| SooperKanoon Citation | sooperkanoon.com/56023 |
| Court | Central Administrative Tribunal CAT Delhi |
| Decided On | Aug-21-2008 |
| Judge | V Bali, M R Vice, C A Veena |
| Appellant | Sh. Deen Bandhu Gupta S/O Sh. |
| Respondent | Union of India (Uoi) (Through the |
2. Averments in the OA show that applicants had commenced service as Junior Engineers. At the time of their initial engagement, they had been in possession of Diploma in Civil Engineering. In the course of their service, all of them had acquired Degree in Engineering. The fact had been noted in the service records. This additional qualification has worked out to eclipse their chances of promotion. This is the grievance in a nutshell. The service is governed by the Ministry of Urban Affairs and Employment (Department of Urban Development), Central Engineering (Civil) Group 'A' Service Rules, 1996.
3. Schedule-II of the said Rules provides that the post of Executive Engineer (Civil) exclusively is to be filled up by promotion from the feeder positions, named. Of the available posts, 33-1/3 percent is reserved for the category of Assistant Executive Engineers (Civil) who have put in four years of regular service. Another 33-1/3 percent were to be from Assistant Engineers (Civil) having eight years regular service in the grade who possess degree in Civil Engineering. The balance, viz. 33-1/3 percent are to be filled up by Assistant Engineer (Civil) with ten years regular service in the grade and who were having Diploma in Engineering from a recognized University/Institution. A combined seniority list is maintained, and simultaneously an eligibility list, taking notice of the quota earmarked to the three groups also exists. It would be seen that the first group consists of solely direct recruits. The second and third groups are constituted by promotes, as the feeder category. The grievance is that as a fall out of order dated 12.05.2006 it is evident that their possession of a degree, in addition to the already held diploma, made them as ineligibles for promotion as on the date.
3. It is contended that although they had come to acquire Degree in Engineering, so as to ensure an equitable treatment, it is essential that their claims for promotion require to be recognized from the third channel of Diploma holders as they had completed ten years' service.
Such a right could not have been foreclosed to them.
4. It is averred that when a contrary view as against this had earlier been adopted in the CPWD, by order dated 18.10.2000, the Central Administrative Tribunal, Madras Bench, in OA 403 of 1999 had, in categorical terms, held that persons who had opportunity to acquire Degree in Engineering in the course of service could not have been sidelined from the diploma quota. Therefore, the impugned order, to totally debar them, treating them as if they never had possessed diploma, could not have been justifiable. This is in short the case urged.
5. It is brought to our notice that the Madras Bench of the Tribunal had, at that time, interfered with the promotion orders given to the respondents therein, who were juniors to the applicants there. Official respondents were directed to consider the claims of the applicants for promotion to the grade of Executive Engineers, with reference to date of promotion of their immediate juniors. When law, as above had been declared by the Tribunal and, which had attained finality, it is averred in the present OA that again an exercise is seen to have been adopted by O.M. dated 12.05.2006, on the same pattern found and declared as erroneous. It was purely illegal, and even amounted to contumacious conduct on the part of the respondents. A copy of the order of the Madras Bench of the Tribunal had been placed, as Annexure A-3 and the applicants prayed that the impugned order dated 12.05.2006 requires to be set aside to the extent they have been denied promotion.
6. Apparently, the applicants were on a strong footing, as prima facie, the respondents herein were bound by the judgment. It would not have been possible to visualize why the binding nature of the judgment had been practically attempted to be overlooked.
7. When respondents entered appearance they had made available along with the counter reply as Annexure R-3, a judgment passed by the Madras Bench of the Tribunal rendered on 14.09.2006. The impugned order herein dated 12.05.2006 itself had been subjected to challenge in OA 396/2006.
Applicants there were persons who were similarly situated like the earlier applicants in all respects and who stood overlooked, as here.
The Division Bench had, however, dismissed the OA and had upheld the orders, observing that no interference has been called for.
8. Evidently this appeared to be a tricky situation. It is obvious that the yardsticks employed by the Madras Bench in the two original applications were totally dissimilar, as it resulted in contradictory positions being upheld. Counsel for respondents was not in a position to explain why the law as declared in OA 403/1999 (with them in the array of parties), which required to be implicitly obeyed had been shelved when subsequently promotion order dated 12.5.2006 had been issued. It was also rather surprising that presence of the earlier order had not been brought to the attention of the Bench while OA 396/2006 was being adjudicated. Perhaps a reason might be that in matters of reporting judgments as of now, there is no centralized agency who can oversee such details. Most often this results in conflicting judgments. The circumstance shows a serious situation to which attention requires to be focused.
