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TMI Blog2007 (4) TMI 689X X X X Extracts X X X X X X X X Extracts X X X X ..... h the stipulation that it would remain as a separate entity and its employees would not be merged with DDA. For recruitment of various staff members in DDA, vide its Resolution No.574 dated 13.11.1963, DDA adopted Recruitment Rules of CPWD qua the posts of Junior Engineer, Assistant Engineer and Executive Engineer. In the hierarchy of Engineering Cadre, the initial post is of Junior Engineer (Section Officer or S.O.). The post is meant for 100% direct recruitment and the qualification prescribed was "Diploma-holders in Civil Engineering with two years' experience". However, there was no bar for persons possessing higher qualification, viz., Degree in Engineering, for applying to the post of Junior Engineer and such persons were not required to have any prior experience for appointment to the cadre of Junior Engineer in DDA. The next higher post is that of Assistant Engineer. The rule provided filling up of 50% vacancies on the post of Assistant Engineer by those who acquired a Graduate Degree in Engineering by means of direct recruitment or by deputation. The remaining 50% vacancies were to be filled up on promotional basis from the pool of Junior Engineers. Out of 50% of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own Resolution No.105 dated 16.6.1971 which allowed DDA to distinguish between diploma-holder and degree- holder Assistant Engineers in the matter of experience and promotion as Executive Engineers. By a common judgment dated 2.9.1987 reported as Kimti Lal Kathuria and Others v. Delhi Development Authority and Others, 1988 Labour Industrial Cases 434 (Del) = 1988 (1) SLR 293, the Court held that the prescription of differential standards - based even on the differences in technical, educational qualifications - is violative of Articles 14 and 16 of the Constitution. However, in Roop Chand Adlakha and Others v. Delhi Development Authority and Others, 1989 Supp.(1) SCC 116, a two-Judge Bench of this Court reversed the above-mentioned judgment of the Delhi High Court. Second phase of litigation In 1971, the Departmental Promotion Committee (hereinafter referred as "DPC"), appended a Note relaxing the rules in favour of diploma-holders, who while in service acquired degree qualification, so that they could be considered for promotion to the post of Assistant Engineer on the following basis :- 1. The period of three years should comprise of at least two years after graduation plus 3/8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we direct the DDA to hold a DPC for each of the succeeding years, namely, 1988, 1989 and 1990 and make regular promotions of eligible candidates in such a way that as far as possible parity between the Degree-holders and the Diploma- holders is attained. The regular promotions so made shall, however, be subject to any direct recruitment, which may be made in accordance with the rules against the quota meant for direct recruits. If as a result of such direct recruitment, any of the promotees have to be reverted then the reversion should be done in such a way that the remaining Assistant Engineers who are promotees should maintain the parity, namely 50% should be from Degree-holders and 50% from Diploma-holders. For the purpose of seniority at least, if not for other benefits, about which we make no observations, the promotions or regularization should be made with effect from the date when the vacancies were available and the candidates became eligible for promotion. The DPC should be convened within a period of six weeks from today." In the meanwhile, on 20.9.1990, a Memorandum was issued by DDA which stipulated that a diploma-holder who had subsequently acquired a Degree in Engin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , after inviting objections / comments from all concerned and after giving an opportunity of being heard, to the representatives of Degree-holder and Diploma Holder Junior Engineers." The diploma-holders by way of a Letters Patent Appeal (L.P.A. No. 43 of 1991) challenged the decision of the Single Judge dated 19.8.1991. On 5.2.1991, an Establishment Order was issued to promote diploma-holders on current duty charge basis. The same was questioned by filing a writ petition (W.P. No. 2382 of 1991 - Slum Wing Delhi Development Authority Graduate Engineers' Association (Regd.) & Others v. D.D.A. & Others). By its decision dated 12.2.1992 reported as 46 (1992) DLT 486 (DB) = 1992 (22) DRJ 548, the Delhi High Court's Division Bench dismissed the LPA and allowed the writ petition holding that three years' experience required for degree-holders' eligibility quota had to be considered after acquiring the degree. The High Court summarized the issues as follows :- "Herein, the main controversy is whether a Diploma holder Junior Engineer, who obtains degree while in service becomes eligible for promotion as Assistant Engineer on rendering three years' service would inclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions vide order dated 20.8.1992 in limine. Pursuant to the directions