Reportable IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 8468 OF 2003

N. Suresh Nathan & Ors., Etc. Etc.                  … Appellants

Versus Union of India & Ors., Etc. Etc.                        … Respondents

With

Civil Appeal No. 698 of 2004, Civil Appeal Nos. 3649-3650  of 2010 (Arising out of S.L.P. (C) Nos. 7174-7175 of 2009)  and Civil Appeal No. 8470 of 2003

JUDGMENT

A.K. PATNAIK, J.

   Leave granted in S.L.P. (C) Nos. 7174-7175 of 2009.

2. These are appeals against the judgment and order dated  

23.06.2003 passed by a Division Bench of  the Madras  

High Court in Writ Petition No.11236 of 2000.

3. The  relevant  facts  briefly  are  that  the  Government  of  

Pondicherry, Planning & Development Department, made  

the  Assistant  Engineers  (including  Deputy  Director  of

Public  Works  Department)  Group  ‘B’  (Technical)  

Recruitment  Rules,  1965  [for  short  ‘the  Recruitment  

Rules’] for the post of Assistant Engineers for the Public  

Works  Department  initially  by  a  Notification  dated  

31.01.1966.  The Recruitment Rules were amended by a  

Notification dated 08.08.1986 and as per the amended  

Recruitment Rules the post of Assistant Engineer in the  

Public Works Department, Pondicherry, was a selection  

post  and  appointment  to  the  20%  of  the  posts  of  

Assistant Engineer was to be by direct recruitment and to  

the  80%  of  the  posts  by  promotion.   50%  of  the  

promotion quota was to be filled up by Section Officers  

(now Junior Engineers) possessing a recognized 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  

and the remaining 50% of the promotion quota was to be  

filled  up  by  Section  Officers  (Junior  Engineers)  

possessing a recognized diploma in Civil Engineering with  

six years service in the grade.   

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4. On  24.09.1968,  the  Chief  Secretary,  Government  of  

Pondicherry, wrote to the Secretary, Union Public Service  

Commission (for short ‘the UPSC’) that there were Section  

Officers  with  diploma  qualification  who  have  acquired  

degree  in  Civil  Engineering  or  equivalent  and  have  

putting  in  several  years  in  service  and having become  

qualified for consideration for 50% quota of the post of  

Assistant  Engineers  to  be  filled  up  by  promotion  and  

questions have arisen whether  the  service rendered by  

such  Section  Officers  before  and  after  possessing  the  

degree  or  equivalent  can  be  taken  into  account  for  

consideration  for  promotion  under  the  degree  holders  

quota and whether their cases may be considered under  

the diploma holders quota as well  for promotion to the  

post  of  Assistant  Engineer.   In  the  letter  dated  

24.09.1968, the Chief Secretary sought the advice of the  

Commission  regarding  the  correct  procedure  to  be  

followed in such cases.  The UPSC gave its advice in its  

letter  dated  06.12.1968  that  the  services  of  Section  

Officers,  who  qualify  as  graduates  while  in  service,  

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should be counted from the date they passed the degree  

or equivalent examination or from the date they started  

drawing Rs.225/- p.m. in the prescribed scale, whichever  

was  earlier  and  Section  Officers  may  continue  to  be  

considered  in  the  diploma  holders  quota  in  case  it  is  

advantageous to them and the Government followed this  

advice of the UPSC.   

5. In  1989,  however,  some  Junior  Engineers,  who  were  

formerly  Section  Officers  working  in  the  Public  Works  

and Local Administration Department of Government of  

Pondicherry,  filed O.A.  No.  552 of  1989 in the Central  

Administrative  Tribunal,  Madras  Bench,  (for  short  ‘the  

Tribunal’)  and  in  its  judgment  and  order  dated  

09.01.1990 the Tribunal held that when the Recruitment  

Rules require  three years service  in grade,  the Section  

Officers (now Junior Engineers) who ceased to be mere  

diploma holders having acquired the degree qualification  

have to be regarded as having total experience put in the  

grade of Section Officers before and after acquiring the  

degree  qualification  and  there  was  nothing  in  the  

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Recruitment Rules to warrant the exclusion of a part of  

the experience acquired by such Junior Engineers while  

functioning  in  the  grade  of  Section  Officers  (Junior  

Engineers).   The Tribunal accordingly directed that the  

cases  of  the  applicants  in  the  O.A.  be  considered  for  

promotion to the post of Assistant Engineers on par with  

other degree holders Junior Engineers taking due note of  

their  total  length  of  service  rendered  in  the  grade  of  

Junior  Engineers  and  such  a  consideration  should  be  

along  side  other  Junior  Engineers,  who  might  have  

acquired the necessary degree qualification earlier than  

the  applicants  while  holding  the  post  of  Junior  

Engineers.

6. The  judgment  and  order  dated  09.01.1990  of  the  

Tribunal  was  challenged  by  N.  Suresh  Nathan  and  

Others before this Court in Civil Appeal No. 4542 of 1991  

and this Court interpreting Rule 11 of the Recruitment  

Rules held in the judgment reported in 1992 Supp. (1)  

SCC 584 that the  period of  three  years’  service in the  

grade  required  for  degree-holders  as  qualification  for  

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promotion in the category of degree-holders 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 and  

this interpretation of Rule 11 was in conformity with the  

past  practice  followed  consistently  by  the  Government  

and  that  the  Tribunal  was  not  justified  in  taking  the  

contrary  view  and  accordingly  allowed  the  appeal.  

