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PETITIONER: CHINMOY MOULIK & ORS.

       Vs.

RESPONDENT: DAMODAR VALLEY CORPORATION & ORS.

DATE OF JUDGMENT:       10/02/1998

BENCH: S.C. AGARWAL, K. VENKATASWAMI, V.N. KHARE

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T K. Venkataswami, J.      This appeal  by special  leave is  directed against the judgment of  the Calcutta  High Court  dated 9.12.92 in FMAT No. 2296/91.      The appellants were the writ petitioners in Civil Order No. 7028  (W) of 1988. The circumstances, which made them to approach the High Court, are briefly given below:-      Damodar Valley Corporation (for short "DVC") during its initial stage  recruited  holders  of  I.Sc/  School  Final/ Matric  Certificate   for  entry   level  operatives,  i.e., Assistant Operator.  For the next level of operatives, i.e., Operators, the  Assistant Operators  were given promotion as Operators based  on Seniority,  experience an  d  result  of departmental  examination.   Due  to   acute   shortage   of operatives  for   newly  commissioned   Power  Plants,   the Operators  were   recruited  directly   in  electrical   and mechanical discipline to meet the urgent requirements. Later on, the  minimum qualification  for the  post  of  Assistant Operator (Electrical/  Mechanical) was  fixed  as  B.Sc  and during  the   period  1969-77,   the  diploma   holders   in Electrical/Mechanical Engineering  were also recruited along with the B.Sc candidates for the post of Assistant Operator.      It was  brought to  the knowledge of the DVC Management that in  civil discipline  the diploma holder engineers were being  recruited   at  the  level  of  Assistant  Controller equivalent to  the Junior  Engineer and  on that  basis  the diploma holders,  who were recruited as Assistant Operators, were pressing  their case  to upgrade  them directly  to the rank of  Assistant Controller  or equivalent  in  line  with Civil Engineering Cadres. The next stage of promotion of the Operators  was   to  that   of  Assistant   Controller.  The Corporation   Management,    after   going    through    the representations of  the Diploma  Holder Engineers,  accepted their demand in principle and the Director of Personnel, DVC by his letter dated 21.8.79 conveyed the decision of the DVC Management to  the General  Secretary, DVC  Diploma  Holders Engineers’ Association.  The decision so conveyed was to the effect that  the diploma  holders in  engineering  would  be directly recruited  at the  level of Assistant Controller or

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equivalent thereto;  theat the Corporation would upgrade all the existing  diploma  holders  in  engineering  serving  as Assistant Operators/  Operators to  the level  of  Assistant Controller within  three months  and that  no recruitment of fresh diploma  holders will  be made  till all  the existing diploma holders are so upgraded.      Though the  DVC took  such a  policy decision, it could not implement  the same for administrative reasons. As there was delay  on the  part  of  DVC  to  implement  the  policy decision taken  in favour of diploma holders, they moved the High Court for implementation of the same. The Calcutta High Court by  an order  dated 11.2.82  directed the  DVC to give effect to  their policy  decision without  further  loss  of time. When the Writ Petition was pending before the Calcutta High Court,  the appellants  herein,  who  belonged  to  the category of  degree holders,  did not  take the  trouble  of impleading themselves in the said Writ Petition filed by the diploma holders as they were not made parties. On account of non-implementation of the High Court directions, the diploma holders again moved the High Court on the contempt side. The High Court  again gave  a direction on 13.1.83 to the DVC to give  the  diploma  holder  engineers  the  designations  of Assistant Controller  or equivalent  thereto  on  or  before 31.12.83 with  consequential benefits from 11.2.82. Pursuant thereto, the  DVC upgraded  the diploma holders on operative side in various ex-cadre posts. Subsequently, a Sub-ordinate Engineering  Service  Cadre  of  Diploma  Engineers  in  the Engineering Service  of the  Corporation was  created w.e.f. 1.4.88.      The appellants,  aggrieved  by  the  creation  of  Sub- ordinate  Engineering   Service  in  the  Cadre  of  Diploma Engineers, filed  C.O. No.  7028 (W) of 1988 challenging the creation of that cadre.      The grounds  of attack  in the  said Writ Petition were that the  degree holders  and diploma holders engineers were recruited  simultaneously   on  the   basis  of   the   same advertisement  and   the  upgradation   of  diploma   holder engineers alone  amounted to  discrimination; that  the B.Sc degree holders  and  the  diploma  holder  engineers  worked together and were subjected to same departmental examination for promotion  whereas by the impugned action of the DVC the diploma holder  engineers were  upgraded  to  the  level  of Assistant Controller  without any  examination, which action amounted to  discrimination; that the upgradation of diploma holder engineers affected the promotional avenue of the B.Sc degree holders  and the  impugned action of the DVC amounted to treating  equals as unequals. The DVC failed to challenge the order  of the High Court made in favour of the Appellate Court that  the degree holders would be seriously prejudiced if the  order of  the Calcutta High Court at the instance of the diploma holder engineers was to be given effect to.      The DVC  as well  as the  diploma holders  resisted the plea put  forward by  the degree  holders and  justified the decision of  the DVC  in  creating  a  separate  engineering service for the diploma holders. It was brought to he notice of the  High Court  (learned Single  Judge) that the diploma holders  were   not  recruited  to  the  post  of  Assistant Operators/Operators trainees  from the year 1978 pursuant to the policy  decision taken  by the  DVC and  those who  were recruited along  with the  degree  holders  prior  to  1978, except 7  or 8  degree holders,  all were  promoted  to  the position  of   Assistant  Controller   and,  therefore,  the question of  discrimination as  pleaded by the degree holder writ petitioners  will have  no force.  The  DVC  had  valid reasons for  creating a  separate  engineering  service  for

