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CASE NO.:

Appeal (civil) 2219-2222 of 2002

PETITIONER:

SHAILENDRA DANIA & OTHERS

RESPONDENT:

S.P. DUBEY & OTHERS

DATE OF JUDGMENT: 17/04/2007

BENCH:

B.N. AGRAWAL,P.P. NAOLEKAR & LOKESHWAR SINGH PANTA

JUDGMENT:

JUDGMENT

[with Civil Appeal No. 4104 of 2002, Transferred Cases (Civil) Nos.

83 & 84 of 2005, Transferred Cases (Civil) Nos. 2, 3, 46, 47, 48, 49 &

50 of 2006 and Civil Appeal No. \005\005\005 of 2007 (arising out of

SLP(C) No. 9239 of 2002)]

P.P. NAOLEKAR,J.

Leave granted in S.L.P.(C) No. 9239 of 2002.

The appellants and the respondents herein are employees of

the Slum Wing Department (hereinafter referred as "SWD"). SWD

was part of the Municipal Corporation of Delhi (hereinafter referred as

"MCD") before 1974. SWD was transferred from MCD to Delhi

Development Authority (hereinafter referred as "DDA") in 1974 with

the stipulation that its employees alone would be considered for

confirmation and promotions against the posts in it. In 1978, SWD

was retransferred to MCD, but once again in May 1980 it was

transferred back to DDA with the stipulation that it would remain as a

separate entity and its employees would not be merged with DDA.

For recruitment of various staff members in DDA, vide its Resolution

No.574 dated 13.11.1963, DDA adopted Recruitment Rules of CPWD

qua the posts of Junior Engineer, Assistant Engineer and Executive

Engineer. In the hierarchy of Engineering Cadre, the initial post is of

Junior Engineer (Section Officer or S.O.). The post is meant for

100% direct recruitment and the qualification prescribed was

"Diploma-holders in Civil Engineering with two years' experience".

However, there was no bar for persons possessing higher

qualification, viz., Degree in Engineering, for applying to the post of

Junior Engineer and such persons were not required to have any

prior experience for appointment to the cadre of Junior Engineer in

DDA. The next higher post is that of Assistant Engineer. The rule

provided filling up of 50% vacancies on the post of Assistant Engineer

by those who acquired a Graduate Degree in Engineering by means

of direct recruitment or by deputation. The remaining 50% vacancies

were to be filled up on promotional basis from the pool of Junior

Engineers. Out of 50% of the promotional feeder cadre of Junior

Engineers, one-half of such posts would be filled up by promotion of

diploma-holders with eight years' qualifying service and remaining

50% quota would be filled up from the Junior Engineers who were

Graduate Engineering Degree-holders with three years' qualifying

service. Thus, the diploma-holders having eight years of qualifying

service and Graduate Engineering Degree-holders with three years'

qualifying service would be considered for promotion to the post of

Assistant Engineer within their quota of 25% each. Further promotion

in the Engineering Branch is from the post of Assistant Engineer to

the post of Executive Engineer. The minimum qualifying experience

for promotion to the post of Executive Engineer for graduate

Engineers is eight years' experience in the grade of Assistant

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Engineer, whereas for diploma-holders it is ten years' service in the

grade of Assistant Engineer.

The appellants were graduates with Engineering Degree and

joined the Department as Junior Engineers as direct recruits. On

7.6.1985 and 24.6.1985, some diploma-holder Junior Engineers were

promoted on ad hoc basis as Assistant Engineers.

First phase of litigation

In the year 1984, the Junior Engineers and the Assistant

Engineers, who were diploma-holders, assailed constitutional validity

of the rules in the matter of requirement of differential service

experience between the graduates and the diploma-holders for

promotion to the higher cadres, viz., Assistant Engineers and

Executive Engineers respectively before Delhi High Court. In W.P.

No.2132 of 1984 (Kimti Lal Kathuria and Others v. DDA), the

challenge was to the rule prescribing three years' and eight years'

service experience for graduates and diploma-holders respectively to

the posts of Assistant Engineers and a discrimination thus brought

about between them. W.P. No.2082 of 1984 (Niranjan Goel and

Others v. DDA) pertained to the constitutional validity of the

analogous provisions in the rules adopted by Resolution No.105

dated 16.6.1971. The distinction made for promotion of degree-

holder promotees and diploma-holder promotees was struck down by

Delhi High Court. It was held that the diploma-holders should be

governed by the same eligibility promotional qualifications that were

applicable to degree-holders. In W.P. No.2082 0f 1984, the Delhi

High Court struck down Resolution No.105 dated 16.6.1971 which

allowed DDA to distinguish between diploma-holder and degree-

holder Assistant Engineers in the matter of experience and promotion

as Executive Engineers. By a common judgment dated 2.9.1987

reported as Kimti Lal Kathuria and Others v. Delhi Development

Authority and Others, 1988 Labour Industrial Cases 434 (Del) =

1988 (1) SLR 293, the Court held that the prescription of differential

standards - based even on the differences in technical, educational

qualifications - is violative of Articles 14 and 16 of the Constitution.

However, in Roop Chand Adlakha and Others v. Delhi

Development Authority and Others, 1989 Supp.(1) SCC 116, a

two-Judge Bench of this Court reversed the above-mentioned

judgment of the Delhi High Court.

Second phase of litigation

In 1971, the Departmental Promotion Committee (hereinafter

referred as "DPC"), appended a Note relaxing the rules in favour of

diploma-holders, who while in service acquired degree qualification,

so that they could be considered for promotion to the post of

Assistant Engineer on the following basis :-

1. The period of three years should comprise of at

least two years after graduation plus 3/8 of the

service rendered in DDA or other government

organization or local body as S.O. subject to a

maximum of one year benefit.

2. If a S.O., who has done graduation, completes eight

years' service as S.O. on the date earlier than the

date on which the period of two years after

graduation expires, he should be given promotion

from such earlier date notwithstanding the fact that

he has not completed two years' service after

graduation.

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On 24.2.1989, S.P. Dubey, one of the respondents herein, filed a writ

petition (W.P. No.591 of 1989) before the High Court of Delhi and

challenged the validity of the above-mentioned Note, which was

adopted by the DPC in 1971. It was contended that once a diploma-

holder acquired a degree qualification, the entire experience gained

by him prior to obtaining the degree qualification should be counted

for considering the eligibility to the post of Assistant Engineer in

degree quota.

