R.P. Bharal and Others v. Delhi Development Authority and Others

5. The Supreme Court referred to N. Suresh Nathan and Another versus Union of India and Others, (1992) SUPP 1 SCC 584 [N. Suresh Nathan (I)] wherein a similar dispute had arisen between graduate engineers and diploma-holders in the grade of Junior Engineers. After referring to Rule position and the past practice, which was plausible, it was held that service rendered by the diploma- holders prior to obtaining of the degree cannot be counted for the purpose of promotion. Thereafter, reference was made to M.B. Joshi and Others versus Satish Kumar Pandey and Others, (1993) SUPP (2) SCC 419, which related to dispute between diploma-holders, who had completed 12 years of service, Draftsmen and Head Draftsmen, who had completed 12 years of service, and graduate engineers, who had completed 8 years of service. The Supreme Court in this case was called upon to consider whether the period of eight years could be counted from the date when the diploma-holders had acquired the degree of Engineering and not prior to the said date. Referring to the Rule position, it was held that the qualifying service had no relation with the degree of Engineering and, therefore, the decision in the case of N. Suresh Nathan (I) (supra) could be distinguished. It was also highlighted that N. Suresh Nathan (I)'s case (supra) was based upon past practice. Reference was also made to D. Stephen Joseph versus Union of India and Others, (1997) 4 SCC 753 to observe that the State Government in the said case was labouring under the wrong impression that N. Suresh Nathan (I)'s case (supra) was only predicated on past practice. It was observed in D. Stephen Joseph (supra) that the Rule itself was interpreted in a particular manner in

6. The Supreme Court then referred to the Rules regarding recruitment to the post of Junior Engineers and promotion to the post of Assistant Engineers and subsequently to the post of Executive Engineers in service. The post of Junior Engineer was the entry level post in the service, appointments to which were only by way of direct recruitment. Initially, the educational qualification prescribed for the post was a diploma in Civil Engineering with two years’ experience or graduate in Engineering. For promotion to the post of Assistant Engineer, the Rule prescribed 50% of the post would be filled by direct recruitment from candidates having educational qualification as graduate in Civil Engineering and remaining 50% of the post would be filled by promotion from the post of Junior Engineers. Under clause (a), however, the 50% promotion quota was bifurcated into 25% each to be filled up by way of promotion from the category of graduate Junior Engineers, i.e., persons who hold a degree at the entry point in Engineering and three years’ in service and under clause (b) 25% of the posts were to be filled by diploma holders with eight years of service. Thus, the Rule prescribe two sources of promotion from the post of Junior Engineers, i.e., graduate with three years’ service experience and diploma holders with eight years service experience. This distinction between graduate degree-holder Engineers and diploma-holders was maintained for promotion to the post of Executive Engineer by prescribing different experience for promotion on the basis of a person being a graduate or a diploma-holder, though no separate quota was prescribed for graduates or diploma-holders.

7. Thereafter, reference was made to the decision in Roop Chand Adlakha and Others (supra) wherein the constitutional validity of the aforesaid Rule was examined on the ground of difference in service experience between graduate and diploma-holders for promotion to the higher cadres. The challenge was rejected observing that the eligibility determination was made on the basis of certain educational qualifications plus a particular quantum of service experience. This being matter of policy, unless shown to be arbitrary, capricious, and resulting in grossly unfair results, could not be invalidated. Some hardship in individual cases could not be a ground to strike down the policy as violative of Articles 14 and 16. Thereafter, the Supreme Court in Shailendra Dania and Others (supra) elucidating on the entire scheme of the relevant Rules had held:-

8. One would have thought that the aforesaid decision would be conclusive and bring an end to the litigation surrounding the issue at hand. However, ingenuity can and would raise a different point or contention to conjure an argument even in cases where the issues have been resolved and settled.

