IN THE HIGH COURT OF CHATTISGARH: BILASPUR
WP No 3277 of 2004 AND WP No 515 of 2005 AND WP No 5131 of 2005 AND WP No 246 of 2005 AND WP No 1053 of 2005
1 Prabhat Saxena
2 Dinesh Kumar Khandelwal
3 V N K Shashtri
4 Arun Deo
5 S K Gujrati
6 S K Chaturvedi
7 Krishna Nand Yadav
8 L N Shrivastava
9 S W Manurkar
10 Shri S J Moghe
11 Shri Anil Phirke
...Petitioners
VERSUS
1 State of Chhattisgarh
2 Engineer in Chief P W D Raipur
3 State of Chhattisgarh
4 Engineer in Chief P H E Department Raipur
5 State of Chhattisgarh
6 Engineer in Chief P H E Department Raipur
7 State of Chhattisgarh
8 Engineer in Chief Public Health Engineering Department Raipur
9 State of Chhattisgarh
10 Engineer in Chief Public Health Engineering Deptt Civil Lines Raipur
...Respondents
! Mr Goutam Bhaduri Mr Shashank Shankya Ms Deepali Pandey and Mr Saleem Kazi on behalf of Mr Sunil Otwani Advocates for
^ Mr Sushil Dubey Government Advocate for the respondents State
Shri N K Vyas and A K Shrivastava Advocates for the Intervener
Honble Mr Justice Satish K Agnihotri
Dated: 18/06/2007
: Order
(Writ Petition under Article 226/227 of the
Constitution of India)
ORDER
(Passed on this 18th day of June, 2007)
The present batch of matters involve a common
question of law and facts asto whether the circular
dated 7-10-1992 (Annexure P/6) issued by the then
State of Madhya Pradesh contemplates two gradation
lists. One for Sub Engineers who had obtained B.E.
degree prior to joining the service (hereinafter
referred to as “Sub Engineer Degree Holders”) and
second for Sub Engineers who had diploma in
engineering before joining the service and acquired
B.E. degree in the course of their service
(hereinafter referred to as “Sub Engineer diploma
holders”).
2) The indisputable facts in nutshell in all the
petitions are that all the petitioners are graduate
engineers joined the post of Sub Engineers after
having obtained degree of B.E. The service conditions
of the petitioners are governed by Chhattisgarh/Madhya
Pradesh Public Works (Gazetted) Service Recruitment
Rules, 1969 (hereinafter referred to as “the Rules
1969”). The petitioners seek for promotion to the
post of Assistant Engineers under Rule 14 of the Rules
1969 read with Schedule IV annexed to the rules
wherein qualification for promotion to the post of
Assistant Engineers is eight years service as Graduate
Sub-Engineers.
3) Mr. Goutam Bhaduri, Mr. Shashank Shankya, Ms.
Deepali Pandey and Mr. Saleem Kazi on behalf of Mr.
Sunil Otwani appearing for the petitioners (Sub-
Engineers) would submit that there should be a
separate gradation list for Sub Engineer degree
holders as seniority of Sub Engineers diploma holders,
who obtained degree in the course of their service
would create anomalous situation. The, then, State of
Madhya Pradesh issued a circular dated 7-10-1992
(Annexure P/6) providing for creation of two
gradation lists separately for degree holders and
diploma holders who obtained degree in the course of
their service. The circular dated 7-10-1992
(Annexure P/6) contemplates option for the diploma
holders who obtains B.E. degree for choosing the cadre
of degree holders or diploma holders as their
seniority shall be counted from the date diploma
holders had obtained B.E. Degree.
4) Learned counsel would further contend that all
the promotions made on ad hoc basis to the post of
Assistant Engineers not in accordance with circular be
quashed and the respondent/State be directed to
prepare two separate gradation lists and take steps
for promoting Sub Engineers to the post of Assistant
Engineers in accordance with the circular dated 9th
September, 1998 (Annexure P/1) passed by the then
State of Madhya Pradesh. The State of Chhattisgarh has
adapted the Rules 1969 and other circulars issued
prior to 31-10-2000 before new State of
Chhattisgarh came into existence.
5) Shri Sushil Dubey, learned Govt. Advocate for the
respondent/State would, per contra, submit that
decision of the Hon’ble Supreme Court in the case of
M.B. Joshi and others Vs. Satish Kumar Pandey and
others1 would be applicable in the present cases also
as the Rules i.e., Madhya Pradesh Public Health
Engineering (Gazetted) Service Rules, 1980
(hereinafter referred to as “the Rules, 1980”) and the
Rules, 1969 are identical. The decision of the Supreme
Court in the matter of Chandravathi P.K. Vs. C.K.
