C. Chakkaravarthy and ors. Vs. Union of India (Uoi) and ors. - Court Judgment

Excerpt:
1. the applicant challenges an order dated 8.3,97 passed by the first respondent in so far promoting respondents 2 to 8 as assistant engineers in the public works department of the government of pondicherry and consequently to direct the first respondent to promote the applicants as assistant engineers.2. the applicants are all working as junior engineers, grade-i (civil) in the public works department of the government of pondicherry. they were all originally diploma holders and during the course of service they have also acquired a degree in engineering. the applicants' seniority, date of entry in the service and the date of acquiring degree is given as follows: the next higher post to the post of junior engineer is the post of assistant engineer in the public works department. the recruitment rules are made under article 309 of the constitution which are known as the government of pondicherry assistant engineer [including deputy director of public works department, class ii (technical)], recruitment rules, 1965. the method of recruitment is by promotion, failing which by transfer on deputation-80% and director recruitment 20%. in the case of promotion, prqmotion is to be made as follows: "1. section officers (since redesignated as junior engineers) possessing a recognised degree in civil engineering or equivalent with three years of service in the grade failing which section officers holding diploma in civil engineering with 6 years service in the grade- 50%. 2. section officers possessing a recognised diploma in civil engineering with 6 years of service in the grade-650%" the applicants who are originally diploma holders have acquired a degree while in service and that contention of the applicants is that once they acquire a degree, they become immediately eligible to be promoted as assistant engineer since the degree holders as well as the diploma holders were holding interchangeable posts and therefore, on acquiring a degree, a person would be entitled to be considered for promotion under the 50% quota reserved for degree holders. the official respondents on the other hand was adopting a practice that the eligibility of 3 years of service in the grade of junior engineer should be counted from the date of acquiring a degree and not from the date of joining service as junior engineer. to put it more clearly, a diploma holder junior engineer after acquiring a degree would have to fulfil a further eligibility criteria of 3 years experience in service after acquiring the degree to be eligible for promotion to the post of assistant engineer. in 1989, d.p.c. was convened to consider the case of junior engineers for promotion to the post of assistant engineer and at that time one of the applicants herein (third applicant) along with others filed oa. 552 of 1989 before this tribunal contending that by virtue of his acquiring the degree in may, 1987, he need not wait for a further period of three years to be eligible for promotion to the post of assistant engineer, he could immediately be considered to be eligible for promotion to the said post. this tribunal by an order dated 9.1.90 allowed the o.a. and directed the first respondent to convene a review d.p.c. some of the respondents in that o.a. filed an s.l.p. before the supreme court and the supreme court reversed the orders of this tribunal and the judgment is reported in air 1992 sc 564, n. suresh nathan v. union of india. the supreme court held that 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 degree-holder. the supreme court further held that it was more so when 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 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 a diploma-holders was not counted for this purpose. this judgment of the supreme court was rendered on 22.11.91.but after the judgment, in g.o.ms. no. 47/local administration and public works department dated 20.12.1991, the rules for the post of junior engineer was superceded and in new rules are made. by these rules, the post of junior engineer was bifurcated into two posts, one being junior engineer grade-i in the pay scale of rs. 1640-2900 and the other being junior engineer grade-ii in the pay scale of rs. 1400-2300.the case of the applicants is that all the applicant are now working as junior engineer grade-i. it is also pointed out that respondents 2 to 5 are working as junior engineers grade-i and respondents 6 to 8 are working as junior engineers grade-ii. the case of the applicants is that the post of junior engineer grade-i is to be filled up only by promotion from the junior engineer grade-ii with 5 years of regular service in the grade and respondents 2 to 5 were promoted as junior engineer grade-i on 22.3.1995, whereas the applicants have been junior engineers grade-i from 19.5.1992 onwards. even in the seniority list, the applicants are all senior to the respondents 2 to 8 and the date of entry of the respondents 2 to 8 as well as their serial number in the seniority list are give below.a dpc for further promotion to the post of assistant engineers was held in the month of october, 1996. at that time the applicants came to understand that they were being considered as juniors to the respondents 2 to 8 on the ground that the seniority should be determined on the basis of the date of acquiring the qualification and not on the basis of the seniority as reflected in the seniority list.so, they made a representations through their association on 4.10.1996 and 18.10.1996. however, the impugned order has been passed promoting the respondents 2 to 8 even though they arejuniors to the applicants.it is stated in the application that though the list of promotees contains 19 names, the applicants are impleading only respondents 2 to 8 since the others are either diploma-holders coming under 50% quota reserved for them or belonging to s/c. the case of the applicants is, that the order of the first respondent is arbitrary, illegal, and violative of articles 14 and 16 of the constitution. according to the applicants, they are far seniors to respondents 2 to 8 and they should have been promoted to the post of assistant engineers as there are two quotas, one for diploma-holders and another for