9. The petitioners, four in number, are diploma holder Junior Engineers, who were appointed in the year 1979. They subsequently acquired degree in Engineering in different years between 1986 and 1989. The degree holder Junior Engineers, respondent Nos. 2 to 18 in this writ petition were appointed as Junior Engineer in the year 1981. The said respondents would become eligible for promotion as Assistant Engineer in 1984. The petitioners, on the other hand, who had joined as Junior Engineer with diploma in 1979, would become eligible after eight years of service or after three years of having acquired degree, i.e., between the years 1989 to 1992. The said petitioners and the respondents were considered for promotion by the Departmental Promotion Committee held on 26th September, 1992. The petitioners claim that they are senior to the respondents as they were appointed as Junior Engineers in 1979 notwithstanding the fact that they were diploma holders at that time and had acquired the degree in Engineering between 1986 to 1988. The petitioners argue that the question of inter se seniority having been left unanswered, and they, i.e. the diplomaholders, having subsequently acquired the degree, would be senior to degree-holders on acquisition of the degree in Engineering if they were senior at the initial induction on the post of Junior Engineers at that time as diploma-holders. Learned counsel for the petitioners had referred to paragraph 25 of the judgment in the case of Shailendra Dania and Others (supra) to submit that in the said decision, the Supreme Court had not decided the question whether diploma-holders after obtaining the degree could be compulsorily shifted to the group of graduate engineers as the Supreme Court had observed that large number of authorities were cited on both sides raising various issues, but it was not expressing any opinion on these points and was confining their decision to the specific issue raised before them and answered by the High Court. In other words, the contention raised is that diploma-holders would retain the seniority viz. the degree-holders on the date of joining/initial recruitment and would accordingly be considered for promotion three years post their acquiring the degree in Engineering. The petitioners have premised their argument on the distinction drawn between seniority and eligibility. There was a common seniority list of diploma-holder and degree-holder Junior Engineers. Vacancies in the promotional post of Assistant Engineer would be filled as per seniority amongst those Junior Engineers, who fulfil the eligibility condition, i.e., eight years’ experience as a diploma-holder and three years’ experience as a degree-holder in cases where the employee had a degree on date of joining or three years post acquisition of degree where the employee was a diploma-holder on the date of joining and had subsequently acquired a degree. Reliance is placed on N. Suresh Nathan versus Union of India and Others, (2010) 5 SCC 692 [N. Suresh Nathan (II)].

10. We do not think the observations in paragraph 25 in Shailendra Dania and Others (supra) had left this issue open to be raised in another round of litigation. We may mention that the Supreme Court in Shailendra Dania and Others (supra) had specifically referred to the first phase of litigation in the year 1984 and the second phase of litigation when one S.P. Dubey had filed Writ Petition No. 591/1981 in the High Court and the subsequent orders and decisions in the case of R.K. Mittal versus Union of India, (1991) 45 DLT 589, Slum Wing DDA Graduate Engineers Association(Regd.) versus DDA, (1992) 46 DLT 486 (DB), which had referred to N. Suresh Nathan (I) Reference was also made to the Full Bench decision dated 25th January, 2002, which had been made the subject matter of challenge before them. The Full Bench had held that the experience gained by diploma-holder Junior Engineers had to be counted for the post of Assistant Engineer when they had qualified as degree-holders.

11. In the event that we accept the contention of the petitioners, we would be negating and re-writing the very ratio of the reasoning given in paragraphs 43 to 45 of the decision in Shailendra Dania and Others (supra), which holds that there was water tight compartmentalisation of graduate Junior Engineers and diploma-holder Junior Engineers and they were entitled to promotion in the respective quota. There were two different channels for promotion from degree-holders and diploma-holders, which had prescribed essential eligibility criteria. Neither diploma- holders could claim promotion in the quota of degree-holders because they have completed three years of service, nor could a degree-holder Junior Engineer claim any promotion from the quota fixed for diploma-holder Junior Engineers. Even if there was a common seniority list at the level of Junior Engineer, when it came to promotion as per the Rule position, in effect there would be two independent seniority lists; one of the diploma-holders and the other list would be of degree-holder Junior Engineers. Diploma-holder Junior Engineers, after the acquisition of a degree, would also become part of the degree-holder Junior Engineers from the said date and on completion of three years of service would be eligible for promotion in the quota of graduate Junior Engineers.