Review  Petition  No.50  of  1993  was  filed  against  the  

judgment and order dated 22.11.1991 of  this  Court  in  

the  aforesaid  case  but  the  same  was  dismissed  on  

31.01.1993.

7. Thereafter, appellant Nos. 1 to 7 were promoted to the  

post of Assistant Engineer on 08.03.1997.  Respondent  

Nos.  2  to  7 challenged the promotion of  the  appellant  

Nos. 1 to 7 before the Tribunal in O.A. No. 359 of 1997  

contending inter alia that this Court in its judgment in N.  

Suresh Nathan & Ors. v. Union of India & Ors. (supra) has  

only held that three years’ service required for eligibility  

for  the  promotion  quota  reserved  for  the  category  of  

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degree-holders or equivalent should be considered from  

the date of acquiring the degree or equivalent, but has  

not decided the question of seniority as between degree-

holders or equivalent and diploma-holders in the grade.  

The Government of Pondicherry in its reply filed in O. A.  

No.359 of 1997 before the Tribunal contended that the  

Departmental Promotion Committee met on 29.09.1996  

and keeping in view the direction  of  this  Court  in  the  

judgment in N. Suresh Nathan & Ors. v. Union of India &  

Ors.  (supra)  selected  the  Section  Officers/Junior  

Engineers to the post of Assistant Engineers by preparing  

two lists, one list for considering promotions to the post  

of  Assistant Engineer for the degree-holders quota and  

another  list  for  considering  promotion  to  the  post  of  

Assistant Engineers for the diploma-holders quota.  The  

Government of Pondicherry further clarified in its reply  

that  in  the  first  list  those  who  had  joined  as  Section  

Officers/Junior  Engineers  with  degree  in  Civil  

Engineering  were  placed  above  the  Section  

Officers/Junior  Engineers  who  had  joined  the  service  

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with diploma in Civil Engineering but had subsequently  

acquired degree in Civil  Engineering and in the second  

list,  the  Section  Officers/Junior  Engineers  who  had  

joined  with  diploma  were  placed  in  order  of  seniority  

counted from the date of the joining in the grade.  By the  

judgment  and  order  dated  27.08.1999,  the  Tribunal  

dismissed O.A.  No.359 of  1997 after  holding  that  this  

Court  has  already  taken  a  specific  view  in  N.  Suresh  

Nathan’s case (supra) with regard to the procedure to be  

adopted for promotion of Junior Engineers in the Public  

Works  Department  of  Pondicherry  construing  the  

recruitment rules and the applicants in O.A. should not  

be allowed to  raise  the  point  once again and that  the  

judgment of this Court in N. Suresh Nathan’s case was  

binding  on  the  Tribunal  and  it  was  not  open  for  the  

Tribunal to hold otherwise insofar as the interpretation of  

the recruitment rules for the post of Assistant Engineer  

in  the  Public  Works  Department  in  Pondicherry  is  

concerned.   

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8. Aggrieved,  respondents  Nos.3,  4,  5  and  6  filed  Writ  

Petition No.11236 of 2000 before the Madras High Court  

against the judgment and order dated 27.08.1999 of the  

Tribunal in O.A. No.359 of 1997 and by the impugned  

judgment  and  order,  a  Division  Bench  of  the  Madras  

High Court  held  inter  alia that in  N. Suresh Nathan  &  

Ors.  v.  Union  of  India  &  Ors.  (supra)  this  Court  only  

decided  the  question  of  eligibility  for  promotion  to  the  

posts  of  Assistant  Engineer  meant  for  the  category  of  

degree-holders  or  equivalent,  but  did  not  decide  the  

question  of  seniority  of  Section  Officers/Junior  

Engineers,  who  had  acquired  a  degree  in  Civil  

Engineering  or  equivalent  after  joining  as  Section  

Officers/Junior  Engineers and,  therefore,  the judgment  

of this Court in N. Suresh Nathan & Ors. (supra) did not  

operate  as  res  judicata.   The  Division  Bench  of  the  

Madras High Court, relying on the decisions of this Court  

in R. B. Desai & Anr  .   v. S. K. Khanolkar & Ors. [(1999) 7  

SCC 54]  and  A.  K.  Raghumani  Singh  & Ors.  v.  Gopal  

Chandra Nath & Ors. [(2000) 4 SCC 30], further held in  

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the impugned judgment and order that the entire service  

of a person concerned even before acquiring the degree in  

Civil Engineering or equivalent have to be counted for the  

purpose of seniority and promotion and directed that a  

review DPC should be held to consider the question of  

promotion of the petitioners before the High Court vis-à-

vis respondents 2 to 8 and other eligible persons, who  

had become eligible by the date of sitting of the DPC in  

1996 and accordingly allowed the Writ Petition.  

