N. Sureshnathan v. Government of Pondicherry

8. R. Saisubramanian9. M. Ravishankar10. B. Palaniappan11. N. Sureshnathan12. G. Vijayan13. J. Jayakumar14. R. Sowrirajan ... RespondentsW.P. No: 36948 of 2006 :Writ petition under Article 226 of the Constitution of Indiapraying for issuance of a writ of certiorari calling for therecords relating to the order dated 08.09.2006 made in O.A. No: 150of 2006 on the file of the Hon'ble Administrative Tribunal, MadrasBench, the 2nd respondent herein and to quash the same.W.P. No: 28928 of 2007 :Writ petition under Article 226 of the Constitution of Indiapraying for issuance of a writ of certiorari to call for therecords of the 12th respondent in respect of the order in O.A. No:150 of 2006 dated 08.09.2006 and to quash the same.W.P. No: 8183 of 2006 :Writ petitions under Article 226 of the Constitution of Indiapraying for issuance of a writ of certiorari calling for therecords relating to the order of the 1st respondent Tribunal dated08.09.2006 made in O.A. No: 150 of 2006 and to quash the same.W.P. No: 36948 of 2006 :For petitioners : Mr. Venkatachalapathy, Senior counsel for Mr. ManisundargopalFor 1st respondent : Mr. R. Syed Mustafa for Spl. Govt. Pleader (Pondicherry)For resp. 2 to 5 : Mrs. Nalini Chidambaram, Senior counsel for M/s. Gladys DanialFor resp. 6 & 7 : Miss. R. VaigaiFor resp. 8, 9 & 13 : Mr. V. Ajay KumarFor resp. 10, 11, 12 : M/s. G.M. Mani and 14 Associates https://hcservices.ecourts.gov.in/hcservices/ C O M M O N O R D E R( Order of the Court was made by K. CHANDRU, J.)Heard the learned counsel appearing for the parties. 2. All these writ petitions are directed against the orderdated 22.2.2006 passed by the Central Administrative Tribunal(hereinafter referred to as "the Tribunal") in O.A. No.150 of 2006.3. The facts in brief are as follows :-The applicants before the Tribunal, who were initially havingthe qualification of diploma in Civil Engineering, had joined theservices under the Government of Puducherry as Junior Engineers.The private Respondents 2 to 8 in such O.A., who were graduates inEngineering, had also joined service as Junior Engineers. The nextavenue of promotion from the post of Junior Engineer is theAssistant Engineer. The appointment of Assistant Engineer isgoverned by "Recruitment Rules for the post of Assistant Engineer,in the Public Works Department, Pondicherry" (hereinafter referredto as "the Recruitment Rules"). The post of Assistant Engineer canbe filled up by promotion from among the Junior Engineers, failingwhich by transfer on deputation - 80% and by direct recruitment -20%. In the present case, the controversy revolves around thequestion of promotion from the post of Junior Assistant toAssistant Engineer coming within 80%. As per the RecruitmentRules, 50% of the vacancies are earmarked for the Junior Engineerspossessing degree in Civil Engineering and the balance 50% areearmarked for the Junior Engineers possessing Diploma in CivilEngineering. Clause 11 of the Recruitment Rules being relevant, isextracted hereunder :-"11. In the case of promotion -(1) Section Officer (Junior Engineer) possessing arecognized degree in Civil Engineering or equivalent withthree years service in the grade failing which SectionOfficers (Junior Engineer) holding Diploma in CivilEngineering with six years service in the grade - 50%.(2) Section Officers (Junior Engineers) possessing arecognized Diploma in Civil Engineering with six yearsservice in the grade - 50%."4. From the aforesaid Rules it is obvious that a Diploma-holder Junior Engineer would be eligible to be promoted only aftersix years service in the grade, whereas a Junior Engineerpossessing a degree in Civil Engineering would be eligible withthree years service in the grade. https://hcservices.ecourts.gov.in/hcservices/

5. A controversy had been raised by some of the Diploma-holderJunior Engineers, who after entering into service had acquired thedegree of Civil Engineering, that they would be eligible even ifthey had not completed three years of service after acquiring thedegree. This controversy was resolved by the Supreme Court in thedecision reported in AIR 1992 SC 564 (N. SURESH NATHAN AND ANOTHERv. UNION OF INDIA AND OTHERS), wherein the Supreme Court hadobserved as follows :-"2. The dispute in the present case is whether aDiploma holder Junior Engineer who obtains a Degree whilein service becomes eligible for appointment as AssistantEngineer by promotion on completion of three years'service prior to obtaining the Degree or the three years'service as a Degree holder for this purpose is to bereckoned from the date he obtains the Degree. TheDiploma holders contend that they are entitled to includethe earlier period and would be eligible for promotion inthis category on obtaining the Degree if the total periodof service is three years inclusive of the earlierperiod. The Degree holders contest this position andcontend to the contrary. According to the Degree-holders, these are two distinct categories. In the firstcategory are Degree holders with