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PETITIONER: RAMESH KUMAR CHOUDHA & ORS.

       Vs.

RESPONDENT: STATE OF M.P. & ORS.

DATE OF JUDGMENT:       20/09/1996

BENCH: K. RAMASWAMY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Delay condoned.      Leave granted.      We have learned counsel on both sides.      These appeals by special leave arise from the orders of the Madhya Pradesh State Tribunal made on October 1, 1994 in O.A. No.616/93 and batch.      The admitted  position is that the appellants as well a the respondents  are governed  by  the  provisions  of  M.P. Irrigation  Engineering   Services  (Gazetted)   Recruitment Rules, 1968  issued by the Governor in exercise of the power under proviso  to Article 309 of the Constitution. Rule 7 of the Rules  prescribes the  mode  of  recruitment  either  by direct  recruitment   or  by  promotion  of  substantive  or officiating  feeder   cadre,  i.e.,   sub-Engineers,  or  by transfer of  person who  held in a substantive capacity such post as  may be  specified   by the State Government in that behalf. Eligibility  criteria has been prescribed under Rule 15 and  procedure for consideration under Rule 16 which read as under :      "15. Condition  of eligibility  for      promotion :-      (1) Subject  to the  provisions  of      sub-rule   (2),    the    committee      consider the  cases of  all persons      who on  the 1st  day of  January of      that   year   had   completed   the      prescribed   years    of    service      (whether       officiating       or      substantive)  on  the  post/service      mentioned in  column 2  of Schedule      IV  or  any  other  post  or  posts      Schedule IV  or any  other post  or      posts declared  equivalent  thereto      by the  Government as under and are      within the zone of consideration as      per sub-rule (2) :-      (i)       Sub-Engineers        Head      Draftsman/Draftsman to  the post of      Assistant Engineers minimum service

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    of 12  years as Sub-Engineers, Head      Draftsman/Draftsman.      Provided that  a sub-Engineer  head      Draftsman/Draftsman who completed a      minimum  of  8  years  service  and      possessed         degree         in      Civil/Electronical/Mechanical      Engineering       from   recognised      University     or     qualification      declared equivalent  thereto by the      State  Government   will  also   be      eligible for promotion to the  post      of Assistant  Engineer and  will be      considered each  time,  just  after      the zone  of consideration  and the      final selection  list shall be made      from both  the groups  on the basis      of  merits,  for  example,  if  ten      posts are  vacant in  the cadre  of      Assistant Engineers  then 10 X 5-50      diploma holders  sub-Engineers from      working list  be  considered  first      and   thereafter    the    eligible      graduate      sub-Engineers      be      considered in  the order  of  their      seniority for promotion.      (ii) Junior  Engineers to  the post      of Assistant  Engineers to the post      of  Assistant   Engineers   Minimum      Service  of   2  years   as  Junior      Engineers.      (iii)      Research      Assistants to the post of Assistant      Research  Officers-Minimum  Service      of 8 years as Research Assistant.      (iii)   Embankment   Inspector/Silt      Analysts to  the post  of Assistant      Research  Officers-Minimum  Service      of   8    years    as    Embankment      Inspector/Slit      (iv) Assistant  Engineers  promoted      from       Sub-Engineers       Head      Draftsman/Draftsman cadres  to  the      post of  E.E. minimum  18 years  of      total service out of which at least      6  years  should  be  as  Assistant      Engineers.      (v) Assistant Engineers to the post      of Executive-Engineers minimum of 6      years as Assistant Engineer.      vi) Superintending Engineers to the      post  of   Chief  Engineers-Minimum      Service 6  years as  Superintendent      Engineers.      (2) The  field of  selection  shall      ordinarily be limited to five times      the  number   of  officers   to  be      included  in   the   select   list,      provided  that   if  the   required      number of suitable officers are not      available   in    the   field    so      determined   the   field   may   be      enlarged to  the extent  considered      necessary  by   the  Committee   by      mentioning the reasons in writing.      16. Preparation  of  list  suitable