contained in the judgment dated 12.2.1992 of the Division Bench of the Delhi High Court, DDA by a circular dated 30.10.1992 issued tentative seniority list of the Engineers and indicated their placement as per their eligibility for promotion as Assistant Engineer upto 15.10.1992. On 19.3.1993, the final seniority list of graduate Junior Engineers (Civil) indicating their placement as per eligibility for promotion as Assistant Engineer (Civil) was circulated. On 22.3.1993, the appellants were promoted as Assistant Engineers (Civil) on the recommendations of DPC against the vacancies arising during calendar year spanning from 1.1.1988 to 1992 as per the seniority list prepared by the Department in accordance with the judgment dated 12.2.1992 of the High Court. The seniority list so drawn was based on two principles, namely, 1. The date on which the selection panel of Degree- holders was approved for appointment as Junior Engineers, and 2. The date of acquisition of degree by a Diploma- holder Junior Engineer working in the Department, Provided that the persons in (1) above would maintain their inter se seniorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riteria in the Recruitment Rules for promotion to the post of the Assistant Engineer. Accordingly, the matter was placed before the Full Bench of the Delhi High Court. The present appeals by special leave have been filed before this Court against the interim and common order dated 25.1.2002 passed by the Full Bench of the Delhi High Court. The Full Bench of the Delhi High Court after consideration of the relevant decisions, the rule in question and the facts found from the record has recorded the findings that (i) it cannot be said that the DDA followed a consistent practice to the effect that experience for the purpose of promotion to the post of Assistant Engineer would be counted only after a candidate acquires a degree; and (ii) the Note which was issued by DPC in 1971 was in violation of the statutory rules dated 13.11.1963. It was observed that DPC had no requisite jurisdiction therefor, the same had not been approved by the DDA and such Note was ultra vires. Consequently, the appropriate practice which was followed pursuant to the Note of 1971 till 6.12.1982 was held to be wholly illegal and without jurisdiction and thus in the eye of law to be non est. The issue of res jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n from the post of Junior Engineer to the post of Assistant Engineer. It is urged by Shri Jawahar Lal Gupta and Dr. Rajeev Dhavan, the learned senior counsel for the appellants, that under the promotion rule promotion to the post of Assistant Engineer two separate channels are provided for diploma-holders and degree- holders within their respective quota and there would be no violation of rules if requisite experiences required on the post of Junior Engineer as diploma-holder and degree-holder are treated differently and it would be open for the Government to lay down and treat different period of experience as qualitatively different for two classes for further promotion to the post of Assistant Engineer. On the other hand, it is urged by Shri G.D. Gupta, the learned senior counsel for the respondents, that 50% of the promotion quota for degree-holders Junior Engineers is provided under the rules irrespective of the fact whether a person has joined the post of Junior Engineer as a degree-holder or a diploma-holder and, therefore, on correct interpretation of the rule the period of three years' experience required is inclusive of the period of service on the post prior to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... three- Judge Bench was called upon to decide a similar question as involved in the present case, namely, whether the three years' service experience for promotion for graduate Engineers would mean three years' service prior to obtaining the degree or three years' service after obtaining the degree. The relevant Rule 11 provided for recruitment by promotion from the grade of Junior Engineers. Two categories were provided therein, viz., one of degree-holder Junior Engineers with three years' service in the grade and the other of diploma-holder Junior Engineers with six years' service in the grade, the provision being for 50% from each category. While interpreting the rule, this Court said that the entire scheme did indicate that the period of 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 Court observed as follows: "4. In our opinion, this a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 10% for graduate Engineers completing eight years of service. The Court was called upon to consider whether the period of eight years can only be counted from the date when the diploma-holder Sub- Engineers acquired the Degree of Engineering and not prior to the said date. The controversy arose between the parties is summarized in paragraph 5 of the judgment as under :- "The short controversy arising in these cases relates to the determination of seniority amongst the diploma-holder Sub-Engineers who acquired the degree of graduation in engineering during the period of service