three years' service inthe grade as degree holders, the period of three yearsbeing subsequent to the date of obtaining the degree asin the case of the Junior Engineers who join the servicewith a Degree and the other category is of Diplomaholders with six years' experience..........4. In our opinion, this appeal has to be allowed.There is sufficient material including the admission ofrespondents Diploma holders that the practice followed inthe Department for a long time was that in the case ofDiploma holder Junior Engineers who obtained the Degreeduring service, the period of three years' service in thegrade for eligibility for promotion as Degree holderscommenced from the date of obtaining the Degree and theearlier period of service as Diploma holders was notcounted for this purpose. This earlier practice wasclearly admitted by the respondents Diploma holders inpara 5 of their application made to the Tribunal at page115 of the paper book. This also appears to be the viewof the Union Public Service Commission contained in theirletter dated December 6,1968 extracted at pages 99-100 ofthe paper book in the counter affidavit ofrespondents 1 to 3. The real question, therefore, iswhether the construction made of this provision in therules on which the past practice extending over a long https://hcservices.ecourts.gov.in/hcservices/ period is based is untenable to require upsetting it. Ifthe past practice is based on one of the possibleconstructions which can be made of the rules thenupsetting the same now would not be appropriate. It isin this perspective that the question raised has to bedetermined.5. The Recruitment Rules for the post of AssistantEngineers in the P.W.D. (Annexure-C) are at pages 57 to59 of the paper book Rule 7 lays down the qualificationsfor direct recruitment from the two sources, namely,Degree holders and Diploma holders with three years'professional experience. In other words, a Degree isequated to Diploma with three years' professionalexperience. Rule 11 provides for recruitment bypromotion from the grade of Section Officers now calledJunior Engineers. There also categories provided therein-one is of degree holder Junior Engineers with threeyears' service in the grade and the other is of Diplomaholder Junior Engineers with six years' service in thegrade, the provision being for 50% from each category.This matches with R,7 wherein a Degree is equated withDiploma with three years' professional experience. Inthe first category meant for Degree holders, it is alsoprovided that if degree holders with three years; servicein the grade are not available in sufficient number, thenDiploma holders with six years' service in the grade maybe considered in the category of Degree holders also forthe 50% vacancies meant for them. The entire scheme,therefore, does indicate that the period of three years'service in the grade required for Degree holdersaccording to R.11 as the qualification for promotion inthat category must mean three years' service in the gradeas a Degree holder and therefore, that period of threeyears can commence only from the date of obtaining theDegree and not earlier. The service in the grade as aDiploma holder prior to obtaining the Degree cannot becounted as service in the grade with a Degree for thepurpose of three years' service as a Degree holder. Theonly question before us is of the construction of theprovision and not of the validity thereof and, therefore,we are only required to construe the meaning of theprovision. In our opinion, the contention of theappellants Degree holders that the rules must beconstrued to mean that the three years' service in thegrade of a Degree holder for the purpose of R.11 is threeyears from the date of obtaining the Degree is quitetenable and commends to us being in conformity with thepast practice followed consistently. It has also been sounderstood by all concerned till the raising of the https://hcservices.ecourts.gov.in/hcservices/ present controversy recently by the respondents. TheTribunal was, therefore, not justified in taking thecontrary view and unsettling the settled practice in theDepartment."(emphasis supplied )6. The aforesaid decision of the Supreme Court clearly laiddown that a Diploma-holder Junior Engineer, who subsequentlyacquires a degree, can become eligible to be considered forpromotion as Assistant Engineer from out of the quota available tothe degree-holder Junior Engineer only after completion of threeyears of service after obtaining the degree. However, thecontroversy did not end with the aforesaid decision of the SupremeCourt and the matter was agitated before the Tribunal andthereafter before the High Court in W.P.No.11236 of 2000. Whileconsidering the case of some of the applicants and privaterespondents before the Tribunal, who were parties in W.P.No.11236of 2000, a Division Bench, while referring to the ratio of theSupreme Court in AIR 1992 SC 564 (cited supra) and other decisions,namely,(1993) Supp (2) SCC 419 (M.B. Joshi v. Satish Kumar Pandey)(1997)4 SCC 753) ( D. Stephen