S.K. Tyagi & Ors. v. Delhi Transco Ltd. & Ors.

date of entry in the feeder cadre and not from the date of acquiring the qualification of diploma/degree. It was also confirmed by Shri Arora that this practice is still being followed in IPGCL” (emphasis supplied)

13. In any case, this legal conundrum has now been set at rest by the Supreme Court in T. Valsan (supra). It is imperative to refer to a little backdrop to the said judgment. The litigation in the said case revolved around interpretation of ‘Government of Pondicherry, Electricity Department, Group B (Technical) Assistant Engineer (Electrical) Recruitment Rules, 1979’ (‘1979 Rules’). Under the Rules, 80% of the vacancies for the post of Assistant Engineer were to be filled by promotion and 20% by direct recruitment. Promotion was to be made from JEs with 3 years regular service for those with a Degree in Electrical Engineering and 7 years regular service for those with Diploma in Electrical Engineering. The Puducherry Administration construed the rules to mean that as long as the Diploma holder acquires a Degree, the period spent in service as a JE, before acquisition of an Engineering Degree, would be counted. Some parties approached the Central Administrative Tribunal (Tribunal) challenging the decision of the Administration promoting JEs who were originally Diploma holders and acquired Degree during service immediately after they acquired their Degrees without insisting on 3 years continuous service from the date of acquisition of the Degrees.

14. The Tribunal partly allowed the Original Application opining that qualifying service for JEs who obtained their Degree during the service would have to be considered from the date they acquired the Degree, basing its decision on the judgment of the Supreme Court in Shailendra Dhania and Others v. S.P. Dubey and Others, (2007) 5 SCC 535. In the proceedings before the High Court, Appellants relied on Shailendra Dhania (supra), while Respondents on D. Stephen Joseph v. Union of India and Others, (1997) 4 SCC 753. The High Court held in favour of the Respondents relying on D. Stephen Joseph (supra) and the judgment of the Supreme Court in M.B. Joshi and Others v. Satish Kumar Pandey and Others, 1993 SCC (L&S) 810, observing that there was nothing stipulated in the relevant rule that the experience gained after acquisition of the Degree in Engineering alone was to be considered. This led to a Special Leave Petition being filed before the Supreme Court. The two-judge Bench of the Supreme Court, vide order dated 30.01.2018 referred the issue to a larger Bench and while making reference opined that judgment in D. Stephen Joseph (supra), was not reflecting the correct position and that while construing almost identical rules, larger Bench in Shailendra Dhania (supra) as also in K. K. Dixit and Others v. Rajasthan Housing Board and Another, (2015) 1 SCC 474, had ruled to the contrary that period of experience must be reckoned from the date of acquisition of the Degree. This is how the matter came before the three-Judge Bench, and the judgment was delivered on 08.05.2023 in T. Valsan (supra), on which heavy reliance is placed by the Petitioners. Answering the Reference, the Supreme Court held that where the rule does not state from which date the time period of regular service has to be counted and only stipulates a twin requirement of 3 years of regular service and a Degree, there can be no insistence that the required experience must reckon from the date the Degree is acquired and held that the view taken in D. Stephen Joseph (supra) will be the applicable law. Relevant passages from the judgment are as follows: “19. On examining the controversy in the context of the arguments urged and the judicial precedents, we can say that actually, the issue is no more res integra in view of the judgment of this Court in C. Chakkaravarthy v. M. Satyavathy [C. Chakkaravarthy v. M. Satyavathy, (2015) 16 SCC 652: (2017) 1 SCC (L&S) 269] Though it is a two-Judge Bench view, the very issue has been examined, which is really sought to be debated before us. It was observed in para 10 as under: (SCC p. 657) “10. There is, in our opinion, considerable merit in that submission of the petitioners. There is no gainsaying that this Court has unequivocally declared that promotion to the post of Assistant Engineers in the service shall be on the basis of merit and merit alone and that seniority of the candidates cannot be taken as an input for determining such merit. This Court has also very clearly rejected the procedure followed by the Government whereby the date on which the candidate had acquired his degree qualification was taken as a determining factor. That being so, and given the large number of candidates eligible for consideration the Government was entitled to adopt the method of restricting the zone of consideration based on the number of vacancies. Inasmuch as the Government relied upon the DoPT guidelines for achieving that objective it committed no fault. The question, however, is whether the Government could draw up a list of eligible candidates not by reference to the length of service in the cadre but by reference to the date on which the candidates acquired the eligibility which, as noticed earlier, was itself dependent upon the date on which the candidate acquired the degree qualification. Since, however, the acquisition of a degree qualification itself was not based on any consistently uniform criterion, test or procedure, the date on which such a qualification was acquired and resultantly the date on which the candidate attained their eligibility was also bound to be anything but uniform and non-discriminatory. As between the date of acquiring eligibility and the date of entering service as a Section Officer/Junior Engineer the latter was, in our opinion, a more intelligible, fair and reasonable yardstick to be applied for drawing up the list of eligible candidates by the review DPC. Inasmuch as the review DPC relied upon the date of acquiring eligibility as the basis for preparation of the list of eligible candidates, it committed a mistake which needs to be corrected.”