9. The Principal Bench hearing OA 1674/2007 when confronted with the divergent views had considered it appropriate to refer the issue to a Full Bench. With reference to the Rules, and examining the reasoning of the two orders, we may now, therefore, attempt to resolve the impasse.
The parties agreed that as the contentious issue is being attended to by the Full Bench, after a decision there might not be necessity for any residency matters to be sent back to the Division Bench, especially in the interest of expediency.
10. We had briefly adverted to the Rules earlier. Reservation of 33-1/3% of the posts to Assistant Executive Engineers, poses no problem. The balance 66-2/3% is to be equally divided as between the two other feeder categories, viz. degree holders and diploma holders.
The only question which on the facts as boiling down is whether a diploma holder would become disentitled to be selected against the quota available to diploma holders, since he had opportunity to acquire degree in the course of his employment. The stand of respondents was that as they had acquired degree, it was essential that they should have a minimum incumbency of 8 years as warranted by the Rules, and their eligibility could have been reckonable only after their seniors in the list, who held degree, were conferred with promotion. The twin conditions were to be satisfied. In other words, they could not have disowned their degree. Also it was not visualized that a candidate can insist for a situation where his name should appear in two lists simultaneously.
11. We may at this point note the reasonings given in support of the decision in OA 403/1999. The Bench held that the diploma holders are not to be understood as suffering any disqualification by acquiring the degree. It was held that acquisition of higher qualification should not be a disincentive. Reliance is placed on the authority of the Supreme Court (D. Stephen Joseph v. Union of India 1997 SCC (L & S) 990.
According to the Bench, perhaps the Rules require to be properly reworded, if it is capable of being misunderstood or misapplied. But any other view would be totally inequitable.
12. Justice Shanmugam, speaking on behalf of the bench in OA 396/06 took note of the stand of the Respondents that it was not always possible to maintain batch parity between the two disciplines. The Bench noted that as the quota for degree holder Assistant Engineers stood exhausted going by the eligibility list, those who possessed degree were, therefore, obliged to wait for their turn in the quota.
The learned Judge had also adverted to the 1954 Rules, to note the circumstances under which Diploma holder came to be considered for promotion. It was the view of the Bench that the quota prescribed by the Rules strictly required to be followed and, therefore, without assailing the validity of the Rules, there is no scope for the Degree holder Assistant Engineers to say that they must be considered under the Diploma holder quota as well. When the quota is prescribed, the person shall come only within the said quota for the purpose of promotion. Degree holders could reach higher echelons of service, but Diploma holders could not have gone to posts above that of the Executive Engineers, and, therefore, ultimately they were not to be considered as prejudiced.
13. Respondents also had raised two preliminary objections. Firstly that the Rules are not subjected to challenge. The second is that persons, who have been conferred with promotions, have not been brought on to the array of parties and the OA, therefore, is heavily defective.
14. On merits, it is the contention of the Respondents that when the applicants admittedly are graduates, they could be accommodated against graduate quota alone. When the quota had been prescribed, as there were persons available in higher position, as per the eligibility list 8 even going by the plain words of the Rules, a graduate required minimum eight years services. Obviously this service should be reckonable only after acquiring graduation. In service, most often, circumstances may conspire, whereby juniors would be able to obtain promotion to an earmarked quota, while his senior may languish, but that is no circumstance to doubt the situation as discriminatory or absurd. Rules require strict obedience and, therefore, the later decision commanded acceptance.
15. Mr. Bhardwaj on behalf of applicants submits that evidently there has been arbitrariness in a presumption that because of possession of better qualification, a person requires to surrender his opportunity for earning a promotion, and that too in favor of person, who is his junior, and lesser qualified. If such a strange situation resulted because of presence of a statutory Rule, according to him, it should have been read down.
16. In the background of the submissions as made above, we may examine the situation at hand.
17. The Rules, of course, prescribe for quota, and the well-known rule of interpretation is that there is a presumption of constitutionality and fairness attached to them. It is generally accepted that law is but only common sense. We find that the rules are simple and straight forward, and is never incapable of being observed. The heavy weather pointed out by the Respondents, and perhaps observation of the later Madras Decision about the encroachment to quota, really might have arisen out of superficial confusion.