One Naresh Kumar Gera, on 15.5.1989, filed another writ

petition (W.P. No.1427 of 1989) before the High Court of Delhi

against DDA and challenged the above-mentioned Note adopted by

the DPC in 1971 as arbitrary on the ground that it was not

proportionate to the length of service rendered as Junior Engineer

holding Diploma in Electrical Engineering and accordingly sought

quashing of the rules.

In January 1990, Slum Wing Graduate Engineers' Association

filed a writ petition (W.P. No.250 of 1990) before the High Court of

Delhi and sought direction against DDA to fill up posts of Assistant

Engineers belonging to degree-holders' quota and claimed that

diploma-holders were much in excess of their quota. The petitioners

therein alleged that the intention and the spirit behind the Recruitment

Rules was that there should be parity between the degree-holders

and diploma-holders in the matter of promotion to the post of

Assistant Engineer.

On 5.3.1991, a Division Bench of the High Court of Delhi

granted an interim order in W.P. No.250 of 1990 and directed DDA to

convene a DPC for each of the three years, i.e., January-1988, 1989

and 1990 in order that promotion be made and a parity of 1:1 is

maintained between the promotees. The relevant observations of the

High Court in that regard are as follows:-

"We are informed that after January, 1987 till today

no DPC has been held. DPCs are required to be held at

least once a year. This being so, we direct the DDA to

hold a DPC for each of the succeeding years, namely,

1988, 1989 and 1990 and make regular promotions of

eligible candidates in such a way that as far as possible

parity between the Degree-holders and the Diploma-

holders is attained. The regular promotions so made

shall, however, be subject to any direct recruitment, which

may be made in accordance with the rules against the

quota meant for direct recruits. If as a result of such

direct recruitment, any of the promotees have to be

reverted then the reversion should be done in such a way

that the remaining Assistant Engineers who are

promotees should maintain the parity, namely 50% should

be from Degree-holders and 50% from Diploma-holders.

For the purpose of seniority at least, if not for other

benefits, about which we make no observations, the

promotions or regularization should be made with effect

from the date when the vacancies were available and the

candidates became eligible for promotion. The DPC

should be convened within a period of six weeks from

today."

In the meanwhile, on 20.9.1990, a Memorandum was issued by

DDA which stipulated that a diploma-holder who had subsequently

acquired a Degree in Engineering would be treated as a degree-

holder for the purposes of promotion, irrespective of the date of

acquiring graduate qualification. It also stipulated that the

Recruitment Rules recognize only a 'Degree' or a 'Diploma' for

purposes of promotions and did not stipulate any minimum

experience after acquisition of 'Degree'. It was further stated therein

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that even if an officer had acquired his degree just before the meeting

of DPC, he would be considered as a degree-holder for that and any

subsequent DPCs and the benefit of the past service would not be

available for reckoning seniority.

On 1.5.1991, a DPC was held in which the appellants were

considered on the basis of their seniority. However, on 5.7.1991, by

giving effect to the Memorandum dated 20.9.1990, a fresh DPC was

convened which changed the seniority list in favour of the

respondents as a diploma-holder who had subsequently acquired a

Degree in Engineering would be treated as degree-holder for the

purposes of promotion, irrespective of the date of acquiring graduate

qualification.

The aforementioned Memorandum was challenged by way of

a writ petition (W.P. No. 3336 of 1990 - R.K. Mittal & Another v.

Union of India & Others) before a Single Judge of the Delhi High

Court. By its judgment dated 19.8.1991 which was reported as 45

(1991) DLT 589, the High Court quashed the decision dated

20.9.1990 of DDA and allowed the writ on a limited ground that prior

to issuance of the said circular, principles of natural justice were not

complied with. The relevant observations are as follows :-

" \005, I am of the view that the impugned decision

has been taken, in violation of the principles of natural

justice, as admittedly, no opportunity of being heard was

given to the Degree-holders, as well as, the Diploma-

holders. The result is that in my opinion, the case should

be remanded back to the DDA, for taking the decision

afresh, after inviting objections, or comments, both from

the Degree-holders and Diploma-holders Junior

Engineers. The representatives of both these categories

be also given opportunity of being heard. After this, it is

for the DDA to interpret or clarify the rules."

" \005 The impugned decision dated September 20,

1990, is quashed and set aside. I remand the matter

back to the DDA, with direction to decide the matter

afresh, within a period of six months, after inviting

objections / comments from all concerned and after giving

an opportunity of being heard, to the representatives of

Degree-holder and Diploma Holder Junior Engineers."

The diploma-holders by way of a Letters Patent Appeal (L.P.A. No.

43 of 1991) challenged the decision of the Single Judge dated

19.8.1991. On 5.2.1991, an Establishment Order was issued to

promote diploma-holders on current duty charge basis. The same

was questioned by filing a writ petition (W.P. No. 2382 of 1991 - Slum

Wing Delhi Development Authority Graduate Engineers'

Association (Regd.) & Others v. D.D.A. & Others). By its decision

dated 12.2.1992 reported as 46 (1992) DLT 486 (DB) = 1992 (22)

DRJ 548, the Delhi High Court's Division Bench dismissed the LPA

and allowed the writ petition holding that three years' experience

required for degree-holders' eligibility quota had to be considered

after acquiring the degree. The High Court summarized the issues as

follows :-

"Herein, the main controversy is whether a Diploma

holder Junior Engineer, who obtains degree while in

service becomes eligible for promotion as Assistant

Engineer on rendering three years' service would include

therein the period of service rendered by him prior to the

obtaining of the Degree or he has to render three years'

service after obtaining the Degree to become eligible for

promotion to the post of Assistant Engineer\005

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\005Here the only point for our consideration is whether

three years service as Junior Engineer has to be after

obtaining degree or the earlier service of the Junior

Engineer while holding diploma only can also be

considered"

The Division Bench of the High Court relied upon the

observations of this Court as propounded in N. Suresh Nathan and

Another v. Union of India and Others, 1992 Supp.(1) SCC 584

wherein the Court has observed that 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 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) which provides two categories of Junior

Engineers, i.e., degree-holder Junior Engineers with three years'

service in the grade and the diploma-holder Junior Engineers with six

years' service in the grade and promotional quota of 50% from each

category which matches with Rule 7 wherein a degree is equated

with diploma with three years' professional experience. 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 and this interpretation of Rule 11 is quite

tenable and commends to us being in conformity with the past

practice followed consistently. It has also been so understood by all

concerned till the raising of the present controversy.

