JUDGMENT
S.S. Nijjar, J.
1. In this writ petition under Articles 226/227 of the Constitution of India, the petitioner seeks the issuance of a writ in the nature of Certiorari quashing the order passed by the Central Administrative Tribunal in OA No. 203-CH of 2002 on 7.8.2002 (Annexure P-16) to the writ petition and the order dated 11.10.1999 whereby respondent No.7 was promoted as Assistant Executive Engineer w.e.f. 5.8.1996. The petitioner also seeks the issuance of a writ in the nature of Mandamus directing the respondents to consider and promote the petitioner to the post of Assistant Executive Engineer (Electrical) w.e.f. January/April, 1997.
2. The petitioner was appointed on the post Assistant Engineer (Electrical) in the Engineering Department of Chandigarh in the pay scale of Rs. 2000-60-2300/75-3200-100-3500 by order dated 26.2.1991. This appointment of the petitioner was consequent upon his selection by the Union Public Service Comnaission in the quota of direct recruits. He joined the department on 15.3.1991. Further promotion from the post of Assistant Engineer (Electrical) is to that of Assistant Executive Engineer: (Electrical). Service conditions of the Engineers of the Electrical Department of Chandigarh are governed by the Punjab State Electricity Board Service of Engineers (Electrical) (Chandigarh Amendment) Regulations, 1985. These regulations came into force w.e.f. 16.10.1982. A seniority list of the Assistant Engineers Class II working in the electricity wing of the Engineering Department, Chandigarh Administration as it existed as on 31.1.1985, was duly circulated (Annexure P-4). In the aforesaid seniority list, name of the petitioner figures at Sr. No. 6. His date of appointment is shown as 15.3.1981. Respondent No. 7 is shown at Sr. No. 8 of the seniority list and his date of appointment on the post of Assistant Engineer is indicated as 8.12.1992. This order furthers shows that employees mentioned at Sr. Nos. 4, 5 and 6 were appointed against the quota of direct recruits, whereas employees from Sr. Nos. 7 to 11 have been promoted from the posts of Junior Engineers. Employees mentioned at Sr. Nos.4 and 5 were further promoted as Assistant Executive Engineer (hereinafter referred to as AEE) in August, 1996. Three vacancies of AEE (Electrical) were available. The petitioner was not promoted as he did not qualify the departmental examination. He qualified the aforesaid examination held in December, 1996, the result of which was declared in January, 1997. The petitioner, therefore, claims that he was fully eligible to be considered for further promotion to the post Of AEE (Electrical) in January, 1997. At that stage, respondent No.7 filed OA No.889 CH/1996 seeking a direction to the respondents to promote him to the post of AEE by counting his ad hoc service towards qualifying service. The OA was allowed. The respondents were directed to count the ad hoc service of respondent No.7 as Assistant Engineer as qualifying service for promotion to the rank of Assistant Executive Engineer. The respondents were directed to hold a review DPC as on 5.8.1996. The petitioner had moved an application for being impleaded as a party in the aforesaid OA, but the same was rejected by the Tribunal by order dated 4.4.1997. The petitioner challenged the aforesaid order as well as the final order dated 28.8.1997 in C.W.P. No. 1318 of 1997. The aforesaid writ petition was decided by a Division Bench of this Court on. 17.3.1998. Learned counsel for the petitioner had submitted that there is no objection to the finding and the direction given by the Tribunal that respondent no.7 was entitled to count his ad hoc service towards experience for the purpose of being considered for promotion. The grievance was, however, made that the posts against which the Tribunal had directed the name of respondent No.7 to be considered, does not fall in the quota for promotees, and therefore, the Tribunal was wrong in directing the name of respondent No.7 be considered for promotion as Assistant Executive Engineer w.e.f. 5.8.1999 when the earlier DPC had met. The writ petition was disposed of without going into the validity of the order passed by the Tribunal. It was also observed that it would be open to the petitioner to challenge the promotion of respondent No.7 in case he is promoted on all possible legal grounds, including the ground that the post on which the respondent No.7, if promoted, was not meant for the promotee quota. In compliance of the judgment dated 28.8.1997 of the Tribunal, respondent No.7 was promoted as Assistant Executive Engineer w.e.f. 5.1.1996 i.e. from the date M.P. Singh Wassal and Subhash Chander Saini were promoted.