12. This being the position, it is not possible for us to accept that diploma-holder Junior Engineers, who have subsequently acquired a degree would be considered in the quota of degree-holders based upon their seniority in the diploma-holders list. This would have the effect of not treating the two, i.e., diploma-holder Junior Engineers and degree- holder Junior Engineers as two separate and distinct quota categories. Therefore, if the argument of the petitioner is to be accepted, it would strike at the very foundation and edifice of the reasoning and ratio in the case of Shailendra Dania and Others (supra).

13. The petitioners have referred to judgment of the Supreme Court in N. Suresh Nathan(II). This decision holds that N. Suresh Nathan-I (supra) had not decided the question of seniority and to this extent would not operate as res judicata on the said aspect. After having held so, reference was made to the rule position as applicable and the decision of the High Court of Madras was set aside holding that the Government of Pondicherry was justified in counting service of eligible candidates only from the date of acquisition of degree in Civil Engineering and the decision of the Madras High Court directing that the entire service of the eligible candidate prior and after acquisition of the degree in Civil Engineering should be counted was contrary to the extant rule position. While setting aside the judgment of the High Court of Madras, it was specifically directed that the Government of Pondicherry would consider cases of all Section Officers and Junior Engineers who had completed three years of service for promotion to vacancies in the post of Assistant Engineer in accordance with merits. Learned counsel for the petitioners submitted that the rule position would be different in the present case for three reasons. The post of Assistant Engineer in N. Suresh Nathan-II was a selection post, whereas the post of Assistant Engineer in DDA is a non-selection post. Secondly, appointment to the post of Junior Engineer in the DDA is by direct recruitment and the eligibility qualification as prescribed is diploma in Civil Engineering with two years’ experience. There is no separate category or qualification for degree holders in Civil Engineering. It is also submitted that there is only one seniority list in the cadre of Junior Engineers.

14. The last contention, according to us, has been categorically answered against the petitioners in the case of Shailendra Dania and Others (supra) quoted above and cannot be argued. The first contention of the petitioners would falter and is unacceptable. Shailendra Dania and Others (supra) had interpreted the Rule position as applicable to Junior Engineers and Assistant Engineers in DDA. We would not re-examine the rule position. The second contention also has been answered in the case of Shailendra Dania and Others (supra). The Full Bench decision of the Delhi High Court in S.P. Dubey's case (supra) which was overturned by the Supreme Court in Shailendra Dania and Others (supra) had accepted the identical argument as is presently raised by the petitioners, inter alia, holding that Junior Engineers whether diploma holders or degree holders have to be treated alike for the purpose of experience when it comes to promotion for being considered in degree holders quota for there is no difference in performance of duties between degree holders and diploma holders, and there being a common seniority list. This reasoning was rejected in Shailendra Dania and Others (supra) to hold that the experience post acquisition of degree in Civil Engineering will be counted for promotion as Assistant Engineer. Prior experience at the post of Junior Engineer would not be counted in such cases as there was a watertight compartmentalisation of the two feeder categories to the promotional post, i.e. that of degree-holders Junior Engineers and diploma holders Junior Engineers.

15. An identical contention was raised in LPA No. 473/2002, Vasdev Chhugani versus A.K. Kashyap and Others, decided on 14th February,

2007. Vasdev Chhugani (the appellant) had joined the service as a diploma holder Junior Engineer on 16th March, 1972. He had subsequently acquired degree in Civil Engineering on 3rd March, 1980 and completed eight years of service as a Junior Engineer on 15th March,1980. He was promoted as Assistant Engineer with effect from 20th January, 1981. However J.S. Yadav, his junior was promoted on 29th October, 1980 consequent to which the appellant had appealed to the DDA and had claimed that he was eligible for promotion as Assistant Engineer and should be granted seniority with effect from the date of joining. This plea of the appellant was accepted by the DDA and his seniority was restored above J.S Yadav promoting him with effect from the same date as the latter i.e. 29th October,