9. Mr. Jawahar Lal Gupta, Mr.  L.  Nageswar Rao and Mr.  

M.N.  Rao,  learned  senior  counsel  appearing  for  the  

appellants,  submitted that  the view taken by the High  

Court in the impugned judgment and order is the same  

as  has  been taken  by  the  Tribunal  in  its  order  dated  

09.01.1990 in the earlier O.A. No.552 of 1989 and as the  

order dated 09.01.1990 of the Tribunal in O.A. No.552 of  

1989  has  been  set  aside  by  this  Court  in  N.  Suresh  

Nathan  &  Ors.  (supra),  the  impugned  judgment  and  

order  of  the  High  Court  cannot  be  sustained.   They  

referred  to  the  earlier  order  dated  09.01.1990  of  the  

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Tribunal  in  O.A.  No.552  of  1989  to  show  that  the  

Tribunal  had  directed  the  authorities  to  consider  the  

applicants  in  the  O.A.  for  promotion  to  the  post  of  

Assistant  Engineer  at  par  with  other  degree-holder  

Junior Engineers taking due note of their total length of  

service rendered in the grade of  Junior  Engineer,  both  

before and after acquiring the degree of Civil Engineering  

or  equivalent,  and submitted that this  Court  set  aside  

this  direction  of  the  Tribunal  in  the  judgment  in  N.  

Suresh Nathan & Ors. (supra).  They further submitted  

that once this Court set aside the order dated 09.01.1990  

of  the Tribunal  in O.A.  No.552 of  1989 on the ground  

that the order of the Tribunal was not in conformity with  

Rule  11  of  the  Recruitment  Rules  and  the  practice  

followed by the Department, the decision of this Court on  

the issue constitutes  res judicata and the interpretation  

of Rule 11 of the Recruitment Rules by this Court was a  

declaration  of  law  binding  on  the  High  Court  under  

Article 141 of the Constitution.   

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10. Mr. M.S. Ganesh, learned senior counsel  appearing for  

the  Government  of  Pondicherry,  reiterated  these  

contentions of the learned counsel for the appellants.

11. Mr. Rakesh Dwivedi and Mr. K.V. Viswanathan, learned  

counsel appearing for respondents No. 2 to 19, in their  

reply, contended that the High Court has rightly held in  

the  impugned  judgment  and  order  that  in  N.  Suresh  

Nathan  &  Ors  (supra),  this  Court  only  decided  the  

question  of  eligibility  of  Section  Officers  or  Junior  

Engineers  for  promotion  to  the  post  of  Assistant  

Engineers meant for the category of degree-holders and  

not the method in which the eligible candidates will be  

considered for promotion.

12.  Para  5  of  the  judgment  in  N.  Suresh Nathan & Ors.  

(supra) which contains the ratio decided by this Court is  

quoted herein below:

“5. The Recruitment Rules for the post of Assistant   Engineers in the PWD (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   

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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 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 per cent 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 per cent 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  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 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   

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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.”

13. On  a  close  reading  of  the  aforesaid  para  5  of  the  

judgment  of  this  Court  in  N.  Suresh  Nathan  &  Ors.  

(supra), we find that this Court confined its decision to  

the  qualification  or  eligibility  for  consideration  for  

promotion  to  50%  vacancies  for  the  post  of  Assistant  

Engineer meant for degree-holders or equivalent in the  

grade of Section Officers/Junior Engineers and held that  

only  those  Sections  Officers  or  Junior  Engineers,  who  

had completed three years’ service after obtaining degree,  

were  qualified  or  eligible  for  consideration  to  the  50%  

vacancies  meant  for  the  category  of  degree-holders  or  

equivalent.  In the judgment in N. Suresh Nathan & Ors.  

(supra),  this  Court  did  not  decide  on how the  Section  

Officers/Junior  Engineers  who  had  completed  three  

years’  service  in  the  grade  after  the  degree  in  Civil  

Engineering  or  equivalent  and had the  qualification or  

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eligibility  for  consideration  for  promotion  to  the  50%  

vacancies meant for the category of degree-holders would  

be considered for promotion.

14. Article  141  of  the  Constitution  states  that  the  law  

declared by this Court shall be binding on all the courts  

within the territory of India.  In N. Suresh Nathan & Ors.  

(supra) this Court has set aside the order of the Tribunal  

dated 09.01.1990 in O.A. No.552 of 1989 after declaring  

that  Section  Officers/Junior  Engineers  having  three  

years’ service in the grade after they acquired degree in  

Civil  Engineering or equivalent will  become qualified or  

eligible for promotion to the 50% vacancies meant for the  

category  of  degree-holders  or  equivalent.  In  N.  Suresh  

Nathan & Ors. (supra) this Court has not declared any  

law  on  how  these  Sections  Officers/Junior  Engineers,  

who had become qualified or eligible for promotion to the  

post of Assistant Engineer under the category of degree-

holders  or  equivalent,  would  be  considered  for  such  

promotion.  There was, therefore, no law declared by this  

Court on how Section Officers or Junior Engineers, who  

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become qualified or eligible for promotion to the post of  

Assistant  Engineer would be considered for  promotion,  

which was binding on the courts under Article 141 of the  

Constitution.

15. Section 11 of the Code of Civil Procedure Code (for short  

‘CPC’) titled ‘Res judicata’ states that no court shall try  

any  issue  which was  directly  or  substantially  in  issue  

between the same parties and which has been heard and  

finally decided by a competent court.   Thus, unless an  

issue directly and substantially raised in the former case  

is  heard  and  decided  by  the  competent  court,  the  

principle  of  res  judicata will  not  be  attracted.   In  N.  

Suresh Nathan & Ors. (supra) this Court, while setting  

aside the order dated 09.01.1990 in O.A. No.552 of 1989,  

has decided that those Section Officers/Junior Engineers  

who  complete  three  years’  service  after  acquiring  the  

degree in Civil Engineering or equivalent are qualified or  

eligible for consideration for promotion to the 50% quota  

of vacancies for the post of Assistant Engineer under the  

degree-holders  category but has not decided how such  

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Section Officers/Junior  Engineers  who are  qualified  or  

eligible will be considered for such promotion under the  

degree-holders category.  The decision of this Court in N.  