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diploma holders  and there  was no  question of equals being treated unequally.  It was specifically pointed out that the B.Sc degree  holders on  the one hand and the diploma holder engineers of  Civil, Mechanical  and Electrical on the other are essentially  different from each other so far as the job descriptions of  the ex-cadre posts created in 1982 onwards. Diploma  in  engineering  is  a  technical  or  professional qualification whereas  the degree  in science  is a  general academic qualification.  Diploma in  engineering is  a three year  integrated   course  covering   study  of  engineering subjects in  addition to  study  of  science  subjects  like physics,  Chemistry  and  Mathematics.  Diploma  engineering students  undergo   vocational  training  and  other  allied engineering practicals  whereas the  science graduate pursue the general  study of science subjects and are given no such exposure  through  vocational  or  industrial  practical  or practicals related  to industrial  applications. Diploma  in engineering is  given two  years’  weightage  for  obtaining engineering degree  whereas there is no such weightage given to the  science graduates.  A.M.I.E.,  which  is  considered equivalent to  an engineering  degree, is  completed in  two sections -  Section A and Section B and both consist of nine papers each.  Diploma holder in engineering get exemption in six papers  of Section  B, graduates or even  post-graduates in general  stream of  science do  not get  such  exemption. Therefore, according to the DVC, the two streams are not the same and  they are essentially different in various aspects. According to  the DVC Management, the upgradation of diploma holder engineers on masse in 1982 was not only in compliance with the  judgment of  the Calcutta  High Court, but also in implementation of  a  policy  decision  of  the  Corporation adopted  even   before  the  judgment  of  the  High  Court. Likewise, the  formation of sub-ordinate engineering service was as  a result  of a  policy  decision  expedited  by  the judgment of the Calcutta High Court.      The learned  Single Judge  was of  the  view  that  the action of the DVC in giving special treatment to the diploma holders amounted  to discrimination  so far  as the  science graduates were  concerned and,  therefore, issued  a writ of mandamus directing  the DVC  to  treat  the  degree  holders equally in  the matter  of promotion to the next higher post for higher  salary w.e.f.  June 11,  1982 as was done in the case of  diploma holder  engineers, with  protection of pay, who  were   appointed  initially   along  with  the  science graduates in the same post. The learned Single Judge further directed the  DVC to  maintain inter  se  seniority  of  the petitioners vis-a-vis diploma holder engineers as it existed before  June   11,  1982.  The  learned  Single  Judge  also upgradation of the diploma holder engineers any further. The learned Judge  also gave  three months’  time to  pay to the degree holders  arrears of  pay which  might accrue owing to reorientation of  the position  and to  give effect  to  the other directions by him.      Aggrieved by  the judgment of the learned Signal Judge, the DVC  preferred an   appeal to the Division Bench and the learned Judge  after considering the rival submissions found that the  classification made  by the DVC between the degree holders and the diploma holders was permissible and that the conclusion of  the learned  Single Judge that it amounted to discrimination against the degree holders, was not right and on that  basis allowed  the appeal.  However,  the  Division Bench found that the science graduates stood relegated to an inferior position  for no  fault of  theirs.  Therefore,  it directed that  the authorities should find ways and means by setting up a Committee of Experts to examine the case of the

