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PETITIONER: M.B. JOSHI AND ORS. ETC. ETC.

       Vs.

RESPONDENT: SATISH KUMAR PANDEY AND ORS. ETC. ETC.

DATE OF JUDGMENT15/10/1992

BENCH: KULDIP SINGH AND N.M. KASLIWAL, JJ.

ACT: Civil Service:      Madhya Pradesh  Public  Health  Engineering  (Gazetted) Service Rules, 1980:      Schedule  IV-Post   of  Assistant   Engineer-Promotion- Eligibility Counting  of 8 years of Service-Whether from the date of  acquiring degree  of engineering or on the basis of length of service.      Madhya Pradesh  Public  health  Engineering  (Gazetted) Service Rules, 1980:      Schedule  IV-Post   of  Assistant   Engineer-Promotion- Eligibility counting  of 8 years of service-Procedure in the absence of  provisions in  the Rules-Whether on the basis of length of service. C.A. No. 4225/1992(arising out of SLP No.2507/1992)

HEADNOTE: The appellants  and the  private respondents  were Sub- Engineers in  Public Health  Engineering Department  of  the Government. The minimum  period for  Sub-Engineer  to  qualify  for promotion to the post of Assistant Engineer was 12 years for diploma-holders and  8  years  for  such  Sub-Engineers  who obtained the degree of graduation in the course of service. By an  executive order  dated 7.2.1989, quota of direct recruitment was  reduced to  50 per  cent and  the quota  by promotion from the Sub-Engineers, Draftsman, increased to 50 per cent.  The 50  per cent  quota  by  promotion  was  sub- divided. The  promotion quota  for category  of the Graduate Sub-Engineers completing  8 years  of service  was 10%.  The principle of  counting the  seniority was  from the  date of their continuous  officiation irrespective  of the  date  on which such  diploma-holder Sub-Engineer  acquired degree  of graduation in engineering. The Departmental  Promotion  Committee  considered  the cases of 30 Graduate Sub-Engineers for promotion to the post of Assistant  Engineers and  by  order  dated  4.12.1989  it prepared a panel of 18 Graduate Sub-Engineers found suitable for  promotion   to  the  post  of  Assistant  Engineer.  On 6.12.1989 the  Government promoted  one  M.B.Joshi  and  six others as  Assistant Engineer,  who are appellants in appeal arising out  of Special  Leave Petition No.2507 of 1992. The Private respondents  in the appeal, filed and application in the State  Administrative Tribunal  challenging  the  orders dated 4.12.1989  and  6.12.1989.  They  contended  that  the seniority for  the purpose  of  promotion  to  the  post  of Assistant Engineers  in 10  per cent  quota of Graduate Sub-