degree-holders. it is pointed out by the applicants that the judgment of the supreme court in n. suresh nathan v. union of india (supra), was not concerned with the issue of seniority but only concerned with the issue of eligibility. it is further pointed out that in a later judgment in mb. joshi v. satish kumar pandey, 1993 supp (2) scc 419=1993(1) slj 84 (sc), the supreme court has held that a diploma holder who acquired the degree while in service is entitled to count his seniority as a degree holder from the date of original appointment and not from the date of acquiring the degree. so it is stated that the 1st respondent's proceedings on the basis that seniority will depend upon the date of acquiring qualification are erroneous. it is also pointed out that after the judgment of the supreme court in suresh nathan's case (supra) there has been a change in the rule position as the post of junior engineer has been bifurcated into two grades and the applicants are in the higher post with higher scale of pay as compared to respondents 2 to 5, and though the rules relating to assistant engineer were not amended consequent on the amendment to the rules relating to the post of junior engineer, the only possible interpretation consequent upon amendment would be that the post of assistant engineer should be filled up only from among the junior engineers grade-i with the requisite length of service. as such it is stated in this application that respondents 6 to 8 are not even eligible to be considered for promotion to the post of assistant engineer since they are holding the lower post of junior engineer grade-ii. so the applicants claim that they are eligible to be promoted as assistant engineers since they have been holding the post of junior engineer grade-i from 1992 onwards and they arc seniors in the seniority list. a clarification given by the upsc to the municipal corporation, delhi has also been referred to, wherein the upsc has stated that the entire service rendered will be counted for promotion.3. the official respondent has filed a reply. it is stated that according to the existing recruitment rules, the method of recruitment for the post of assistant engineer is as follows:"(a) promotion 80%(b) direct recruitment 20% (i) section officer possessing a recognised degree in civil engineering or equivalent with 3 years service in the grade, failing which section officer holding diploma in civil engineering with 6 years service in the grade... 50% (ii) section officer possessing a recognised diploma in civil engineering with 6 years in the grade...50% so it is stated that 80% of the vacancies in the grade of assistant engineer has to be filled up in the ratio of 1:1 i.e. one section officer holding degree in civil engineering after completing three years of service and one section officer holding diploma in civil engineering after completing six years of service. this was a subject matter of o.a. 552 of 1989 which went up to supreme court in civil appeal no. 4542 of 1991 and the judgment of the supreme court is reported in air 1992 sc 564. according to the official respondent, the question cannot be reopened now after the judgment of the supreme court cited supra and the dpc was convened on 29.9.96 keeping in view the direction of the supreme court and promotion to the post of assistant engineers were made as follows: "(1) one list for considering under degree holders quota, wherein the section officers/junior engineers joined the service with degree in civil engineering and the section officers/junior engineers who entered service, with diploma in civil engineering and subsequently acquire degree in civil engineering were included. this list was prepared as per the date of acquiring the degree i.e. the date of joining service for degree holders, who joined their service with degree and the date of acquiring the degree in the case of subsequently acquired degree holders. (2) another list as per the seniority of diploma holders for considering under diploma holders quota (subsequently qualified degree holders will also appear in the list from the date of their joining).taking into consideration the judgment of the supreme court, it is stated that the promotion order is in accordance with the law laid down by the supreme court and it is not arbitrary. it is pointed out that even though there are two grades, i.e. grade-i and grade-ii it should not be considered since separate quota has been fixed for diploma and degree holders, hence both the seniority and the grade in the post of junior engineer could not be considered while preparing select list of promotion under degree quota. however, it is stated that it has been considered for promotion under the diploma quota and selected respondents 2 to 8. it is further pointed out that the clarification issued by the upsc is not applicable to the facts of the case, since the law has been laid down by the supreme court considering the recruitment rules for the post of assistant engineer in the public works department, government of pondicherry.4. the private respondents have filed a separate reply. the service particulars of respondents 2 to 8 are given as we have already extracted. it is stated by the respondents 2 to 8 that they become eligible to consider for promotion for the post of assistant engineer from 11.8.1989, well before the applicants herein. the private respondents has relied on the judgment in n. suresh nathan v. union of india (supra), wherein the supreme court has clearly held that the yardstick for reckoning the length of service is the date of acquiring the degree and as such the same principle should be applied for reckoning the seniority for which separate quota has been fixed in the recruitment rules. it is pointed out that a review petition was filed before the supreme court but the same was also dismissed and the matter had attained finality and now the applicants seek to introduce a distinction between 'eligibility' and 'seniority' and the points raised by the applicant cannot be entertained as the issue has been decided by the supreme court in n. suresh nathan's case (supra). the private respondents states that the applicants now once again seeking to reopen an issue finally settled, in an indirect way and the application is liable to be