Saji,2 deals with Kerala Engineering Service (General
Branch) Rules which is not para materia with the
present rules.
6) Shri N.K. Vyas, counsel appearing for the
Intervener, Shri A.K. Shrivastava, per contra, would
submit that the State of Madhya Pradesh as well as
State of Chhattisgarh are bound by the decision of the
Supreme Court in the matter of M.B. Joshi and others
(supra). The intervener has been promoted on ad hoc
basis to the post of Assistant Engineer, therefore, at
this stage, his promotion cannot be disturbed.
7) I have heard learned counsel for the parties,
perused the pleadings and the documents appended
thereto. It is evident that the petitioners are
Graduate Sub-Engineers who have obtained B.E. degree
before joining of the services. The service conditions
of the Sub-Engineers are governed by
the Rules, 1969. It is beneficial to quote relevant
provisions of the Rules, 1969. Rule 14 and Schedule
IV of the Rules 1969 read as under
“14. conditions of eligibility for
promotion – The Committee shall consider
the cases of all persons (whether
officiating or substantive) in the
service mentioned in column 2 of
Schedule IV or any other
post or posts declared equivalent
thereto by the Government.
Provided that the Committee shall
consider the cases of Executive
Engineers, Assistant Engineers, Junior
Engineers and Overseers/Head
Draftsman/Draftsman who on the first day
of January of that year had completed
service (whether officiating or
substantive in the post or service) as
under for the purpose of promotion to
the next higher post indicated
hereinafter:-
Provided further that the services of
the released officers of the Emergency
Commission and Short Service Commission,
after their appointment in the Service,
shall be counted from the date from
which they have been deemed to have been
appoint ed in the Service in accordance
with the General Administration
Department Memo No.2266/1987-1(3)/67,
dated the 21st October, 1967).
Provided further that the junior person
shall not be considered for selection
grade promotion in preference to the
person senior to him lonely on the basis
of his completing the prescribed
service.”).
Schedule IV
(See Rule 14)
Name Name of Minimum Name of Name of
of Service of period service of members of
Dept posts from to post to which the
. which quality promotion is departmental
promotion is for to be made promotion
to be made promoti Committee
on to vide Rule 14
be next
higher
post
(1) (2) (3) (4) (5)
Publ M.P.P.W. — M.P.P.W. 1. Chairman,
ic Engineering Engineering P.S.C. or a
Work (Gazetted) (Gazetted)Ser member
s Service vice nominated by
Dept him-Chairman
.
— — 2. Special
Secretary
PWD
members).
(----- -- 3.
------) Secretary,
Govt. M.P.
Public Works
Department
Member.
Executive 5 years Superintendin
Engineer, g
Class I. Engineering,
Class I.
Assistant 6 years Executive 4. Head of
Engineer, Engineer, Departments
Class II Class I. concerned
Member.
Junior 8 years Asstt 5.Deputy
Engineers Engineer, Secretary to
Class II Govt.
M.P.P.W.
Department
(Establishme
nt).
Convenor.
Overseers 12 Asstt.
years Engineer.
Class II.
Head 12 Asstt.
Draftsman/ years Engineer,
Draftsman Class II.
Graduates 8 years Assistant
Sub- Engineer
Engineers
and
Office --- Administrativ
Superintende e Officer,
nts in C.E'S C.E'S Office,
Office, Class II.
Class III
8) The circular dated 9-9-1998 (Annexure P/1) was
issued to supplement the provisions of the Rules for
the purpose of promotion to the post of Assistant
Engineers in following manners.