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Engineers completing  8 years  of service ought to have been considered from the date of attaining the graduate degree of engineering and  not from the date of attaining the graduate degree of  engineering and  not from the date of appointment as Sub-Engineer. The Tribunal  allowed the  petition placing reliance on its earlier  decision in Sanaulla Sunzani V. State of M.P. & Ors.,  T.A.   No.  771/88.  The    Tribunal  held  that  the applicants  (private   respondents  in  the  appeal)  having secured the  degrees in   engineering prior to respondents 3 to 9  ( the  appellants in  the appeal) would rank higher in the graduation  list of  Graduate Sub-Engineers. It directed the State  Government and  Engineer-in-Chief, Public  Health Engineering  Department  to  convene  a  special  D.P.C.  to consider  the  applicants  for  promotion  to  the  post  of Assistant Engineers  as on  4.12.1989 and  if found suitable for promotion,  promote them  and give  them seniority  over respondents 3 to 9. Identical questions  of law  were involved  in all  the appeals (C.A.  Nos. 4255-57  of 1992),  which were preferred against the judgments of the Tribunals. The appellants  contended that  so far  as the  post of Sub-Engineers was  concerned,  the  minimum    qualification prescribed  was   diploma-holder  and   the  seniority   was determined on  the basis  of the  date of appointment on the post of  Sub-Engineer irrespective  of  the  fact  that  the person joining  such post  was a degree-holder or a diploma- holder; that  the scale  of pay was similar and the diploma- holder and   degree-holder  Sub-Engineers stood  on the same footing and  their gradation  list was prepared on the basis of length  of service  in the cadre of Sub-Engineers that in the service  jurisprudence where  the rules were silent, the seniority was  always determined  on the  basis of length of service amongst  the employees  appointed  on a similar post in the  same cadre;  that  obtaining  a  degree  during  the continuation   of service as Sub-Engineer simply accelerated the entitlement  to promotion  for  the  post  of  Assistant Engineer from  12 years  to 8  years but  it did  not in any manner disturb  the seniority  which was  already settled on the basis  of length of service on the post of Sub-Engineer; and that  the D.P.C. rightly prepared the panel of selection and the  Government took  a correct  decision in issuing the order dated 6.12.1989. 2    The respondents  contended that  it  was  necessary  to obtain the  degree of  engineering for  being qualified  for promotion to  the post of Assistant Engineer within a period of 8  years instead  of 12 years; that the period of 8 years to be  counted from  the date  when the  diploma-holder Sub- Engineer acquired the degree of engineering and not prior to said date. Allowing the appeals, this Court, HELD: 1.1.  It is  a well  settle 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.[12-B] 1.2. The Government  itself has  been adopting  the practice and making  promotion as  contended by  the appellants. Such practice is upheld by the Court. [12-A] 1.3. The Rules  do not  contemplate any  equivalence of  any period of service with the qualification of acquiring degree of graduation in engineering. The Rules clearly provide that the diploma-holders  having obtained a degree of engineering while  continuing   in  service  as  Sub-Engineer  shall  be eligible for  promotion to the post of Assistant Engineer in

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8 years  of service  and quota of 10 per cent posts has been earmarked for such category of persons. [11-C-D] 1.4. If the  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. [11-G-H] 1.5. The Tribunal  was wrong  in determining  the  seniority from the   date  of acquiring  degree of  engineering and 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. [12-D-E]

JUDGMENT:      N. Suresh  Nathan &  Anr. v.  Union of  India  &  Ors., [1992] Supp.1 SCC 584, explained.      CIVIL APPELLATE  JURISDICTION: Civil Appeal Nos.4255-57 of 1992.      From the Judgment and order dated 15.10.1991,28.11.1991 and 17.12.1991  of Madhya  Pradesh Administrative  Tribunal, Jabalpur in  O.A.Nos. 140  of 1990 and 3024 of 1991 and T.A. No.35 of 1988.      U.N. Bachawat, B.S. Banthia, G. Prakash, L.C. Agrawala, K.K. Chagotra and Indra Makwana for the Appellants.      S.S. Ray, A. Raghuvir, A.K. Sen. Dr. N.M. Ghatate, S.K. Gambhir, Vivek Gambhir, S.K. Jain, A.P. Dhamija, R.B. Misra, N.D.B. Raju, Anand Prasad, S.V. Deshpande and S.K. Agnihotri for the Respondents.      The Judgments of the Court was delivered by      KASLIWAL, J.  Special leave  granted in  all the  above cases.      All the  above appeals  are disposed  of  by  a  common order, as  identical questions  of law are involved in these cases. For  the purpose  of  understanding  the  controversy raised in  all these  cases, we  are stating  the  facts  of appeal arising  out of  special leave  petition No.  2507 of 1992. The  appellants and  the private respondents were Sub- Engineers  in   Public  Health   Engineering  Department  of Government of  Madhya Pradesh.  They are  governed by Madhya Pradesh Public  Health Engineering  (Gazetted) 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%