qualifying them for promotion in 8 years to the post of Assistant Engineer. " From the aforesaid, it is clear that the Court was considering the experience/qualifying service of eight years and twelve years amongst the diploma-holder Sub-Engineers and not vis-`-vis the degree-holder Sub-Engineers. The reduction of the qualifying service from twelve years to eight years simply accelerated the entitlement to promotion for the post of Assistant Engineer by Sub- Engineers from twelve years to eight years. The qualifying service which was required to be considered under the rule was that of diploma-ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e carefully considered the case of N. Suresh Nathan and it is not correct to say that the decision rendered in that matter was based on past practice. The Court, in fact, has considered and interpreted the relevant service rules and then found that such an interpretation is fortified by the practice followed in that department. Similar issue once again came before a two-Judge Bench of this Court in D. Stephen Joseph v. Union of India and Others, (1997) 4 SCC 753. The exact question was as follows :- " ..whether for promotion to the post of Assistant Engineer in the 50% promotion quota reserved for the person possessing degree in Electrical Engineering from a recognized University or an equivalent with three years' regular service in the grade of Junior Engineers in the Electricity Department, Government of Pondicherry, three years' experience as Junior Engineer in the grade is to be counted from the date of acquisition of the degree in Electrical Engineering or the length of service in the grade of Junior Engineers is to be reckoned if the incumbent at the time of promotion to the 50% quota also possesses degree in Electrical Engineering." The ambit of N. Suresh Nathan& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppointment, viz., (a) Degree in Civil Engineering ; and (b) two years' professional experience. The age was not to exceed 30 years (relaxable for government servants and MCD employees). The applications were received for appointment to the post of Assistant Engineer (Civil) in the Engineering Department of MCD. The applications were received from the departmental candidates as well as others. The Selection Board of MCD had prescribed the norms for awarding marks. So far as the experience part was concerned, break-up was : Upto two years experience - 'no marks'; 3 to 12 years' and above experience at the rate of = mark, i.e., for 10 years - 5 marks; and Viva-voce - 15 marks. The question for consideration was whether the pre-degree experience of the candidates can be taken into consideration for awarding the marks or whether the candidate's experience gained after obtaining the degree is to be taken into consideration for awarding the marks. In paragraph 20 of the judgment, the Court has said that the provision regarding experience speaks only of professional experience of two years and does not, in any manner, connect it with the degree qualification. Further, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eyor of Works possessing Degree in Civil/Mechanical Engineering or its equivalent from a recognised institution with six years' regular service in the grade. The contention was that six years' regular service in the grade as eligibility criteria should be after the educational qualification was obtained. The Court interpreted the rules and said that the rule prescribed the eligibility criteria to be a prescribed educational qualification and six years' experience as well. Giving a plain meaning to the phrase, it would not be justified in reading 'a qualification' into a conjunctive word and imply the word 'subsequent' after the word 'with'. The Court was of the view that six years' regular service in the grade would not mean the service subsequent to obtaining the prescribed educational qualification. Para 9 of the judgment gives the Court's reasoning as follows :- "Even on a point of principle it would be unreasonable to distinguish between the nature of the regular service required, as if the service in the grade subsequent to the obtaining of the necessary educational qualification were qualitatively different from the service in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in question before us, independently giving meaning to the words, the principle involved and the past practice, if any, which is in consonance with the interpretation given by us to the rule. If we find that two views are possible after interpreting the rule, then the rule would be interpreted keeping with the practice followed in the Department for a long time and thus the practice practically acquired status of rule in the Department. 