TMI Blog1992 (10) TMI 257X X X X Extracts X X X X X X X X Extracts X X X X ..... Service Rules 1980 (hereinafter referred to as `the Rules'). Under Schedule IV of the Rules, the next higher post for promotion from the post of Sub-Engineers in Civil or Mechanical is the post of Assistant Engineers. The minimum period for Sub- Engineer to qualify for promotion to the post of Assistant Engineer is 12 years for diploma-holders and 8 years for such Sub-Engineers who obtain degree of graduation in the course of service. Earlier 60 per cent quota for the posts of Assistant Engineers was fixed by direct recruitment and 40 percent by promotion from the Sub-Engineers, Draftsman and Head Draftsman. By and executive order dated 7.2.1989, quota of direct recruitment was reduced to 50 percent and the quota by promotion increased to 50 per cent. This 50 per cent quota by promotion with which we are concerned in the above cases has been sub-divided in the following manner:- (i) Diploma holder Sub-Engineers completing 12 years of service 35% (ii) Draftsman Head Draftsman completing 12 years of service 5% (iii) Graduate Sub-Engineers completing 8 years of service 10% In the above cases we are now concerned with the third category of cases which deal with the promo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suitable for promotion, promote them and give them seniority over respondents 3 to 9 within 4 months of the date of receipt of the order. 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 service qualifying them for promotion in 8 years to the post of Assistant Engineer. It is an admitted position that there is no specific rule governing such situation. Relevant extracts of Schedule IV of the Rules as published in the Madhya Pradesh Gazette dated 27.2.1981 issued in Hindi read as under: Mr. S.S. Ray, learned senior counsel appearing on behalf of the appellants contended that so far as the post of Sub-Engineers is concerned, the minimum qualification prescribed is diploma-holder. Initially, in the Public Health Engineering Department till 1980, fresh degree- holders used to get job directly as Assistant Engineers and the diploma-holders used to be appointed as Sub-Engineers. Thereafter on account of unemployment, the degree-holders also started seeking appointments as Sub-Engineers. However, so far as the post of sub-Engineer was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsideration. We have given our careful consideration to the arguments advanced on behalf of learned counsel for the parties. We may first deal with N. Suresh Nathan's case (supra) on which strong reliance is placed by Mr. Ashok Sen. In this case, the Recruitment Rules for the post of Assistant Engineer in the Public Works Department, Pondicherry, prescribing the educational and other qualifications for appointment by direct recruitment and promotion came for consideration. For direct recuits, the qualification prescribed was a Degree in Civil Engineering of a recognised University or Diploma in Civil Engineering from a recognised institution with three years, professional experience. For appointment by promotion of Section Officers now called junior Engineers, the qualification prescribed was as under: 1. Section Officers possessing a recognised 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-50 percent. 2. Section Officers possessing a recognised Diploma in Civil Engineering with six years' service in the grade-50 per c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. This Court then considered the Recruitment Rules applicable in the said case and then held that the entire scheme did indicate that the period of three years' service in the grade required for degree-holders according to Rule 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. It was further held that 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. This Court then observed:- 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 Rule 11 is three years fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for Draftsman who have completed 12 years of service and the remaining 10 per cent with which we are concerned has been kept for such Sub-Engineers who during the continuation of their service obtained a degree of graduation or equivalent in engineering and in that case the period of service is reduced from 12 from 8 years. The Rules in our case do not contemplate any equivalence of any period of service with the qualification of acquiring degree of graduation in engineering as was provided in express terms in N. Suresh Nathan's case making three years service in the grade equivalent to degree in engineering. In our opinion, in the rules applicable in the cases before us clearly provide that the diploma-holders having obtained a degree of engineering while continuing in service as sub-Engineers shall be eligible for promotion to the post of Assistant Engineer in 8 years of service and quota of 10 per cent posts has been earmarked for such category. If we accept the contention of Mr. Ashok sen, it would defeat the very scheme and the purpose of giving incentive of adding educational qualification by diploma-holders while continuing in service in case the period of 8 years' ..... X X X X Extracts X X X X X X X X Extracts X X X X
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