Jagmohan Swarop vs Delhi Development Authority
1995 Latest Caselaw 388 Del

JUDGMENT

Y.K. Sabharwal, J.

(1) Rule D.B.

(2) On 27th May 1971 the Petitioner was appointed as a Junior Engineer with Delhi Development Authority ( for short 'DDA'). The Petitioner was promoted to the post of Assistant Engineer on 29th October 1980 when he was a diploma holder. The Petitioner, however, acquired the degree in Electrical Engineering in June, 1984. The next promotional post in the cadre is that of Executive Engineer (Electrical). The Petitioner claims that on 29th October 1988 having completed 8 years service as Assistant Engineer he became eligible for promotion to the post of Executive Engineer (Electrical). In 1989 Dda constituted a Departmental Promotion Committee but the case of the Petitioner was not considered and on the contrary it recommended persons junior to the petitioner for promotion to the post of Executive Engineer. On the recommendations of Dpc the Dda on 24th October 1989 promoted Ram Avtar Sharma. Admittedly, in the feeding cadre of Assistant Engineers (Electrical/Mechanical) Sharma is junior to the Petitioner. In the seniority list the Petitioner is shown at Serial No. 28 and Sharma at Serial No. 30. It appears from the said list that Sharma acquired the qualifications of degree in the year 1980. The petitioner made representation to Dda to consider him for promotion. The Petitioner was informed by Dda by letter dated 14th November, 1990 that his request for promotion from the post of Assistant Engineer(Electrical) to Executive Engineer(Electrical) will be considered at appropriate time. The Petitioner claims that he is entitled to be promoted as Executive Engineer atleast from the date when his junior Sharma was promoted.

(3) The rule relevant for recruitment for the post of Executive Engineer (E/M) has been extracted in the counter affidavit of DDA. A photostat copy of the said Rule has been produced before us in court. It reads as under:-

Recruitment Rules For The Post Of Executive Engineer (ELECT/MECH) (PROVIDED Vide Resolution NO. 106 Dated 4.9.1976). Name of the No.of Classification Scale of pay Whether Method of Post Posts selection or recruitment non selection whether by post (for direct promotion by recruitment or direct posts by promotion only) Executive 2 Class-I Rs.700-1250 Selection 50% by Engineer (now revised promotion/deputation Rs. 1100-1600) permanent absorption/dire ct recruitment in that order. 50% by direct recruitment/deputation/perman ent absorption in that order. For Promotion 8 years experience for Engineering Graduates and 10 years experience for Diploma Holders. Age limit Educational Period of Whether age In case of (for direct qualification probation if and educational recruitment by recruitment for direct any qualifications deputation/transfer only(years) recruitment prescribed for grades from direct which recruitment will deputation/transfer apply in case to be made of. deputation its 35 years Essential 2 years Age-No Appointment to i) Degree in Qualification & be made under Elect/Mech. Experience the authority of Engg. from Officers having L.G./Chairman recognised sufficient Dda Institute or experience in University or the line equivalent Yes qualification. (ii) Minimum seven years Experience in elect/Mech. Engg. after graduation

(4) The plea of Dda is that the petitioner would become eligible for being considered for promotion to the post of Executive Engineer 8 years after acquiring the degree. On the other hand, the plea of the petitioner, is that period of 8 years is to be counted from the date of his promotion as Assistant Engineer.

(5) The Dda in support of its plea has placed reliance on decision of the Supreme Court in N.Suresh Nathan and another vs. Union of India and others, 1992 Supp (1) Scc 584. The Petitioner, on the other hand, has placed reliance on a later decision of the Supreme Court in the case of M.B.Joshi and others vs. Satish Kumar Pandey and others, .