3. Aggrieved by the aforesaid order, the petitioner also filed OA No.564 CH of 1999 seeking a direction to the respondents to consider him for promotion against one of the two vacant posts of Assistant Executive Engineer (Electrical) by holding a D.P.C. He also claimed a direction to the respondents to grant the benefit of promotion from the date of passing of Departmental Accounts Examination. The OA came up for hearing on 8.6.1999. In the aforesaid OA, the following order was passed:-
Heard. Argues that as per regulation 9.8 (c) as placed on record at page 41 of this paper-book, at no stage the representation of promotee Assistant Executive Engineer shall exceed 20% of the total posts. It is argued that there are total 13 posts of Assistant Executive Engineers and quota for promotees Assistant Engineers is already full whereas the remaining quota is to be filled up from direct Assistant Engineers. Claims that respondents are going to consider appointment to the post of Assistant Executive Engineer within a week.
Let a short notice Dasti be issued for service of respondents 2 to 4 for 18.6.1999 till then, respondents are restrained from appointing any person from the promotee Asstt. Executive Engineers (Electrical) under the U.T. Admn. In Engineering Deptt. Notice of respondents 1 and 5 be sent by the Registrar in ordinary process.
Sd/- Jasbir S. Dhaliwal, JM
4. Inspite of the aforesaid interim order, respondents promoted respondent No.7 by order dated 11.10.1999. The petitioner, therefore, filed Contempt Petition No.52 of 1999. The Contempt Petition was directed to be heard alongwith the OA filed by the petitioner. Both the OA as well as the Contempt Petition has been dismissed by the Tribunal by order dated 11.11.2000 and 22.2,2000, respectively. The petitioner also filed OA No.203 CH of 2000 in which he specifically challenged the order dated 11.10.1999 by which respondent No.7 was promoted on the post of AEE (Electrical). This original application has also been rejected by the Tribunal by order dated 7.8.2002. It may also be noticed here that the petitioner was in fact promoted on the post of AEE (Electrical) an 24,7.2001. Since respondent No.7 had been promoted earlier, he now claims re-fixation of seniority in the cadre of AEE with further promotion to the post of Executive Engineer (Electrical). In the impugned order (Annexure P-16), the Tribunal has rejected the claim of the petitioner firstly on the ground that he had not challenged the promotion of respondent No.7 in O.A. No.564 of 1999. It has further been held on interpretation of the relevant rules that respondent No.7 does not fall in the category of promotee Assistant Engineers. It has further been held that the category of Engineers possessing the AMIEF qualification are at par with degree holders in Engineering. Therefore, respondent No.7 cannot be deprived of the post that was available on 5.8.1996, on the basis that the promotees were in excess of the 20% quota,
5. The respondents have filed a written statement to the writ petition. It has been stated that although the petitioner was senior to respondent No.7, he was not eligible for promotion on the post of Assistant Executive Engineer on 5.8.1996, as he did not qualify the departmental examination till January, 1997. Therefore, the petitioner would have no locus standi to challenge the promotion of respondent No.7. It has also been pleaded that respondent No.7 cannot be denied the promotion on the basis of Regulation 9.8 (d) in view of the subsequent clarification issued by the Punjab State Electricity Board. In the clarification, it is clearly stated that qualification of AMIE has been considered at par with degree holder for the purposes of promotion. The Tribunal, according to the respondents, has rightly come to the conclusion, that once a person becomes a degree holder in Engineering or equivalent to it, he remains holder of the qualification and he cannot be deprived of the benefit of the qualification for further promotion.