18. As to whether on acquisition of a higher attainments, automatically the person should lose advantage possessed by him because of his earlier qualification, the answer can only be in the negative. Such a person can never be considered as having discarded his diploma. As circumstances may require, it should be possible for him to assert that his status as a diploma holder can never go unnoticed. A normal construction of the Rule would be that from group (2) viz. graduates, persons adjudged as eligibles can walk in to the next cadre, to the 33 1/3% of posts reserved to them. And a graduate who was originally Diploma holder after acquisition of degree has to wait for his turn from the date of his acquisition of additional qualification. But for promotion from group (3) in the 33 1/3% quota, reserved for diploma holders, on the basis of his seniority, his claims all along is alive, as if he is not a graduate.
19. Hypothetically in a case where all the diploma holders had acquired graduation, it is not as if there is impossibility to maintain the ratio. Such persons require to be considered as belonging to Diploma quota for the purpose of the Rule. The converse position may not be true also. For example, if 90% of the Diploma holders in Service had acquired degree, and the balance ten percent were the junior most, it is not as if for satisfying the quota, all the diploma holders are to be promoted, displacing the extra qualified, compelling them to hang to the tail position. Such a construction would be arbitrary. The matter can be examined from yet another angle. If all diploma holders in service may acquire a degree and for that reason be not considered for promotion in the quota reserved under rules for them, the said quota will become extinct, which would be a clear transgression of the rules.
In fact, in the event as mentioned above, the service would fall short by 33-1/3 percent of posts reserved in the quota of diploma holders, thus breaking down the rule and making the service short by officers to the extent of 33-1/3 percent. The accommodation of graduates who possess diploma would satisfy prescription of the quota, without any violation of the language of the Rule. What we are obliged to observe is that the eligibility list should have been prepared with more care and caution, duly taking notice of the directions passed in OA 403/1999.
20. We find, therefore, that accepting the claim of the applicant would never be equal to a position that the quota is broken. Juniors had been preferred for an ad hoc promotion, violating the rules. The applicants would be justified in putting up a demand for being accommodated to the place the juniors occupy. The observations in the decision of the Supreme Court in UOI v. Satya Prakash and Ors. tend to support the applicants while resolving the issue, as it operates as general guidelines.
21. In the course of selections held by the UPSC, under the governing Rules, a specified percentage had to be reserved for OBC candidates.
When the final list was drawn up, the percentage had been met, but it so happened that OBC candidates who got selection on merit basis also were reckoned as persons belonging to the class for purpose of reservation. The Supreme Court in the above-cited case had held that this was not permissible. Presence of candidates who got selection on the basis of merit could not have been utilized for canvassing a position that the quota was satisfied.
22. Therefore, we do not see any requirement for amending or interfering with the Rules. Promotions could be well carried out as laid down by the Rules, and the preliminary objection of the respondents are found as not valid. In the matter of impleading persons who might be adversely affected, the technical objection may not be sustainable. Mr. M.K. Bhardwaj invited our attention to the observations made, as appearing in the decision of Supreme Court in V.P. Shrivastava and Ors. v. The State of M.P. and Ors.
. The very principle of seniority was being challenged there, and the Court was of the view that State was the necessary party, and the State had been impleaded and it was sufficient. Citing the judgment in General Manager, South Central Railway, Secundrabad and Anr. v. A.V.R. Siddhanti and Ors. etc. , the Court had indicated that private respondents could have been impleaded, as they would have been proper parties, but the defect could not have affected maintainability of the petitions.
23. We hold that while deciding OA No. 403/99, the Bench had come to the correct conclusion. The contrary view taken in OA 396/06 cannot be approved. The applicants and persons similarly situated like them, therefore, would be entitled to ad hoc promotion, on the basis of their total length of service and seniority as Diploma holders. Preference given over to the juniors was not logical.
24. We direct that appropriate proceedings are, therefore, to be issued in compliance with the above directions, within three months from today. Office order No. 99/06 (A'1) should be redrawn forthwith to the extent necessary. It should be the effort of the respondents to give the benefit of this order to all similarly situated, as picking and choosing individuals may lead to unnecessary confusions and claims.
25. Before coming with consequential orders, a general notification should be published about the changes to be brought about in the list for the knowledge of all concerned. Individual grievances highlighted should not go unnoticed.
26. The reference is answered as above. O.A. is allowed. We do not think any other orders are called for. Parties will suffer their own costs.