dismissed, as the point raised is barred by the principle of constructive res judicata. it is also pointed out that the applicants herein have obtained degree qualification only subsequently and applying the principles laid down by the supreme court, any qualification obtained subsequently can confer rights only prospectively and cannot defeat the vested rights of the respondents 2 to 8 retrospectively. it is further pointed out that promotion to the post of assistant engineer were framed under article 309 of the constitution and it is not one to the government to travel beyond the said rules. the rules speak only the feeder post of junior engineer and the rules do not speak of junior engineer grade i or grade ii. it is also pointed out that the post of junior engineer grade i is made to confer certain additional pay scale benefits and absolutely there is no implication or consequence in the matter of promotion to the post of assistant engineer. it is further stated that it is an admitted position that the respondents 2 to 8 became eligible to be considered for promotion to the post of assistant engineer much before the applicants themselves. it would cause manifest injustice, if the applicants who became subsequently eligible are to be ranked senior to the respondents 2 to 8 in the matter of promotion to the post of assistant engineer out of the degree-holders quota. according to the private respondents, it will be unsettling the settled practice in the department followed consistently. it is also pointed out that the applicants have not challenged the recruitment rules and they are bound by the interpretation given by the supreme court in suresh nathan's case (supra) and so far as the judgment stands and in so far as some of the applicants were respondents in the previous case, it is not open to the applicants to raise the issue once again.5. we have heard mr. vijay narayan, learned counsel for the applicants, mr. t. murugesan, learned counsel for the first respondent and mr.mohan parasaran learned counsel for the private respondents.6. mr. vijay narayan, learned counsel for the applicants, after referring to the recruitment rules with regard to the promotion to the post of assistant engineer, took us to the judgment of the supreme court in suresh nathan v. union of india (supra) and contended that the judgment is restricted to eligibility only and not seniority and that plea was not raised in that case. according to the learned counsel, in the absence of special rule for seniority, normal rule is length of service only for the purpose of promotion. the learned counsel also contends that the rules with regard to junior engineer are amended in 1992 and as such there is a change in the rules position after the judgment of the supreme court and it has to be taken into consideration. section officer is now bifurcated as junior engineer grade-i and grade-ii. junior engineer grade-i is became feeder category for assistant engineer and junior engineer grade-ii is became feeder category of junior engineer grade-i, and the learned counsel contends that respondents 6 to 8 are only grade-11 junior engineer on the date of dpc and they are not eligible promoted. the learned counsel further says that respondents 2 to 8 has less than 3 years services. the learned counsel for the applicant relies upon a judgment of the supreme court in m.b. joshi v. satish kumar pandey, (supra) in support of his contention, where it has been held by the supreme court that the length of service alone is to be taken for the purpose of promotion and the judgment is suresh nathan's case (supra) has also been considered in this judgment.7. mr. t. murugesan, learned counsel appearing for the official respondent that the rules are framed under article 309 in 1986 and the learned counsel refers to the judgment cited by the learned counsel for the applicants in m.b. joshi v. satishkumar pandey (supra) and points out paras 10 and 11 in support of the respondents' contention. it is also pointed out by the learned government pleader that for promotion to the post of assistant engineer is concerned the rules are not changed and those rules are considered in suresh nathan's case (supra) by the supreme court. the supreme court has held categorically that when a practice is followed in the department for long time it should not be disturbed and the learned government pleader points out that the period of three years service in the grade is eligible for promotion for degree-holders is commenced only from the date of acquiring the degree and the earlier period of service as diploma-holder was not counted for this purpose. according to the government pleader, the supreme court has laid down the law clearly interpreting the very same rule and it is not open to the applicants to re-agitate the matter in an indirect way.8. mr. mohan parasaran, learned counsel appearing for the private respondents contended that the applicants are trying to re-open the issue which has been concluded by the judgment supreme court in suresh nathan's case (supra) and the applicants should not be allowed to raise the plea and the case of the applicants are barred by the principles of res judicata. the learned counsel also points out that the respondents are part of the select list in 1989 itself and the amendment to the rules came in 1991 for the post of junior engineer and the learned counsel points out that the applicants filed a review before the supreme court subsequent to the amendment of the rules bifurcating the post of junior engineer into grade i and grade-ii and that was also dismissed by the supreme court. the learned counsel drew our attention to para 3 of the review petition filed before the supreme court against the judgment in suresh nathan's case (supra), and points out that the grounds now raised, were raised before the apex court in the review petition and which were rejected by the supreme court. according to the learned counsel, the private respondents 2 to 8 are eligible even in 1990 itself, according to the interpretation given by the supreme court in suresh nathan's case (supra).9. in reply, mr. vijay narayan, learned counsel for the applicants contends that the applicants completed only two years in 1989 and now they are coming under the degree-holders