Suresh  Nathan  &  Ors.  (supra),  therefore,  did  not  

constitute res judicata on the issue regarding the manner  

in  which  Section  Officers/Junior  Engineers  who  were  

qualified or eligible for consideration for promotion to the  

post  of  Assistant  Engineer  would  be  considered  for  

promotion.

16. The High Court was, therefore, right in taking the view  

that in N. Suresh Nathan & Ors. (supra), this Court was  

concerned only with the question of eligibility but was not  

concerned  whether  the  past  services  rendered  by  the  

diploma-holders  would  be  counted  for  the  purpose  of  

seniority and that neither Article 141 of the Constitution  

nor the principle of res judicata was a bar for Tribunal or  

the  High  Court  to  consider  whether  past  services  of  

Section  Officers/Junior  Engineers  who  were  diploma-

holders before they acquired degree in Civil Engineering  

or  equivalent  could  be  counted  for  the  purpose  of  

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promotion for the 50% vacancies for the post of Assistant  

Engineers  meant  for  the  category  of  degree-holders  or  

equivalent.

17. Learned counsel for the appellants next submitted that  

Rule  11  of  the  Recruitment  Rules  provides  for  two  

streams or channels of promotion to the post of Assistant  

Engineer,  Public  Works  Department,  one  stream  or  

channel  is  for  Sections  Officers  or  Junior  Engineers  

possessing  a  recognized  degree  in  Civil  Engineering  or  

equivalent  and  the  other  for  Section  Officers/Junior  

Engineers  holding  diploma  in  Civil  Engineering.   They  

submitted that it is for this reason that the UPSC in its  

letter dated 06.12.1968 advised the Government that the  

services  of  Section  Officers/Junior  Engineers,  who  

qualify as graduates while in service, should be counted  

from the date they passed the degree or equivalent while  

considering them for promotion for the channel or stream  

of  promotion  meant  for  Section  Officers  or  Junior  

Engineers  having  degree  in  Civil  Engineering  or  

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equivalent and the Government of Pondicherry has acted  

on this advice of the UPSC.

18. Mr. Nageswar Rao cited the decision in  Chandravathi P.  

K. & Ors. v. C.K. Saji & Ors. [(2004) 3 SCC 734] in which  

the question for consideration was whether in terms of  

the  scheme of  the  Kerala  Engineering Service  (General  

Branch)  Rules,  diploma-holders  were  entitled  to  claim  

any weightage for the service rendered by them prior to  

their acquisition of degree qualification in the matter of  

promotion or transfer to higher posts when specific quota  

is fixed for graduates and diploma-holders in the matter  

of  promotion  and this  Court,  on a  conjoint  reading  of  

Rules 4 and 5 of the Kerala Engineering Service (General  

Branch)  Rules,  held  that  a  diploma-holder  Assistant  

Engineer  who  subsequently  acquired  a  degree  

qualification would be eligible for promotion as Assistant  

Executive  Engineer,  only  in  the  event  he  fulfils  the  

conditions precedent therefor and not otherwise and his  

case  could  be  considered  only  after  the  cases  of  

1

promotion of  those who had been holding such degree  

qualification have been considered.

19. Mr. Ganesh adopted these arguments of learned counsel  

for the appellants and cited the decision in  Shailendra  

Dania & Ors. v.  S. P. Dubey & Ors. [(2007) 5 SCC 535]  

wherein this Court interpreting the rules for promotion to  

the  post  of  Assistant  Engineers  in  CPWD,  which  has  

adopted by the DDA, found that 25% of the total posts of  

Assistant  Engineers  were  to  be  filled  up  by  promotion  

from the category of graduate Junior Engineers and 25%  

of the total posts were to be filled up by diploma-holders  

with eight years’ service and held that a separate quota  

was, thus, prescribed for promotion of Junior Engineers  

for  degree  and  diploma-holders  to  the  higher  post  of  

Assistant Engineer.  He submitted that in the aforesaid  

case  of  Shailendra  Dania  &  Ors. (supra),  this  Court  

emphatically held that the service experience required for  

promotion from the post of Junior Engineer to the post of  

Assistant Engineer in the limited quota of degree-holder  

Junior Engineers in the service experience of a degree-

2

holder and cannot be equated with the service rendered  

as a diploma-holder.  Relying on this decision, learned  

counsel  for  the  Government  of  Pondicherry  submitted  

that the prior service experience of a Section Officer or  

Junior Engineer while he was diploma-holder and when  

he had not acquired the degree in Civil  Engineering or  

equivalent  cannot  be  counted  for  the  purpose  of  

consideration for the 50% quota of promotion to the post  

of Assistant Engineer meant for degree-holders.

20. Learned counsel appearing for the respondents 2 to 19,  

on  the  other  hand,  submitted  that  Rule  11  of  the  

Recruitment Rules does not provide for two streams or  

channels of promotion as contended by learned counsel  

for the appellants and it only lays down the qualification  

or eligibility  of three years’  service after degree in Civil  

Engineering or equivalent as a qualification or eligibility  

and  once  a  diploma-holder  acquires  a  degree  in  Civil  

Engineering  or  equivalent,  his  entire  length  of  service  

both  prior  to  acquisition  of  such  degree  in  Civil  

Engineering or equivalent and after acquisition of such  

2

degree or equivalent has to be taken into consideration at  

the  time  of  consideration  for  promotion  to  the  post  of  

Assistant Engineer meant for degree-holders.