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    In the  above cases we are now concerned with the third category of  cases which deal with the promotion of Graduate Sub-Engineers Completing 8 years of service.      The State  Government had  been applying  the principle of counting the seniority of Graduate Sub-Engineers from the date of  their continuous  officiation irrespective  of  the date on  which  such  diploma-holder  Sub-Engineer  acquired degree of  graduation in  engineering. On  this  basis,  the Departmental promotion  Committee took into consideration 30 Graduate  Sub-Engineers  for  promotion  to  the    post  of Assistant Engineers.  The D.P.C.  by order  dated  4.12.1989 prepared a panel of 18 Graduate Sub-Engineers found suitable for  promotion  to  the  post  of  Assistant  Engineer.  The Government by  order dated 6.12.1989 promoted M.B. Joshi and six others  as Assistant  Engineer  who  are  appellants  in appeal arising  out of  special leave  petition No.  2507 of 1992.  The   private  respondents   in  this   appeal  filed application No.  140/90  in  Madhya  Pradesh  Administrative Tribunal, Jabalpur  challenging the  aforesaid orders  dated 4.12.1989 and  6.12.1989. The  contention of  these  persons before the  Tribunal was  that the seniority for the purpose of promotion  to the  post of  Assistant Engineers in 10 per cent quota  of Graduate  Sub-Engineers completing 8 years of service ought  to have  been considered  from  the  date  of attaining the  Graduate degree  of engineering  and not from the  date  of  appointment  as  sub-Engineer.  The  Tribunal placing reliance  on its earlier decision in T.A. No. 771/88 Sanaulla Sunzani  v. State of M.P. & 5 others, held that the seniority  of  diploma-holder  Sub-Engineers  acquiring  the degrees of  graduation in  engineering for  inclusion in the gradation list  of Sub-Engineers  should be counted from the dates of  acquisition of graduation in engineering or of any other equivalent  degree and  not from  the dates  of  their initial entries  as  Sub-Engineers.  Applying  to  aforesaid principle laid  down in  Sanaulla’s case,  the Tribunal held that the  applicants (private  respondents  in  the  appeal) having  secured   the  degrees   in  engineering   prior  to respondents 3  to 9 (the appellants in the appeal) will rank higher in  the gradation list of Graduate Sub-Engineers. The Tribunal as  such allowed the petition filed before them and directed the  State Government and Engineer-in-Chief, Public Health Engineering Department to convene a special D.P.C. to consider applicants  for promotion  to the post of Assistant Engineers  as   on  4.12.1989  and  if  found  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,

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so far  as the  post  of  sub-Engineer  was  concerned,  the seniority was  determined  on  the  basis  of  the  date  of appointment on  the post of Sub-Engineer irrespective of the fact that  the person  joining such post was a degree-holder or a  diploma-holder. The  scale of  pay was similar and the diploma-holder and  degree-holder Sub-Engineers stood on the same footing  and their  gradation list  was prepared on the basis of  length of  service in  the cadre of Sub-Engineers. The next  higher post  for promotion  from the  post of Sub- Engineer is  the post  of Assistant Engineer. Every diploma- holder sub-Engineer  became eligible  for promotion  to  the post of  Assistant Engineer  after having completed 12 years of service.  The Government however, considered it proper to reduce this  period of  12 years  to 8 years in case of such diploma-holder  Sub-Engineers   who  obtained  a  degree  of engineering during  the continuance of their service as Sub- Engineer as a sort of incentive to improve the qualification while continuing  in service.  It was thus, submitted by Mr. Ray  that   it  is   a  well-settled  principle  of  service jurisprudence that where the rules are silent, the seniority is always  determined on  the basis  of  length  of  service amongst the  employees appointed  on a  similar post  in the same cadre.  It was  thus, submitted that obtaining a degree during the  continuation of  service as  Sub-Engineer simply accelerated the  entitlement to  promotion for  the post  of Assistant Engineer  from 12  years to 8 years but it did not in any  manner  disturb  the  seniority  which  was  already settled on  the basis  of length  of service  on the post of Sub-Engineer. It  was submitted  that the  D.P.C.    rightly prepared the  panel of  selection and  the Government took a correct decision in issuing the order dated 6.12.1989.      Mr. Ashok  Sen, learned  senior  counsel  appearing  on behalf of the respondents contended that it was necessary to obtain the  degree of  engineering for  being qualified  for promotion to  the post of Assistant Engineer within a period of 8  years instead  of 12 years. It was further argued that the period of 8 years can only be counted from the date when the  diploma-holder  Sub-Engineer  acquired  the  degree  of engineering and  not prior  to said  date. Mr.  Sen  further placed reliance  on N.  Suresh Nathan  & Another v. Union of India &  Others, [1992]  Supp.1 SCC  584, and submitted that this case clinches the issue raised in these cases and is no longer open for consideration.      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

