administration and Public
Works Department
(Public Works Wing),
Pondicherry-1
2. R. Saisubramanian
3. M. Ravisankar
4. B. Palaniappan
5. N. Suresh Nathan
6. G. Vijayan
7. J. Jayakumar
8. R. Sowrirajan
9. The Central Administrative Tribunal
Additional Bench, Madras rep by
its Registrar
10.P. Paramasivam
11.S. Adaikala Lawrance
12.M.R.Velu
13.V. Chinnakunju
14.S. Ramachandran
15.E. Ramadoss
16.S. Sekaran
17.S. Suresh
18.G. Nagarajan
19.Mr. Vaidyanathan
20.J. Kalidasan
21.N. Kanniappan
22.J. Lucian Pedre Kumar
23.R. Ravichandran
24.S. Manikavasagam
25.S. Sridhar
26.R. Manikavasagam
(R.23 to R.26 were impleaded as per
Order dated 16.9.2002 in W.P.M.P.No.
51797 of 2002) .... Respondents
Writ Petition filed under Article 226 of the Constitution of India
praying this Court to issue a Writ of Certiorarified Mandamus calling for the
records of the 9th respondent in its Order in O.A.No.359/97 dated 27.8.99,
quash the same and consequently direct the 1st respondent to promote the
petitioners as Assistant Engineers in the Public Works Department of the
Government of Pondicherry with effect from 8.3.1997 with all benefits.
!For petitioners : Mr.Vijaya Narayan
^For 1st respondent : Mr.T. Murugesan
Govt. Pleader
For respondents 2 to 8 : Mr. Mohan Parasaran
Senior Counsel for
M/s G.R. Swaminathan
For respondents 10 to 22 : Ms.R. Vaigai
For respondents 23 to 26 : Mr.R. Hariharan
:JUDGMENT
(The Judgment of the Court was delivered by P.K. MISRA,J.,)
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 th at 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.
4. As per the said decision of the Supreme Court, there is no dispute
that the persons whose promotion at that time had been impugned before C.A.T
in O.A.No 552/1989 have been restored in the promoted post. Such persons are
not before this Court in the present case and their promotions are not in
question.
5. After the aforesaid episode was over, in the subsequent D.P.C for
considering the question of promotion to other vacancies, the present
respondents 2 to 8 were promoted and the petitioners were not considered for
promotion. According to the contesting respondents, this was done in view of
the specific decision of the Supreme Court that service rendered as Junior
Engineer before acquiring the degree was not to be considered while
considering the question of promotion to the post of Assistant Engineer from
among the degree holder Junior Engineers.
6. The petitioners filed O.A.No.359/97 before the Central
Administrative Tribunal. Such petition was dismissed by the Tribunal, giving
rise to the filing of the present writ petition.
7. Mr. Vijay Narayan, the learned counsel for the
petitioner has contended that as per the decision of the Supreme Court, a
diploma holder if he subsequently acquires a degree would become eligible for
promotion only after three years of experience after acquiring the degree in
engineering. Once such persons become eligible, the question of promotion has
to be considered on the basis of merit cum seniority and the past services of
the persons rendered prior to their acquiring the degree cannot be ignored for
the purpose of computing the seniority. Such contention has been supported by
Ms. R. Vaigai appearing for respondents 10 to 22.
8. On the other hand it is the contention of the learned counsel for
the Union Territory of Pondicherry as well as Mr.Mohan Parasaran, the counsel
for the respondents 2 to 8 that the length of service of diploma holders prior
to the acquiring of the degree of engineering cannot be counted for the
purpose of considering the question of promotion, according to the decision of
the Supreme Court, which is binding on all concerned.
9. We have already extracted the relevant portion of the decision of
the Supreme Court. At the time, when O.A.No.52/89 was filed, admittedly, the
present petitioners had not completed three years of service after acquiring
the degree in engineering. The observation of the Supreme Court in the
emphasised portion makes it amply clear that the Supreme Court had considered
only the question of eligibility of diploma holder who subsequently acquired
the degree for promotion to the post of Assistant Engineer.