quota have become eligible and seniors. the learned counsel points out that considering the question of two classes of employees and when the dpc met in 1997 and when ail are eligible seniority cannot be given a go by and according to the learned counsel, the seniority is to be counted from the length of service and not from the date of passing the examination and relies upon a judgment of the supreme court in m.b. joshi v. satishkumar pandey (surpa).10. we have considered the arguments of mr. vijay narayan, learned counsel for the applicants, mr. t. murugesan, learned government pleader appearing for the first respondent and mr. mohan parasaran, learned counsel for the private respondents. we have already extracted the concerned rule position above. the method of promotion to the post of assistant engineer and the scope of the recruitment rules for the post of assistant engineer, in the public works department of pondichcrry government has been considered by the supreme court in suresh nathan's case (supra) and the supreme court has clearly held as follows : "the dispute in the present case is whether a diploma-holder junior engineer who obtains a degree while in service becomes eligible for appointment as assistant engineer by promotion on completion of three years' service including therein the period of service prior to obtaining the degree or the three years' service as a degree holder for this purpose is to be reckoned from the date he obtains the degree."*** *** *** *** 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 only question before us is of the construction of the provision and not of the validity thereof and, therefore, we are only required to construe the meaning of the provision. in our opinion, the contention of the appellants degree-holders that the rules must be construed to mean that the three years' service in the grade of a degree-holder for the purpose of rule 11 is three years from the date of obtaining the degree 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 recently by the respondents. the tribunal was, therefore, not justified in taking the contrary view and unsettling the settled practice in the department." of course in m.b. joshi v. satish kumar pandey (supra) the supreme court has held that in the absence of any specific rule, the seniority amongst persons holding similar posts in the same cadre has to be determined on the basis of the length of service and not on any other fortuitous circumstance. however the supreme court at paras 10 and 11 has distinguished suresh nathan case as follows: "this court then considered the recruitment rules applicable in the said case and then held that the entire scheme did 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. it was further held that 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. this court then observed : scc. 587, para 5) "in our opinion, the contention of the appellants degree-holders that the rules must be construed to mean that the three years' service in the grade of a degree-holder for the purpose of rule 11 is three years from the date of obtaining the degree 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 recently by the respondents. the tribunal was, therefore, not justified in taking the contrary view and unsettling the settled practice in the department." 11. a perusal of the above observations made by this court clearly show that the respondents diploma-holders in that case has 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 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 recognised degree in civil engineering or equivalent with three years' service in the grade failing which section 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 recognised 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." the review petition filed by the applicants before the supreme court against the judgment of the supreme court in suresh nathan's case (supra) has been rejected on 13.1.1993. we don't think that the amendment made in the rules with regard to junior engineer posts bifurcating into grade-i and grade-ii will change the law laid down by the supreme court with regard to promotion to assistant engineer. it is true that the supreme court has also considered the question again in d. stephen joseph v. union of india and ors., (1997) 4 scc 753= 1998(1) slj 20 (sc), wherein the supreme court has relied upon m.b. joshi's case (supra) and explained and distinguished suresh nathan's case (supra) and the supreme court distinguished that case and has held as follows : "therefore, in our view, the decision in suresh nathan case, which is an exception to the accepted principle of interpretation of the rule on the plain language, only under special circumstances, has no manner of application in the facts of the case." so, the fact remains that either in m.b. joshi's case (supra) or in d.stephen joseph's case (supra) overruled the decision in suresh nathan's case (supra). so, we are of the view that so far as the law laid down by the supreme court stands with regard to the procedure to be adopted for the promotion of junior engineer in the public works department of pondicherry construing the recruitment rules of 1986, the applicants should not be allowed to raise the points once again in some other forum. it is true that the length of service is normally looked upon as held by the supreme court in other two cases cited supra. but with regard to pondicherry, when the supreme court has taken a specific view, it is not open to us to hold otherwise as it is binding on us so far as the interpretation of the rules to the post of assistant engineer in the public works department of pondicherry. to hold otherwise and to allow the applicants to raise the points in some other forum will be hit by the principles of constructive res judicata, especially some of the applicants herein are parties to the earlier application also. the fact that there were certain amendments made with regard to the bifurcation of the post of junior engineer into grade-i and grade-ii, in our view, will not alter the position and the interpretation given by the supreme court in suresh nathan's case (supra).12. in the result, there are no merits in this application. accordingly the application shall stand dismissed. no costs.