20. A reading of the aforesaid paragraph shows that the promotion to the post of Assistant Engineer was to be based on merit and merit alone. The seniority of candidates could not be taken into account for determining such merit. In this merit-based selection, there was a qualifying prescription to be so considered on merits. The time period spent in the service as Junior Engineer was at variance dependent on whether the person had a qualifying degree or a qualifying Diploma. There was no necessity for a degree to perform the job of a Junior Engineer, and all persons were alike. The distinction only came into play when the merit-based promotion had to take effect. Thus, as to when the person obtained the degree as a method of advancement of his knowledge and entitling him to an earlier consideration in the time period would not be relevant.

21. The Department of Personnel and Training, "Instructions and Guidelines on Seniority", have been placed before us. As far as the seniority of promotees is concerned, the relevant portion is as under: "2.2. Seniority of Promotees * * * 2.2.1. Where promotions to a grade are made from more than one grade and quotas have been laid down for each feeder grade, the eligible persons shall be arranged in separate lists in the order of their relative seniority in their respective grades. The officers in each grade, assessed as fit by the Departmental Promotion Committee shall be interpolated in the ratio prescribed for each grade in the recruitment rules for the post."

22. A three-Judge Bench of this Court in Chandravathi P.K. [Chandravathi P.K. v. C.K. Saji, (2004) 3 SCC 734: 2004 SCC (L&S) 544] referred to a number of earlier judgments on the issue, including D. Stephen Joseph [D. Stephen Joseph v. Union of India, (1997) 4 SCC 753: 1997 SCC (L&S) 990], Satpal Antil v. Union of India [Satpal Antil v. Union of India, (1995) 4 SCC 419: 1995 SCC (L&S) 1025], Anil Kumar Gupta [Anil Kumar Gupta v. MCD, (2000) 1 SCC 128: 2000 SCC (L&S) 111], A.K. Raghumani Singh v. Gopal Chandra Nath [A.K. Raghumani Singh v. Gopal Chandra Nath, (2000) 4 SCC 30: 2000 SCC (L&S) 452] and Pramod K. Pankaj v. State of Bihar [Pramod K. Pankaj v. State of Bihar, (2004) 3 SCC 723: 2004 SCC (L&S) 534] and quoted with approval the last of these judgments. The principle laid down is that in the absence of any statutory provision or rule made thereunder or under the proviso appended to Article 309 of the Constitution of India, once an incumbent is appointed to the post according to rules, their seniority has to be counted from the date of appointment.

23. In Shailendra Dania case [Shailendra Dania v. S.P. Dubey, (2007) 5 SCC 535: (2007) 2 SCC (L&S) 202], it was noticed in para 36 that the past practice would be a relevant aspect while construing the service rule. The aforementioned judgment distinguished itself from D. Stephen Joseph case [D. Stephen Joseph v. Union of India, (1997) 4 SCC 753: 1997 SCC (L&S) 990] on the ground that the interpretation of the rules would be determined on a case-to-case basis, and the wordings of the rules as well as past practices are important criteria. Similarly, in the present case, the Electricity Department has a past practice of considering the years of service prior to the acquisition of the degree.

24. The principle of past practice being of significance has also been noticed in M.B. Joshi case [M.B. Joshi v. Satish Kumar Pandey, 1993 Supp (2) SCC 419: 1993 SCC (L&S) 810]. This judgment also discusses the aspect where there are two channels for promotion (as in the present case) and illustrates that if the total time period of service was not to be counted, then there could not be said to be any incentive to acquire the higher degree except as an academic pursuit. The incentive is that if you acquire a higher degree as compared to a diploma, you come into a channel which entitles consideration, albeit on merit, in a fast lane with less number of years of service required in the cadre.

