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PETITIONER: N. SURESH NATHAN AND ANR.

       Vs.

RESPONDENT: UNION OF INDIA AND ORS.

DATE OF JUDGMENT22/11/1991

BENCH: VERMA, JAGDISH SARAN (J) BENCH: VERMA, JAGDISH SARAN (J) SHARMA, L.M. (J) AGRAWAL, S.C. (J)

CITATION:  1992 AIR  564            1991 SCR  Supl. (2) 423  1992 SCC  Supl.  (1) 584 JT 1991 (5)   354  1991 SCALE  (2)1106

ACT: Civil Services:     Recruitment Rules for Assistant Engineers in the  Public Works Department, Pondicherry:     Rules 7 and 11--Promotion of Degree-holder Junior  Engi- neers  with  three years’ service in the  grade---Period  of three years--Whether to commence from the date of  obtaining Degree by Diploma-holders.

HEADNOTE:     The respondents, Diploma-holder Junior Engineers in  the Public Works Department, pondicherry, approached the Central Administrative  Tribunal, with the plea that the  period  of service  rendered  by them before they obtained  the  Degree should be included for reckoning the period of three  years’ service prescribed in the Recruitment Rules for promotion to the  post  of Assistant Engineer in the  category  of  those possessing  Degree  with  three years’ service  and  if  the earlier  period was so included, they would be eligible  for promotion. However, Degree-holders opposed the  respondents’ plea contending that the period of three years prescribed in the  Rules was subsequent to the date of obtaining  the  De- gree.     The Tribunal upheld the respondents’ claim and  directed that they should be considered for promotion on par with the other  Degree-holder  Junior Engineers, taking due  note  of their  total  length  of service rendered in  the  grade  of Junior Engineer. Hence the appeal, by the Special Leave, by the Degree  hold- ers. Allowing the appeal, this Court,     HELD:1.1  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 of the Recruitment Rules, for  promotion to  the post of Assistant Engineer in the Public  Works  De- partment Pondicherry, is 424 three  years  from  the date of obtaining the  Degree  by  a Diplomaholder. This is in conformity with the past  practice followed  consistently.  The Tribunal was not  justified  in

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taking the contrary view and unsettling the settled practice in the Department. [427 D]     1.2 Rule 7 of the Recruitment Rules lays down the quali- fications  for  direct  recruitment from  the  two  sources, namely, Degreeholders and Diploma-holders with three  years’ professional experience. Thus, a Degree is equated to Diplo- ma  with three years’ professional experience. Rule 11  pro- vides for recruitment by promotion from the grade of Section Officers, now called Junior Engineers. There are two catego- ries  provided therein, viz., (1) Degreeholder Junior  Engi- neers with three years’ service in the grade and (2)  Diplo- ma-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  re- quired for Degree-holders according to Rule 11 as the quali- fication  for  promotion in that category  must  mean  three years’  service in the grade as a Degree-holder and,  there- fore, 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. [427 G-H, 428 A-C]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4542 1991.     From  the  Judgment  and Order dated 9.1.  1990  of  the Central  Administrative Tribunal, Madras in O.A. No. 552  of 1989.     P.P.Rao,  Narsimha P.S. and Ms. Vijaylakshmi  Menon  for the Appellants.     Santosh   Hegde,  A.S.  Nambiar,  Ms.   Sangeeta   Garg, P.P.Tripathi,  Mrs. Shanta Vasudevan, P.K. Manohar and  K.R. Choudhary for the Respond- ents. 425 The Judgment of the Court was delivered by     VERMA, J. The Recruitment Rules for the post of  Assist- ant  Engineer in the Public Works  Department,  Pondicherry, prescribe  the  educational  and  other  qualifications  for appointment by direct recruitment and promotion. For  direct recruits, the qualification prescribed is 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 qualifica- tion prescribed is 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%.               2.   Section Officers possessing a  recognised

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             Diploma  in Civil Engineering with six  years’               service in the grade - 50%".     The  dispute in the present case is 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 as a  Degree-holder  for  this purpose  is  to  be reckoned from the date  he  obtains  the Degree.  The Diploma-holders contend that they are  entitled to  include  the earlier period and would  be  eligible  for promotion  in this category on obtaining the Degree  if  the total  period  of service is three years  inclusive  of  the earlier period. The Degreeholders contest this position  and contend  to the contrary. According to  the  Degree-holders, these are two distinct categories. In the first category are Degree-holders  with  three years’ service in the  grade  as Degree-holders,  the period of three years being  subsequent to  the date of obtaining the Degree as in the case  of  the Junior Engineers who join the service with a Degree; and the other category is of Diploma-holders with six years’ experi- ence.     The  Diploma-holders went to the Central  Administrative Tribunal  with this contention and the Tribunals has  upheld their claim and directed as under:               "In  the light of the above, we hold that  the               applicants  are entitled to the  relief  asked               for and accordingly we direct the  respondents               to consider them for promotion to the post of               426               Assistant  Engineer  on  par  with  the  other               Degree  ho1ding Junior Engineers,  taking  due               note of their total length of service rendered               in  the grade of Junior Engineer. Such a  con-               sideration  should be along side other  Junior               Engineers  who might have acquired the  neces-               sary  Degree  qualification earlier  than  the               applicants,  while holding the post of  Junior               Engineer.  For this purpose, the  first  three               respondents  shall  take necessary  action  to               convene a review D.P.C. and pass orders on the               basis  of the recommendations of  that  D.P.C.               within a period of three months from the  date               of receipt of a copy of this order.               The application is allowed as above".     Hence  this petition for grant of special leave  by  the Degree-holders. Leave is granted.     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  re- spondents  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

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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  Engi- neers  in the P.W.D. (Annexure-C) are at pages 57 to  59  of the  paper  book. 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 11  provides for.  recruitment  by promotion from the  grade  of  Section Officers now called Junior Engineers. There are two  catego- ries provided therein - one is of Degree-holder Junior Engi- 427 neers  with three years’ service in the grade and the  other is of Diplomaholder Junior Engineers with six years’ service in the grade, the provision being for 50% from each  catego- ry.  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  11  as the  qualification for promotion in that category must  mean three  years’  service in the grade as a  Degreeholder  and, therefore, that period of three years can commence only from the date of obtaining the Degree and not earlier. The  serv- ice 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, there- fore,  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 Degreeholder  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 consist- ently. It has also been so under-stood 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.     Consequently, the appeal is allowed. The impugned  order of  the Tribunal is set aside resulting in dismissal of  the respondents’  application made in the Tribunal. The  Depart- ment will now consider the question of promotion in  accord- ance with this decision. No costs. N.P.V.                                          Appeal   al- lowed. 428