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 Engineer 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 following table shows the effect and intent of the rules adopted under Resolution Nos.574 and 105 dated 13.11.1963 and 16.6.1971 respectively. It also shows the manner of initial recruitment to the cadre of Junior Engineers: Executive Engineers (By promotion) | Assistant Engineers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsp; Junior Engineers (Section Officers) Direct recruitment Graduates in Engg & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erience. A separate quota is, thus, prescribed for promotion of Junior Engineers for degree and diploma-holders to that of higher post of Assistant Engineer. For further promotion from the post of Assistant Engineer to the post of Executive Engineer, the requirement of the rule is for graduates, eight years' service in the grade; and, for diploma-holders, ten years' service in the grade. This distinction between the graduate Engineers and diploma-holders is maintained for promotion to the post of Executive Engineer, although there is no separate quota prescribed for graduates or diploma-holders, by prescribing different experience for promotion on the basis of a person being a graduate or a diploma-holder. In Roop Chand Adlakha and Others v. Delhi Development Authority and Others, 1989 Supp. (1) SCC 116, application of the rules governing same service conditions as involved in the present case, was called in question in regard to promotion of diploma-holder Junior Engineers and graduate Junior Engineers, from the post of Assistant Engineer to the post of Executive Engineer. The diploma-holders in the cadre of Junior Engineers and in the cadre of Assistant Engin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sp; could validly be excluded from the eligibility for promotion to the higher cadre, it does not necessarily follow as an inevitable corollary that the choice of the recruitment policy is limited to only two choices, namely, either to consider them "eligible" or "not eligible". State, consistent with the requirements of the promotional posts and in the interest of the efficiency of the service, is not precluded from conferring eligibility on Diploma Holders conditioning it by other requirements which may, as here, include certain quantum of service experience. In the present case, eligibility determination was made by a cumulative criterion of a certain educational qualification plus a particular quantum of service experience. It cannot, in our opinion, be said, as postulated by the High Court, that the choice of the State was either to recognize Diploma Holders as "eligible" for promotion or wholly exclude them as "not eligible". If the educational qualification by itself was recognized as conferring eligibility for promotion, then the superimposition of further conditions such as a particular period of service, selectively, on the Diploma Holders alone to their disadvantag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be a valid classification whereby a different period of service has been made eligibility criteria along with educational qualification for promotion to the higher post. Taking into consideration the entire scheme of the relevant rules, it is obvious that the diploma-holders would not be eligible for promotion to the post of Assistant Engineer in their quota unless they have eight years' service, whereas the graduate Engineers would be required to have three years' service experience apart from their degree. If the effect and intent of the rules were such to treat the diploma as equivalent to a degree for the purpose of promotion to the higher post, then induction to the cadre of Junior Engineers from two different channels would be required to be considered similar, without subjecting the diploma- holders to any further requirement of having a further qualification of two years' service. At the time of induction into the service to the post of Junior Engineers, Degree in Engineering is a sufficient qualification without there being any prior experience, whereas diploma-holders should have two years' experience apart from their diploma for their induction in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... years' service experience on the post of Assistant Engineer to become eligible for promotion to the higher post. This indicates that the rule itself makes differentia in the qualifying service of eight years for degree-holders and 10 years' service experience for diploma- holders. The rule itself makes qualitative difference in the service rendered on the same post. It is a clear indication of qualitative difference of the service on the same post by a graduate Engineer and a diploma-holder Engineer. It appears to us that different period of service attached to qualification as an essential criterion for promotion is based on administrative interest in the service. Different period of service experience for degree-holder Junior Engineers and diploma-holder Junior Engineers for promotion to the higher post is conducive to the post manned by the Engineers. There can be no manner of doubt that higher technical knowledge would give better thrust to administrative efficiency and quality output. To carry out technical specialized job more efficiently, higher technical knowledge would be the requirement. Higher educational qualifications develop broader perspective and therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X
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