On 25.2.1992, one of the respondents herein S.P. Dubey and

others challenged the abovementioned judgment of the Delhi High

Court dated 12.2.1992 before this Court by way of Special Leave

Petition (Civil) Nos. 7737-39 of 1992. The DDA also filed Special

Leave Petitions (Civil) Nos. 7114-16 of 1992 against the aforesaid

judgement. This Court dismissed these petitions vide order dated

20.8.1992 in limine.

Pursuant to the directions contained in the judgment dated

12.2.1992 of the Division Bench of the Delhi High Court, DDA by a

circular dated 30.10.1992 issued tentative seniority list of the

Engineers and indicated their placement as per their eligibility for

promotion as Assistant Engineer upto 15.10.1992. On 19.3.1993, the

final seniority list of graduate Junior Engineers (Civil) indicating their

placement as per eligibility for promotion as Assistant Engineer (Civil)

was circulated. On 22.3.1993, the appellants were promoted as

Assistant Engineers (Civil) on the recommendations of DPC against

the vacancies arising during calendar year spanning from 1.1.1988 to

1992 as per the seniority list prepared by the Department in

accordance with the judgment dated 12.2.1992 of the High Court.

The seniority list so drawn was based on two principles, namely,

1. The date on which the selection panel of Degree-

holders was approved for appointment as Junior

Engineers, and

2. The date of acquisition of degree by a Diploma-

holder Junior Engineer working in the Department,

Provided that the persons in (1) above would

maintain their inter se seniority by the selection panel;

Provided further that if there are more than one

Diploma-holder Junior Engineer acquiring degree as in (2)

above, then they will be assigned inter se seniority

according to the order in which their names figure in 1987

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list.

On 22.3.1993, the Department issued a corrigendum with

regard to the seniority position.

SWD was transferred to MCD on 1.9.1992 and hence the

appellants moved an application before the High Court. The High

Court passed an order on 21.9.1992 that in view of the transfer, the

decision of the High Court dated 12.2.1992 would be implemented by

MCD within three months from 21.9.1992.

One of the respondents herein \026 S.P. Dubey - through writ

petition before the High Court of Delhi (W.P. No. 1664 of 1993),

prayed for quashing the above-mentioned seniority list and sought for

a direction that promotions to the post of Assistant Engineers be

made on the basis of the seniority list issued by the authority in 1984

and 1987. Several other writ petitions were filed before the High

Court of Delhi, which questioned the above-mentioned seniority list.

S.P. Dubey and others through another writ petition before the High

Court of Delhi (W.P. No.1923 of 1993) prayed for quashing the

promotions to the post of Assistant Engineers made by MCD vide

orders dated 22.3.1993.

On 12.3.2001, a Division Bench of the Delhi High Court vide its

order referred Civil Writ Petition Nos. 591 of 1989, 1427 of 1989,

1664 of 1993 and 1923 of 1993 along with some other petitions for

decision by a Bench of three Judges of the High Court in view of the

fact that it felt that the earlier decision of the High Court dated

12.2.1992 in Slum Wing Delhi Development Authority Graduate

Engineers Association (Regd.) & Others v. D.D.A. & Others

(supra), which followed the decision of this Court in N. Suresh

Nathan and Another v. Union of India and Others (supra),

required to be considered as N. Suresh Nathan's Case had not

been subsequently followed by this Court in other cases like M.B.

Joshi and Others v. Satish Kumar Pandey and Others, 1993

Supp. (2) SCC 419; D. Stephen Joseph v. Union of India and

Others, (1997) 4 SCC 753; Anil Kumar Gupta and Others v.

Municipal Corporation of Delhi and Others, (2000) 1 SCC 128;

and A.K. Raghumani Singh and Others v. Gopal Chandra Nath

and Others, (2000) 4 SCC 30 as regards the applicability of eligibility

criteria in the Recruitment Rules for promotion to the post of the

Assistant Engineer.

Accordingly, the matter was placed before the Full Bench of the

Delhi High Court. The present appeals by special leave have been

filed before this Court against the interim and common order dated

25.1.2002 passed by the Full Bench of the Delhi High Court. The Full

Bench of the Delhi High Court after consideration of the relevant

decisions, the rule in question and the facts found from the record

has recorded the findings that (i) it cannot be said that the DDA

followed a consistent practice to the effect that experience for the

purpose of promotion to the post of Assistant Engineer would be

counted only after a candidate acquires a degree; and (ii) the Note

which was issued by DPC in 1971 was in violation of the statutory

rules dated 13.11.1963. It was observed that DPC had no requisite

jurisdiction therefor, the same had not been approved by the DDA

and such Note was ultra vires. Consequently, the appropriate

practice which was followed pursuant to the Note of 1971 till

6.12.1982 was held to be wholly illegal and without jurisdiction and

thus in the eye of law to be non est. The issue of res judicata was

decided in the light of the aforementioned findings. With reference to

the Note issued by the DPC in 1971, it was observed that in a case

where the fundamental right of a person, by reason of a wrong

interpretation of statute would be taken away, which would render a

decision nullity, cannot operate as res judicata. It was further said

that a candidate in terms of Article 16 of the Constitution of India does

not have a right to promotion, but he has the fundamental right to be

considered therefor. Right to be considered in terms of Article 16

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would embrace within its fold consideration in accordance with law

and in a fair, just and equitable manner. If a candidate is deprived of

his right to be considered for promotion on misinterpretation and

misconstruction of a statutory provision, the same in the

aforementioned situation would attract the wrath of Article 16 and on

that ground an earlier decision would not attract the principle of res

judicata. An unreasoned order at the threshold does not constitute a

binding precedent nor would such an order operate as res judicata.

As for the interpretation of the rule regarding the past service of the

diploma-holders, the Court held that the diploma-holders and the

degree-holders were at par. The educational qualification was to be

considered for the purpose of eligibility alone. Once it is held that

both the degree-holders and the diploma-holders had been

performing the same type of functions, there cannot be any doubt

whatsoever that their experience would be counted for the purpose of

their promotion irrespective of their educational qualification. As and

when diploma-holders acquire qualification, only then they become

eligible for consideration in the degree-holders' quota. It was

observed that it was idle to contend that any anomaly existed and the

answer to the question referred to the Full Bench was in the following

terms:

1. Principle of res judicata in the instant case has no

application; and,

2. The experience gained by diploma-holders as Junior

Engineer has to be counted for promotion to the post

of Assistant Engineer, in the event they are duly

qualified as degree-holders;

and the matter was remitted back to the Division Bench for

consideration of the cases in the light of the findings arrived at by

the Full Bench.

