TMI Blog2010 (4) TMI 1045X X X X Extracts X X X X X X X X Extracts X X X X ..... ic Works Department initially by a Notification dated 31.01.1966. The Recruitment Rules were amended by a Notification dated 08.08.1986 and as per the amended Recruitment Rules the post of Assistant Engineer in the Public Works Department, Pondicherry, was a selection post and appointment to the 20% of the posts of Assistant Engineer was to be by direct recruitment and to the 80% of the posts by promotion. 50% of the promotion quota was to be filled up by Section Officers (now Junior Engineers) possessing a recognized degree in Civil Engineering or equivalent with three years service in the grade, failing which Section Officers holding diploma in Civil Engineering with six years service in the grade and the remaining 50% of the promotion quota was to be filled up by Section Officers (Junior Engineers) possessing a recognized diploma in Civil Engineering with six years service in the grade. 4. On 24.09.1968, the Chief Secretary, Government of Pondicherry, wrote to the Secretary, Union Public Service Commission (for short `the UPSC') that there were Section Officers with diploma qualification who have acquired degree in Civil Engineering or equivalent and have putting in sever ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the necessary degree qualification earlier than the applicants while holding the post of Junior Engineers. 6. The judgment and order dated 09.01.1990 of the Tribunal was challenged by N. Suresh Nathan and Others before this Court in Civil Appeal No. 4542 of 1991 and this Court interpreting Rule 11 of the Recruitment Rules held in the judgment reported in 1992 Supp. (1) SCC 584 that the period of three years' service in the grade required for degree-holders as qualification for promotion in the category of degree-holders 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 and this interpretation of Rule 11 was in conformity with the past practice followed consistently by the Government and that the Tribunal was not justified in taking the contrary view and accordingly allowed the appeal. Review Petition No.50 of 1993 was filed against the judgment and order dated 22.11.1991 of this Court in the aforesaid case but the same was dismissed on 31.01.1993. 7. Thereafter, appellant Nos. 1 to 7 were promoted to the post of Assistant Engineer on 08.03. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partment in Pondicherry is concerned. 8. Aggrieved, respondents Nos.3, 4, 5 and 6 filed Writ Petition No.11236 of 2000 before the Madras High Court against the judgment and order dated 27.08.1999 of the Tribunal in O.A. No.359 of 1997 and by the impugned judgment and order, a Division Bench of the Madras High Court held inter alia that in N. Suresh Nathan Ors. v. Union of India Ors. (supra) this Court only decided the question of eligibility for promotion to the posts of Assistant Engineer meant for the category of degree-holders or equivalent, but did not decide the question of seniority of Section Officers/Junior Engineers, who had acquired a degree in Civil Engineering or equivalent after joining as Section Officers/Junior Engineers and, therefore, the judgment of this Court in N. Suresh Nathan Ors. (supra) did not operate as res judicata. The Division Bench of the Madras High Court, relying on the decisions of this Court in R. B. Desai Anr. v. S. K. Khanolkar Ors. [(1999) 7 SCC 54] and A. K. Raghumani Singh Ors. v. Gopal Chandra Nath Ors. [(2000) 4 SCC 30], further held in the impugned judgment and order that the entire service of a person concerned even before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... than Ors (supra), this Court only decided the question of eligibility of Section Officers or Junior Engineers for promotion to the post of Assistant Engineers meant for the category of degree-holders and not the method in which the eligible candidates will be considered for promotion. 12. Para 5 of the judgment in N. Suresh Nathan Ors.(supra) which contains the ratio decided by this Court is quoted herein below: 5. The Recruitment Rules for the post of Assistant Engineers in the PWD (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 are two 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 per cent from each ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the category of degree-holders or equivalent. In the judgment in N. Suresh Nathan Ors. (supra), this Court did not decide on how the Section Officers/Junior Engineers who had completed three years' service in the grade after the degree in Civil Engineering or equivalent and had the qualification or eligibility for consideration for promotion to the 50% vacancies meant for the category of degree-holders would be considered for promotion. 14. Article 141 of the Constitution states that the law declared by this Court shall be binding on all the courts within the territory of India. In N. Suresh Nathan Ors. (supra) this Court has set aside the order of the Tribunal dated 09.01.1990 in O.A. No.552 of 1989 after declaring that Section Officers/Junior Engineers having three years' service in the grade after they acquired degree in Civil Engineering or equivalent will become qualified or eligible for promotion to the 50% vacancies meant for the category of degree-holders or equivalent. In N. Suresh Nathan Ors. (supra) this Court has not declared any law on how these Sections Officers/Junior Engineers, who had become qualified or eligible for promotion to the post of Assist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the post of Assistant Engineers meant for the category of degree-holders or equivalent. 17. Learned counsel for the appellants next submitted that Rule 11 of the Recruitment Rules provides for two streams or channels of promotion to the post of Assistant Engineer, Public Works Department, one stream or channel is for Sections Officers or Junior Engineers possessing a recognized degree in Civil Engineering or equivalent and the other for Section Officers/Junior Engineers holding diploma in Civil Engineering. They submitted that it is for this reason that the UPSC in its letter dated 06.12.1968 advised the Government that the services of Section Officers/Junior Engineers, who qualify as graduates while in service, should be counted from the date they passed the degree or equivalent while considering them for promotion for the channel or stream of promotion meant for Section Officers or Junior Engineers having degree in Civil Engineering or equivalent and the Government of Pondicherry has acted on this advice of the UPSC. 18. Mr. Nageswar Rao cited the decision in Chandravathi P.K. Ors. v. C.K. Saji Ors. [(2004) 3 SCC 734] in which the question for consideration was whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e respondents 2 to 19, on the other hand, submitted that Rule 11 of the Recruitment Rules does not provide for two streams or channels of promotion as contended by learned counsel for the appellants and it only lays down the qualification or eligibility of three years' service after degree in Civil Engineering or equivalent as a qualification or eligibility and once a diploma-holder acquires a degree in Civil Engineering or equivalent, his entire length of service both prior to acquisition of such degree in Civil Engineering or equivalent and after acquisition of such degree or equivalent has to be taken into consideration at the time of consideration for promotion to the post of Assistant Engineer meant for degree-holders. 