6. Mr. M.S. Kang, learned counsel appearing for the petitioner has submitted that the claim of the petitioner has been wrongly rejected by the Tribunal on the grounds of a constructive res judicata. When the petitioner had filed OA No.564 CH/1999, respondent No.7 had not been promoted. In fact, an interim order was issued by the Tribunal on 8.6.1999 which had restrained the respondents from appointing any person from the promotee Assistant Engineers to the post of Assistant Executive Engineer (Electrical). Learned counsel further submitted that respondent No,7 is a promotee. He could not have been included in the category of direct recruits. Whilst interpreting the various provisions of the Rules, he has pointed out that respondent No.7 was originally appointed as Junior Engineer on the basis that he was a diploma holder. He was promoted on ad hoc basis as Assistant Engineer w.e.f. 1.7.1988. He qualified Sections A and B of AMIE Examination while working as Junior Engineer. He was regularly promoted as Assistant Engineer w.e.f. 8.12.1992. His promotion was ordered against 9% quota of the cadre of Assistant Engineers as provided under Regulation 9(7). This Regulation provided that 9% of the Cadre post of the cadre of Assistant Engineers as provided under Regulation 9(7). This Regulation provided that 9% of the Cadre post of Assistant Engineers shall be reserved for departmental employees who while in the service qualify Section A and B of AMIE Examination and have completed 3 years service. On the basis of the qualification, respondent No.7 was promoted out of turn. Therefore, he could not be granted any further benefit for acquiring the AMIE qualification. Learned counsel submits that it is for this reason that an embargo is placed under Rule 9(a)(b) that those AMIE qualified hands who have already been promoted on the basis of existing reservation in the respective regulation shall not reap any further benefit. Learned counsel further submitted that the Tribunal has failed to appreciate that respondent No.7 had been granted the benefit of the reservation of 9% under the AMIE quota provided under Regulation 9(7). Therefore, no further benefit could be granted on the basis of such qualification. Respondent No.7, according to the learned counsel, would be entitled to be considered for promotion under the 10% quota of posts reserved for diploma holders as well as under the 20% of the posts which are meant for the overall promotee quota. Learned counsel further submitted that the clarification issued by the PSEB cannot convert a promotee Engineer into a direct recruit Engineer. Since no posts were available for the promotee quota on 5.8.1996, respondent No. 7 could not have been promoted against the 6th vacancy. Learned counsel further submitted that merely because the petitioner was not eligible to be considered for promotion on 5,8.1996 would not render him ineligible for consideration for promotion on a future date against the existing vacancy. Since the petitioner had qualified the departmental test in January, 1997, he was entitled to be considered for promotion from that date. Learned counsel submitted that once a quota is provided under the Rules, it has to be strictly observed. There can be no deviation from the same. In support of the submission, learned counsel relied on the judgment of the Supreme Court in the case of S.G. Jaisinghani v. Union of India and Ors. A.I.R. 1967 S.C. 1429. He placed particular reliance on the observations made in paragraph 9 of the judgment which are as follows:-
(9) The relevant law on the subject is well settled. Under Article 16 of the Constitution, there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State or to promotion from one Office to a higher office thereunder. Article 16 of the Constitution is only an incident of the application of the concept of equality enshrined in Article 14 thereof. It gives effect to the doctrine of equality in the matter of appointment and promotion. It follows that there can be a reasonable classification of the employees for the purpose of appointment or promotion. The concept of equality in the matter of promotion can be predicted only under the promotees are drawn from the same source. If the preferential treatment of one source in relation to the other is based on the differences between the said two sources; and the said differences have a reasonable relation to the nature of the office or offices to which recruitment is made, the said recruitment can legitimately be sustained on the basis of a valid classification…” in paragraph 13 of the aforesaid judgment, the Supreme Court observed as follows:-
13…Having fixed the quota in that letter under Rule 4, it is not now open to the Government of India to say that it is not incumbent upon it to follow the quota for each year and it is open to it to alter the quota on account of the particular situation (see Para 24 of the counter affidavit of respondents No. 1 to 3 in Writ Petition No.5 of 1966), We are of the opinion that having fixed the quota in exercise of their power under rule 4 between the two sources of recruitment, there is no discretion left with the Government of India to alter that quota according to the exigencies of the situation or to deviate from the quota in any particular year, at its own will and pleasure. As we have already indicated, the quota rule is linked up with the seniority rule and unless the quota rule is strictly observed in practice, it will be difficult to hold that the seniority rule i.e.rule 1(f) (iii) and (iv), is not unreasonable and does not offend Article 16 of the Constitution.
7. Learned counsel also relied on the judgment of the Supreme Court in the case of A.K. Bhatnagar and Ors. v. Union of India and Ors. , In paragraph 13, it has been observed as under:
13. On more than one occasion, this Court has indicated to the Union and the State Governments that once they frame rules, their action in respect of matters covered by rules should be regulated by the rules. The rules framed in exercise of powers conferred under the proviso to Article 309 of the Constitution are solemn rules having binding effect. Acting in a manner contrary to the rules does create problem and dislocation. Very often government themselves get trapped on account of their own mistakes or actions in excess of what is provided in the rules. We take serious view of the lapses and hope and trust that the government both at the Centre and in the State would take note of this position and refrain from acting in a manner not contemplated by their own rules. There shall be no order as to costs.