Joseph v. Union of India), (1999) 7SCC 54 (R.B. Desai and another v. S.K. Khanolker and others) and(2000) 4 SCC 30 (A.K. Raghumani Singh and Others v. Gopal ChandraNath and others),observed as follows :-"16. A perusal of the aforesaid decisions makes itclear that the question of eligibility for promotion isone thing and question of counting entire service after aperson becomes eligible is considered on a differentfooting. As noticed earlier in A.I.R 1992 SC 564 , theSupreme Court was concerned only with the question ofeligibility of a diploma holder to be considered forpromotion after acquiring degree and it was observed thatafter acquiring the degree he has to work for three yearsbefore he would become eligible.. . .18. It is seen that in the present case a freshselection process was started in the year 1996 and therespondents 2 to 8 have been selected on the footing thatthey had longer service after their graduation. The pastservices of the petitioners as in the cadre of juniorengineers as diploma holders before they become degreeholders has not been considered. This has been done on awrong interpretation of the decision of the Supreme Courtin the case of N. Suresh Nathan and Another vs Union ofIndia and others reported in A.I.R 1992 SC 564. . . .22. In view of the above, we are inclined to allowthe writ petition and direct that a review D.P.C should beheld to consider the question of promotion of the present https://hcservices.ecourts.gov.in/hcservices/ petitioners vis-a-vis the respondents 2 to 8 and othereligible persons who had become eligible by the date ofthe sitting of D.P.C held in 1996. It is made clear thatthe persons who got the benefit of the Supreme Courtdecision in A.I.R 1992 SC 564 are not before this Courtand their promotion is not at all affected by the presentorder.. . .24. The writ petition is accordingly allowed, subjectto the directions given. No costs. Fresh exercise as perour direction shall be carried out within a period of fourmonths from the date of communication of this order."7. The aforesaid decision of this Court is the subject matterof challenge before the Supreme Court, wherein the Supreme Courtpassed an interim order to the following effect :-" Mr. V.G. Pragasam accepts notice for respondentsfor No: 1 in both the matters, six weeks' time, asprayed, is allowed to file counter affidavit andrejoinder, if any, may be filed within two weeksthereafter.Leave granted.In the meantime there shall be no reversion.However, it is clarified that the judgment impugned, assuch, is not stayed."8. Thereafter, O.A.No.150 of 2006 was filed before theTribunal claiming the following reliefs :-"(a) Direct the 1st Respondent to include the namesof the Applicants in the panel of Assistant Engineerseligible for promotion to the post of Executive Engineeras per the principles laid down order of the High Courtin W.P.No.11236 of 2000 dated 23-06-2003.(b) And consequently make promotion to the post ofExecutive Engineer as per the panel of AssistantEngineers drawn up by the review DPC."9. In the present case, the writ petitions have been filed bythe State Government as well as by the private respondents in theOriginal Application. Such private writ petitioners are allEngineering graduates who have entered into service as JuniorEngineer as such, whereas the contesting respondents in the presentwrit petitions, who had filed the Original Application before theTribunal, were initially diploma-holders and had entered intoservice as Junior Engineers, but acquired the degree in CivilEngineering while in service. It is not in dispute that all ofthem have completed three years of service as Junior Engineersafter obtaining the degree. https://hcservices.ecourts.gov.in/hcservices/

10. The Tribunal posed for itself the following question :-"7. . . . whether the direction issued by theHon'ble High Court in Writ Petition No.11236 of 2000dated 23.6.2003 has to be carried out?"11. The Tribunal, after referring to the observations made inthe writ petition and referring to the interim order passed by theSupreme Court, observed as follows :-"9. The effect of the direction of the Hon'bleSupreme is that the contesting private respondents shallnot be reverted. It was clarified specifically that theimpugned order namely direction of the Hon'ble High Courtis not stayed.10. In the light of the above, we are unable toappreciate the stand of the official respondents set outin paragraph 12 of the reply which is extracted hereunder:"The respondents herein humbly submit thatthe matter regarding the fixation of seniorityin respect of the Junior Engineers who areholding Diploma and subsequently acquired Degreeand the Junior Engineers who are holding Degreeon initial entry into service is pending beforethe Hon'ble Supreme Court and hence thisAdministration has not taken any action toconduct review DPC. However, review DPC may beconveyed after the outcome of the case pendingbefore the Apex Court."It is not open to the official respondents to take such astand in the light of the specific direction