21. Mr. Viswanathan cited this Court's decision in R. B.Desai Anr. v. S. K. Khanolkar Ors. [(1999) 7 SCC 54] for proposition that if at the time of consideration for promotion, the candidates concerned have acquired eligibility, then unless a rule specifically gives an advantage to a candidate with earlier eligibility, the date of seniority should prevail over the date of eligibility. He submitted that in the present case, the rules for promotion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r mentioned under Clause 1 of Rule 11, Section Officers (now Junior Engineers) possessing recognized degree in Civil Engineering or equivalent with three years' service in the grade, failing which Section Officers possessing diploma in Civil Engineering with six years' service in the grade would be eligible for consideration for promotion. All that the Rule provides is that if for vacancy in the post of Assistant Engineer, Section Officers possessing recognized degree in Civil Engineering or equivalent with three years' service in the grade are not available, Section Officers holding diploma in Civil Engineering with six years service in the grade could be considered for promotion. Clause 1 of Rule 11 is, therefore, only a provision laying down the qualification or eligibility for promotion to 50% of the posts of Assistant Engineer and the qualification or eligibility provided therein is either three years service in the grade of Section Officers or Junior Engineers after degree in Civil Engineering or equivalent or six years service in the grade of Section Officers or Junior Engineers with diploma in Civil Engineering. This provision also has a rider that if there are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ploma-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. 26. In the present case, on the other hand, Clause 1 of Rule 11 of the Recruitment Rules does not provide for separate avenues or watertight compartments for promotion to the post of Assistant Engineers for degree- holders and diploma-holders. As we have seen Clause 1 Rule 11 of the Recruitment Rules only lays down the qualification or eligibility for consideration for promotion to the post of Assistant Engineers earmarked for the 50% quota. The two decisions of this Court in Chandravathi P. K. Ors. v. C.K. Saji Ors. (supra) and Shailendra Dania Ors. v. S. P. Dubey Ors. (Supra) are, therefore, of no assistance to the appellants. 27. In R. B. Desai Anr. v. S. K. Khanolkar Ors. (supra) cited by Mr. Viswanathan, this Court found that the amended rules of 1988 pertaining to the promotion to the cadre of Assistant Conser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on post in the language of the judgment of this Court in Dr. Jai Narain Misra v. State of Bihar Ors. (supra): It was not disputed before us that the post of Director of Agriculture is a selection post. Therefore, the question of seniority was not relevant in making the selection. It is for the State Government to select such officer as it considers as most suitable. In this view we think the High Court was not justified in going into the question of seniority nor will we be justified in going into that question. Thus, the question of seniority in the grade of Section Officers or Junior Engineers is not at all relevant for promotion to the post of Assistant Engineer in the Public Works Department, Government of Pondicherry. The practice adopted by the Government of Pondicherry in consultation with the UPSC of counting the services of Section Officers or Junior Engineers, who qualified as graduates while in service from the date they passed the degree or equivalent examination and placing them in order of seniority accordingly for the purpose of consideration for promotion to the post of Assistant Engineer under Clause 1 of Rule 11 of the Recruitment Rules is contrary t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be adopted in such promotion and the Court will not interfere with the procedure so adopted unless it was unconstitutional, arbitrary, unreasonable or otherwise illegal. In support of this submission, Mr. L. Nageswar Rao cited the decisions of this Court in Suman Gupta v. State of J K [(1983) 4 SCC 339], Munidra Kumar v. Rajiv Govil [(1991) 3 SCC 368], Satya Narain Shukla v. U.O.I. [(2006) 9 SCC 69], P.U. Joshi v. Accountant General [(2003) 2 SCC 632], U.O.I. v. Pushpa Rani [(2008) 9 SCC 242], Inderjeet Khurana v. State of Haryana [(2007) 3 SCC 102] and U.O.I. v. A.K. Narula [(2007) 11 SCC 10]. Learned counsel for the appellants submitted that in the present case the Government of Pondicherry in consultation with the UPSC has adopted the procedure since 1968 that the services of Section Officers/Junior Engineers who qualified as graduates while in service should be counted from the date they passed the degree or equivalent examination for the promotion under clause 1 Rule 11 of the Recruitment Rules and this procedure is not unconstitutional, arbitrary, unreasonable or illegal and, therefore, the High Court by the impugned judgment and order should not have interfered with this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal held that the seniority of such Sub-Engineers must be determined from the date of acquiring the degree of graduation in Engineering and this Court held 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 Government was right in doing so and there was no infirmity in the orders passed by the Government. In this case also, the question did not arise whether for selection post seniority would have weightage or merit would have weightage while considering the eligible candidates for promotion. 34. As we have seen, Rule 5 of the Recruitment Rules in the present case states that the post of Assistant Engineer is a selection post and the Recruitment Rules no where provide that seniority-cum-merit would be the criteria for promotion. In the absence of any indication in the Recruitment Rules that seniority in the grade of Section Officers / Junior Engineers will be counted for the purpose of promotions to the post of Assistant Engineer, consideration of all Section Officers / Junior Engineers under Clause 1 of Rule 11 o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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