In the present case, we are concerned with the rule relating

to promotion from the post of Junior Engineer to the post of

Assistant Engineer.

It is urged by Shri Jawahar Lal Gupta and Dr. Rajeev

Dhavan, the learned senior counsel for the appellants, that under

the promotion rule promotion to the post of Assistant Engineer two

separate channels are provided for diploma-holders and degree-

holders within their respective quota and there would be no

violation of rules if requisite experiences required on the post of

Junior Engineer as diploma-holder and degree-holder are treated

differently and it would be open for the Government to lay down

and treat different period of experience as qualitatively different for

two classes for further promotion to the post of Assistant Engineer.

On the other hand, it is urged by Shri G.D. Gupta, the

learned senior counsel for the respondents, that 50% of the

promotion quota for degree-holders Junior Engineers is provided

under the rules irrespective of the fact whether a person has

joined the post of Junior Engineer as a degree-holder or a

diploma-holder and, therefore, on correct interpretation of the rule

the period of three years' experience required is inclusive of the

period of service on the post prior to the acquisition of the degree

qualification. The plain meaning of the words in the rule suggests

only one interpretation that two qualifications, namely, Degree in

Engineering and three years' service are disjunctive. Therefore, a

Junior Engineer who obtains degree while in service, is required to

satisfy only two requirements to become eligible for promotion to

the post of Assistant Engineer, i.e., a Junior Engineer should have

Degree in Engineering or its equivalent qualification in addition to

three years' service experience as Junior Engineer. The rule

refers to three years' service experience on the post of Junior

Engineer and not the experience as qualified degree-holder Junior

Engineer. It is further urged that even otherwise for appointment

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to the post of Assistant Engineer by direct recruitment, the

qualification required is Degree in Engineering without there being

any requirement of experience, which shows that the degree-

holder with no prior experience is considered competent to

perform the duties attached to the post of Assistant Engineer.

There can be no justification that for promotion to the post of

Assistant Engineer, a Junior Engineer must possess three years'

service experience as Junior Engineer after obtaining Degree in

Engineering. While construing the relevant rule, the Court has to

take into consideration the fact situation in the service and on due

consideration of the facts the experience required for promotion

could only mean the experience on the post of Junior Engineer

and not after obtaining the degree for the purpose of promotion in

the quota of degree-holders.

Large number of authorities are cited by learned counsel

appearing for both sides raising various issues, viz., whether a

diploma-holder after obtaining a degree would be compulsorily

shifted to the group of graduate Engineers giving a go-by to their

claim for promotion to diploma-holders quota or they have a choice

to select and continue with either of them. What should be the

seniority position of the diploma-holders after they have qualified

as graduates, etc. We have refrained ourselves from expressing

any opinion on these points and have confined ourselves to the

specific issue raised before us and answered by the High Court in

the impugned judgment.

In the matter of N. Suresh Nathan and Another v.

Union of India and Others, 1992 Supp. (1) SCC 584, a three-

Judge Bench was called upon to decide a similar question as

involved in the present case, namely, whether the three years'

service experience for promotion for graduate Engineers would

mean three years' service prior to obtaining the degree or three

years' service after obtaining the degree. The relevant Rule 11

provided for recruitment by promotion from the grade of Junior

Engineers. Two categories were provided therein, viz., one of

degree-holder Junior Engineers with three years' service in the

grade and the other of diploma-holder Junior Engineers with six

years' service in the grade, the provision being for 50% from each

category. While interpreting the rule, this Court said that the entire

scheme did indicate that the period of 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 Court observed as follows:

"4. In our opinion, this appeal has to be allowed. There

is sufficient material including the admission of

respondents diploma-holders that the practice followed in

the department for a long time was that in the case of

diploma-holder Junior Engineers who obtained the degree

during service, the period of three years' service in the

grade for eligibility for promotion as degree-holders

commenced from the date of obtaining the degree and

the earlier period of service as diploma-holders was not

counted for this purpose. This earlier practice was clearly

admitted by the respondents diploma-holders in para 5 of

their application made to the Tribunal at page 115 of the

paper book. This also appears to be the view of the

Union Public Service Commission contained in their letter

dated December 6, 1968 extracted at pages 99-100 of the

paper book in the counter-affidavit of respondents 1 to 3.

The real question, therefore, is whether the construction

made of this provision in the rules on which the past

practice extending over a long period is based is

untenable to require upsetting it. If the past practice is

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based on one of the possible constructions which can be

made of the rules then upsetting the same now would not

be appropriate. It is in this perspective that the question

raised has to be determined."

From a reading of the aforesaid judgment, it is apparent that

after construing the relevant rule the Court has found that the past

practice followed in the Department is consistent with the

interpretation provided to the relevant rule by the Court.

The same question once again came before another two-

Judge Bench of this Court in M.B. Joshi and Others v. Satish

Kumar Pandey and Others, 1993 Supp. (2) SCC 419. This time

an interpretation was required with reference to a quota of 10% for

the graduate Sub-Engineers completing eight years of service.

The relevant rule provided for Sub-Engineers to qualify for

promotion to the post of Assistant Engineer and qualifying service

provided was twelve years for diploma-holders and eight years for

such Sub-Engineers who had obtained Degree of Graduation in

the course of service. By an Executive Order, 50% of the quota

was provided for direct recruits and the balance 50% quota by

promotion was sub-divided prescribing 35% for diploma-holders

completing twelve years of service, 5% for Draftsmen and Head

Draftsmen completing twelve years of service and 10% for

graduate Engineers completing eight years of service. The Court

was called upon to consider whether the period of eight years can

only be counted from the date when the diploma-holder Sub-

Engineers acquired the Degree of Engineering and not prior to the

said date. The controversy arose between the parties is

summarized in paragraph 5 of the judgment as under :-

"The short controversy arising in these cases

relates to the determination of seniority amongst the

diploma-holder Sub-Engineers who acquired the degree

of graduation in engineering during the period of service

qualifying them for promotion in 8 years to the post of

Assistant Engineer. \005"

From the aforesaid, it is clear that the Court was considering the

experience/qualifying service of eight years and twelve years

amongst the diploma-holder Sub-Engineers and not vis-`-vis the

degree-holder Sub-Engineers. The reduction of the qualifying

service from twelve years to eight years simply accelerated the

entitlement to promotion for the post of Assistant Engineer by Sub-

Engineers from twelve years to eight years. The qualifying service

which was required to be considered under the rule was that of

diploma-holder Sub-Engineers. The qualifying service has no

relation with the Degree of Engineering and it is said by the

judgment in N. Suresh Nathan's case (supra) that the rule does

not contemplate any equivalence of any period of service with the

qualification of acquiring Degree of Graduation in Engineering.