Judgment:
1. The applicant challenges an order dated 8.3,97 passed by the first respondent in so far promoting respondents 2 to 8 as Assistant Engineers in the Public Works Department of the Government of Pondicherry and consequently to direct the first respondent to promote the applicants as Assistant Engineers.

2. The applicants are all working as Junior Engineers, Grade-I (Civil) in the Public Works Department of the Government of Pondicherry. They were all originally Diploma Holders and during the course of service they have also acquired a Degree in Engineering. The applicants' seniority, date of entry in the service and the date of acquiring degree is given as follows: The next higher post to the post of Junior Engineer is the post of Assistant Engineer in the Public Works Department. The Recruitment Rules are made under Article 309 of the Constitution which are known as the Government of Pondicherry Assistant Engineer [including Deputy Director of Public Works Department, Class II (Technical)], Recruitment Rules, 1965. The method of recruitment is by promotion, failing which by transfer on deputation-80% and Director Recruitment 20%. In the case of promotion, prqmotion is to be made as follows: "1. Section Officers (since redesignated as Junior Engineers) possessing a recognised Degree in Civil Engineering or equivalent with three years of service in the grade failing which Section officers holding Diploma in Civil Engineering with 6 years service in the grade- 50%.

2. Section officers possessing a recognised Diploma in Civil Engineering with 6 years of service in the grade-650%" The applicants who are originally diploma holders have acquired a Degree while in service and that contention of the applicants is that once they acquire a Degree, they become immediately eligible to be promoted as Assistant Engineer since the Degree Holders as well as the Diploma Holders were holding interchangeable posts and therefore, on acquiring a Degree, a person would be entitled to be considered for promotion under the 50% quota reserved for Degree Holders. The official respondents on the other hand was adopting a practice that the eligibility of 3 years of service in the grade of Junior Engineer should be counted from the date of acquiring a Degree and not from the date of joining service as Junior Engineer. To put it more clearly, a diploma holder Junior Engineer after acquiring a Degree would have to fulfil a further eligibility criteria of 3 years experience in service after acquiring the Degree to be eligible for promotion to the post of Assistant Engineer. In 1989, D.P.C. was convened to consider the case of Junior Engineers for promotion to the post of Assistant Engineer and at that time one of the Applicants herein (third applicant) along with others filed OA. 552 of 1989 before this Tribunal contending that by virtue of his acquiring the Degree in May, 1987, he need not wait for a further period of three years to be eligible for promotion to the post of Assistant Engineer, he could immediately be considered to be eligible for promotion to the said post. This Tribunal by an order dated 9.1.90 allowed the O.A. and directed the first respondent to convene a review D.P.C. Some of the respondents in that O.A. filed an S.L.P. before the Supreme Court and the Supreme Court reversed the orders of this Tribunal and the judgment is reported in AIR 1992 SC 564, N. Suresh Nathan v. Union of India. The Supreme Court held that 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 Degree-holder. The Supreme Court further held that it was more so when 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 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 a Diploma-holders was not counted for this purpose. This judgment of the Supreme Court was rendered on 22.11.91.

But after the judgment, in G.O.Ms. No. 47/Local Administration and Public Works Department dated 20.12.1991, the Rules for the post of Junior Engineer was superceded and in new rules are made. By these rules, the post of Junior Engineer was bifurcated into two posts, one being Junior Engineer Grade-I in the pay scale of Rs. 1640-2900 and the other being Junior Engineer Grade-II in the pay scale of Rs. 1400-2300.

The case of the applicants is that all the applicant are now working as Junior Engineer Grade-I. It is also pointed out that respondents 2 to 5 are working as Junior Engineers Grade-I and respondents 6 to 8 are working as Junior Engineers Grade-II. The case of the applicants is that the post of Junior Engineer Grade-I is to be filled up only by promotion from the Junior Engineer Grade-II with 5 years of regular service in the grade and respondents 2 to 5 were promoted as Junior Engineer Grade-I on 22.3.1995, whereas the applicants have been Junior Engineers Grade-I from 19.5.1992 onwards. Even in the seniority list, the applicants are all senior to the respondents 2 to 8 and the date of entry of the respondents 2 to 8 as well as their Serial Number in the Seniority List are give below.

A DPC for further promotion to the post of Assistant Engineers was held in the month of October, 1996. At that time the applicants came to understand that they were being considered as Juniors to the respondents 2 to 8 on the ground that the seniority should be determined on the basis of the date of acquiring the qualification and not on the basis of the seniority as reflected in the Seniority List.

So, they made a representations through their Association on 4.10.1996 and 18.10.1996. However, the impugned order has been passed promoting the respondents 2 to 8 even though they arejuniors to the applicants.