(6) In Joshi's case the Supreme Court held that the Tribunal was wrong in determining the seniority from the date of acquiring degree of Engineering. It held that 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. The decision in Nathan's case was considered in Joshi's case but was distinguished in view of the Scheme and the language of the rule, and it was held:- "THAT apart the scheme of the rules in N.Suresh Nathan's case was entirely different from the scheme of the Rules before us. The rule in that case prescribed for appointment by promotion of Section Officers/Junior Engineers provided that 50 per cent quota shall be from 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. The aforesaid rule itself provided in explicit terms that Section Officers possessing a recognised Degree in Civil Engineering was made equivalent with three years' service in the grade. Thus, in the scheme of such rules the period of three years' service was rightly counted from the date of obtaining such degree. In the cases in hand before us, the scheme of the rules is entirely different. In the cases before us 50 per cent of the posts of Assistant Engineers has to be filled by direct recruitment of persons having degree of graduation in engineering. The remaining 50 per cent of the vacant posts are to be filled by promotion from the lower cadre of Sub- Engineer and Draftsman. Out of this 50 per cent, 35 per cent quota is fixed for diploma-holders who have completed 12 years of service on the post of Sub- Engineer, 5 per cent quota 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 years to 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 of 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 of persons. 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' is counted from the date of obtaining graduate degree in engineering. It may be noted that no such argument was raised even from the side of respondents before the Tribunal. If such interpretation as now sought to be advanced by Mr.Ashok Sen, learned senior counsel is accepted, no relief could have been granted to the respondent Satish Kumar Pandey. We would illustrate the above position on admitted facts that Shri Satish Kumar Pandey had joined as Sub-Engineer on 23.8.1980, but had acquired the degree of engineering in May, 1987. In that situation, Mr.Satish Kumar becomes eligible only in May 1995 and he could not be considered as eligible in December 1989 when these Sub-Engineers were considered for promotion as Assistant Engineers. Even otherwise, if this period of 8 years is counted from the date of acquiring degree then this incentive of adding the qualification during the continuation of service and getting the advantage of acceleration in promotion in 8 years would for all practical purposes become nugatory and of no benefit. It is further important to note that in the cases before us, the Government itself has been adopting the practice and making promotion as contended by the appellants and we are upholding such practice. In N.Suresh Nathan's case also this Court had upheld the practice followed by the Government. It is also well settled principle of service jurisprudence that in the absence of any specific rule, the seniority amongst persons holding similar posts in the same cadre has to be determined on the basis of the length of service and not on any other fortuitous circumstance."

(7) On the Scheme and language of the rules in the present case the point in issue is squarely covered by law laid down by the Supreme Court in Joshi's case.

(8) Reliance has also been placed by the learned counsel appearing for Dda on a Division Bench decision of this Court in Re: Slum Wing D.D.A. Graduate Engineers Association (Regd) and others Vs. Delhi Development Authority and others, 1992(Vol.46) Dlt 486 where it was held that a Diploma - holder Junior Engineer on acquiring engineering degree becomes eligible for the post of Assistant Engineer by promotion after he puts in three years service of acquiring the degree. This decision was rendered relying upon the decision of the Supreme Court in Nathan's case before decision in Joshi's case. As already noticed, the decision in Nathan's case has been explained by the Supreme Court in Joshi's case. In view of the decision in Joshi's case it cannot be held that the Petitioner would become eligible for consideration for promotion to the post of Executive Engineer on putting in 8 years service after acquiring the degree. In case of Engineering graduates, the period of 8 years has to be counted from date of promotion to the post of Assistant Engineer though the degree is acquired within that period of 8 years. Mr.Sethi, learned counsel appearing for the petitioner has also drawn our attention to a Single Bench decision of this Court in A.K.Bansal Vs. Mcd and others, 1994 Iii Ad (Delhi) 1081. In the said decision after noticing the decisions of the Supreme Court in Nathan's case and Joshi's case as also the Division Bench decision of this court, referred to above, it was held, interpreting almost a similar rule, that the experience referred to in the eligibility rule has no connection to the degree referred to in the rule since the experience is not the experience with the degree. The Dda has also not been able to establish any particular practice in the present case. The concept of 'practice' involves following a particular procedure or mode of selection on more than one occasion. An isolated instance, if any, cannot be equated to 'practice'. "Practice" should reflect an established method. In the present case the practice being followed by Dda was to compute the period of experience not from the date of acquiring the degree and Dda itself has been considering service, both, pre and post degree within the meaning of qualifying service for promotion. In this regard the petitioner has placed on record the facts about the promotion of one J.D.Pahuja and D.D.Sharma. They had been promoted to the post of Assistant Engineer (Civil) with effect from 1st January 1979. While serving in the said grade and in the year 1985 each of the said persons acquired degree in Engineering. On April 14, 1987 the Dpc was held for promotion of Assistant Engineer (Civil) to the post of Executive Engineer (Civil) in DDA. In the said Dpc Pahuja and Sharma were not considered for promotion to the posts of Executive Engineers on the ground that they did not have post-degree qualifying experience of 8 years. On representation being made by the said two officers the Dda in May 1991 promoted the said officers to the post of Executive Engineer upon a review Dpc with retrospective effect. The Dda has failed to explain how the case of the petitioner is different than that of Pahuja and Sharma.

(9) In view of the aforesaid, we are of the view that when the Dpc considered the case of Ram Avtar Sharma, the Petitioner was an engineering graduate and had qualifying service of 8 years and was thus eligible to be considered for promotion to the post of Executive Engineer.

(10) For the reasons aforesaid, we allow the petition, make the rule absolute and direct the Dda to hold a review Dpc within a period of three months and consider the case of the petitioner for promotion to the post of Executive Engineer. If selected the petitioner would be promoted to the post of Executive Engineer (Electrical) retrospectively from the date when Ram Avtar Sharma was so promoted. In the facts and circumstances of the case we leave the parties to bear their own costs.