fo”k; %& e0 iz0 bathfu;lZ dkaxzsl }kjk izLrqr ekax&i=
esa mfYyf[kr ekaxks
ij fopkj & ckny nkl lfefr ds izfrosnu dh
vuq’kalkFkZ A
e/;izns’k bathfu;lZ dkaxzsl }kjk izLrqr ekax ij
rFkk ckny nkl lfefr ds izfrosnu ij fopkj dj fu.kZ;
fy;k x;k gS fd dk;Z foHkkxksa esa dk;Zjr lgk;d
;af=;ksa ds in fuEukuqlkj Hkjs tkos %&
1- lh/kh Hkjrh }kjk 25 izfr’kr
2- fMIyksek/kkjh mi;a=h ls
inksUufr }kjk 50 izfr’kr
3- ,sls mi;a=h ftUgksaus lsok esa 20
izfr’kr
jgrs gq, fMxzh izkIr dh gS
o ,sls mi;a=h ftUgksus lsok
esa vkus ds iwoZ gh fMxzh lekIr
dh Fkh] ls inksUufr }kjk
4- ekufp=dkj lanHkZ ls inksUufr 5 izfr’kr
mijksDrkuqlkj lsok@Hkjrh fu;eksa esa vko’;d
la’kks/ku fd;k tk;s A
e/;izns’k ds jkT;iky ds
uke ls]
rFkk vkns’kkuqlkj
lgh@& gLrk{kj vLi”V
,,e0,e0 JhokLro+
mi&lfpo
e0iz0 `kklu lkekU; iz’kklu
foHkkx
9) The then State of Madhya Pradesh vide circular
dated 7-10-1992 (Annexure P/6) provided for option to
the diploma holders for choosing either the gradation
list of graduate engineers or gradation list of the
diploma holders, which reads as under:
fo”k; %& yksd fuekZ.k foHkkx ds
fMIyksek/kkjh@xzstq;sV Lukrd mi;af=;ksa ds
inksUufr ckcr~ A
mijksDr fo”k;kUrxZr mi;a=h ,fMIyksek/kkjh+
,oa tks mi;a=h fMIyksek/kkjh jgrs gq, ckn esa os fMxzh
izkIr dj yh gS rFkk tks mi;a=h fMxzh/kkjh fu;qDr gq,
gS mUgsa mi;a=h ls lgk;d ;a=h ds in ij inksUufr gsrq
10 izfr’kr dksVk j[kk gS A
inksUufr ls iwoZ fjDr inksa ij mijksDr dksVs
ds vuqlkj in fu/kkZfjr dj ofj”Brk lwph vuqlkj fopkj
fd;k tkrk gS A vr% iz’kklfud vfHkdj.k ds fu.kZ;kuqlkj
mi;af=;ksa dh vyx ofj”Brk lwph mi;a=h fMIyksek/kkjh 2-
mi;a=h fMxzh/kkjh ,xzstq;sV mi;a=h+ ds :i esa izdk’ku
dj inksUufr dh] dk;Zokgh dh tkrh gS ,oa mi;a=h
fMxzh/kkjh ds chp mudh ofj”Brk de fMxzh izkIr gksus ds
frfFk ls nh tkuh gS A blds izfr] mi;a=h tks iwoZ esa
fMIyksek/kkjh Fks ,oa ckn esa fMxzh izkIr djrs gS] dh
lgefr izkIr djuh gksxh fd ;s fdl lwph esa jguk pkgrs
gS A D;ksafd fMxzh/kkjh mi;a=h dh ofj”Brk dk
fu/kkZj.k fMxzh izkIr djus dh frfFk ls gksxk u fd
mi;af=;ksa dh ikjLifjd ofj”Brk ls A vr% mi;a=h tks
iwoZ es fMIyksek/kkjh Fks ,oa ckn esa mUgksaus fMxzh
izkIr dh gS mlls lgefr izkIr djsa fd ;s mi;a=h
,fMIyksek/kkjh+ ;k mi;a=h fMxzh/kkjh dh lwph esa viuk
uke pkgrs gS mUgsa Li”V crk;k tkos fd mudh ofj”Brk
fMxzh/kkjh mi;af=;ksa ds lkFk fMxzh izkIr djus ds
fnukad ls ekU; gksxh A
fMxzh/kkjh gsrq ^^v** lwph cuk;s rFkk
fMIyksek/kkjh mi;af=;ksa gsrq ^^c** dh varfje lwph 15
fnol esa cuk;s rFkk ,d ekg dh le;kof/k vkosnu@izfrosnu
izkIr djus gsrq nh tkdj bls vafre :i fn;k tkosa A
rkfd e/; izns’k iz’kklfud vfHkdj.k ds fu.kZ; ds ikyu
dh dk;Zokgh dh tk ldsA
d`i;k fu/kkZfjr le;kof/k Ms<+ ekg dk fo'ks"k
/;ku j[kk tkosaA
larks"k feJ
voj lfpo
e/;izns'k `kklu
yksd fuekZ.k foHkkx-
10) There was a clear contemplation of maintaining
two gradation lists; one for the Sub-Engineers who
have obtained B.E. degree before joining the service
and second for those who were initially diploma
holders and obtained B.E. degree in the course of
service.
11) In the case of M.B. Joshi and others (supra) the
provisions of the Rules 1980 were under consideration
for determination of inter se seniority between the
degree holders who joined the service and the diploma
holders who had acquired Engineering degree in the
course of their services.
12) Schedule IV of the Rules 1980 provides for
promotion to the higher post from the post of Sub-
Engineers in Civil or Mechanical. The minimum period
of Sub-Engineers to qualify for promotion to the post
of Assistant Engineer was 12 years for diploma holders
and 8 years for such Sub-Engineers who obtained degree
of graduation in the course of their services.
13) Hon’ble the Supreme Court in the case of M.B.