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    officers :-      (1) The  committee shall  prepare a      list of such persons as satisfy the      conditions prescribed  in the  Rule      15  above   and  are  held  by  the      Committee  to   be   suitable   for      promotion to the service. This list      shall be  sufficient to  cover  the      anticipated vacancies on account of      retirement  and  promotions  during      the course  of one  year  from  the      date of  preparation of  the select      list. A  reserve list consisting of      25%  of   the  number   of  persons      included in  the said  select list,      shall  be   prepared  to  meet  the      unforeseen   vacancies    occurring      during the  course of the aforesaid      period.      (2) The  selection for inclusion in      such list  shall be  based on merit      and  suitability  in  all  respects      with due regard to  seniority.      (3)  The   names  of  the  officers      included  in   the  list  shall  be      arranged in  order of  seniority in      the (as  in column  II Scheduled IV      service at  the time of preparation      of each  select list; provided that      any junior  Officer,  who is in the      opinion of  the committee, is of an      exceptional merit  and suitability,      may  be  assigned  in  the  list  a      higher place  then that of officers      senior to him.      Explanation :-  A person whose name      is excluded  in the select list but      who  is  not  promoted  during  the      validity of  the list shall have no      claim  to   seniority  over   those      considered    in    a    subsequent      selection merely by the fact of his      earlier selection.  (4) The list so      prepared  shall   be  reviewed  and      revised every year.      (5)  If   in  the  process  of  the      selection, review  of revision,  it      is proposed to supersede any member      of the service or members of Madhya      Pradesh Irrigation Department (non-      gazetted)  Service,  the  Committee      shall record  its reasons  for  the      proposed supersession."      A resume of these Rules would clearly indicate that the eligibility is  considered as on 1st of January of the year. The incumbent  must have  completed the  prescribed years of service, namely,  8 years of for Graduation Engineers and 12 years of  service for  the sub-Engineers.  It is  not in the dispute that  the appellants  as on  January  1992  had  not acquired the  Graduation qualification  but some of them had completed 8 years of service. Similarly, the respondents who were promoted  as per  the directions  of the  Tribunal  had admittedly acquired  the  qualifications  of  Graduation  in October 1992.  When the DPC met in December 1992 for filling up of  the vacancies  for the year 1992 their claims did not

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come up consideration. So, the respondents filed OAs and the Tribunal has  held that  since they had completed 8 years of service and   also  acquired the  graduation, they should be considered if found fit to be promoted. Thus they came to be promoted.      The  case   of  the   appellants  is  that  though  the respondents had  completed the  eligibility criteria  as  on January 1  of the  year 1992,  a fact  that  the  graduation qualification acquired  subsequent to  that date  but before the DPC  had considered  their cases  are not entitled to be promoted. The  approach   adopted by the Tribunal is illegal and contrary  to Rules  15 and  16 of  the Rules referred to hereinbefore. We  find force in the contention. As seen Rule 15 is  a clear  mandate  as  to  the  eligibility  criteria. Firstly, the diploma-holders should have minimum of 12 years qualifying service  for eligibility  to  be  considered  for promotion  as  Assistant  Engineers.  If  a  diploma  holder acquires graduation,  he should  complete minimum  of  eight years  of   service  then   only  he  becomes  eligible  for consideration for promotion as Assistant Engineer. He should hold the post as sub-Engineer in as substation or continuous officiating capacity as prescribed. But the cut off date for eligibility  is  1st  January  of  the  year  in  which  the eligibility was  to be  considered.  Since  the  respondents acquired the  qualifications in  October 1992.  they did not become eligible for consideration for promotion for the year 1992 though  the DPC had met in December 1992. Consequently, the direction issued by the Tribunal and the appointments of the respondents  made pursuant  to the  contempt orders  are clearly illegal. We are informed that they have been already promoted. Therefore,   their promotions should be treated to be ad  hoc and  de horse the rules. Though as per the orders of the  Tribunal, they  came to be promoted, such promotions do not confer any right to seniority over any other eligible candidates who acquired the qualifications  as on January 1, 1992. Therefore,  the DPC  is directed  to  sit  every  year either in  the month  of February or March for consideration of respective  claims of  the  candidates  provided  if  any vacancy exists  or anticipated.  As  regards  this  year  is concerned, they  should sit in the this year to consider the vacancies that  had arisen  between 1st  January 1992 to 1st January 1996.  The DPC  should get  identified the vacancies arisen in  each year.  Consider the  basis  of    respective eligible candidates  diploma-holders as  well as  Engineers, who have  completed 12  years  of  service  by  the  diploma holders or the diploma holders who acquire graduation before first day of January each  year and consider their cases for promotion in  accordance with rules. Such  of the candidates found  fit   and  recommended  fit  be  given  them  regular promotion provided  they are substantive or substantively in officiating capacity  in the  lower ranking. It would appear that some  of the  candidates have approached the Government taking advantage  of the   orders  of the  Tribunal and  got promoted, they also came to be considered and were promoted. All appointments are also be treated as ad hoc.      The appeals  are accordingly disposed of. The orders of the Tribunal are set aside. No costs.