8. On the other hand, Mr. K.K. Gupta, learned counsel appearing for respondents 3 to 5 and 7, submits that the reasoning given by the Tribunal cannot be faulted. In case, respondent No.7 is not considered in the vacancy meant for direct recruits on 5.8.1996, there would have been no advantage of acquiring the AMIE qualification. The clarification issued by the PSEB would clearly show that the intention of the rule was to treat AMIE qualified engineers at par with the degree-holder. Once the diploma-holder acquires the AMIE qualification, he would rank amongst the direct recruits for further promotion. Learned counsel further submitted that the petitioner was clearly ineligible to be considered for promotion on 5.8,1996. He, therefore, had no locus standi to challenge the promotion of respondent No.7.
9. We have considered the submissions made by the learned counsel for the parties. The main controversy between the party revolves around the interpretation to be placed on various provisions of Rule 9 which deals with qualifications for appointment by promotion on the post of Assistant Executive Engineer. The relevant provisions of Regulation 9 have been reproduced by the Tribunal in his order as under:
9. Qualification for appointment by promotion:
xxx xxx xxx xxxx
9(a) Such of the Assistant Engineers (Electrical and Mechanical) as have been promoted from the ranks shall be eligible for consideration for promotion as Assistant Executive Engineer (Electrical and Mechanical) after each of them has completed a minimum of four years service as Assistant Engineer and has either nassed the Departmental Accounts Examination for Engineering Officers or has been exempted from passing the same, in the following manner:-
i) In the case of Diploma-holders Assistant Engineers (Electrical and Mechanical) to the extent of 10 per cent of the total permanent and temporary posts in each category.
ii) In the case of non-diploma holder Assistant Engineers (Electrical and Mechanical) but possessing of matriculation alongwith a certificate in the Trade of Electrical/Mechanical including Lineman/Wireman/ Draftsmanship (Electrical and Mechanical) from the recognised Industrial Training Institute to the extent of 10 per cent of the total permanent and temporary posts in each category. On promotion, these offices shall be posted on operation and construction side.
b) xxx xxx xxx
c) Similarly at no stage the representation of promofed Assistant Executive Engineers shall be more than 20% of the total posts of Assistant Executive Engineer (Electrical). In the same manner, the representation of promotee Executive Engineers (Electrical) shall not exceed 10 per cent of the total posts of Executive Engineers (Electrical),
d) Such of the AMIE qualified hands, Electrical and Mechanical, as have been promoted as Assistant Engineers (Electrical and Mechanical) on the basis of existing reservation in the respective regulations shall not reap any further benefit on account of these decisions.
e) The decisions shall be enforced with immediate effect with the rider that none of the existing Assistant Executive Engineers (Electrical and Mechanical) shall be reverted merely in order to make room for promotee officers. On the other hand, their exact share on the basis of total posts both permanent and temporary shall be worked out and they shall have to wait until posts becoming available on the basis of the workload from time to time. As and when posts become available, it has been decided administratively to fill up such posts the claims of the promote officers shall be considered on the basis of their service record in such a manner that 50% posts shall be filled up from amongst them and 50% posts from other graduates till the share of the promotee officers to the extent of 20% of the total posts is fulfilled. Similar procedure shall be followed while making promotion to the posts of Executive Engineers in each category except in the case of non-Diploma-Holder Assistant Executive Engineers, who shall not be considered for further promotion as Executive Engineer.
f) Non-Diploma holder Assistant Executive Engineer shall not be eligible for promotion as Executive Engineers and Diploma Holder Executive Engineer shall not be eligible for promotion as Superintending Engineers.