According to the Supreme Court in Suresh Nathan’s case, such persons would
become eligible only after completing three years of service after acquiring a
degree of engineering. The question as to whether the past service rendered
as diploma holder would be counted for the purpose of seniority for promotion
was not considered by the Supreme Court and had not risen at that stage. In
other words, the Supreme Court was concerned only with the question of
eligibility, but was not concerned as to whether the past services rendered by
the diploma holders would be counted for the purpose of seniority.
10. It is not disputed that a person, whether a degree holder or
diploma holder, after joining service as junior engineer, is borne in a common
cadre and the seniority is considered from the date of joining service
irrespective of the educational qualification. Therefore, the services
rendered by the diploma holder in junior engineer cadre cannot be ignored
while considering his case for promotion, after he acquires the degree of
graduation in engi neering. However, in view of Rule 11 as interpreted by the
Supreme Court, such a person can become eligible only after rendering three
years of service after acquiring the degree in engineering.
11. Even before the ink had dried in Suresh Nathen’s case, the
Supreme Court in M.B. Joshi vs Satish Kumar Pandey (1993 Supp (2) SCC 419
distinguished the earlier case and observed that the experience prior to the
acquisition of the higher qualification cannot be ignored.
12. The matter was again considered in (1994) Supp 1 SCC 95 (Union of
India vs B. Jayaram and Others) and the decision in Suresh Nathan’ s case was
distinguished.
13. The aforesaid decision of the Supreme Court in Suresh Nathan’s
case was again considered in 1997 (4) SCC 753 (D. Stephen Joseph vs Union of
India and Others). Distinguishing Suresh Nathan’s case and relying upon M.B.
Joshi’s case, the Supreme Court observed as follows:
“It appears to us that the State Government is labouring under a wrong
impression as to the applicability of the past practice as indicated in Suresh
Nathan case. This Court in the said decision, has only indicated that past
practice should not be upset provided such practice conforms to the rule for
promotion and consistently for some time past the rule has been made
applicable in a particular manner. In our view, the decision in Nathan case
only indicates that past practice must be referable to the applicability of
the rule by interpreting it in a particular manner consistently for some time.
Any past practice dehors the rule cannot be taken into consideration as past
practice consistently followed for long by interpreting the rule. It may be
indicated here that a similar question also came up for consideration before
this Court in M.B. Joshi vs Satish Kumar Pandey. The decision in Suresh
Nathan case was distinguished in the facts of that case and it was indicated
that when the language of the rule is quite specific that if a particular
length of service in the feeder post together with educational qualification
enables a candidate to be considered for promotion, it will not be proper to
count the experience only from the date of acquisition of superior educational
qualification because such interpretation will violate the very purpose to
give incentive to the employee to acquire higher education”.
14. The question of promotion in a similar situation was directly
considered by the Supreme Court in the case of R.B. Desai and Another vs S.K.
Khanolker and Others in 1999 7 SCC 54 After considering the rules applicable
to that particular case, the Supreme Court observed as follows:
“If on the date of consideration, the appellants did not have the eligibility
then certainly it is the first respondent who ought to have been considered
for the said promotion and if he was so promoted earlier than the appellants
he would have acquired a higher ranking in the seniority list of ACFS. That
not being the case, we are unable to agree with the view taken by the High
Court, as stated above, because on the date on which the avenue for promotion
to the cadre of ACFs opened both the appellants as well as the first
respondent had the necessary eligibility and their names figured in the
eligibility list. That being so, as stated above, it is the appellants whose
case ought to have been considered first and it was so done and they having
been found otherwise suitable, they were rightly promoted earlier than the
first respondent. Consequently, they are entitled to a higher ranking in the
cadre of ACFs vis-a-vis the first respondent. The view taken by us also finds
support from the judgment of this Court in Union of India vs B. Jayaraman
wherein considering a similar argument this Court held:
” The note in column 11 is only for purposes of giving eligibility to the
erstwhile Assistants working as Superintendents Grade II for purposes of being
considered for promotion to the post of Superintendent Grade I and not for the
purpose of seniority at all”
with which view we respectfully agree”
15. In the case of A.K. Raghumani Singh and Others vs Gopal Chandra
Nath and Others reported in (2000(4) SCC 30) the question was again considered
and after referring to other decisions viz., M.B. Joshi vs Satish Kumar
Pandey, (1993 Supp (2) SCC 419) and D. Stephen Joseph vs Union of India
((1997)4 SCC 753) the Supreme Court reiterated the view that the entire
service of a person concerned even before acquiring the degree would be
counted for the purpose of seniority and for the purpose of promotion.