Joshi and others Vs. Satish Kumar Pandey and others
has observed as under:
“16. In these circumstances mentioned
above, we are clearly of the view that
the Tribunal was wrong in determining
the seniority from the date of
acquiring degree of engineering and it
ought to have been determined on the
basis of length of service on the post
of Sub-Engineer and the State
Government was right in doing so and
there was no infirmity in the orders
passed by the Government.”
14) Subsequent circulars dated 7-10-1992 (Annexure
P/6) and 9-9-1998 (Annexure P/1) were not in
existence when the decision in the case of M.B.
Joshi and others (supra) was passed, even the
provisions of law is also not para materia as Schedule
IV of Rules 1969 does not distinguish between the
degree holders and diploma holders before joining the
post of Sub-Engineers. The circulars dated 7-10-1992
(Annexure P/6) was considered by the High Court of
Madhya Pradesh in the matter of Jayant Kumar Jain
Vs. State of M.P. and others. The High Court of Madhya
Pradesh held that D.P.C. will be convened only after
finalization of the gradation list as per circulars
dated 19.2.03 and 7.10.1992. The said circular dated
07.10.1992 and provisions of the Rules 1969 are
applicable in the case of the present petitioners also
as the same were issued prior to creation of the State
of Chhattisgarh i.e. 1-11-2000 and the same have been
adapted by the State of Chhattisgarh subsequently.
Subsequent circulars issued by the State of Madhya
Pradesh are not relevant for the purpose of these
cases.
15) The Supreme Court while considering identical
issue in the case of Chandravathi P.K. and others
(supra) has considered the Rule 4 of Kerala Public
Health Engineering Service Rules and Rule 5 of Kerala
Engineering Service (General Branch) Rules. The short
question which arose for consideration before the
Supreme Court was asto whether in terms of the scheme
of the Kerala Engineering Service (General Branch)
Rules, diploma-holders are entitled to claim any
weightage in (sic for) the service rendered by them
prior to their acquisition of degree qualification in
the matter of promotion or transfer to higher posts
when specific quota is fixed for graduates and diploma-
holders in the matter of promotion.
16) Hon’ble the Supreme Court noticed earlier
decisions including decision in M.B. Joshi’s case
(supra) in the case of Chandravathi P.K. and others
(supra) and observed as under:
“43. The State as an employer is
entitled to fix separate quota of
promotion for the degree-holders,
diploma-holders and certificate-
holders separately in exercise of its
rule-making power under Article 309 of
the Constitution of India. Such a
rule is not unconstitutional. The
State therefore, in our opinion,
cannot be said to have acted
arbitrarily by giving an option to
such diploma-holders, who acquired a
higher qualification, so as to enable
them to either opt for promotion in
the category of degree holder or
diploma holder. Such option was to be
exercised by the officer concerned
only. He, in a given situation, may
feel that he would be promoted in the
diploma holders’ quota earlier than
degree-holders’ quota and vice versa
but once he opts to join the stream of
the degree-holders, he would be placed
at the bottom of the seniority list.”
17) The State Government has taken a policy decision
to have separate gradation lists for degree holders
and diploma holders under the circular dated 7-10-1992
(Annexure P/6) in exercise of its rule-making power
under Article 309 of the Constitution of India.
Applying well settled principles of law as laid down
by the Supreme Court to the facts of the present case,
it is held that the circular dated 7-10-1992 (Annexure
P/6) contemplates two gradation lists. One for Sub
Engineers degree holders who had obtained B.E. degree
prior to joining the service and second for Sub
Engineers diploma holders who had diploma in
engineering before joining the service and acquired
B.E. degree in the course of their services. The said
circular is unambiguous and clear and capable of only
one meaning as above-stated.
18) Accordingly, the State Government is directed to
prepare two gradation lists and to consider for
promotions in the category of degree holders and
diploma holders. The diploma holders, who opt for the
stream of degree holders, they would be placed at the
bottom of the seniority list. This Court, by the order
dated 9.4.2007 in W.P. No. 5131 of 2005, has directed
as under :-
“In the meantime, if a Departmental
Promotion Committee holds its meeting for
consideration of Sub Engineers for promotion
to the post of Assistant Engineers with
regard to the subject matter of these
petitions, the recommendation of
Departmental Promotion Committee and order
thereof shall be subject to ultimate
decision of these petitions”
19) Accordingly, all the promotions made during
pendency of these petitions on ad hoc basis,
shall be considered after drawing a fresh
gradation lists for promotions to the post of
Assistant Engineers.
20) As a result and for foregoing reasons, all
the petitions are allowed. No order as to costs.
21) A copy of this order be placed on record in
other connected writ petitions.
Judge