In paragraph 11 of the judgment, the Court discussed

the ratio and held :-

"A perusal of the above observations made by this

Court clearly show that the respondents diploma-holders

in that case had admitted the practice followed in that

department for a long time and the case was mainly

decided on the basis of past practice followed in that

department for a long time. It was clearly laid down in the

above case that if the past practice is based on one of the

possible constructions which can be made of the rules

then upsetting the same now would not be appropriate. It

was clearly said "it is in this perspective that the question

raised has to be determined". It was also observed as

already quoted above that the Tribunal was not justified in

taking the contrary view and unsettling the settled practice

in the department. That apart the scheme of the rules in

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N. Suresh Nathan case was entirely different from the

scheme of the Rules before us. The rule in that case

prescribed for appointment by promotion of Section

Officers / Junior Engineers provided that 50 per cent

quota shall be from Section Officers possessing a

recognized degree in Civil Engineering or equivalent with

three years' service in the grade failing which Sections

Officers holding Diploma in Civil Engineering with six

years' service in the grade. The aforesaid rule itself

provided in explicit terms that Section Officers possessing

a recognized Degree in Civil Engineering was made

equivalent with three years' service in the grade. Thus, in

the scheme of such rules the period of three years'

service was rightly counted from the date of obtaining

such degree. In the cases in hand before us, the scheme

of the rules is entirely different".

In the above decision (i.e. M.B. Joshi's case), the matter of N.

Suresh Nathan (supra) was distinguished mainly on the basis of

past practice and the Court further held that the rule under

consideration in N. Suresh Nathan (supra) was entirely different

from the scheme of the rule which the Court was considering in

M.B. Joshi (supra). We have carefully considered the case of N.

Suresh Nathan and it is not correct to say that the decision

rendered in that matter was based on past practice. The Court,

in fact, has considered and interpreted the relevant service rules

and then found that such an interpretation is fortified by the

practice followed in that department.

Similar issue once again came before a two-Judge

Bench of this Court in D. Stephen Joseph v. Union of India

and Others, (1997) 4 SCC 753. The exact question was as

follows :-

"\005..whether for promotion to the post of Assistant

Engineer in the 50% promotion quota reserved for the

person possessing degree in Electrical Engineering from

a recognized University or an equivalent with three years'

regular service in the grade of Junior Engineers in the

Electricity Department, Government of Pondicherry, three

years' experience as Junior Engineer in the grade is to be

counted from the date of acquisition of the degree in

Electrical Engineering or the length of service in the grade

of Junior Engineers is to be reckoned if the incumbent at

the time of promotion to the 50% quota also possesses

degree in Electrical Engineering."

The ambit of N. Suresh Nathan's case (supra) is

explained in D. Stephen Joseph (supra), wherein it is said in

paragraph 5 that the State Government is labouring under a

wrong impression as to the applicability of the past practice as

indicated in N. Suresh Nathan's case. This Court, in the said

decision, has only indicated that the past practice should not be

upset if such practice conforms to the rule for promotion and

consistently followed for some time past. The rule has been

interpreted in a particular manner and N. Suresh Nathan's case

only indicates that past practice must be referable to the

applicability of the rule as interpreted by the Court's order in a

particular manner consistently for some time and would lend

support to the interpretation of the rule. The Court emphasized

that any past practice de hors the rule cannot be taken into

consideration as past practice consistently followed for long by

interpreting the rule and N. Suresh Nathan's case was

distinguished in the facts of that case and the language of the

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rule which came up for consideration. D. Stephen Joseph

(supra) provides for promotion to 50% quota from Junior

Engineers possessing Degree in Electrical Engineering from a

recognized university with three years' regular service in the

grade of Junior Engineers. On the plain language of the rule, this

Court has held that the requirement of the rule is three years'

experience as Junior Engineer in the grade and not the

acquisition of Degree in Electrical Engineering. Thus, it cannot

be said that in M.B. Joshi and D. Stephen Joseph (supra) the

Court has taken a different view than what was taken by a

3-Judge Bench in N. Suresh Nathan's case. In N. Suresh

Nathan's case, the Court has interpreted the rule which

provides for a particular length of service in the feeder post as

qualifying service completed with educational qualification to

enable the candidates to be considered for promotion and, thus

the experience so obtained in the service would necessarily

mean the experience obtained after the requisite qualification

was acquired. Thus, the decision turns on the language of the

rule and has distinguished N. Suresh Nathan's case on that

basis.

In Anil Kumar Gupta and Others v. Municipal

Corporation of Delhi and Others, (2000) 1 SCC 128, the

relevant rules which came up for consideration provided for

essential qualification for appointment, viz., (a) Degree in Civil

Engineering ; and (b) two years' professional experience. The

age was not to exceed 30 years (relaxable for government

servants and MCD employees). The applications were received

for appointment to the post of Assistant Engineer (Civil) in the

Engineering Department of MCD. The applications were

received from the departmental candidates as well as others.