It is stated in the application that though the list of promotees contains 19 names, the applicants are impleading only respondents 2 to 8 since the others are either Diploma-holders coming under 50% quota reserved for them or belonging to S/C. The case of the applicants is, that the order of the first respondent is arbitrary, illegal, and violative of Articles 14 and 16 of the Constitution. According to the applicants, they are far seniors to respondents 2 to 8 and they should have been promoted to the post of Assistant Engineers as there are two quotas, one for Diploma-holders and another for Degree-holders. It is pointed out by the applicants that the judgment of the Supreme Court in N. Suresh Nathan v. Union of India (supra), was not concerned with the issue of seniority but only concerned with the issue of eligibility. It is further pointed out that in a later judgment in MB. Joshi v. Satish Kumar Pandey, 1993 Supp (2) SCC 419=1993(1) SLJ 84 (SC), the Supreme Court has held that a Diploma Holder who acquired the Degree while in service is entitled to count his seniority as a Degree Holder from the date of original appointment and not from the date of acquiring the Degree. So it is stated that the 1st respondent's proceedings on the basis that seniority will depend upon the date of acquiring qualification are erroneous. It is also pointed out that after the judgment of the Supreme Court in Suresh Nathan's case (supra) there has been a change in the rule position as the post of Junior Engineer has been bifurcated into two grades and the applicants are in the higher post with higher scale of pay as compared to respondents 2 to 5, and though the rules relating to Assistant Engineer were not amended consequent on the amendment to the rules relating to the post of Junior Engineer, the only possible interpretation consequent upon amendment would be that the post of Assistant Engineer should be filled up only from among the Junior Engineers Grade-I with the requisite length of service. As such it is stated in this application that respondents 6 to 8 are not even eligible to be considered for promotion to the post of Assistant Engineer since they are holding the lower post of Junior Engineer Grade-II. So the applicants claim that they are eligible to be promoted as Assistant Engineers since they have been holding the post of Junior Engineer Grade-I from 1992 onwards and they arc seniors in the Seniority List. A clarification given by the UPSC to the Municipal Corporation, Delhi has also been referred to, wherein the UPSC has stated that the entire service rendered will be counted for promotion.

3. The official respondent has filed a reply. It is stated that according to the existing recruitment rules, the method of recruitment for the post of Assistant Engineer is as follows:"(a) Promotion 80%(b) Direct Recruitment 20% (i) Section officer possessing a recognised Degree in Civil Engineering or equivalent with 3 years service in the grade, failing which Section Officer holding Diploma in Civil Engineering with 6 years service in the Grade... 50% (ii) Section Officer possessing a recognised Diploma in Civil Engineering with 6 years in the grade...50% So it is stated that 80% of the vacancies in the grade of Assistant Engineer has to be filled up in the ratio of 1:1 i.e. one Section Officer holding Degree in Civil Engineering after completing three years of service and one Section Officer holding Diploma in Civil Engineering after completing six years of service. This was a subject matter of O.A. 552 of 1989 which went up to Supreme Court in Civil Appeal No. 4542 of 1991 and the judgment of the Supreme Court is reported in AIR 1992 SC 564. According to the official respondent, the question cannot be reopened now after the judgment of the Supreme Court cited supra and the DPC was convened on 29.9.96 keeping in view the direction of the Supreme Court and promotion to the post of Assistant Engineers were made as follows: "(1) One list for considering under degree holders quota, wherein the Section Officers/Junior Engineers joined the service with Degree in Civil Engineering and the Section Officers/Junior Engineers who entered service, with Diploma in Civil Engineering and subsequently acquire Degree in Civil Engineering were included. This list was prepared as per the date of acquiring the degree i.e. the date of joining service for degree holders, who joined their service with Degree and the date of acquiring the Degree in the case of subsequently acquired Degree Holders.

(2) Another list as per the seniority of Diploma holders for considering under Diploma holders quota (subsequently qualified Degree Holders will also appear in the list from the date of their joining).

Taking into consideration the judgment of the Supreme Court, it is stated that the promotion order is in accordance with the law laid down by the Supreme Court and it is not arbitrary. It is pointed out that even though there are two Grades, i.e. Grade-I and Grade-II it should not be considered since separate quota has been fixed for Diploma and Degree holders, hence both the seniority and the grade in the post of Junior Engineer could not be considered while preparing select list of promotion under Degree quota. However, it is stated that it has been considered for promotion under the Diploma quota and selected respondents 2 to 8. It is further pointed out that the clarification issued by the UPSC is not applicable to the facts of the case, since the law has been laid down by the Supreme Court considering the recruitment rules for the post of Assistant Engineer in the Public Works Department, Government of Pondicherry.