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    in the grade-50 percent.      2. Section  Officers  possessing  a      recognised   Diploma    in    Civil      Engineering with six years’ service      in the grade-50 per cent."      The dispute  in the  above case  was whether a diploma- holder Junior Engineer who obtains a degree while in service becomes eligible  for appointment  as Assistant  Engineer by promotion on  completion of  three Years’  service including therein the  period of service prior to obtaining the degree or the  three years’ service including therein the period of service prior  to obtaining  the degree  or the three years’ service as  a  degree-holder  for  this  purpose  is  to  be reckoned from  the date  he obtains  the degree. The Central Administrative Tribunal  held that  the applicants  diploma- holders were  entitled to be considered for promotion to the post of  Assistant Engineer  on par  with the  other degree- holder Junior  Engineers taking   due  note of  their  total length other  degree-holder junior Engineers taking due note of their  total length  of service  rendered in the grade of Junior Engineers  taking due  note of  their total length of service rendered  in the  grade of grade of junior of Junior Engineer. Such  a consideration  should be  alongside  other Junior Engineers  who  might  have  acquired  the  necessary degree qualification  earlier  than  the  applicants,  while holding the  post of Junior Engineer. This Court allowed the appeal and  set aside the above order of the Tribunal. While allowing the appeal, this Court held as under:      "In our opinion, this appeal has to      be  allowed.  There  is  sufficient      material including the admission of      respondents  diploma-holders   that      the  practice   followed   in   the      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      paper book. 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      paper book in the counter-affidavit      of respondents  1 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

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    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 from  the date  of  obtaining      the degree  is  quite  tenable  and      commends to  us 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."      A perusal  of the above observations made by this Court clearly show  that the  respondents diploma-holders  in that case had  admitted the  practice followed in that department for a  long time. It was clearly laid down in the above case that 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 was clearly said "it is  in this  perspective that the question raised has to be determined." It was also observed as already quoted above that the  Tribunal was  not justified in taking the contrary view and  unsettling the settled practice in the department. 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 filed by direct recruitment of persons having  degree of  graduation  in  engineering.  The

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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 percent  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 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’  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  the 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  othrwise, 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.      Though, in  the cases  of special leave petitions filed by Shri  Ram Sharan  Gupta &  Others v.  The State of M.P. & Others and  Shri N.N. Asthana & Another v. Shri Harish Kumar Ahuja &  Others, the  parties  belonged  to  the  Irrigation Department of  the State of Madhya Pradesh and were governed with different  set of rules, but the controversy arising in these cases  is amply  covered with the view taken by us and determined in the manner indicated above.      In these  circumstances mentioned above, we are clearly of the  view. that the Tribunal was wrong in determining the

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seniority from  the date  of acquiring degree of engineering and it  ought to have been determined on the basis of length of service  on the  post of  Sub-Engineer and  the State 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.  In the result, we  allow these appeals, set aside the orders of the Tribunal dated  15.10.1991,  28.11.1991  and  17.9.1991  and 8upheld the  orders passed  by the  Government in  all these cases. In  the facts and circumstances of the case, no order as to costs. Appeals allowed.