The Selection Board of MCD had prescribed the norms for

awarding marks. So far as the experience part was concerned,

break-up was : Upto two years experience - 'no marks'; 3 to 12

years' and above experience at the rate of = mark, i.e., for 10

years - 5 marks; and Viva-voce - 15 marks. The question for

consideration was whether the pre-degree experience of the

candidates can be taken into consideration for awarding the

marks or whether the candidate's experience gained after

obtaining the degree is to be taken into consideration for

awarding the marks. In paragraph 20 of the judgment, the Court

has said that the provision regarding experience speaks only of

professional experience of two years and does not, in any

manner, connect it with the degree qualification. Further, the

Court has considered N. Suresh Nathan's case (supra) and

said in para 22 that N. Suresh Nathan's case was based initially

on the practice followed in the department over a long number of

years when the rules were understood as full service of three

years after obtaining the degree and on that basis it was held

that the service was not to include the service while holding a

diploma. In paragraph 23, the Court cautioned that any practice

which is de hors the rules can be no justification for the

department to rely upon. Such past practice must relate to the

interpretation of the rule in a particular manner and while

interpreting the language of the notification, the Court held that

two years' professional experience need not entirely be the

experience obtained after obtaining the degree. Requirement is

only degree and two years' professional experience and not the

experience as degree-holder. We are afraid that the observation

of the Court that N. Suresh Nathan's case was decided mainly

on the past practice followed in the department, would not be a

correct reading of N. Suresh Nathan's case. This case was

essentially decided on the interpretation of the rule and the court

found support to that interpretation from the past practice

followed in the Department. Thus, it appears from this

judgment that essentially N. Suresh Nathan's case was not

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followed on the interpretation of the rule, which came in question

for consideration before the Court and it was held that the

professional experience required cannot be read to have any

connection with the Degree in Civil Engineering and, therefore,

the professional experience in service irrespective of a Degree in

Civil Engineering would be considered for allotting marks by the

Selection Board.

A two-Judge Bench of this Court gave its considered

opinion on the subject by means of interpretation of the word

`with' that appeared before the stated requirement of given

period of experience in A.K. Raghumani Singh and Others v.

Gopal Chandra Nath and Others., (2000) 4 SCC 30. The Court

considered the rules called "The Manipur PWD/Irrigation and

Food Control/Public Health Engineering (Superintending

Engineer (C)/Superintending Surveyor of Works) Recruitment

Rules" wherein it is provided that the post of Superintending

Engineer shall be filled up by promotion from Executive Engineer

and Surveyor of Works possessing Degree in Civil/Mechanical

Engineering or its equivalent from a recognised institution with

six years' regular service in the grade. The contention was that

six years' regular service in the grade as eligibility criteria should

be after the educational qualification was obtained. The Court

interpreted the rules and said that the rule prescribed the

eligibility criteria to be a prescribed educational qualification and

six years' experience as well. Giving a plain meaning to the

phrase, it would not be justified in reading 'a qualification' into a

conjunctive word and imply the word 'subsequent' after the word

'with'. The Court was of the view that six years' regular service in

the grade would not mean the service subsequent to obtaining

the prescribed educational qualification. Para 9 of the judgment

gives the Court's reasoning as follows :-

"Even on a point of principle it would be

unreasonable to distinguish between the nature of the

regular service required, as if the service in the grade

subsequent to the obtaining of the necessary educational

qualification were qualitatively different from the service in

the grade prior thereto. In fact no such case has been

made out."

The decision rendered by the Court is based on interpretation of

the rule.

In Indian Airlines Ltd. and Others v. S. Gopalakrishnan,

(2001) 2 SCC 362, a Division Bench of this Court had an

occasion to consider the relevant Service Rules in the fact

situation where the Indian Airlines Ltd. had invited applications

for the post of Junior Operator. The respondent, who made an

application for the said post, possessed an ITI certificate since

1994 and a Diploma in Mechanical Engineering. Under the

relevant rule, the qualification prescribed was `SSC or its

equivalent with three years' Government-recognized diploma in

Mechanical/Electrical/Automobile Engineering and having two

years' experience in equipment operations or driving and

possessing current heavy vehicle driving license' or ` SSC with

ITI certificate or equivalent in associated trades of

mechanical/electrical/automobile courses and having five years'

experience in equipment operating or driving and possessing

current heavy vehicle driving license'. The Court said that when

in addition to qualification, experience is prescribed, it would only

mean acquiring experience after obtaining the necessary

qualification and not before obtaining such qualification. In the

case of the respondent, he obtained the ITI certificate in 1994

and, therefore, did not possess five years of experience as

required under the relevant rule. The experience required to be

gained by a candidate of five years was held to be after obtaining

the requisite qualification.

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From a reading of the decisions rendered by this Court,

one thing is clear to us that the decisions in N. Suresh Nathan,

M.B. Joshi, D. Stephen Joseph, Anil Kumar Gupta, A.K.

Raghumani Singh and Indian Airlines Ltd. (supra), are based

on the interpretation of the respective rules called in question,

giving meaning to the words used in the context of the entire

scheme governing service conditions and the facts involved in

each case and it cannot be said that the decisions rendered by

this Court after the decision of N.Suresh Nathan's case, have

taken a different view than what has been decided in N.Suresh

Nathan's case. Thus, we are required to decide the matter on

the basis of the entire scheme of the rules, the facts and

circumstances at the relevant time and the rules called in

question before us, independently giving meaning to the words,

the principle involved and the past practice, if any, which is in

consonance with the interpretation given by us to the rule. If we

find that two views are possible after interpreting the rule, then

the rule would be interpreted keeping with the practice followed

in the Department for a long time and thus the practice practically

acquired status of rule in the Department.

The only question involved in these appeals and transferred

cases can be stated thus : Whether a diploma-holder Junior

Engineer, who obtains a degree while in service, becomes 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.

The following table shows the effect and intent of the rules

adopted under Resolution Nos.574 and 105 dated 13.11.1963 and

16.6.1971 respectively. It also shows the manner of initial

recruitment to the cadre of Junior Engineers:

Executive Engineers

(By promotion)

|

-----------------------------------------------------------------------

|

|

Assistant Engineers Assistant Engineers

(Degree) + 8 years' (Diploma) + 10 years'

service service

|

Assistant Engineers

Graduates and Diploma

Holders

|

---------------------------------------------------------------------------

| |

50 per cent by 50 per cent by direct recruitment

promotion

|

--------------------------------------------

| |

25 per cent 25 per cent

Junior Engineers Junior Engineers

(Degree) + 3 (Diploma) + 8

years' service years' service

|

Junior Engineers

(Section Officers)

Direct recruitment

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|

--------------------------------------------------------------------------------

|

|

Graduates in Engg. Diploma hold

ers

(No prior experience (with 2 years'

prescribed) experience)