25. In our view, one of the important aspects is the wording of the Rule itself. According to the Rules, 50% of the promotion quota is from Junior Engineers with three years of regular service in the grade “and” possessing a degree in Electrical Engineering. The Rule does not say from which date the time period of regular service has to be counted, but there is a twin requirement of three years of regular service as also a degree. As against this, the second scheme of 50% promotion from Junior Engineers uses the word “with” seven years of regular service in the grade and possessing a diploma in Electrical Engineering. Thus, the distinction is between the diploma holder and the degree holder and the period of service rendered as a Junior Engineer without any distinction between the years served prior to or after having obtained the degree. Accepting the plea of the appellant would amount to insertion into the requirement of the Rules, which is not stipulated. Further, this is how the Rule has been understood by the Department, the framers of the Rules, and accordingly, the Rules have been uniformly implemented in the Electricity Department over a period of time. In view of the above, due weightage must be given to the view of the framers of the Rules. Conclusion

26. In view of the aforesaid, we uphold the view taken by the High Court opining that there is no distinction between the time period served before or after the acquisition of the degree so long as the degree is acquired and is the basis for consideration of the promotion. We are, thus, of the view that for all the aforesaid reasons for the Department in question, the view taken in D. Stephen Joseph [D. Stephen Joseph v. Union of India, (1997) 4 SCC 753: 1997 SCC (L&S) 990] is held to be applicable law, and we answer the reference accordingly.

27. The appeals are accordingly dismissed.”

15. Before proceeding further, it would be relevant to extract the Rule which was under consideration before the Supreme Court in the aforementioned judgment, for a comparative with the Rule position that obtains in the present case. The Rule is as follows: Recruitment for Junior Engineers:

1. 50% by promotion

2. Remaining 50% through direct recruitment Desirable qualification for direct recruits: Degree in Electrical & Electronics Engineering Essential Qualification: Diploma in Electrical and Electronics with three years’ experience Promotion to the post of Assistant Engineers

1. 20% by direct recruitment with degree as qualification

2. 80% by promotion. Out of this 80%, (a) 50% for Junior Engineer with 3 years regular service in the grade and possessing an Engineering Degree and (b) 50% for Junior Engineer with 7 years regular service in the grade and possessing a Diploma in Electrical Engineering

16. A bare comparison of Clause 12 of R & P Regulations and the Rule under consideration before the Supreme Court in T. Valsan (supra) shows that in both the Rules there is no mandate that the 3 years service in the feeder grade was to be counted post acquisition of the Engineering Degree and the twin conditions required to be fulfilled for eligibility for consideration for promotion of the JEs to the promotion post were: (a) 3 years regular service in the feeder grade under 1979 Rules/3 years continuous service in Clause 12 of R & P Regulations; and (b) Degree in Engineering field. The Supreme Court in T. Valsan (supra) has held that in the absence of any Rule to the contrary, the service required in the feeder grade is not required to be counted post acquisition of the Degree required as an essential condition and in my view, the case of the Petitioners is squarely covered by this judgment. In view of the judgment of the three-Judge Bench of the Supreme Court considering the earlier judgments in Shailendra Dhania (supra) and K.K. Dixit (supra), reliance on the judgment in N. Suresh Nathan (supra), cannot aid the Respondents.

17. Accordingly, the writ petition is allowed with a direction to DTL to convene a Review DPC and consider the case of the Petitioners for promotion to the post of Assistant Manager (Tech) treating them eligible for the post with respect to the DPC held in May, 2006. Needless to state that if the Petitioners are recommended for promotion, all consequential benefits including seniority will be granted to them and to this extent, the Office Order dated 12.05.2004 will be revised including revision in the Seniority List with respect to Respondents No.3 to 8 will be accordingly revised along with the seniority list of Assistant Manager (Tech), prepared on the basis of the said Office Order. The entire exercise shall be carried out by Respondent No.1 within 8 weeks from the date of receipt of copy of the judgment.

18. Writ petition stands disposed of in the aforesaid terms along with all pending applications.

JYOTI SINGH, J SEPTEMBER 03, 2024