(g&h) xxx xxxx xxxx xxx
10. Interpreting the aforesaid provisions, the Tribunal has held that reading of Regulation 9(8)(a) paras 1 and 2 leads to the conclusion that 20% quota of the posts of Assistant Executive Engineers (Electrical) are to be filled by promotees. Out of these 10% are meant for Diploma-Holder Assistant Engineers and 10% for non-diploma holder Assistant Engineers. A perusal of the rules reproduced above would show that Assistant Engineer are eligible for consideration of promotion as Assistant Executive Engineers on completion of 4 years service as Assistant Engineers and on passing the departmental accounts examination, 10% of the posts are reserved for diploma-holders and another 10% for non-diploma holders. Rule 9(8)(b) provides that at no stage, the representation of promotee Assistant Executive Engineers shall be more than 20% of the total posts of Assistant Executive Engineers. Representation of promotee Executive Engineers (Electrical) shall not exceed 10% of the total posts of Executive Engineers (Electrical). Rule 9(8)(d) provides that such of the AMIE qualified hands, Electrical and Mechanical, as have been promoted as Assistant Engineers (Electrical and Mechanical)on the basis of existing reservation in the respective regulations shall not reap any further benefit. Rule 9(8)(c) further provides that at no stage the representation of promotee Assistant Executive Engineers shall be more than 20% of the total posts of Assistant Executive Engineers (Electrical). In the same manner, the representation of promotee Executive Engineers (Electrical) shall not exceed 10 per cent of the total posts of Executive Engineers (Electrical). These provisions read together would not lead to the conclusion that a promotee Assistant Engineer who gets accelerated promotion on the basis of Clause 9(8)(i) would be debarred from further promotion on the basis of the AMIE qualifications. We are of the opinion that the Tribunal has rightly held that interpreting Clause 9(8)(d) in such a manner would amount to denying the benefit of the AMIE qualification to the individual who acquires the aforesaid qualification. It is for this reason that the Punjab State Electricity Board has issued the clarifications to the following effect:-
It is clarified that promoted Assistant Engineer of the AMIE holder quota are considered at par with the Degree Holders for the purpose of promotion to the post of Executive Engineer.
11. The aforesaid clarification lays down in very unambiguous terms that for promotion to the posts of Assistant Executive Engineers, the promoted Assistant Engineers of AMIE holder quota are considered at par with the degree holder. Therefore, the Tribunal has rightly come to the conclusion that respondent No.7 was entitled to be considered against .a post which was meant for the direct recruits. Accepting the case put forward by the petitioner would nullify the benefit of accelerated promotion granted to the employees who qualified Sections (A) and (B) of the AMIE Examination during service. The intention of the Rules becomes clear when the provisions of Rule 8(c) are read together with the clarification issued by the Punjab State Electricity Board Under Rule 8(c), it is quite clearly provided that the existing percentage prescribed for direct recruitment of Assistant Engineers (Electrical and Mechanical) shall remain undisturbed. It further provides that at no stage, the representation of promotee Assistant Engineer’s class, other than AMIE qualified hands shall exceed 28 per cent of the total posts of Assistant Engineers (Electrical and Mechanical). This provision makes it abundantly clear that AMIE qualified hands have been excluded from the class of promotee Assistant Engineers. It was to avoid any further confusion that the clarification has been issued by the PSEB laying down that promoted Assistant Engineers of the AMIE holder quota are at par with the degree holders for the purpose of further promotion to the post of Executive Engineers. That being so, in our opinion, the respondents have not committed any illegality in promoting respondent No.7 against the post meant for direct recruit. Since respondent No.7 falls within the quota of direct recruits, the action cannot also be said to be contrary to the law laid down by the Supreme Court in the cases of S.G. Jaisinghani (supra) and A.K. Bhatnagar (supra). We may also notice that the petitioner did not qualify the departmental examination till January, 1997. This apart, admittedly, the petitioner has also been promoted as AEE (Electrical) on 24.7.2001. Therefore, the real grievance of the petitioner is only that he should be shown senior to respondent No.7 in the seniority list of Assistant Executive Engineers. According to the petitioner, respondent No.7 is now seeking the refixation of his seniority in the cadre of Assistant Executive Engineers. Although not pleaded, Mr. Kang had argued that even if the promotion of respondent No.87 is held to be valid, he would still rank junior to the petitioner. In support of his submission, the learned counsel relies on the provisions contained in Rule 15. It is, however, not necessary for the Court to consider the submission with regard to inter se seniority of petitioner and respondent No.7. As even, according to the pleaded case of the petitioner, respondent No.7 has only made a request for re-fixation of his seniority. The petitioner shall be at liberty to approach the respondents for the necessary relief at the relevant time.
12. In view of the aforesaid reasons, we are of the opinion that the judgment/order of the Central Administrative Tribunal dated 7.8.2002 (Annexure P-16) deserves to be upheld. We find no merit in the writ petition and the same is hereby dismissed. No cost.