1980. A.K. Kashyap, who had joined as a degree holder Junior Engineer and was promoted as Assistant Engineer on 31st December, 1980, had then challenged the seniority given to the appellant. The writ petition filed by A.K. Kashyap was allowed vide order dated 20th May, 2002 passed by the single Judge with the direction that he should be placed above the appellant in seniority. The appellant had then filed the LPA No. 473/2002. Agreeing with the single Judge, the Division Bench held that once the appellant had acquired the degree, he came into the channel of degree holder. The appellant could not claim seniority over a person, who was either senior to him in the line of degree holders or even those in the line of diploma holders like J.S. Yadav, who had acquired degree prior to the appellant. The appellant as a degree holder would get his position or seniority from the date he became eligible as a degree holder, i.e., on 3rd March, 1980, whereas A.K. Kashyap was a degree holder and his starting point for seniority would commence on 11th June, 1979 when he was appointed. In this context, the inter se seniority, if any, between the appellant and A.K. Kashyap had lost its significance.

16. In view of the aforesaid discussion, we have reached the following conclusions and findings:-

I. Upon examination of the rule position in Shailendra Dania and

Others (supra), the Supreme Court held that diploma holder Junior Engineers on acquiring degree in engineering would be entitled to be treated as degree holder Junior Engineers from the date of acquisition of degree. Prior experience before acquisition of degree would not be counted. In order to be eligible for promotion in the degree holders quota, the diploma holder Junior Engineers who had obtained a degree during the service tenure would be required to complete 3 years of experience in the grade after the date of acquisition of the degree.

II. The extant rules prescribing 8 years of service for diploma holder

Junior Engineers and 3 years of service for degree holder Junior Engineers for being eligible for promotion as Assistant Engineer as interpreted in Shailendra Dania and Others (supra) imply quantitative difference in the service rendered as degree holder Junior Engineer and diploma holder Junior Engineer as indicative of different quality of service rendered. The 25% quota fixed for degree holder Junior Engineers with 3 years’ experience and 25% quota for diploma holder Junior Engineers with 8 years’ experience, it has been held, are water-tight compartment and constitute different channels. The argument of the petitioners with regard to determination of inter se seniority would thus be covered by the aforesaid ratio of the Supreme Court in Shailendra Dania and Others (supra) categorising degree holders and diploma holders as distinct channels. Thus, despite there being a common seniority list, the two would be separate categories with reference to the question of consideration for promotion.

III. The contention of the petitioners-diploma holder Junior Engineers that they being senior having been appointed earlier to the degree holder Junior Engineers should be considered for promotion before the degree holder Junior Engineers appointed post their appointment would be contrary to the aforesaid ratio in Shailendra Dania and Others (supra) and would negate the effect of the said decision. Seniority of diploma holder Junior Engineers, who acquire degree of engineering during tenure of service, in the degree holder category or channel would not be counted from the date of initial joining but from the date when they acquire the degree.

IV. The aforesaid ratio and precept applied by us is as per the ratio in

LPA No. 473/2002, Vasdev Chhugani Vs. A.K. Kashyap & Ors., decided on 14th February, 2007. This decision clearly holds that a diploma holder Junior Engineer cannot claim seniority over a Junior Engineer, who is either senior to him in the line of degree holders or even those in the line of diploma holders, who had acquired degree prior to him for promotion as Assistant Engineer in the quota/channel of degree holder Junior Engineers. Such diploma holder Junior Engineers would get their position/seniority in the category/channel of degree holder Junior Engineers from the date they acquire the said degree and not from the date of appointment as diploma holder Junior Engineers. They retain their seniority in the category of diploma holder Junior Engineers from the date of appointment.

17. In view of the aforesaid, we are of the opinion that the present writ petition is nothing but a futile attempt to revive a dispute that has already been settled by the decision in Shailendra Dania and Others (supra). The writ petition is accordingly dismissed. There will be no order as to costs. Sd/ (SANJIV KHANNA) JUDGE Sd/ (CHANDER SHEKHAR) JUDGE