From a perusal of the rules regarding recruitment to the

post of Junior Engineers and, thereafter, their promotion to the

post of Assistant Engineers and subsequently to the post of

Executive Engineers in the service, it is clear that entry point in

the service to the posts of Junior Engineers is by 100% direct

recruitment. The educational qualification required is Diploma in

Civil Engineering with two years' experience or Graduate in

Engineering as has been introduced since 1968. Appointment by

direct recruitment to the post of Junior Engineer for Diploma-

holders in Civil Engineering, would be coupled with two years'

experience, whereas Graduates in Engineering are not required to

have any experience. For promotion to the post of Assistant

Engineer, the rule prescribes that 50% of the posts will be filled up

by direct recruitment from the candidates having educational

qualification as Graduate in Civil Engineering, whereas the

remaining 50% of the posts are to be filled up by promotion from

the post of Junior Engineers. Under clause (a), 50% of the 50%

promotion quota, i.e. 25% of the total posts, have to be filled up by

promotion from the category of graduate Junior Engineers, i.e., the

persons who held the Degree at the entry point in Engineering with

three years of service, whereas under clause (b) 25% of the total

posts would be filled up by diploma-holders with eight years'

service. The rule prescribes two sources for promotion from the

post of Junior Engineers \026 a graduate with three years' service

experience and a diploma-holder with eight years' service

experience. A separate quota is, thus, prescribed for promotion of

Junior Engineers for degree and diploma-holders to that of higher

post of Assistant Engineer. For further promotion from the post of

Assistant Engineer to the post of Executive Engineer, the

requirement of the rule is \026 for graduates, eight years' service in

the grade; and, for diploma-holders, ten years' service in the

grade. This distinction between the graduate Engineers and

diploma-holders is maintained for promotion to the post of

Executive Engineer, although there is no separate quota

prescribed for graduates or diploma-holders, by prescribing

different experience for promotion on the basis of a person being a

graduate or a diploma-holder.

In Roop Chand Adlakha and Others v. Delhi

Development Authority and Others, 1989 Supp. (1) SCC 116,

application of the rules governing same service conditions as

involved in the present case, was called in question in regard to

promotion of diploma-holder Junior Engineers and graduate Junior

Engineers, from the post of Assistant Engineer to the post of

Executive Engineer. The diploma-holders in the cadre of Junior

Engineers and in the cadre of Assistant Engineers assailed the

constitutional validity of the rules prescribed in the matter of

difference in service experience between the graduates and

diploma-holders for promotion to the higher cadres. They also

challenged the promotion of graduate Engineers to the higher

cadres adopting the relevant CPWD Rules prescribing three years'

and eight years' experience for graduates and diploma-holders

respectively and the discrimination thus brought about between

them. W. P. No. 2082 of 1984 pertained to the constitutional

validity of the analogous provisions in the rules adopted by

Resolution No.105 dated 16.6.1971. The High Court prescribed

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differential service experience based on differences in educational

qualifications, violative of Articles 14 and 16 of the Constitution.

The High Court drew a distinction between the situation where the

diploma-holders were wholly excluded from eligibility for promotion

to the higher cadres and a situation where they were considered

eligible for promotion, however, were subjected to least

advantageous condition for such promotion. The High Court

distinguished the decision of this Court in State of Jammu and

Kashmir v. Triloki Nath Khosa and Others, (1974) 1 SCC 19,

and said that "this was a case where diploma holders were found

completely ineligible for promotion to the higher post for lack of

essential educational qualification but the considerations may vary

if they are found eligible for promotion to the higher post but still

certain conditions are laid as distinct from degree holders before

they become eligible for promotion. The question then would arise

whether such distinction can be justified and is based on any

rationality or not."

The above-mentioned order of the High Court was

challenged in this Court and after considering various authorities

this Court held in para 29 as under :-

"In Triloki Nath case Diploma Holders were not

considered eligible for promotion to the higher post.

Here, in the present case, the possession of a diploma,

by itself and without more, does not confer eligibility.

Diploma, for purposes of promotion, is not considered

equivalent to the degree. This is the point of distinction in

the situations in the two cases. If Diploma Holders \026 of

course on the justification of the job requirements and in

the interest of maintaining a certain quality of technical

expertise in the cadre \026 could validly be excluded from

the eligibility for promotion to the higher cadre, it does not

necessarily follow as an inevitable corollary that the

choice of the recruitment policy is limited to only two

choices, namely, either to consider them "eligible" or "not

eligible". State, consistent with the requirements of the

promotional posts and in the interest of the efficiency of

the service, is not precluded from conferring eligibility on

Diploma Holders conditioning it by other requirements

which may, as here, include certain quantum of service

experience. In the present case, eligibility determination

was made by a cumulative criterion of a certain

educational qualification plus a particular quantum of

service experience. It cannot, in our opinion, be said, as

postulated by the High Court, that the choice of the State

was either to recognize Diploma Holders as "eligible" for

promotion or wholly exclude them as "not eligible". If the

educational qualification by itself was recognized as

conferring eligibility for promotion, then the

superimposition of further conditions such as a particular

period of service, selectively, on the Diploma Holders

alone to their disadvantage might become discriminatory.

This does not prevent the State from formulating a policy

which prescribes as an essential part of the conditions for

the very eligibility that the candidate must have a

particular qualification plus a stipulated quantum of

service experience. It is stated that on the basis of the

"Vaish Committee" report, the authorities considered the

infusion of higher academic and technical quality in the

personnel requirements in the relevant cadres of

Engineering Services necessary. These are essentially

matters of policy. Unless the provision is shown to be

arbitrary, capricious, or to bring about grossly unfair

results, judicial policy should be one of judicial restraint.

The prescriptions may be somewhat cumbersome or

produce some hardship in their application in some

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 18

individual cases ; but they cannot be struck down as

unreasonable, capricious or arbitrary. The High Court in

our opinion, was not justified in striking down the rules as

violative of Articles 14 and 16."

Although the Court considered the case in the perspective of

Articles 14 and 16 of the Constitution of India, it is clear to us that

the classification was upheld between diploma-holder and

graduate Engineers on the basis of the requirements of the

promotional posts and in the interest of the efficiency of the

service. While referring to experience required for promotion, the

Court has specifically said that eligibility determination was made

by a cumulative criterion of a certain educational qualification plus

a particular quantum of service experience. Thus, as per the

Court, the requirement for promotion is the educational

qualification plus a particular quantum of service experience. The

Court further observed that if the educational qualification by itself

is the only criterion conferring eligibility for promotion, then the

superimposition of further conditions such as a particular period of

service, selectively, on the diploma-holders alone, to their

disadvantage, might become discriminatory, but as it is the

eligibility criteria it cannot be held as a discrimination. The Court

has made distinction between the service rendered as diploma-

holder and graduate Engineer and thus has not found any

discrimination in different period of experience provided for

promotion for degree-holder and diploma-holder. Degree and a

diploma with different period of service is held to be a valid

classification whereby a different period of service has been made

eligibility criteria along with educational qualification for promotion

to the higher post.