of theHon'ble High Court and the Hon'ble Supreme Court statingthat there will be no stay of the judgment of the HighCourt. There is no scope for such plea.11. We are unable to accept the stand of therespondents that the direction of the Hon'ble SupremeCourt to the effect that there will be no reversion wouldmean that there should not be any alteration of senioritylist and that it will also enable the contesting privaterespondents as eligible to be considered for furtherpromotion.12. It is not open to this Tribunal to interpret thejudgment of the Hon'ble Supreme Court. When the Hon'bleSupreme Court has ordered that the impugned judgment isnot stayed, the official respondents are bound toimplement the direction of the Hon'ble High Court.However, that implementation could be only withoutreverting the contesting private respondents. It isestablished before us that DPC can be held and promotioncan be affected for Assistant Engineers as well as forExecutive Engineers based on seniority without reverting https://hcservices.ecourts.gov.in/hcservices/ the private respondents. The ratio of the Division Benchjudgment in W.P.No.11236 of 2000 is that the past serviceof Diploma holders before they became Degree holders hasto be counted. A Seniority List reflecting this rulinghas to be drawn up.. . .15. As rightly contended on behalf of theapplicants, Seniority List has to be drawn up as per theratio of the Hon'ble High Court's decision and a reviewDPC has to be held considering the case of the applicantsalong with other eligible candidates for promotion to thepost of Executive Engineer from the panel of AssistantEngineers.16. In the above circumstances, the O.A. is allowedand the official respondents are directed to completethis exercise within a period of one month from the dateof receipt of a copy of this order."12. As already indicated, this judgment of the Tribunal is thesubject matter of the present three writ petitions, one filed bythe Puducherry Government and the other two filed by the privaterespondents before the Tribunal.13. The main contention raised by all the writ petitioners isto the effect that SLP (Civil) No.16491/2003 filed against thedecision of the Division Bench is pending and in view of the orderof stay granted therein, the Tribunal should not have issued adirection for considering the question in the light of theobservations made by the High Court in W.P.No.11236 of 2000.The Tribunal has noted that the interim order of the SupremeCourt makes it clear that the impugned jugment had not been stayedand only there was a direction that there should not be anyreversion.14. Keeping in view the nature of the interim order passed bythe Hon'ble Supreme Court, we do not think that the contentionraised in the writ petitions on the question as to whether theDivision Bench judgment of the High Court was not required to beimplemented, can be accepted. On the other hand, as rightlyunderstood by the Tribunal, the Puducherry Government was requiredto give effect to the judgment of the High Court, but in theprocess the Puducherry Government was required not to revert anyperson. In other words, the Puducherry Government was required tofollow the ratio of the Division Bench decision. Since the appealbefore the Supreme Court was pending and is still pending, thePuducherry Government could have completed the exercise ofreconsidering the question of promotion by making in specifically https://hcservices.ecourts.gov.in/hcservices/ clear that the matter was subject to the ultimate decision of theSupreme Court, more particularly in view of the specificobservation of the Supreme Court to the effect that ". . . thereshall be no reversion. However it is clarified that the judgmentimpugned, as such, is not stayed". The contention of the learnedcounsels appearing for different petitioners to the effect that theratio of the judgment of the Madras High Court was not required tobe implemented in view of the order of stay passed by the SupremeCourt, was therefore rightly negatived by the Tribunal.15. The other contention raised by the counsels appearing forvarious petitioners is to the effect that the ratio of the DivisionBench decision can be said to have impliedly over-ruled in thesubsequent decision of the Supreme Court reported in (2007) 5 SCC535 (SHAILENDRA DANIA AND OTHERS v. S.P. DUBEY AND OTHERS). Sinceall the counsels for the petitioners have vehemently contended thatthe aforesaid decision of the Supreme Court has the effect of over-ruling the earlier decision of the Division Bench in W.P.No.11236of 2000, it would be appropriate to refer to the relevantobservation in the said case."25. Large number of authorities are cited bylearned counsel appearing for both sides raising variousissues viz. whether a diploma-holder after obtaining adegree would be compulsorily shifted to the group ofgraduate Engineers giving a go-by to their claim forpromotion to diploma-holders' quota or they have a choiceto select and continue with either of them. What shouldbe the seniority position of the