4. The private respondents have filed a separate reply. The service particulars of respondents 2 to 8 are given as we have already extracted. It is stated by the respondents 2 to 8 that they become eligible to consider for promotion for the post of Assistant Engineer from 11.8.1989, well before the applicants herein. The private respondents has relied on the judgment in N. Suresh Nathan v. Union of India (supra), wherein the Supreme Court has clearly held that the yardstick for reckoning the length of service is the date of acquiring the degree and as such the same principle should be applied for reckoning the seniority for which separate quota has been fixed in the recruitment rules. It is pointed out that a review petition was filed before the Supreme Court but the same was also dismissed and the matter had attained finality and now the applicants seek to introduce a distinction between 'eligibility' and 'seniority' and the points raised by the applicant cannot be entertained as the issue has been decided by the Supreme Court in N. Suresh Nathan's case (supra). The private respondents states that the applicants now once again seeking to reopen an issue finally settled, in an indirect way and the application is liable to be dismissed, as the point raised is barred by the principle of constructive res judicata. It is also pointed out that the applicants herein have obtained degree qualification only subsequently and applying the principles laid down by the Supreme Court, any qualification obtained subsequently can confer rights only prospectively and cannot defeat the vested rights of the respondents 2 to 8 retrospectively. It is further pointed out that promotion to the post of Assistant Engineer were framed under Article 309 of the Constitution and it is not one to the Government to travel beyond the said rules. The rules speak only the feeder post of Junior Engineer and the rules do not speak of Junior Engineer Grade I or Grade II. It is also pointed out that the post of Junior Engineer Grade I is made to confer certain additional pay scale benefits and absolutely there is no implication or consequence in the matter of promotion to the post of Assistant Engineer. It is further stated that it is an admitted position that the respondents 2 to 8 became eligible to be considered for promotion to the post of Assistant Engineer much before the applicants themselves. It would cause manifest injustice, if the applicants who became subsequently eligible are to be ranked senior to the respondents 2 to 8 in the matter of promotion to the post of Assistant Engineer out of the Degree-holders quota. According to the private respondents, it will be unsettling the settled practice in the Department followed consistently. It is also pointed out that the applicants have not challenged the recruitment rules and they are bound by the interpretation given by the Supreme Court in Suresh Nathan's case (supra) and so far as the judgment stands and in so far as some of the applicants were respondents in the previous case, it is not open to the applicants to raise the issue once again.

5. We have heard Mr. Vijay Narayan, learned counsel for the applicants, Mr. T. Murugesan, learned counsel for the first respondent and Mr.

Mohan Parasaran learned counsel for the private respondents.

6. Mr. Vijay Narayan, learned counsel for the applicants, after referring to the recruitment rules with regard to the promotion to the post of Assistant Engineer, took us to the judgment of the Supreme Court in Suresh Nathan v. Union of India (supra) and contended that the judgment is restricted to eligibility only and not seniority and that plea was not raised in that case. According to the learned counsel, in the absence of special rule for seniority, normal rule is length of service only for the purpose of promotion. The learned counsel also contends that the rules with regard to Junior Engineer are amended in 1992 and as such there is a change in the rules position after the judgment of the Supreme Court and it has to be taken into consideration. Section Officer is now bifurcated as Junior Engineer Grade-I and Grade-II. Junior Engineer Grade-I is became feeder category for Assistant Engineer and Junior Engineer Grade-II is became feeder category of Junior Engineer Grade-I, and the learned counsel contends that respondents 6 to 8 are only Grade-11 Junior Engineer on the date of DPC and they are not eligible promoted. The learned counsel further says that respondents 2 to 8 has less than 3 years services. The learned counsel for the applicant relies upon a judgment of the Supreme Court in M.B. Joshi v. Satish Kumar Pandey, (supra) in support of his contention, where it has been held by the Supreme Court that the length of service alone is to be taken for the purpose of promotion and the judgment is Suresh Nathan's case (supra) has also been considered in this judgment.

7. Mr. T. Murugesan, learned counsel appearing for the official respondent that the rules are framed under Article 309 in 1986 and the learned counsel refers to the judgment cited by the learned counsel for the applicants in M.B. Joshi v. Satishkumar Pandey (supra) and points out paras 10 and 11 in support of the respondents' contention. It is also pointed out by the learned Government Pleader that for promotion to the post of Assistant Engineer is concerned the rules are not changed and those rules are considered in Suresh Nathan's case (supra) by the Supreme Court. The Supreme Court has held categorically that when a practice is followed in the Department for long time it should not be disturbed and the learned Government Pleader points out that the period of three years service in the Grade is eligible for promotion for Degree-holders is commenced only from the date of acquiring the Degree and the earlier period of service as Diploma-holder was not counted for this purpose. According to the Government Pleader, the Supreme Court has laid down the law clearly interpreting the very same rule and it is not open to the applicants to re-agitate the matter in an indirect way.

8. Mr. Mohan Parasaran, Learned Counsel appearing for the private respondents contended that the applicants are trying to re-open the issue which has been concluded by the judgment Supreme Court in Suresh Nathan's case (supra) and the applicants should not be allowed to raise the plea and the case of the applicants are barred by the principles of res judicata. The learned counsel also points out that the respondents are part of the select list in 1989 itself and the amendment to the rules came in 1991 for the post of Junior Engineer and the learned counsel points out that the applicants filed a review before the Supreme Court subsequent to the amendment of the rules bifurcating the post of Junior Engineer into Grade I and Grade-II and that was also dismissed by the Supreme Court. The learned counsel drew our attention to para 3 of the Review Petition filed before the Supreme Court against the judgment in Suresh Nathan's case (supra), and points out that the grounds now raised, were raised before the Apex Court in the Review Petition and which were rejected by the Supreme Court. According to the learned Counsel, the private respondents 2 to 8 are eligible even in 1990 itself, according to the interpretation given by the Supreme Court in Suresh Nathan's case (supra).