21. Mr.  Viswanathan  cited  this  Court’s  decision  in  R.  B.  

Desai & Anr  .   v. S. K. Khanolkar & Ors. [(1999) 7 SCC 54]  

for  proposition  that  if  at  the  time  of  consideration  for  

promotion,  the  candidates  concerned  have  acquired  

eligibility,  then  unless  a  rule  specifically  gives  an  

advantage to a candidate with earlier eligibility, the date  

of seniority should prevail over the date of eligibility.  He  

submitted  that  in  the  present  case,  the  rules  for  

promotion  from  the  post  of  Section  Officer  or  Junior  

Engineer  to  Assistant  Engineer  did  not  give  any  such  

priority to the candidates acquiring earlier eligibility.  He  

submitted that  Chandravathi P. K. & Ors. v.  C.K. Saji &  

Ors.  (supra)  was  a  case  where  the  rules,  namely,  the  

Kerala Engineering Service (General Branch) Rules, were  

different from the Recruitment Rules in the present case  

and  the  Kerala  Engineering  Service  (General  Branch)  

Rules  clearly  provided  for  two  different  streams  or  

2

channels  of  promotion  for  the  posts  of  Assistant  

Engineer,  i.e.  for  diploma-holders  and  degree-holders.  

He submitted that in  Shailendra Dania & Ors.  v.  S. P.  

Dubey & Ors. (supra) cited by the learned counsel for the  

appellants  and  the  Government  of  Pondicherry,  the  

question for consideration was whether a diploma-holder  

Junior Engineer, who obtained a degree while in service,  

became  eligible  for  promotion  to  the  post  of  Assistant  

Engineer on completion of three years of service after he  

obtained  the  Engineering  degree  or  on  completion  of  

three  years  of  service  prior  to  obtaining  the  degree  in  

Engineering  and  while  answering  this  question,  this  

Court  held  that  a  diploma-holder  Junior  Engineer  

became  eligible  for  promotion  to  the  post  of  Assistant  

Engineer on completion of  three years’  service after  he  

obtained the Engineering degree.  He submitted that the  

decision of this Court in Shailendra Dania & Ors. (supra),  

therefore,  is  not  an  authority  for  proposition  that  the  

service of diploma-holders put in prior to the acquisition  

of the degree or equivalent by him will have to be ignored  

2

while  considering  them  for  promotion  to  the  post  of  

Assistant Engineer meant for degree holders.   

22. Rule 11 of the Recruitment Rules in the present case is  

quoted herein below :-

      “11. In case of recruitment                Promotion  by promotion/deputation/               1. Section Officer    Transfer grades from which                 possessing a promotion/deputation/                       recognized degree transfer to be made.                            in Civil                                                                     Engineering or                                                            Equivalent with 3                                                            Years service in                                                             the grade failing                                                            which Section                                                            Officers holding                                                            diploma in Civil                                                            Engineering with                                                            6 years service in                                                            the grade – 50%.                                                                                         2. Section Officers                                                             possessing a                                                             recognized                                                                  diploma in Civil                                                              Engineering with                                                              6 years service in                                                              the grade – 50%”

23. A  plain  reading  of  Rule  11  of  the  Recruitment  Rules  

quoted above would make it clear that for the 50% quota  

for  the  posts  of  Assistant  Engineer  mentioned  under  

2

Clause  1  of  Rule  11,  Section  Officers  (now  Junior  

Engineers)  possessing  recognized  degree  in  Civil  

Engineering or equivalent with three years’ service in the  

grade, failing which Section Officers possessing diploma  

in Civil Engineering with six years’ service in the grade  

would be eligible for consideration for promotion.  All that  

the  Rule  provides is  that  if  for  vacancy in  the  post  of  

Assistant  Engineer,  Section  Officers  possessing  

recognized degree in Civil Engineering or equivalent with  

three years’ service in the grade are not available, Section  

Officers  holding  diploma  in  Civil  Engineering  with  six  

years  service  in  the  grade  could  be  considered  for  

promotion.   Clause  1  of  Rule  11  is,  therefore,  only  a  

provision laying down the qualification or eligibility  for  

promotion to 50% of the posts of Assistant Engineer and  

the qualification or  eligibility  provided therein is  either  

three  years  service  in  the  grade  of  Section  Officers  or  

Junior  Engineers  after  degree  in  Civil  Engineering  or  

equivalent  or  six  years  service  in  the  grade  of  Section  

Officers  or  Junior  Engineers  with  diploma  in  Civil  

2

Engineering.   This provision also has a rider that if there  

are Section Officers/Junior Engineers, who have put in  

three years service after acquiring degree or equivalent,  

available for consideration for vacancies,  then they will  

be  considered  first  for  promotion  and  the  turn  for  

consideration for  promotion of  diploma-holders  in Civil  

Engineering with six years service in the grade of Section  

Officers/Junior  Engineers  will  come  only  thereafter.  