diploma-holders afterthey have qualified as graduates, etc. We have refrainedourselves from expressing any opinion on these points andhave confined ourselves to the specific issue raisedbefore us and answered by the High Court in the impugnedjudgment. . . .37. The only question involved in these appeals andtransferred cases can be stated thus : whether a diploma-holder Junior Engineer, who obtains a degree while inservice, becomes eligible for promotion to the post ofAssistant Engneer on completion of three years of serviceafter he obtained the Engineering degree or on completionof three years of service prior to obtaining the degree inEngineering.The Supreme Court ultimately concluded as follows :-" 44. After having an overall consideration of allthe relevant Rules, we are of the view that the serviceexperience required for promotion from the post of JuniorEngineer to the post of Assistant Engineer by a degree-holder in the limited quota of degree-holder JuniorEngineers cannot be equated with the service rendered as adiploma-holder nor can be substituted for service renderedas a degree-holder. When the claim is made from a fixed https://hcservices.ecourts.gov.in/hcservices/ quota, the condition necessary for becoming eligible forpromotion has to be complied with. The 25% specific quotais fixed for degree-holder Junior Engineers with theexperience of three years. Thus, on a plain reading, theexperience so required would be as a degree-holder JuniorEngineer. 25% quota for promotion under the rule isassigned to degree-holder Junior Engineers with threeyears' experience, whereas for diploma-holder JuniorEngineers eight years' experience is the requirement intheir 25% quota. Educational qualification along withnumber of years of service was recognised as conferringeligibility for promotion in the respective quota fixedfor graduates and diploma-holders. There is watertightcompartment for graduate Junior Engineers and diploma-holder Junior Engineers. They are entitled for promotionin their respective quotas. Neither a diploma-holderJunior Engineer could claim promotion in the quota ofdegree-holders because he has completed three years ofservice nor can a degree-holder Junior Engineer make anyclaim for promotion quota fixed for diploma-holder JuniorEngineers. Fixation of different quota for promotion fromdifferent channels of degree-holders and diploma-holdersitself indicates that service required for promotion is anessential eligibility criterion along with degree ordiploma, which is service rendered as a degree-holder inthe present case. The particular years of service beingthe cumulative requirement with certain educationalqualification providing for promotional avenue within thespecified quota, cannot be anything but the servicerendered as a degree-holder and not as a diploma-holder.The service experience as an eligibility criterion cannotbe read to be any other thing because this quota isspecifically made for the degree-holder Junior Engineers."(Emphasis added)16. As rightly pointed out by the counsel for the contestingrespondents, the Supreme Court has considered only the question ofeligibility and therefore observed that the concerned person isrequired to complete three years' service on the post afterobtaining the degree. The question as to whether the pastseniority has to be considered or wiped away had been specificallyleft open. 17. On the other hand, the Division Bench, on the earlieroccasion had specifically relied upon the decision of the SupremeCourt reported in (1999) 7 SCC 54 [R.B.Desai and another vs. S.K.Kanolker and others] and in the subsequent Supreme Court decision,the Supreme Court has not referred to any such decision obviouslybecause the Supreme Court had left that question open. In suchview of the matter, we are still bound by the earlier Division https://hcservices.ecourts.gov.in/hcservices/ Bench judgment. In order to allay any misapprehension in the mindsof all concerned, we make it clear that while considering thematter in the light of the earlier decision of the Division Bench,the Puducherry Government can always incorporate a specificcondition that the order of promotion, if any, is subject to theresult of the decision of the Supreme Court in the pending appealand the ultimate decision of the Supreme Court in SLP (Civil)No.16491 of 2003 would be made applicable to all concerned.18. Accordingly, these writ petitions are dismissed.Consequently, connected miscellaneous petitions are closed. Nocosts.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.gp/dpkTo1.The Secretary to Government Government of Pondicherry Local Administration & Public Works Dept. (Public Words Wind), Pondicherry.2. The Registrar, Central Administrative Tribunal, Madras Bench, Chennai – 600 104.2 ccs to M/s. V. Ajaykumar, SR. 3623, 36241 cc to Government Pleader, Sr. 35681 cc to Ms. C. Uma, Sr. 34371 cc to M/s. G.M. Mani Associates, SR. 36371 cc to M/s. R. Vaigai, SR. 36351 cc to M/s. Mani Sundar Gopal, SR. 3638W.P. Nos: 36948 of 2006 and 8183 and 28928 of 2007KJI (CO)kk 25/2