9. In reply, Mr. Vijay Narayan, learned counsel for the applicants contends that the applicants completed only two years in 1989 and now they are coming under the Degree-holders quota have become eligible and seniors. The learned counsel points out that considering the question of two classes of employees and when the DPC met in 1997 and when ail are eligible seniority cannot be given a go by and according to the learned counsel, the seniority is to be counted from the length of service and not from the date of passing the examination and relies upon a judgment of the Supreme Court in M.B. Joshi v. Satishkumar Pandey (surpa).

10. We have considered the arguments of Mr. Vijay Narayan, learned counsel for the applicants, Mr. T. Murugesan, learned Government Pleader appearing for the first respondent and Mr. Mohan Parasaran, learned counsel for the private respondents. We have already extracted the concerned rule position above. The method of promotion to the post of Assistant Engineer and the scope of the recruitment rules for the post of Assistant Engineer, in the Public Works Department of Pondichcrry Government has been considered by the Supreme Court in Suresh Nathan's case (supra) and the Supreme Court has clearly held as follows : "The dispute in the present case is whether a Diploma-holder Junior Engineer who obtains a Degree while in service becomes eligible for appointment as Assistant Engineer by promotion on completion of three years' service including therein the period of service prior to obtaining the Degree or the three years' service as a Degree holder for this purpose is to be reckoned from the date he obtains the Degree."*** *** *** *** 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 only question before us is of the construction of the provision and not of the validity thereof and, therefore, we are only required to construe the meaning of the provision. In our opinion, the contention of the appellants degree-holders that the rules must be construed to mean that the three years' service in the grade of a degree-holder for the purpose of Rule 11 is three years from the date of obtaining the degree 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 recently by the respondents. The Tribunal was, therefore, not justified in taking the contrary view and unsettling the settled practice in the department." Of course in M.B. Joshi v. Satish Kumar Pandey (supra) the Supreme Court has held that in the absence of any specific rule, the seniority amongst persons holding similar posts in the same cadre has to be determined on the basis of the length of service and not on any other fortuitous circumstance. However the Supreme Court at paras 10 and 11 has distinguished Suresh Nathan case as follows: "This Court then considered the Recruitment Rules applicable in the said case and then held that the entire scheme did 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. It was further held that 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. This Court then observed : SCC. 587, para 5) "In our opinion, the contention of the appellants degree-holders that the rules must be construed to mean that the three years' service in the grade of a degree-holder for the purpose of Rule 11 is three years from the date of obtaining the degree 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 recently by the respondents. The Tribunal was, therefore, not justified in taking the contrary view and unsettling the settled practice in the department." 11. A perusal of the above observations made by this Court clearly show that the respondents diploma-holders in that case has 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 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 recognised degree in Civil Engineering or equivalent with three years' service in the grade failing which Section 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 recognised 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." The review petition filed by the applicants before the Supreme Court against the judgment of the Supreme Court in Suresh Nathan's case (supra) has been rejected on 13.1.1993. We don't think that the amendment made in the rules with regard to Junior Engineer posts bifurcating into Grade-I and Grade-II will change the law laid down by the Supreme Court with regard to promotion to Assistant Engineer. It is true that the Supreme Court has also considered the question again in D. Stephen Joseph v. Union of India and Ors., (1997) 4 SCC 753= 1998(1) SLJ 20 (SC), wherein the Supreme Court has relied upon M.B. Joshi's case (supra) and explained and distinguished Suresh Nathan's case (supra) and the Supreme Court distinguished that case and has held as follows : "Therefore, in our view, the decision in Suresh Nathan case, which is an exception to the accepted principle of interpretation of the rule on the plain language, only under special circumstances, has no manner of application in the facts of the case." So, the fact remains that either in M.B. Joshi's case (supra) or in D.Stephen Joseph's case (supra) overruled the decision in Suresh Nathan's case (supra). So, we are of the view that so far as the law laid down by the Supreme Court stands with regard to the procedure to be adopted for the promotion of Junior Engineer in the Public Works Department of Pondicherry construing the recruitment rules of 1986, the applicants should not be allowed to raise the points once again in some other forum. It is true that the length of service is normally looked upon as held by the Supreme Court in other two cases cited supra. But with regard to Pondicherry, when the Supreme Court has taken a specific view, it is not open to us to hold otherwise as it is binding on us so far as the interpretation of the rules to the post of Assistant Engineer in the Public Works Department of Pondicherry. To hold otherwise and to allow the applicants to raise the points in some other forum will be hit by the principles of constructive res judicata, especially some of the applicants herein are parties to the earlier application also. The fact that there were certain amendments made with regard to the bifurcation of the post of Junior Engineer into Grade-I and Grade-II, in our view, will not alter the position and the interpretation given by the Supreme Court in Suresh Nathan's case (supra).

12. In the result, there are no merits in this application. Accordingly the application shall stand dismissed. No costs.