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.
17. The learned counsel appearing for the respondents 2 to 8
vehemently contended that the question of resjudicata is squarely applicable
to the present case and since the very same question has already been decided
between the parties in the earlier decision of the Supreme Court, no contrary
contention can be countenanced. Even though such a contention may appear to
be attractive on the face of it, on deeper scrutiny, such contention does not
appear to be tenable. The question of resjudicata would be applicable where
the question was directly in issue. In the earlier case the only question was
relating to eligibility and the Supreme Court had observed that the Diploma
holder after acquiring the degree would become eligible only after three years
of service . At the cost of the repetition, it may be pointed out that at
that stage the only question which arose for determination was relating to the
eligibility for such diploma holders after they acquired degree.
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.
19. The learned counsel appearing for the contesting respondents also
contended that subsequent to the aforesaid decision a Review Application had
been filed , wherein the question of seniority in the entire service had been
raised and therefore, it must be taken that the question has been finalised by
the Supreme Court. It is true that the Supreme Court in the Order rejecting
the Review Application has referred to Annexure, which had been filed along
with the Review Application, but the sole question was of eligibility and with
reference to the correspondence made by UPSC, but the question as to whether
the entire service is to be counted or not was not pleaded either in the
original S.L.P or in the Review Application. As a matter of fact, such
question could not have been arisen . It has to be remembered that the
Supreme Court considered the question of promotion decided in D.P.C held in
the years 1987 and 1989. At that stage, the petitioners had not served for
three years after acquiring the degree in Engineering. Since the question had
not directly arisen, nor could have been pleaded at that stage, we are of the
view that the question of resjudicata either actual or constructive does not
arise.
20. The learned counsel for the contesting respondents also raised a
contention that in view of Article 141 of the Constitution of India, the Law,
as declared by Supreme Court, is binding on all Courts. In the present case,
the ratio of the decision of the Supreme Court in AIR 1992 SC 564 has already
been clarified by the Supreme Court subsequently by several decisions as
already noticed. The view which we have now expressed is in consonance with
the ratio of subsequent decisions and in no way contrary to the decision in
the case of N. SURESH NATHAN AND ANOTHER VS UNION OF INDIA AND OTHERS
reported in A.I.R 1 992 SC 564.
21. The learned Senior Counsel Mr. Mohan Parasaran appearing for the
respondents 2 to 8 relied upon the decision reported in 2001(2) SCC 362(INDIAN
AIRLINES LTD VS S. GOPALAKRISHNAN) The afore said decision also was on the
question of the eligibility or qualification and the question as to whether
the entire service would be counted after the person is found eligible, was
not before the Supreme Court and was not considered by the Supreme Court.
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.
23. The learned counsel for the petitioners submitted that in 1991
the Rules had been changed and in the cadre of Junior Engineers. Two grades
have been introduced viz., Junior Engineer Grade-II and Junior Engineer
Grade-I. It is further submitted that the present petitioners had been
promoted to Grade-I earlier to the contesting respondents 2 to 8 and
therefore, before promoting respondents 2 to 8, the petitioners should have
been promoted. In the meantime, such Rule has been abolished. In view of the
fact that we have given a direction for reconsideration of the question of
promotion, this question raised by the petitioners need not be decided and we
have not expressed any opinion on this aspect.
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.
(P.K. MISRA,J.,) (F.M.I.K.J.,)
23-06-2003
sr
Index:yes
Web site: yes
P.K. MISRA,J.,
AND
F.M. IBRAHIM KALIFULLA,J.,
sr
To
1. The Union of India rep by the
Government of Pondicherry
rep by Secretary to Government
Local Administration and Public
Works Department
(Public Works Wing),
Pondicherry-1
2. The Central Administrative Tribunal
Additional Bench, Madras rep by
its Registrar
