Slum Wing Dda Graduate Engineers ... vs Delhi Development Authority And ...
1992 Latest Caselaw 96 Del

JUDGMENT

Gokal Chand Mital, C.J.

(1) 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 include therein the period of service rendered by him prior to the obtaining of the Degree or he has to render three years' service after obtaining the degree to become eligible for promotion to the post of Assistant Engineer. In view of the direct decision of the Supreme Court in N.Suresh Nathan and another v. Union of India, Jt 1991 (4) S.C. 354, we render the answer that such a Diploma-holder Junior Engineer will have to serve for a period of three years after obtaining the degree to become eligible for promotion to the post of Assistant Engineer and he cannot include the service period rendered prior to the obtaining of the degree in claiming three years ' service.

(2) The private parties to this litigation are the Degree-holders from the inception of service as Junior Engineers versus the Diploma-holders from the inception of service as Junior Engineers. The petitioners relate to the first category and the private respondents to the second category. All of them are employees of the Delhi Development Authority (D.D.A.). The D.D.A by its resolution No. 574 dated 13th September, 1963 had adopted, pro-tanto, the rules of the Central Public Works Depart ment in regard to the mode of recruitment - both by direct recruitment and by promotion - to the posts of Assistant Engineers. 50% of these posts were to be filled by direct recruitment or by deputation and the remaining 50% by promotion from the cadre of Junior Engineers. The cadre of Junior Engineers was being manned by Graduates in Engineering as well as Diploma-holders in Engineering. While for Graduates no experience was prescribed but for Diploma-holders two years experience was provided for getting appointment to the post of Junior Engineers. From amongst Junior Engineers, out of 50% quota for promotion to the post of Assistant Engineer, 25% could be utilized by Junior Engineers having degree plus three years' service as Junior Engineers and the remaining 25% Was to go to Junior Engineer Diploma-holders plus 8 years service as Junior Engineers.

(3) In the year 1971 the Departmental Promotion Committee (D.P.C.) constituted to select Assistant Engineers made a concession for Diploma-holders to the effect that in the event of a Diploma- holder Junior Engineer acquiring a degree during the course of serice, the three years' service required as Graduate Engineer would be calculated on the following basis:

(1)Aminimum" of 2 years regular service, as Graduate Engineer, after obtaining the degree;

(2)3/8th weightage would be given subject to a maximum of one year for the period of service, put in by Diploma-holder in the service, as Junior Engineer.

(4) The 13th November, 1963 Resolution, slightly modified by the D.P.C., referred to above, was followed for the appointment to the post of Assistant Engineers by promotion till 20th September, 1990, when a decision to the contrary was taken in the case of Sh.Vivin Kumar, Junior Engineer by some authorities of the D.D.A. while interpreting the 1963 Recruitment Rules, as contained in Annexure P-5 and was circulated to all concerned for following in future. In this it was decided in the words of the memorandum as follows: "...........THATa diploma holder who has subsequently acquired a degree will be treated as 'degree holder' for purposes of promotion, irrespective of the date of acquiring Graduate qualification. The Recruitment Rules .recognise only a degree or Diploma for purposes of promotion. They do not stipulate any minimum experience after acquisition of 'degree'. Accordingly, even if an officer has acquired his 'degree' just before the meeting of Departmental Promotion Committee, he will be considered as a Degree Holder for that and any subsequent Departmental Promotion Committee."

(5) In view of the aforesaid decision, when the next promotions were to be made from amongst Junior Engineers, the fresh Graduates were considered for promotion in the 25% category of Junior Engineer Degree-holder, and three years experience as Diploma- holder Junior Engineer was considered as sufficient to make him eligible amongst Junior Engineers Degree-holders.

(6) It may be noticed that all through from 1963 till 20th September, 1990 when decision to the contrary was taken by some officers of the D.D.A. in the case of Sh. Vivin Kumar, even if a Diploma- holder obtained a degree while in service as Junior Engineer, he was considered for promotion from amongst the Degree-holders quota, only after he had put in three years service as Junior Engineer after obtaining the degree. If the slight modification made by the D.P.C. 1971 is considered, that also speaks of total experience of three years, two years after obtaining the degree and one year benefit was given of earlier service to a maximum of one year. Whether 1971 decision taken by the D.P.C. could modify 1963 rules or not is not a point for our consideration because none of the side has challenged that, but whenever the point will arise to challenge any fresh promotion, on that ground the matter would be considered. Here the only point for our consideration is whether three years service as Junior Engineer has to be after obtaining degree or the earlier service of Junior Engineer while holding diploma only can also be considered.

(7) One case of these very rules came up for consideration before this Court at the instance of Diploma-holders in the context that Diploma-holders and Graduate engineers were members of the same service and for purposes of promotion to the post of Assistant Engineer while 8 years service was provided for Diploma-holders 3 years service was provided for Degree-holders and this was violative of Articles 14 and 16 of the Constitution and was arbitrary. No other point directly or indirectly arose in that writ. This Court struck down 8 years experience fixed for Diploma-holders. But on further appeal, the Supreme Court in Roop Chand Adlakha v. Delhi Development Authority reversed the decision of this Court and upheld the rule of promotion by providing different period of service for persons having different educational qualification and held it was not hit by Articles 14 and 16 of the Constitution and was 'permissible in view of the earlier decision of the apex court referred to in State of Jammu & Kashmir v.Triloki Nath Khosa . In Triloki Nath Khosa's case (supra) the Diploma- holders were not eligible for promotion to the higher post, whereas under the D.D.A. Rules, Diploma-holder Junior Engineers were entitled to promotion after 8 years of service.