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science graduates  vis-a-vis the  diploma holder  engineers, who have  been ex-caderised  from operational  pool and have been  placed   in  a   separate  channel   of  service  with accelerated promotion  to improve  the service conditions of the degree holders.      The degree  holders, aggrieved  by the  judgment of the Division Bench, have come up to this Court in this appeal by way of special leave.      Mr. Sanghi,  learned senior  counsel appearing  for the appellants, reiterated the same contentions that were raised before the High Court on the side of the appellants. Learned counsel appearing for the contesting respondents and the DVC eiterated also  the  same  contentions  that  were  advanced before  the   High  Court  on  their  side.  Now,  to  avoid repetition, they  are not  set out  in  detail  as  we  have already set out in detail earlier.      We have  carefully gone  through the  judgments of  the learned Single Judge and also the Division Bench of the High Court. The  main thrust  of the  appellants before  the High Court as  well as  before us was that the degree holders and diploma holder  engineers were  recruited simultaneously  on the basis  of the  same advertisement and the upgradation of diplomas holder  engineers alone amounted to discrimination. Before deciding  the said  issue from  the legal angle, were would like  to place  the factual position. On facts, it was the definite stand of the DVC that since 1978 the DVC ceased to appoint diploma holder engineers in the post of Assistant Operators/Operator trainees.  No doubt,  for the period 1969 to 1977,  the DVC  was recruiting  simultaneously  both  the degree holders  and the diploma holder engineers to the post of Assistant Operators/ Operator trainees. It is pointed out in more  than one  place by the DVC in the Counter Affidavit that out  of 349  appellants only 7/8 of them were recruited simultaneously, who  joined the  service of the DVC with the diploma  holder   engineers  in   response   to   the   same advertisement  and   rest  of   them  were   all   recruited subsequently not  along with the diploma holder engineers as by then,  as a  policy, the  DVC stopped  recruiting them as Assistant  Operators/Operator   trainees.   Therefore,   the Division Bench  directed the  DVC to  appoint a Committee to look into  the matter  to protect the interest of the degree holders. It  is also  brought to our notice that pursuant to the order  of the  High Court the DVC has formed a Committee and before  the said  Committee, the appellants appeared and participated in the deliberations and the Committee has also submitted its Report.      Bearing the above factual position in mind, we can also consider the issue on the legal side. In the earlier part of the judgment  while  setting  out  the  contentions  of  the respective parties, we have noticed in detail the difference between the degree holders and the diploma holders engineers int he  matter of  technical and professional qualification. We have  also noticed the treatment given to diploma holders in other  civil disciplines. When these factors were brought to the  notice of  the DVC  by the Diploma Holder Engineers’ Association,  the  DVC  decided  to  create  ex-cadre  posts initially  and  subsequently,  created  a  separate  service cadre, namely,  a Sub- ordinate Engineering Service Cadre of Diploma Holder Engineers. The authority and power of the DVC to create/from  such a  separate  service  cadre  cannot  be questioned. It  si also  to be  noted that  as a  result  of creation of  separate cadre for diploma holder engineers the promotion chances  of degree  holders  in  their  cadre  had increased. All  t hese  factors were  taken note  of by  the Division Bench and it also noticed at the same time that the

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diploma holders  had not been given their due, but that does hot mean  the creation  of  a  separate  cadre  for  diploma holders is liable to be questioned by the degree holders.      We are  satisfied that both factually as well as in law the degree holders have not made out a case to challenge the benefit given  to the diploma holder engineers int his case. We agree  with the conclusions reached by the Division Bench of the  High Court  and accordingly we find no merit in this appeal. The appeal is dismissed with no order as to costs.