Thus, the Rule itself provides that if for vacancies in the  

post of Assistant Engineer, Section Officers possessing a  

recognized degree in Civil Engineering or equivalent with  

three years’ service in the grade are not available, then  

Section Officers holding diploma in Civil Engineering with  

six  years’  service  in  the  grade  would  be  eligible  for  

promotion.  We, therefore, cannot accept the submission  

of learned counsel for the appellants and the Government  

of Pondicherry that Clause 1 of Rule 11 provides for a  

separate stream or channel of promotion exclusively for  

degree-holders, who have completed three years service  

and we are of the opinion that learned counsel for the  

2

respondents  2  to  19  are  right  in  the  submission  that  

Clause 1 of Rule 11 only lays down the qualification or  

eligibility for consideration for promotion to 50% of the  

posts of Assistant Engineers.

24. In Chandravathi P. K. & Ors. v.  C.K. Saji & Ors. (supra),  

cited by Mr. L. Nageshwara Rao, on the other hand, this  

Court  held  that  under  Rules  4  and  5  of  the  Kerala  

Engineering Service  (General  Branch)  Rules there  were  

separate avenues of promotion for the degree-holders and  

the  diploma  holders.   This  will  be  clear  from  the  

observations of the Court in para 30 of the judgment in  

Chandravathi  P.  K.  & Ors.  v.  C.K.  Saji  & Ors.  (supra),  

quoted herein below:

“A  bare  perusal  of  Rules  4  and  5  of  the  Kerala  Engineering Service (General Branch) Rules would clearly  go to show that the avenues for promotion for the degree- holders  and  the  diploma  holders  were  separate.  ……”  [(2004) 3 SCC 734 at 748]

25. In Shailendra Dania & Ors. v. S. P. Dubey & Ors. (Supra)  

cited by learned counsel Mr. Ganesh, this Court similarly  

found that there were two different channels or streams  

of promotion for degree-holders and diploma holders to  

2

the post of Assistant Engineer in the relevant rules.  This  

will be clear from the findings in para 44 of the judgment  

quoted herein below:

“……  There  is  watertight  compartment  for  graduate  Junior Engineers and diploma-holder Junior Engineers.  They are entitled for promotion in their respective quotas.  Neither  a  diploma-holder  Junior  Engineer  could  claim  promotion in the quota of degree-holders because he has  completed three years of service nor can a degree-holder  Junior  Engineer  make  any  claim  for  promotion  quota  fixed for diploma-holder Junior Engineers.  [(2007) 5 SCC  533 at 560)]”

26. In the present case, on the other hand, Clause 1 of  

Rule  11  of  the  Recruitment  Rules  does  not  provide  for  

“separate  avenues”  or  “watertight  compartments”  for  

promotion  to  the  post  of  Assistant  Engineers  for  degree-

holders and diploma-holders.  As we have seen Clause 1 Rule  

11 of the Recruitment Rules only lays down the qualification  

or  eligibility  for  consideration  for  promotion  to  the  post  of  

Assistant Engineers earmarked for the 50% quota.  The two  

decisions of this Court in  Chandravathi  P. K. & Ors. v.  C.K.  

Saji & Ors. (supra) and Shailendra Dania & Ors. v. S. P. Dubey  

&  Ors.  (Supra)  are,  therefore,  of  no  assistance  to  the  

appellants.  

2

27. In R. B. Desai & Anr  .   v. S. K. Khanolkar & Ors. (supra)  

cited by Mr. Viswanathan, this Court found that the amended  

rules  of  1988  pertaining  to  the  promotion  to  the  cadre  of  

Assistant Conservator of Forests provided that Range Forest  

Officers  with  five  years  regular  service  in  the  grade  and  

possessing  diploma of  Forest  Rangers’  Training  from Forest  

Rangers  College  in  India  or  equivalent  were  eligible  for  

promotion to the post of Assistant Conservator of Forests and  

the Court held in para 9:  

“………….  that  if  at  the  time  of  consideration  for  promotion the candidates concerned have acquired the  eligibility,  then  unless  the  rule  specifically  gives  an  advantage to a candidate with earlier eligibility, the date  of  seniority  should  prevail  over  the  date  of  eligibility.  The rule  under  consideration does  not  give  any such  priority  to  the  candidates  acquiring  earlier  eligibility  and, in our opinion, rightly so.  In service law, seniority  has its own weightage and unless and until the rules  specifically exclude this weightage of seniority, it is not  open to the  authorities  to ignore  the  same.  [(1999)  7  SCC 54 at 58]

28. In the passage of the judgment of this Court in  R.B.  

Desai & Anr. V. S. K. Khanolkar & Ors. (supra) quoted above, it  

2

is  laid  down  that  in  service  law,  seniority  has  its  own  

weightage and unless and until the rules specifically exclude  

this seniority, it is not open to the authorities to ignore the  

same.   In  the  aforesaid  case  though  the  post  of  ACF  was  

mentioned to be a selection post in the amended rules of 1988,  

the question whether for a selection post seniority would have  

weightage or merit would have weightage while considering the  

eligible  candidates  for  promotion was not  raised  or  decided  

and the only question which was raised before this Court was  

whether ranking assigned in the eligibility list or the ranking  

assigned to the seniority list should be given weightage and  

this Court held that between the candidates who are eligible,  

ranking in seniority must be given weightage irrespective of  

the date for which the candidate becomes eligible.   

29. In  the  present  case,  we  find  that  Rule  5  of  the  

Recruitment Rules states that the post of Assistant Engineer  

in the Public Works Department, Pondicherry, is a selection  

post.  The Recruitment Rules, however, do not lay down that  

seniority-cum-merit would be the criteria for promotion to the  

selection post of Assistant Engineer.  In Dr. Jai Narain Misra v.  