Taking into consideration the entire scheme of the relevant

rules, it is obvious that the diploma-holders would not be eligible

for promotion to the post of Assistant Engineer in their quota

unless they have eight years' service, whereas the graduate

Engineers would be required to have three years' service

experience apart from their degree. If the effect and intent of the

rules were such to treat the diploma as equivalent to a degree for

the purpose of promotion to the higher post, then induction to the

cadre of Junior Engineers from two different channels would be

required to be considered similar, without subjecting the diploma-

holders to any further requirement of having a further qualification

of two years' service. At the time of induction into the service to

the post of Junior Engineers, Degree in Engineering is a sufficient

qualification without there being any prior experience, whereas

diploma-holders should have two years' experience apart from

their diploma for their induction in the service. As per the service

rules, on the post of Assistant Engineer, 50% of total vacancies

would be filled up by direct recruitment, whereas for the promotion

specific quota is prescribed for a graduate Junior Engineer and a

diploma-holder Junior Engineer. When the quota is prescribed

under the rules, the promotion of graduate Junior Engineers to the

higher post is restricted to 25% quota fixed. So far as the diploma-

holders are concerned, their promotion to the higher post is

confined to 25%. As an eligibility criterion, a degree is further

qualified by three years' service for the Junior Engineers, whereas

eight years' service is required for the diploma-holders. Degree

with three years' service experience and diploma with eight years'

service experience itself indicates qualitative difference in the

service rendered as degree-holder Junior Engineer and diploma-

holder Junior Engineer. Three years' service experience as a

graduate Junior Engineer and eight years' service experience as a

diploma-holder Junior Engineer, which is the eligibility criteria for

promotion, is an indication of different quality of service rendered.

In the given case, can it be said that a diploma-holder who

acquired a degree during the tenure of his service, has gained

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 18

experience as an Engineer just because he has acquired a

Degree in Engineering. That would amount to say that the

experience gained by him in his service as a diploma-holder is

qualitatively the same as that of the experience of a graduate

Engineer. The rule specifically made difference of service

rendered as a graduate Junior Engineer and a diploma-holder

Junior Engineer. Degree-holder Engineer's experience cannot be

substituted with diploma-holder's experience. The distinction

between the experience of degree-holders and diploma-holders is

maintained under the rules in further promotion to the post of

Executive Engineer also, wherein there is no separate quota

assigned to degree-holders or to diploma-holders and the

promotion is to be made from the cadre of Assistant Engineers.

The rules provide for different service experience for degree-

holders and diploma-holders. Degree-holder Assistant Engineers

having eight years of service experience would be eligible for

promotion to the post of Executive Engineer, whereas diploma-

holder Assistant Engineers would be required to have ten years'

service experience on the post of Assistant Engineer to become

eligible for promotion to the higher post. This indicates that the

rule itself makes differentia in the qualifying service of eight years

for degree-holders and 10 years' service experience for diploma-

holders. The rule itself makes qualitative difference in the service

rendered on the same post. It is a clear indication of qualitative

difference of the service on the same post by a graduate Engineer

and a diploma-holder Engineer. It appears to us that different

period of service attached to qualification as an essential criterion

for promotion is based on administrative interest in the service.

Different period of service experience for degree-holder Junior

Engineers and diploma-holder Junior Engineers for promotion to

the higher post is conducive to the post manned by the Engineers.

There can be no manner of doubt that higher technical knowledge

would give better thrust to administrative efficiency and quality

output. To carry out technical specialized job more efficiently,

higher technical knowledge would be the requirement. Higher

educational qualifications develop broader perspective and

therefore service rendered on the same post by more qualifying

person would be qualitatively different.

After having an overall consideration of the relevant

rules, we are of the view that the service experience required for

promotion from the post of Junior Engineer to the post of Assistant

Engineer by a degree-holder in the limited quota of degree-holder

Junior Engineers cannot be equated with the service rendered as

a diploma-holder nor can be substituted for service rendered as a

degree-holder. When the claim is made from a fixed quota, the

condition necessary for becoming eligible for promotion has to be

complied with. The 25% specific quota is fixed for degree-holder

Junior Engineers with the experience of three years. Thus, on a

plain reading, the experience so required would be as a degree-

holder Junior Engineer. 25% quota for promotion under the rule is

assigned to degree-holder Junior Engineers with three years'

experience, whereas for diploma-holder Junior Engineers eight

years' experience is the requirement in their 25% quota.

Educational qualification along with number of years of service

was recognized as conferring eligibility for promotion in the

respective quota fixed for graduates and diploma-holders. 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. Fixation of

different quota for promotion from different channels of degree-

holders and diploma-holders itself indicates that service required

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for promotion is an essential eligibility criterion along with degree

or diploma, which is service rendered as a degree-holder in the

present case. The particular years of service being the cumulative

requirement with certain educational qualification providing for

promotional avenue within the specified quota, cannot be anything

but the service rendered as a degree-holder and not as a diploma-

holder. The service experience as an eligibility criterion cannot be

read to be any other thing because this quota is specifically made

for the degree-holder Junior Engineers.

As a necessary corollary, we are of the view that the

diploma-holder Junior Engineers who have obtained a Degree in

Engineering during the tenure of service, would be required to

complete three years' service on the post after having obtained a

degree to become eligible for promotion to the higher post if they

claim the promotion in the channel of degree-holder Junior

Engineer, there being a quota fixed for graduate Junior Engineers

and diploma-holder Junior Engineers for promotion to the post of

Assistant Engineers.

For the above reasons, the appeals are allowed and the

impugned judgment of the High Court is set aside. The writ

petitions shall now be decided by the Division Bench of the High

Court in accordance with law laid down herein. The writ petitions

which were transferred to, and registered as Transferred Cases in,

this Court, shall also be sent back to the High Court for their

decision in accordance with law.