(8) We have the latest judgment of the Supreme Court on the point before us. In N. Suresh Nathan (supra), almost an identical rule came up for consideration. The relevant observations may be quoted: "IN our opinion, this appeal has to be allowed. There is sufficient material including the admission of respondents Diploma-holders that the practice Department for a long time was that in the case of Diploma-holder Junior Engineers who obtained the Degree during service, the period of three years' service in the grade for eligibility for promotion as Degree-holders commenced from the date of obtaining the Degree and the earlier period of service as Diploma-holders was not counted for this purpose. This earlier practice was clearly admitted by the respondents Diploma-holders in para 5 of their application made to the Tribunal at page 115 of the paperbook. This also appears to be the view of the Union Public .Service Commission contained in their letter dated December 6, 1968 extracted at pages 99-100 of the paperbook in the counter affidavit of respondents I to 3. The real question, therefore, is whether the construction made of this provision in the rules on which the past practice extending over a long period is based is 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. The Recruitment Rules for the post of Assistant Engineers in the Public Witness .D. (Annexure -C) are at pages 57-59 of the paperbook. 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 Ii 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% from each category. This matches with Rule 7 wherein a Degree is equated with Diploma with three years' professional experience. In the first category meant for Degree-holders, it is also provided that if Degree- holders with three years' service in the grade are not available in sufficient number, then Diploma-holders with six years' service in the grade may be considered in the category of Degree- holders also for the 50% vacancies meant for them. The entire scheme, therefore, does indicate that the period of three years' service in the grade required for Degree-holders according to Rule has 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. 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 only question before us is of the construction of the provision and not of the validity thereof and, therefore, we are only required to construe the meaning of the provision. 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 Ii is three years from the date of obtaining the Degree is quite tenable and commends to as being in conformity with the past practice followed consistently. It has also been so understood by all concerned till the raising of the present controversy recently by the respondents. The tribunal was, therefore, not justified in taking the contrary view and unsettling the settled practice in the Department. "

(9) For laying emphasis on the relevant sentences, we have underlined them.

(10) One of the connected matters is L.P.A.43 of 1991, wherein identical point was involved before the learned Single Judge. It was admitted case of the parties before the learned Single Judge that the past practice has been to consider three years service as Junior Engineer after obtaining the degree right from 1963 till 1990 with slight modification, which took place in 1971. Even in para 7(j) of the Grounds of Appeal, it was clearly admitted by the Diploma-holders that the D.D.A. had been earlier interpreting the recruitment rules by counting 3 years service after degree and this wrong interpretation was needed to be corrected in terms of the clarificatory memorandum dated 20th September, 1990. Therefore, on facts and in law, the present case is on all forces, with the decision of the Supreme Court in S.Suresh Nathan (supra).

(11) Accordingly, we hold that a Diploma-holder Junior Engineer on acquiring engineering degree becomes eligible to the post of Assistant Engineer by promotion after he puts in three years service of acquiring the degree.

(12) A similar writ petition No.3336 of 1990 (Shri R.K.Mittal v. Union of India) came up for consideration before a learned Single Judge. By judgment dated 19th August, 1991, the learned Single Judge allowed the writ petition on a limited point, in spite of noticing the long practice followed by the D.D.A. that in case D.D.A. wants to interpret 1963 rules differently, this could be done only after affording hearing to all concerned and since the memorandum dated 20th September, 1990 was issued without hearing all concerned, it violated the rules of natural justice and on this basis, struck down the circular dated 20th September, 1990 and directed the D.D.A. to hear the parties and take a fresh decision on 1963 Rules. Against this decision of the learned Single Judge, the Diploma-holders Filed Lpa No.43 of 1991, but the Degree-holders in that writ petition, did not file cross-Letters Patent Appeal or cross-objections. Since we have taken a decision in C.W.2382 of 1991 that three years service as a Junior Engineer has to be rendered, after obtaining degree for becoming eligible for promotion to the post of Assistant Engineer, it would be a futile exercise to remand the case to a learned Single Judge, after setting aside the judgment of the learned Single Judge for passing a fresh decision in the writ petition, in terms of our decision in C.W.2382/91 and we are of the opinion that we can mould the relief in terms of the decision rendered by us in the aforesaid writ petition as our decision is based on the Supreme Court decision. Moreover, even if we dismiss the L.P.A., the hearing before the D.D.A., as directed by the learned Single Judge, would be academic as the D.D.A. will have to follow the Supreme Court decision and our decision in interpreting 1963 Rules and will have to hold that experience of three years after obtaining the degree alone would make eligible a Junior Engineer for promotion to the post of -Assistant Engineer.

(13) Accordingly, Lpa 43 of 1991 would stand disposed of in terms of our decision in C.W.2382/91.

(14) The other connected case is C.W.3833/91. This writ is also filed by the Degree-holders against Diploma-holders who Obtained degree later on. This writ petition also would stand covered by our decision in C.W.2382/91.

(15) For the reasons recorded above, we allow Civil Writs 2382 and 3833 of 1991 and quash the promotions made by the D.D.A. from 1990 onwards till date, which are contrary to the decision rendered by us today. Accordingly, the D.D.A. would revise/reconsider all such promotions including current duty charge and would bring them in terms of the decision rendered by as.

(16) L.P.A.43 of 1991 and the writ petition, out of which it arises, also stand disposed of with the operative directions issued by us in C.Ws. 2382 and 3833 of 1991. The judgment and order of the learned Single Judge modifier acccordingly. However, we leave the parties to bear their own costs.