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SUPREME COURT OF INDIA
Kuldip Singh : N.M.Kasliwal
M.B.Joshi.: Ram Sharan Gupta: N.N.Asthana
Versus
Satish Kumar Pandey: State Of M.P.: Harish Kumar Ahuja
Case No. : 4255 of 1992
Date of Decision : 10/15/92
Advocates Appeared: Agarwala L.C. : Agnihotri S.K. : Bachawat U.N. : Banthia B.S. : Chagotra K.K. : Deshpande S.V. : Deshpandey S.V. : Dhamija A.P. : Gambhir S.K. : Gambhir Vivek : Ghatate N.M. : Jain S.K. : Makwana Indra : Mishra R.B. : Prakash G. : Prasad Anand : Raghuvir A. : Raju N.D.B. : Ray S.S. : Sen A.K.
Challenging the aforesaid orders – Retired from service – Circumstances evidence - Applying the aforesaid principle laid down in case tribunal held that applicants having secured the degrees in engineering prior to respondents 3 to 9 will rank higher in the gradation list of Graduate Sub-Engineers - Tribunal as such allowed the petition filed before them and directed the_ State government and Engineer-in-Chief, Public Health Engineering Department to convene a special D.P.C. to consider the applicants for promotion to the post of Assistant Engineers as and if found suitable for promotion, promote them and give them seniority over respondents 3 to 9 within 4 months of the date of receipt of the order – Held, If we accept contention of it would defeat the very scheme and the purpose of giving incentive of adding educational qualification by diploma-holders while continuing in service in case the period of 8 years is counted from the date of obtaining graduate degree in engineering. It may be noted that no such argument was raised even from the side of the respondents before the tribunal. If such interpretation as now sought to be advanced by learned senior counsel is accepted, no relief could have been granted to the respondent – Court would illustrate the above position on admitted facts that had joined as Sub-Engineer but had acquired the degree of engineering - In that situation becomes eligible only in and he could not be considered as eligible in December 1989 when these were considered for promotion as Assistant Engineers - Even otherwise, if this period of 8 years is counted from the date of acquiring degree then this incentive of adding the qualification during the continuation of service and getting the advantage of acceleration in promotion in 8 years would for all practical purposes become nugatory and of no benefit - It is further important to note that in the cases before us, the government itself has been adopting the practice and making promotion as contended by the appellants and we are upholding such practice - In YV. Suresh Nathan case also this court had upheld the practice followed by the government - It is also a well-settled principle of service jurisprudence 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 - Though, in the cases of special leave petitions filed by belonged to the Irrigation Department of the State of Madhya Pradesh and were governed by different set of rules, but the controversy arising in these cases is amply covered with the view taken by us and determined in the manner indicated above – Order accordingly
Judgment
N.M.KASLIWAL, J.
(1) SPECIAL leave granted in all the above cases.
(2) ALL the above appeals are disposed of by a common order, as identical questions of law are involved in these cases. For the purpose of understanding the controversy raised in all these cases, we are stating the facts of appeal arising out of Special Leave Petition No. 2507 of 1992. The appellants and the private respondents were Sub-Engineers in Public Health Engineering Department of government of Madhya Pradesh. They are governed by Madhya Pradesh Public Health Engineering (Gazetted) Service Rules, 1980 (hereinafter referred to as the Rules). Under Schedule IV of the Rules, the next higher post for promotion from the post of Sub-Engineers in Civil or Mechanical is the post of Assistant Engineers. The minimum period for a Sub-Engineer to qualify for promotion to the post of Assistant Engineer is 12 years for diploma- holders and 8 years for such Sub-Engineers who obtain degree of graduation in the course of service. Earlier 60 per cent quota for the posts of Assistant Engineers was fixed by direct recruitment and 40 per cent by promotion from the Sub-Engineers, Draftsman and Head Draftsman. By an executive order dated 7/02/1989, quota of direct recruitment was reduced to 50 per cent and the quota by promotion increased to 50 per cent. This 50 per cent quota by promotion with which we are concerned in the above cases has been sub-divided in the following manner: (i) Diploma holder Sub-Engineers 35 per cent
completing 12 years of service
(ii) Draftsman & Head Draftsman 5 per cent
completing 12 years of service
(iii) Graduate Sub-Engineers completing 10 per cent
8 years of service
(3) IN the above cases we are now concerned with the third category of cases which deal with the promotion of Graduate Sub-Engineers completing 8 years of service.
(4) THE State government had been applying the principle of counting the seniority of Graduate Sub-Engineers from the date of their continuous officiation irrespective of the date on which such diploma-holder Sub- Engineer acquired degree of graduation in engineering. On this basis, the Departmental Promotion Committee took into consideration 30 Graduate Sub-Engineers for promotion to the post of Assistant Engineers. The D.P.C. by order dated December 4, 1989 prepared a panel of 18 Graduate Sub-Engineers found suitable for promotion to the post of Assistant Engineer. The government by order dated 6/12/1989 promoted M.B. Joshi and six others as Assistant Engineer who are appellants in appeal arising out of Special Leave Petition No. 2507 of 1992. The private respondents in this appeal filed application No. 140 of 1990 in Madhya Pradesh Administrative tribunal, Jabalpur challenging the aforesaid orders dated 4/12/1989 and Dec 6/12/1989. The contention of these persons before the tribunal was that the seniority for the purpose of promotion to the post of Assistant Engineers in 10 per cent quota of Graduate Sub-Engineers completing 8 years of service ought to have been considered from the date of attaining the Graduate degree of engineering and not from the date of appointment as Sub-Engineer. The tribunal placing reliance on its earlier decision in T.A. No. 771 of 1988 Sanaulla Sunzani v. State of M.P. held that the seniority of diploma-holder SubEngineers acquiring the degrees of graduation in engineering for inclusion in the gradation list of Sub-Engineers should be counted from the dates of acquisition of graduation in engineering or of any other equivalent degree and not from the dates of their initial entries as Sub-Engineers. Applying the aforesaid principle laid down in Sanaulla case, the tribunal held that the applicants (private respondents in the appeal) having secured the degrees in engineering prior to respondents 3 to 9 (the appellants in the appeal) will rank higher in the gradation list of Graduate Sub-Engineers. The tribunal as such allowed the petition f
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