3

State of Bihar & Ors. [(1971) 1 SCC 30] a three-Judge Bench of  

this Court held that the question of seniority was not relevant  

for  promotion  to  the  selection  post  in  the  language  of  the  

judgment of this Court in Dr. Jai Narain Misra v. State of Bihar  

& Ors. (supra):

“It was not disputed before us that the post of Director  of  Agriculture  is  a  selection  post.   Therefore,  the  question of seniority was not relevant in making the  selection.  It is for the State Government to select such  officer as it considers as most suitable.  In this view we  think the High Court was not justified in going into the  question of seniority nor will we be justified in going  into that question.”

Thus, the question of seniority in the grade of Section Officers  

or Junior Engineers is not at all relevant for promotion to the  

post of Assistant Engineer in the Public Works Department,  

Government  of  Pondicherry.   The  practice  adopted  by  the  

Government of Pondicherry in consultation with the UPSC of  

counting the services of Section Officers or Junior Engineers,  

who qualified as graduates while in service from the date they  

passed the degree or equivalent examination and placing them  

in  order  of  seniority  accordingly  for  the  purpose  of  

consideration for promotion to the post of Assistant Engineer  

3

under  Clause  1  of  Rule  11  of  the  Recruitment  Rules  is  

contrary to Rule 5 of the Recruitment Rules.  Similarly, the  

direction of  the High Court  in  the  impugned judgment  and  

order to count the entire service of a person concerned even  

before acquiring degree in Civil Engineering for the purpose of  

seniority  and  promotion  to  the  post  of  Assistant  Engineer  

under  Clause  1  of  Rule  11  of  the  Recruitment  Rules  is  

contrary to Rule 5 of the Recruitment Rules.   

30. The  person,  who  is  most  meritorious,  is  the  most  

suitable person to be promoted for the selection post.  Merit,  

in  other  words,  is  the  sole  criteria  for  promotion  to  the  

selection post.   In Guman Singh, etc. v. State of Rajasthan &  

Ors.  [1971  (2)  SCC  452]  a  five-Judge  Bench  of  this  Court  

speaking  through  Vaidialingam,  J.  explained  how  merit  of  

candidates for promotion is to be assessed in para 35 at page  

408 of the judgment in the following words:  

“………..  No doubt the term ‘merit’ is not capable  of  an easy  definition,  but  it  can be  safely  said  that merit is a sum total of various qualities and  attributes of an employee such as his academic  qualifications,  his  distinction  in  the  University,  his character, integrity, devotion to duty and the  manner in which he discharges his official duties.  

3

Allied  to  this  may  be  various  other  matters  or  factors such as his punctuality in work, quality  and  outturn  of  work  done  by  him  and  the  manner  of  his  dealings  with  his  superiors  and  subordinate officers and the general public and  his rank in the service.  We are only indicating  some of the broad aspects that may be taken into  account in assessing the merits of an officer.  In  this connection it may be stated that the various  particulars in the annual confidential reports of  an  officer,  if  carefully  and  properly  noted,  will  also  give  a  very  broad  and  general  indication  regarding the merit of an officer. “       

Where, therefore, there are large number of eligible candidates  

available for consideration for promotion to a selection post,  

the  Government  can issue  executive  instructions  consistent  

with the principle of merit on the method to be followed for  

considering  such  eligible  candidates  for  promotion  to  the  

selection post.

31. Learned counsel for the appellants however submitted  

that when the Recruitment Rules are silent on the procedure  

to be adopted by the Government in selecting the candidates  

for promotion, the Government is the best authority to decide  

what  procedure  to  be  adopted  in  such  promotion  and  the  

Court will not interfere with the procedure so adopted unless it  

was  unconstitutional,  arbitrary,  unreasonable  or  otherwise  

3

illegal.  In support of this submission, Mr. L. Nageswar Rao  

cited the decisions of this Court in  Suman Gupta v.  State of  

J  &  K  [(1983)  4  SCC 339],  Munidra  Kumar v.  Rajiv  Govil  

[(1991) 3 SCC 368],  Satya Narain  Shukla v.  U.O.I.  [(2006) 9  

SCC 69], P.U. Joshi v. Accountant General [(2003) 2 SCC 632],  

U.O.I. v. Pushpa Rani [(2008) 9 SCC 242], Inderjeet Khurana v.  

State of Haryana [(2007) 3 SCC 102] and U.O.I. v. A.K. Narula  

[(2007)  11  SCC  10].   Learned  counsel  for  the  appellants  

submitted  that  in  the  present  case  the  Government  of  

Pondicherry in consultation with the UPSC has adopted the  

procedure  since  1968  that  the  services  of  Section  

Officers/Junior Engineers who qualified as graduates while in  

service  should  be  counted  from  the  date  they  passed  the  

degree  or  equivalent  examination  for  the  promotion  under  

clause 1 Rule 11 of the Recruitment Rules and this procedure  

is not unconstitutional, arbitrary, unreasonable or illegal and,  

therefore,  the  High  Court  by  the  impugned  judgment  and  

order  should  not  have  interfered  with  this  procedure  and  

should not have directed that the entire service of a person  

concerned even before acquiring the degree in civil engineering  

3

or equivalent has to be counted for the purpose of seniority  

and promotion to the post of Assistant Engineer under clause  

1  of  Rule  11  of  the  Recruitment  Rules.   Learned  counsel  

appearing  for  the  Government  of  Pondicherry  adopted  this  

contention of the learned counsel of the appellants.

32. Learned  counsel  for  the  respondents  No.2  to  19,  in  

their  reply,  submitted  that  the  Government  cannot  adopt  a  

procedure  for  selection  by  way  of  promotion  to  the  post  of  

Assistant Engineer contrary to the Recruitment Rules.  They  

submitted that the Recruitment Rules do not provide that for  

promotion under clause 1 of Rule 11, the services of Section  

Officers/Junior Engineers who qualified as graduates while in  

service,  would  be  counted  from  the  date  they  passed  the  

degree or equivalent examination and their  services prior to  

the  date  of  passing  the  degree  or  equivalent  examination  

would  be  ignored.  They  further  submitted  that  the  

Government  also  cannot  adopt  the  procedure  of  selection  

which violates the fundamental right guaranteed under Article  

16 of the Constitution of India to equality of opportunity in  

matters of public employment.  They submitted that once a  

3

candidate  became  eligible  or  qualified  to  be  considered  for  

promotion to the post of Assistant Engineer under clause 1 of  

Rule  11  of  the  Recruitment  Rules,  he  has  a  right  to  be  

considered for such promotion and such consideration cannot  

be  denied  by  laying  down  a  procedure  which  ignores  his  

seniority  in  the  grade  of  Section  Officer/Junior  Engineer.  

They relied on the decision of this Court in M.B. Joshi v. Satish  

Kumar Pandey [1993 Supp.(2) SCC 419].  

33. In  M.B.  Joshi v.  Satish  Kumar  Pandey  (supra),  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  the  degree  of  

graduation in Engineering and on the basis of such seniority,  

the  Departmental  Promotion  Committee  was  considering  

Graduate Sub-Engineers for promotion to the post of Assistant  

Engineers.  When  this  method  adopted  by  the  State  

Government  was  challenged  by  some  of  the  Sub-Engineers  

before the Madhya Pradesh Administrative Tribunal, Jabalpur,  

the  Tribunal  held  that  the  seniority  of  such Sub-Engineers  

3

must be determined from the date of acquiring the degree of  

graduation  in  Engineering  and  this  Court  held  that  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 Government was right in doing so and  

there  was  no  infirmity  in  the  orders  passed  by  the  

Government.   In  this  case  also,  the  question  did  not  arise  

whether for selection post seniority would have weightage or  

merit  would  have  weightage  while  considering  the  eligible  

candidates for promotion.   

34. As we have seen, Rule 5 of the Recruitment Rules in  

the present case states that the post of Assistant Engineer is a  

selection post  and the Recruitment  Rules  no where provide  

that seniority-cum-merit would be the criteria for promotion.  

In the absence of any indication in the Recruitment Rules that  

seniority in the grade of Section Officers / Junior Engineers  

will be counted for the purpose of promotions to the post of  

Assistant  Engineer,  consideration  of  all  Section  Officers  /  

Junior  Engineers  under  Clause  1  of  Rule  11  of  the  

3

Recruitment Rules who are eligible for such consideration has  

to be done on the basis of assessment of the comparative merit  

of the eligible candidates and the most suitable or meritorious  

candidate has to be selected for the post of Assistant Engineer.  

Such a method of selection will be consistent with Rule 5 of  

the  Recruitment  Rules  and  Article  16  of  the  Constitution  

which  guarantees  to  all  citizens  equality  of  opportunity  in  

matters  of  public  employment.   In  our  considered  opinion,  

therefore,  the  practice  adopted  by  the  Government  of  

Pondicherry on the advice of the UPSC of counting the service  

of the eligible candidates from the date of acquisition of the  

degree  in  Civil  Engineering  by  them  and  the  impugned  

judgment and order of the High Court directing that the entire  

service of eligible candidates, both prior and after acquisition  

of the degree of Civil Engineering by them, would be counted  

for the purpose of promotion to the post of Assistant Engineer  

under  Clause  1  of  Rule  11  of  the  Recruitment  Rules  are  

contrary  to  the  rules  made  under  Article  309  of  the  

Constitution  and  the  fundamental  right  guaranteed  under  

Article 16 of the Constitution.

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35. For the aforesaid reasons, we set aside the impugned  

judgment of the High Court and direct the Government  

of  Pondicherry  to  consider  the  cases  of  all  Section  

Officers  or  Junior  Engineers,  who  have  completed  

three years’ service in the grade of Section Officers or  

Junior  Engineers,  for  promotion  to  the  vacancies  in  

the  post  of  Assistant  Engineer,  Public  Works  

Department,  Government  of  Pondicherry,  in  

accordance with their merit.  We make it clear that the  

promotions to the post of Assistant Engineers already  

made pursuant to the judgment and order of the High  

Court will not be disturbed until the exercise is carried  

out for promotion in accordance with merit as directed  

in this judgment and on completion of such exercise,  

formal  orders  of  promotion  to  the  vacancies  in  the  

posts  of  Assistant  Engineer  which  arose  during  the  

pendency of the cases before this Court are  passed in  

case of those who are selected for promotion and after  

such  exercise  only  those  who  are  not  selected  for  

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promotion  may  be  reverted  to  the  post  of  Section  

Officer or Junior Engineer.   

The appeals are disposed of accordingly with no order  

as to costs.   

……………………..J.                                                                   (J. M. Panchal)

……………………..J.                                                                   (A.K. Patnaik) New Delhi, April 22, 2010.    

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